[Federal Register Volume 59, Number 13 (Thursday, January 20, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-199]
[[Page Unknown]]
[Federal Register: January 20, 1994]
_______________________________________________________________________
Part II
Department of the Interior
Bureau of Indian Affairs
Department of Health and Human Services
Indian Health Service
_______________________________________________________________________
25 CFR Part 900
Indian Self-Determination and Education Act Amendments; Proposed Rule
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Indian Health Service
25 CFR Part 900
RINs 0905-AC98; 1076-AC20
Indian Self-Determination and Education Act Amendments
AGENCIES: Departments of the Interior and Health and Human Services.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Secretaries of the Department of Interior (DOI) and the
Department of Health and Human Services (DHHS) propose a joint rule to
implement sections 1 through 9 and title I, Indian Self-Determination
Act (``the Act'') and Pubic Law 100-472, the Indian Self-Determination
and Education Assistance Act amendments of 1988. A joint rule will
permit the agencies to award contracts and grants to Indian tribes
without the unnecessary burden or confusion associated with having two
sets of rules for single program legislation. The joint rule will also
permit the Departments to implement the amendments to the Act and
eliminate deficiencies or problem areas which inhibited contracting
under the original Act.
DATES: Comments must be submitted on or before May 20, 1994.
In addition, within the 120 day comment period, the Departments
will hold a national meeting and may hold meetings at selected
locations throughout the country to receive comments on this proposal
from Indian and Alaska Native people and others who may be interested.
We will inform Indian tribal groups and organizations of, and advertise
locally, the dates and places of these meetings.
ADDRESSES: Written comments to these proposed rules may be sent to
Betty J. Penn, Indian Self-Determination Amendments Regulations
Comments, Chief, Regulations Branch, Office of Planning, Evaluation and
Legislation, Indian Health Service, 12300 Twinbrook Parkway, suite 450,
Rockville, Maryland 20852. Comments will be made available for public
inspection at this address from 8:30 a.m. to 5 p.m., Monday through
Friday beginning approximately 2 weeks after publication. Comments will
also be available for public inspection at the DOI, room 4627, Main
Interior Building, 1849 C Street, NW., Washington, DC. 20240. These
comments will be available at the same time as in Rockville.
FOR FURTHER INFORMATION CONTACT: James Thomas, Division of Self-
Determination Services, Bureau of Indian Affairs, Department of the
Interior, 1849 C Street, NW., Washington, DC. 20240, Telephone 202/208-
5727 or Mitchell L. Parks, Division of Self-Determination Services,
Office of Tribal Activities, Indian Health Service, 5600 Fishers Lane,
Parklawn Building, room 6A-19, Rockville, Maryland 20857, Telephone
301/443-6840/1104/1044.
SUPPLEMENTARY INFORMATION: The 1975 Indian Self-Determination and
Education Assistance Act gave tribes the authority to contract with the
Federal Government to operate programs serving their tribal members.
The Act was further amended by the Indian Self-Determination and
Education Assistance Act Amendments of 1988, Public Law 100-472;
Technical Assistance Act and other Acts, Public Law 98-250; Indian
Reorganization Act Amendments of 1988, Public Law 100-581; Interior
Appropriations Act for Fiscal Year 1988, Public Law 100-446;
Miscellaneous Indian Law Amendments, Public Law 101-301; and Indian
Self-Determination and Education Assistance Act Amendments of 1990,
Public Law 101-644.
These Amendments were intended to increase tribal participation
through contracting in the management of Federal Indian programs and to
help ensure long-term financial stability for tribally-run programs.
The 1988 Amendments also require the Secretaries of DHHS and the
DOI to consider and formulate appropriate regulations with the
participation of Indian tribes. The accompanying Senate report called
for the two Departments to issue joint regulations.
Public Participation in Pre-Rulemaking Activity
These proposed regulations were prepared during the past
Administration. A major area of concern for the current Administration
relates to the adequacy of outreach to, and participation in the
drafting process by, tribes and tribal organizations during the post-
August 1990 period. The DOI's concern is heightened by the fact that
the September 1990 draft (which did reflect tribal input) was
significantly modified during the more than two-year period in which
the two Departments worked on the draft without tribal participation.
It is our goal to develop regulations that fully meet statutory
requirements and congressional intent, enable the Federal Government to
fulfill its responsibilities, and address the needs of all tribes, both
those who elect to contract and those who elect not to contract.
The Amendments to the Indian Self-Determination Act (ISDA) were
signed by President Reagan on November 1, 1988. Section 107 of the ISDA
authorizes the Secretary of the Interior and the Secretary of Health
and Human Services to consider and formulate appropriate regulations to
implement the 1988 ISDA Amendments, with the participation of Indian
tribes. During the month of November 1988, the Bureau of Indian Affairs
(BIA) and The Indian Health Service (IHS) held meetings in Arlington,
Anchorage, Albuquerque, Aberdeen, Seattle, Sacramento, and Tulsa, to
discuss the 1988 ISDA Amendments with tribal representatives.
Nationally, over 1200 people attended these joint BIA/IHS sessions.
The BIA and the IHS subsequently held a joint Regulations Drafting
Workshop with approximately 300 tribal representatives in Nashville,
Tennessee, February 28 to March 3, 1989 (RDW I); a follow-up workshop
was held in Albuquerque, New Mexico, on March 21-24, 1989 (RDW II). A
working document was produced on April 3, 1989 as a result of the two
workshops.
On October 2, 1989, a joint BIA/IHS letter was issued to indicate
the decision of the two agencies to develop joint regulations. On
December 21, 1989, BIA and IHS jointly released a preliminary set of
draft regulations for tribal comments. In January and February, 1990,
13 regional consultation meetings were held with tribal representatives
to discuss the joint draft regulations and to collect tribal comments.
On March 13, 1990, the BIA and IHS accepted recommendations from
tribes to recognize and permit designated tribal representatives to
participate in joint sessions to revise the December 1989 joint draft
regulations. These sessions between DOI, DHHS, and tribal
representatives--jointly designated as the Coordination Work Group
(CWG)--began on March 9, 1990 and continued to be held periodically
until the end of August 1990. In September 1990, a new set of draft
regulations was issued by DOI/DHHS, reflecting the views of the CWG.
Throughout the following year, each Department conducted
preliminary reviews and clearance of the draft regulations. The
Secretary of HHS, Louis Sullivan, reviewed and endorsed the positions
reflected in the draft regulation on the major issues. On December 12,
1990, the DOI Secretary, Manuel Lujan, issued a memorandum setting
forth his policy on implementation of the ISDA, and formally setting
forth the DOI review and clearance process for the draft regulations,
including review by the Departmental Review Team (DRT), composed of
representatives of all DOI agencies, and resolution of unresolved
issues by the Departmental Policy Group (DPG), composed of all DOI
Assistant Secretaries and the Solicitor.
Revisions were made by each Department reflecting the result of
this preliminary clearance. Each Department issued its own revised
draft regulation in November 1991. Each Department subsequently
appointed a Negotiation Team to meet and negotiate joint final
regulations. The first joint meeting of the DOI and DHHS negotiation
teams was held on June 12, 1992. Weekly meetings continued throughout
the Summer of 1992, and the final joint DOI/DHHS draft regulations were
essentially completed by October 1992.
The DHHS and the DOI have worked together to draft a joint
regulatory approach that would meet the needs of both Departments.
Throughout the process, the DHHS and the DOI have sought to retain as
much of the advice and perspectives provided by the tribes as possible.
However, there are differences with some tribal positions and new
issues may arise once tribes review the text of the NPRM.
We believe, that the public comment period will provide an adequate
opportunity for tribes and tribal organizations to provide comments on
the current draft. The anticipated national and regional meetings, in
particular, are designed to solicit additional tribal input. We look
forward to receiving, and commit to give full consideration to, all
comments received during the public comment period. We will send copies
of this notice of proposed rulemaking (NPRM) to each federally
recognized tribe and invite each tribe to participate at these
meetings. We especially invite comments from tribes and tribal
organizations, regarding how these proposed rules will impact on their
ability to contract for programs serving their members.
The following is a summary of the major issues in each Subpart of
the proposed rule.
Subpart A--General
Subpart A of the proposed regulation contains a variety of general
provisions including definitions, statements of policy, and provisions
governing what may be contracted under the Act, the division of
programs for purposes of contracting, the amount of funding for
contracts, Indian preference in training and employment, personnel, the
availability of information, record retention and access to records,
and monitoring by the Secretary.
The proposed regulation identifies three types of relationships
between the Federal Government and Indian tribes and tribal
organizations under the Act. The first type of relationship concerns
the transfer of service delivery programs to tribes and tribal
organizations. The Act authorizes a special type of contract with
Indian tribes and tribal organizations for the operation of service
programs. These ``contracts'' are not procurement contracts pursuant to
which the Government retains control over the work performed by the
contractor. Rather, it is a fundamental premise of these proposed
regulations that when a program is assumed by contracting under the
Act, the Secretary divests himself/herself of the resources to conduct
that program and turns over all direction and control of the day-to-day
operation of the program to the contracting tribe. (See the statement
of Secretarial policy at Sec. 900.103(b)(4) of these proposed
regulations).
This relationship ordinarily will be effectuated through a non-
procurement contract, but grants or cooperative agreements in lieu of
such contracts may also be used. This type of relationship is governed
by the same rules in this proposed regulation, whether or not a non-
procurement contract, or a grant or cooperative agreement in lieu of a
non-procurement contract, is used. Thus, the definition of ``contract''
in Sec. 900.102 is written broadly to include either non-procurement
contracts or grants or cooperative agreements in lieu of non-
procurement contracts.
Contracting under the Act for construction involves a different
type of relationship between the Federal Government and the contracting
tribe or tribal organization. This second type of relationship is a
procurement relationship governed by separate rules set out in subpart
J. Because construction contracts involve a procurement relationship,
which is a different type of relationship from that involving the
transfer of service delivery programs, construction contracts are
excluded from the definition of ``contract'' in Sec. 900.102.
Section 103 of the Act also authorizes discretionary grants for
certain special purposes such as planning, training, evaluation and
other activities designed to improve the capacity of a tribal
organization to enter into a contract for the operation of service
programs. These discretionary grants and cooperative agreements are a
third type of relationship between the Federal Government and Indian
tribes and tribal organizations authorized by the Act. Separate rules
governing discretionary grants and cooperative agreements are set out
in subpart L.
The term ``program'' is defined to mean ``the operation of services
for tribal members and other eligible beneficiaries.'' It is necessary
to define ``program'' because section 102 of the Act directs the
Secretary to contract ``to plan, conduct, and administer programs or
portions thereof.'' The Act does not define the term ``program.''
However, the legislative history to the 1988 Amendments, Public Law
100-472, indicates that what Congress intended by the term ``program''
was the operation of services. The statute is unique in that it
requires the transfer of resources and control over the operation of
services in Indian communities to contracting tribes. The transfer is
to assist ``another governmental entity'' in operating the services
formerly provided by the Secretary.
Section 900.106 contains the provisions governing what is
contractible under the Act and these regulations. The 1988 Amendments
broadened the scope of the Act's coverage to include: Programs
administered by either Secretary for the benefit of Indians for which
appropriations are made to other agencies; and programs for the benefit
of Indians because of their status as Indians without regard to the
agency or office of DHHS or DOI within which the programs are
performed.
Section 900.106(a)(1)(v) contains a test for determining what
programs are for the benefit of Indians because of their status as
Indians under section 102(a)(1)(E) of the Act. The terms ``primary or
significant beneficiaries'' and ``primary or significant recipients,''
used in Sec. 900.106(a)(1)(v)(A) refer to those persons, Indian tribes,
Indian resources, entities, or public values (such as wetlands or
endangered species) whose benefit or enhancement was the principal or a
leading motivation for the establishment of the program or portion
thereof. In order to determine what programs or portions of programs
fall within the scope of the Act, the DOI must necessarily engage in a
case-by-case analysis, and look at the purpose, character, and
administration of a program or portion thereof, in what is a ``totality
of the circumstances'' approach. The underlying and predominant inquiry
is one of ascertaining congressional intent through analysis of the
entire statute and its legislative history, although express
congressional invocation of its constitutional authority over Indian
affairs is evidence that Congress intended the program or portion
thereof to be for the benefit of Indians because of their status as
Indians.
Section 900.106(c) of the proposed regulation emphasizes that
service delivery programs subject to contracting are generally
performed at the reservation level, but may be performed at higher
organizational levels within DHHS and DOI. Section 900.106(c) also
incorporates the authorization in section 105(g) of the Act allowing
tribes operating service delivery programs to perform functions which
would otherwise be carried out by Federal employees, such as
determining the eligibility of applicants for services and the amount
and extent of assistance, benefits, or services, all in accordance with
applicable rules and regulations of the appropriate Secretary.
Section 106 clarifies what activities and functions of the two
Departments are contractible. Generally functions related to the
delivery of services to tribal members are contractible while
activities of an executive nature that fulfill the Secretary's
obligations as manager of the Federal agency or as an Officer of the
United States are not contractible.
Section 900.106(d) contains an illustrative list of activities or
functions which are noncontractible Secretarial or Federal functions
under most circumstances. They typically involve determining the policy
of the United States or the Federal Executive's interpretation of
Federal law or the exercise of judgment or discretion vested by law in
Officers of the United States. Such functions are generally outside the
scope of contractibility under section 102(a)(1) of the Act, and
involve ``the exercise of significant authority pursuant to the laws of
the United States,'' which constitutionally may be exercised only by
Officers of the United States appointed pursuant to the Appointments
Clause, Art. II, sec. 2, cl. 2. Buckley v. Valeo, 424 U.S. 1, 126
(1975). Section 900.106(e) sets forth criteria for determining whether
particular functions are noncontractible.
Buckley dealt specifically with ``functions necessary to ensure
compliance with Federal statutes and rules''--the conduct of litigation
to vindicate public rights under Federal statutes, administrative
determinations and hearings, and related informal procedures, 424 U.S.
at 137-140. These were held to be exclusively vested in Officers of the
United States because it is the President to whom ``the Constitution
entrusts the responsibility to `take care that the laws be faithfully
executed.' Art. II, sec. 3'' 424 U.S. at 138. There was no restriction,
however, on delegation of responsibility for investigation and
information gathering related to such enforcement.
Buckley also addressed other administrative powers--such as
rulemaking and the issuance of advisory opinions--and found them not to
be ``sufficiently removed from the administration and enforcement of
public law to allow it to be performed'' by persons not ``Officers of
the United States,'' 424 U.S. at 140-41. In Bowsher v. Synar, 478 U.S.
714, 733 (1986), the executive power was defined, for Appointments
Clause purposes, to include the interpretation and effectuation of all
public law.
In a number of cases after Buckley, the Supreme Court has closely
scrutinized legislation vesting such powers elsewhere than the
Executive Branch, upholding delegations only when satisfied that the
President retains ``sufficient control * * * to ensure that the
President is able to perform his constitutionally assigned duties.''
Morrison v. Olson, 108 S. Ct. 2597, 2602 (1988) (judicial appointment
of independent prosecutor upheld). Sufficient control most often has
been determined in terms of the President's power to remove.
Compare Morrison 108 S. Ct. at 2619, and Mistretta v. U.S., 107 S.
Ct. 647, 666 (1989) (upholding establishment of sentencing commission
in the Judicial Branch largely because members were removable by
President) with Bowsher v. Synar, 478 U.S. at 726 (disallowing
delegation to Comptroller General of authority to specify budget
reductions under Gramm-Rudman-Hollings Act, when officer subject to
Congressional removal).
In setting forth the list in Sec. 900.106(d), it is the intent of
the Secretaries that these not serve as a barrier to contracting
service delivery programs for tribal members.
One item on the list, nondelegable Secretarial duties relating to
trust resources, warrants further discussion. Section 111(2) of the Act
provides that it is not to be construed as authorizing or requiring
termination of an existing trust responsibility of the United States.
In general the DOI may contract with tribal organizations to
perform technical functions, to research, document and even recommend.
However, as Trustee, the Secretary must retain responsibility for the
exercises of discretion and judgment in the management and protection
of Indian trust resources, and thus final approvals and determinations
must be reserved for decision by Federal employees.
The proposed regulation in Sec. 900.106(f) encourages tribes and
tribal organizations to consult with the Secretary prior to the
submission of proposals when there is uncertainty regarding the
contractibility of a function. The purpose of the consultation is to
reach agreement on what functions are contractible and how tribal
performance of those functions may be coordinated with non-contractible
trust or other responsibilities.
Section 900.106(g) places a restriction on contracting when the
program which a tribe proposes to assume is outside that tribe's
defined geographic service area and the program was not established for
the benefit of that tribe. This provision addresses the situation where
a tribe located in one service area may have members who are served in
another tribe's service area. The tribe located outside the service
area may not contract to serve its members there. For example, a tribe
located in South Dakota may not contract to serve its members in
Arizona who reside within another tribe's service area.
Section 900.106(h) clarifies that an otherwise contractible program
may not be at the time of the proposal, if the proposal involves an
irrevocable commitment of Federal funds to a project whose
environmental consequences have not been adequately analyzed under the
National Environmental Policy Act (NEPA), the Endangered Species Act
(ESA), or similar statutory prerequisite to a Federal commitment to
undertake a project or activity. Likewise a project may not be
contractible if the results of such NEPA analysis or ESA consultation
discloses unacceptable environmental consequences.
Section 900.107 of the proposed regulation is designed to allow the
Secretary to address a difficult set of problems that may arise over
dividing programs serving more than one tribe for purposes of
contracting. These problems are likely to arise when one or more of the
tribes served propose to contract for their share of the program but
other tribes served either do not want to contract or want to contract
separately for their respective shares of the program.
For example, many IHS programs are operated out of a hospital or
health center serving multiple tribes within a defined service area.
The service delivery program at that facility may not be readily
divisible in a way which will retain the comprehensive range of
services which it is the IHS goal to provide. The situation may be even
more complicated when there are large numbers of eligible Indian
beneficiaries served by the program who are not affiliated with any of
the tribes in the service area. In these situations, a decision
concerning the division of the program is likely to involve balancing
the relative tribal claims to serve this unaffiliated population.
Section 900.107 encourages a tribe or tribal organization intending
to submit a contract proposal involving the division of a service
delivery program to consult with all affected tribes as early as
possible, preferably prior to submitting the proposal to the Secretary.
It is the Secretary's policy to encourage all tribes affected by a
proposed program division to confer and resolve among themselves the
division of program resources, including funds, facilities, equipment,
and personnel. The regulation provides that the Secretary shall review
the proposed program division and determine whether to accept or
decline the proposal.
A controversial issue with tribal representatives is whether the
Secretary may consider the effect of the proposed program division on
those tribes and individuals who will not be served by the proposed
contract. Some tribal representatives believe that the declination
criteria do not allow the Secretary to evaluate how the proposal will
affect tribes and individuals who will not be served under the
proposal. We do not interpret the declination criteria so narrowly, and
believe that the Secretary can look at the needs of other tribes in
dividing program resources, as section 106(b) of the Act emphasizes
that the Secretary is not required to reduce funding for programs,
projects or activities serving a tribe to make funds available to
another tribe.
Section 900.108 governs the amount of funding for contracts for the
operation of services programs. In accordance with section 106(a) of
the Act, we have divided funding into two categories. The first
category is termed ``the Secretarial amount'' which consists of the
amount that the Secretary would have provided for the Secretary's
direct operation of the contracted program. This amount is determined
based upon the processes actually utilized by the Secretary to allocate
resources among program activities.
The second category is an amount for ``contract support costs''
determined in accordance with the allocation processes actually
utilized by the Secretary for funds made available from appropriations
for this purpose. Contract support costs may not duplicate items in the
Secretarial amount. These costs are for activities which must be
carried out by the contractor to ensure compliance with the terms of
the contract and prudent management, but which are not provided for
under the Secretarial amount because such costs:
(1) Would not normally be carried on by the Secretary in the direct
operation of the program to be contracted; or
(2) Are provided by the Secretary in support of the contracted
program from resources other than those under contract.
Section 900.108(b) lists examples of contract support costs such as
employee benefits, executive direction and management, financial
management, personnel management, procurement, materials, and records
management, legal services, etc. As the list of examples illustrates,
when a tribe or tribal organization assumes the operation of a service
delivery program, that tribe or tribal organization must perform for
itself many of the support functions formerly provided by the Secretary
from resources other than those of the program activity to be
contracted. While many of these support functions performed for the
Secretary's direct operation of the program are not contractible per se
as part of the program, the Act provides for contract support costs
because the tribe or tribal organization necessarily must perform
similar functions to comply with the terms of the contract and prudent
management.
For example, when a tribe contracts to carry out an IHS contract
health services program under which the Federal Government, in
operating the program directly, contracted with local health care
providers to render services to eligible Indian beneficiaries, the
tribe does not assume the Government's procurement contracting function
in support of that program. Rather than entering into Federal
procurement contracts with local providers, the tribe enters into its
own contracts with local providers to carry out the program. The
Federal contracting function, as such, is not transferred to the tribe.
The Act, however, provides for ``contract support costs'' for
activities which now must be carried on by the contractor but which
were provided in support of the contracted program by the Secretary
``from resources other than those under contract.''
We emphasize, however, that the amount of contract support costs
for a particular contract is determined by application of allocation
processes used by the Secretary to allocate funds made available from
appropriations for this purpose. Any shortfalls in contract support
will be reported to Congress as required by section 106(c) of the Act.
In addition, the statement of Secretarial policy at Sec. 900.103(b)(7)
of this proposed regulation recognizes that as contracting for programs
progresses, Secretarial functions will change in scope and extent, and
savings may be realized as a result. As contracting increases, the
Secretary will identify such savings, which will be used to provide
additional services directly or through contracted programs or both.
Section 900.109 provides that if a tribe or tribal organization
believes that the Secretary has not accurately determined the amount of
the contract or disagrees with the Secretary's decision regarding
contractibility of some or all aspects of the contract proposal, the
tribe or tribal organization may appeal pursuant to Subpart H of this
regulation. Pending resolution of appeals, the tribe or tribal
organization and the Secretary may agree to changes in the proposal and
if so, the Secretary will award a contract reflecting the agreement
including the contract amount and scope of work agreed upon. Pending
resolution of appeals pertaining to annual funding of ongoing contracts
and renewal proposals, the Secretary shall provide funding at the same
level as the previous year, unless the parties mutually agree to a
different level of funding.
Section 900.115 implements section 7(b)(1) of the Act which
requires that, to the greatest extent feasible, ``preferences and
opportunities for training and employment in connection with the
administration of [ISDA] contracts or grants shall be given to
Indians.'' While the proposed regulation provides that supplemental
preference requirements may be imposed by the tribe receiving services,
we are requesting public comment on whether the regulation should
prohibit supplemental requirements which give preference to Indians on
the basis of membership in, or affiliation with, a particular tribe.
The legal determination that section 7(b)(1) of the Act requires
preference to Indians regardless of tribal affiliation was made by the
DOI Solicitor's Office in a 1986 opinion. The DHHS has questioned DOI's
interpretation of this section of the Act. As a result, both agencies
hope to receive comments from the Indian community concerning the
proposed interpretation of the scope of Indian preference under the
Act.
Section 900.124 governs monitoring of contracted programs by the
Secretary. This section limits monitoring by each operating division,
Departmental bureau or Departmental agency to no more than one annual
formal performance monitoring visit per contract, unless the contractor
has agreed to more visits or there is reasonable cause to believe that
grounds for reassumption of the contract or other serious contract
deficiency exists. Section 900.124 by its terms does not apply to
technical assistance visits requested by the contractor or visits
relating to trust functions, approval of trust related transactions,
and Catastrophic Health Emergency Fund transactions. Section 900.124
also does not apply to construction contracts and does not limit
monitoring provided for in Subpart J governing construction contracts.
Finally, Sec. 900.124 does not limit government access under
Sec. 900.121(c) providing for audits by the Comptroller General and the
Secretary, or under Sec. 900.402(b) providing for Secretarial review of
the adequacy of the contractor's financial management system under
certain circumstances.
Subpart B--Preaward and Proposal Process
Subpart B provides the eligibility criteria for Indian tribes when
applying for contracts or grants under Public Law 93-638 as well as an
item by item description of the required information needed as a part
of the contract proposal. Each proposal must be accompanied by a tribal
governing body request (resolution) to contract. This Subpart also
describes the Secretary's responsibilities to provide technical
assistance, access to Federal records and the criteria under which the
Secretary will review and approve or decline contract proposals.
A significant issue in this Subpart addresses the restrictions on
the Secretary's discretion to decline to contract within the
declination criteria and 60-day time limit for Secretarial action on
contract proposals, as now provided in the 1988 amendments to Public
Law 93-638. Specific reasons for declination are provided, followed by
a listing of factors the Secretary will consider when evaluating
proposals against the declination criteria. This listing of factors
includes a review of the proposed statement of work, program and
management assurances, past tribal performance and future abilities and
impacts. Additional guidance for Secretarial proposal evaluation is
provided through the establishment of ``presumptions'' which require
positive conclusions of tribal capabilities by the Secretary in certain
areas, such as previous contracting and tribal governmental experience.
Subpart B lists funding and contractibility determinations
separately from declination decisions. As explained in the discussion
of subpart A with respect to contractibility, and subpart H with
respect to funding appeals, contractibility and funding determinations
are not governed by the declination criteria. They are not declination
decisions and are treated separately from declination in these
regulations. As a practical matter, however, subpart B imposes the same
time frames on the Secretary for making funding and contractibility
determinations and subpart H provides an administrative appeal process
for challenging those determinations.
As a part of pre-application technical assistance, tribes and
tribal organizations are encouraged to request information regarding
the amount of Secretarial funding for the program to be contracted as
well as the availability of contract support costs. The Secretary is
required to respond within 30 days with information regarding available
funding. It is anticipated that this will facilitate the proposal
review process and provide an advance opportunity to resolve disputes
over available funding before the review process begins. Rules for each
Department regarding funding appeals are addressed in subpart H.
Subpart C--Contract Award and Modification
This subpart governs the type of award instrument, type of
contract, contents of the award instrument, renewal and annual funding,
contract modifications and miscellaneous related provisions. The
principal issues identified in the regulations development process were
the provisions to be applied to grants in lieu of contracts, course of
action to be followed if a contractor fails to submit either a renewal
proposal or a notification not to renew and compliance with
congressional reprogramming guidelines.
Consistent with section 9 of the Act, Sec. 900.301(a) provides that
tribes and tribal organizations may request a cooperative agreement or
grant in lieu of a contract for activities authorized under section 102
and certain activities authorized under section 103(b)(1) of the Act.
Many contract provisions, e.g., funding, declination, retrocession and
reassumption, also apply to cooperative agreements and grants in lieu
of contracts, and Sec. 900.301(b) provides that such awards shall be
considered as contracts for purposes of this part.
Section 900.304(a) provides that contract renewals shall be
accomplished through bilateral modifications except when contractors
fail to submit either a renewal proposal or a notification not to
renew. In that case, because the continuation of services is paramount,
the Secretary is given the option to either unilaterally extend the
contract for a period of up to 1 year or assume responsibility for the
program upon expiration of the contract.
Section 900.305 requires most contract revisions to be effected by
bilateral modification. These include the shifting of funds between
contract line items. This is required in part to comply with
reprogramming guidelines of congressional appropriation committees.
Section 900.307(c) provides that contracts to assist the Secretary
of the Interior in the management of trust resources shall authorize
him/her to immediately suspend such contracts, subject to appeal, upon
a determination that continued performance would impair the Secretary's
ability to discharge his/her trust responsibility. Such a provision is
necessary in order to comply with section 105(g) of the Act.
Subpart D--Financial Management
Subpart D establishes tribal contractor standards for the
establishment and maintenance of financial management systems, the
applicability of Office of Management and Budget (OMB) Circulars, the
use and operation of indirect costs and examples of various types of
program income. This Subpart also delineates contractor financial
reporting requirements, responsibilities for audits, contract closeout
procedures and the collection process.
The issue of determining allowable and unallowable costs has been
addressed by requiring the use of those OMB Circulars which have been
developed for specific organizations. As an example, Circular A-87 has
been established for state and local governments and would be
appropriate for use by tribal governments, while A-21 has been
developed for educational institutions and would be more appropriate
for use by certain tribal education contractors. The regulations also
stipulate that when the tribal contractor selects a particular
circular, any changes to that circular would also apply to the
contractor. In an effort to reinforce the responsibility of the
contractor for day-to-day management of the program, most prior
approval requirements have been waived.
The 1988 amendments to Public Law 93-638 provide that tribes will
not be held liable for amounts of indebtedness attributable to
theoretical or actual under-recoveries or theoretical over-recoveries
of indirect costs. In complying with this provision, indirect cost
rates must be established in a manner which shows the various indirect
cost contributors and the respective actual amounts provided of the
total indirect costs for each contractor. This regulation offers the
contractor two options in the selection of an indirect cost rate
method. If a fixed with-carry-forward rate is negotiated by a tribal
contractor, separate rates for each Department will be negotiated. This
is required so that funding agencies identify their share of the
indirect cost funding in relation to other sources of funding.
Underpayments of an appropriate share of indirect costs from an
agency will not affect the rate in subsequent years, unless the
underpayment is due to increased actual costs of the contractor.
Underpayments due to a deficiency of funds will be included in the
Secretary's annual report to Congress as required by section 106(c) of
the Act.
Finally, Sec. 900.411 of the regulation provides that in accordance
with section 105(b) of the Act, the Secretary may withhold from funds
due the contractor amounts that are estimated to be associated with
areas of non-compliance. Technical assistance is required, and funds
that are withheld, are subject to appropriate appeal processes.
Subpart E--Property Management
This subpart implements section 105(f) of the Act and governs the
management of personal and real property, including Federal quarters,
under self-determination contracts. It establishes the requirements for
the provision, use, care, maintenance, and disposition of both
federally-owned and contractor-owned property.
This Subpart was developed with the objectives of: assuring that
contractors have the opportunity to obtain available Federal property
needed to carry out their contracts; simplifying the acquisition of
personal property with contract funds; and simplifying the
recordkeeping and reporting responsibilities of contractors.
This Subpart specifies the actions the Secretary must take to
notify tribes and tribal organizations of the availability of
federally-owned property for use under self-determination contracts,
and provides for the donation of excess and surplus Federal personal
and real property to contractors for use under self-determination
contracts.
To simplify the acquisition of personal property by contractors,
this Subpart provides that contractors will take title to personal
property acquired with contract funds. Since contractors will take
title to the property, the acquisitions will not be subject to many of
the limitations and clearances which would apply if the Federal
Government were to take title. For example, if title were to vest with
the Secretary, the purchase of motor vehicles with IHS contract funds
would not be permitted by statute, and the purchase of Automatic Data
Processing and printing equipment with contract funds would be subject
to prior review and clearance by the cognizant Federal agency.
Many of the provisions covering accountability records, inventory
requirements, and control systems, and disposition procedures for
personal property were patterned after those contained in the
Government-wide Common Rule, ``Uniform Administrative Requirements for
Grants and Cooperative Agreements to State and Local Governments,''
(OMB Circular A-102), rather than the more stringent requirements
contained in Federal procurement contracts.
This Subpart includes the requirements to be met by contractors
for: Obtaining and using motor vehicles; handling, storing,
transporting and disposing of hazardous property; recovering precious
metals; and for protecting and keeping track of controlled substances.
This Subpart includes specific requirements to be met prior to the
purchase of real property with contract funds and, for contracts funded
by IHS, prior to leasing real property with funds provided by IHS. It
also prohibits contractors from using Medicare/Medicaid funds collected
on behalf of the Secretary of Health and Human Services for the lease,
purchase, or renovation of real property without Secretarial approval.
This Subpart specifies that title to real property purchased with
contract funds will vest with the Federal Government.
To assure the continuation of the services provided by contracted
programs, this subpart provides that, in the event of retrocession or
rescission, the cognizant Secretary shall have the option to take title
to property acquired with contract funds.
Subpart F--Procurement Management
This subpart governs subcontracts and purchases made by contractors
under self-determination contracts. It sets out minimum requirements
for contractor procurement systems to ensure that procurements are
conducted in a manner which will encourage competition and that
proposed contractors and suppliers have the ability to perform. This
subpart also defines methods of procurement, e.g., small purchase and
sealed bidding procedures and contains other requirements related to
individual awards. Contractors are authorized to utilize sources of
supply used by the Secretary and to receive Federal Government contract
rates and discounts.
This subpart represents a simplification of uniform Federal
government-wide requirements which apply to tribal, State and local
governments in their administration of discretionary grants received
from the Federal Government. These standards were selected since they
are considered more appropriate for self-determination contractors than
the requirements contained in Federal procurement contracts. Also, they
presently apply to tribal governments and have been promulgated with
the involvement of such governments. For consistency with non-self-
determination awards, Sec. 900.602(b) provides that contractors may
elect to utilize the uniform government-wide requirements which are
contained in agency grant regulations.
Section 900.605 implements section 7(b)(2) of the Act which
requires that, to the greatest extent feasible, ``preference in the
award of subcontracts and subgrants in connection with the
administration of [ISDA] contracts or grants shall be given to Indian
organizations and to Indian-owned economic enterprises as defined in
section 3 of the Indian Financing Act of 1974.'' Although this section
authorizes supplemental preference requirements of the tribe receiving
services, such additional Indian preference requirements may not take
into account the tribal affiliation of the owners of the Indian
organization or enterprise. The legal determination that section
7(b)(2) of the Act requires preferences regardless of tribal
affiliation was made by the DOI Solicitor's Office in a 1992 opinion.
The DHHS has questioned DOI's interpretation of this section of the
Act. As a result, both agencies hope to receive comments from the
Indian community regarding the proposed interpretation of the scope of
section 7(b)(2) of the Act.
Subpart H--Appeals Process
Subpart H contains appeals procedures available to ISDA contractors
and grantees from decisions of Federal officials relating to ISDA
contracts and discretionary grants. This subpart also includes a
section implementing the Equal Access to Justice Act (EAJA) made
applicable to ISDA administrative appeals pursuant to section 110(c) of
the ISDA.
Section 900.802 sets forth which IHS decisions are appealable and
contains the appeals procedures to be followed.
Section 102 of the Act was amended to provide, that in case of
declination of a contract proposal, tribes should have an opportunity
for a due process ``on the record'' hearing conducted in accordance
with the Administrative Procedures Act (APA). The ISDA does not require
hearings on the record for funding issues. The IHS has separated
funding appeals from all other appealable issues. The inquiry in a
funding appeal is limited to whether the agency's funding allocation
for the contract was properly reached using IHS allocation processes.
A contractor may request an informal conference or appeal the
decision to the Contract Funding Appeals Board (FAB). The FAB, which is
composed of five members appointed by the IHS Director conducts a
hearing and sends a recommendation to the Director who then makes the
final decision. This approach allows the IHS Director to keep the
crucial matter of the allocation of IHS funds focused on the uniform
and fair application of current allocation processes designed to take
into account the needs of all tribes. Courts have observed that agency
funding decisions are ``notoriously unsuitable for judicial review, for
they involve the inherently subjective weighing of the large number of
varied priorities which combine to dictate the widest dissemination of
an agency's limited budget.'' Community Action of Laramie County, Inc.
v. Bowen, 866 F. 2d 347, 354 (10th Cir. 1989).
We have taken this approach because we believe that the amount of
funding for a contract should be determined as an allocation matter
separate from declination, must be based on section 106 of the Act and
the funding section of these regulations at Sec. 900.109, and not on
the declination criteria in section 102 of the Act which are directed
at contract performance. If the IHS had the burden to show on appeal
that its funding determinations comply with the declination criteria,
we would not be able to show that services would be unsatisfactory with
more money.
Other appealable decisions are grouped together (e.g., declination
to make or amend an award, reassumption, denial of mature contract
status, existence of required tribal resolutions and contractibility of
the program). Tribes may request an informal conference or appeal the
decision to the HHS Departmental Appeals Board. In addition, where a
program division issue is involved, all affected tribes are given an
opportunity to be heard.
If the Board determines that the appeal falls within its
jurisdiction, it will conduct an ``on the record'' hearing before an
Administrative Law Judge (ALJ) under the APA which affords tribes the
following rights: To be represented by counsel, to have the DHHS
provide witnesses capable of giving testimony on the issues, to cross
examine witnesses, produce oral and documentary evidence, require
testimony under oath, right to take depositions, demand production of
documents and subpoena documents and witnesses.
These regulations propose that any party (including IHS) may file
exception to the recommended decision with the Assistant Secretary for
Health (ASH). The recommended decision of the ALJ becomes final unless
the ASH modifies or reverses the decision.
Declination of construction contracts under Subpart J is confined
to the issue of whether the proposal meets the requirements of the
Request for Proposal (RFP).
Grant appeals under subpart L are subject to the appeals procedures
for disputes of certain post award adverse determinations located in
DHHS grant appeals regulations at 42 CFR part 50D, and 45 CFR part 16.
Section 900.802(j) provides for procedures for hearings in the case
of emergency reassumptions which must be held within 10 days after
notice to the tribe. Once again the recommended decision of the ALJ
goes to the ASH.
Section 900.803 contains appeals procedures applicable to DOI
preaward decisions relating to ISDA contracts and grants. This section
implements section 102(b)(3) and section 108 of the ISDA which entitle
ISDA contractors to a hearing on the record conducted in accordance
with the APA in the case of declination or reassumption of programs.
Section 900.803(e) also avails ISDA contractors of the opportunity for
a hearing on the record with respect to appeals concerning
contractibility or funding issues. Although the two Departments do not
believe that the Act requires hearings on the record with respect to
contractibility or funding issues, the DOI has agreed to provide
hearings on the record in such instances because some tribal
representatives who participated in the regulation-drafting process
disagreed with the departmental position, and strongly recommended that
the two Departments provide hearings on the record in such instances.
Section 900.803(e) also authorizes the Director of the Office of
Hearings and Appeals (OHA) to appoint an Ad Hoc Board to hear appeals
from decisions of officials of DOI agencies other than the BIA. The
proposed regulation gives the Interior Board of Indian Appeals (IBIA)
jurisdiction over appeals from BIA decisions.
Section 900.804 of these regulations implements section 110(c) of
the ISDA which provides that the Equal Access to Justice Act (EAJA) is
applicable to administrative appeals filed by ISDA contractors. The
EAJA provides for the award of attorneys' fees and expenses to
prevailing parties where the position of the Government is not
substantially justified. The draft regulation requires ISDA contractors
to follow the two Departments' respective EAJA regulations for the
submission of their claims.
Section 900.805 implements section 110(d) of the ISDA which
provides that the Contract Disputes Act (CDA) applies to self-
determination contracts. The Interior Board of Contract Appeals (IBCA)
has jurisdiction over appeals from contracting officers' ISDA claims
decisions of either Department.
Section 900.806 governs post-award grant disputes for grants
awarded under Subpart L.
Subpart I--Liability Insurance and Federal Tort Claims Act Coverage
Coverage under the Federal Tort Claims Act (FTCA) has been extended
to Indian tribes, tribal organizations and certain Indian organizations
carrying out contract, grants or cooperative agreements under the Act.
This Subpart basically contains a restatement of the statutory
provisions and spells out the circumstances under which the FTCA may
apply and the procedures to be followed to file and report FTCA claims.
This subpart also describes the conditions under which the
Secretary will provide or pay for required insurance that is beyond the
coverage of the FTCA.
In reviewing this subpart several concepts should be kept in mind.
This is a very technical area of the law in that the courts generally
construe the waiver of the Federal Government's sovereign immunity
inherent in the FTCA narrowly. This subpart is not intended to be a
definitive discussion of FTCA coverage but rather a brief outline of
the recent statutory extension of FTCA coverage and the basic
procedures needed to be followed to protect the legal rights of all
parties. This subpart does not deal with all situations where insurance
is required, e.g., workmen's compensation or fire and casualty.
Finally, the statutes established different dates for various coverages
under the FTCA.
This subpart begins with a section on the Secretary's
responsibility for ``obtaining or providing'' liability insurance
beyond FTCA coverage. Indian owned economic enterprises are to be given
preference in the purchase of such insurance. Such insurance coverage
must exclude claims covered by the FTCA. If national policies cannot be
obtained, the cost of individual policies shall be an allowable cost to
the individual contracts.
Section 900.902 deals with medical malpractice claims under the
FTCA. Contractor employees performing medical functions within the
scope of their employment and under the contract are considered
employees of the Public Health Service (PHS) for purposes of the FTCA.
The section describes who is covered, under what circumstances, who may
file a claim, and the procedures that must be followed. The section
spells out the FTCA requirement that a claimant must first file an
administrative claim before commencing a court action. The contractors
and their employees must cooperate with the Department in investigating
claims, including giving access to patient records.
Section 900.902 reaffirms that Federal employees working for a
contractor as part of their Federal duties remain covered by the FTCA.
Finally, Sec. 900.902 clarifies that where contractors extend hospital
privileges to non-IHS health care practitioners, these health care
practitioners are covered by the FTCA only when treating IHS
beneficiaries as provided by section 713(d) of the Indian Health Care
Improvement Act, Public Law 94-437.
A separate section deals with non-medical related claims under the
FTCA. Such claims will follow the FTCA claim procedures of the agency
with which the tribe has a contract, grant, or cooperative agreement.
Other sections provide: That the Secretary will provide a statement
verifying FTCA coverage, the extent of such coverage and any changes
therein to enable contractors to determine what if any additional
insurance is needed and to document coverage required by any third
party; that the recipient of a contract, grant, or cooperative
agreement will promptly notify the awarding official of any claim
brought against it that could potentially be covered by the subpart and
will cooperate fully in any defense; and procedures for settling
claims.
Subpart J--Construction Contracts
This subpart governs the award and operation of construction
contracts under the Act. Construction contracts remain procurement
contracts. All other subparts apply to non-procurement instruments.
Therefore, subpart J is freestanding. No other subparts or portions of
subparts of this regulation are applicable to procurement contracts for
the construction of facilities under subpart J unless they are
specifically made applicable.
Contracts for general program functions described in
Sec. 900.1001(b) of the regulation that are related to but not part of
the construction of a specific facility or project are, to the extent
contractible, covered by other subparts of this regulation.
The Act makes the Federal Acquisition Regulations (FAR) applicable
to construction contracts. The Act also permits the Secretary to waive
any provision of contracting laws and regulations which are determined
to be: (1) Inappropriate for the purposes of the contract involved; or
(2) inconsistent with the provisions of the Act. This subpart includes
an exhibit which lists the FAR provisions and clauses and indicates
which are proposed to be waived, the reason for the waiver, and, where
not waived, their applicability. Though the list appears extensive, it
should be noted that, in addition to including provisions proposed to
be waived, those provisions that are proposed for retention include
many provisions that can be waived on an ad hoc basis and that most of
the retained provisions are not applicable to all contracts.
A particular problem that needed to be addressed was how to protect
the government's interest with regards to the performance of
subcontractors. This problem was addressed by applying certain FAR
clauses only to subcontractors with the tribe responsible for enforcing
these claims.
Before entering into any contract to construct a facility under
subpart J, the Secretary must consult with the affected tribe
concerning its preferences and, where practical, honor those
preferences. Once funds are allocated for a project, the tribe to be
benefitted will be notified and given the right of first refusal to
contract for the project.
There are somewhat different application procedures for the two
Departments. However, in general, if the tribe notifies the Secretary
of its intent to contract, the Secretary will submit a ``Request for
Proposal'' (RFP) to the tribe and offer technical assistance in
developing the tribe's application. The Secretary will also provide a
Program of Requirements (POR).
The application must be responsive and will be evaluated against
the criteria in the RFP/POR. The standards applicable to the project
(local, state, Federal, industry) will be contained in the RFP/POR. The
application may only be declined under Sec. 900.207(b)(3), i.e. the
project cannot be properly completed or maintained by the proposed
contract, and any appeal will be confined to the issue of whether the
proposal meets the requirements of the RFP/POR.
Section 900.1004 reflects two different approaches to development
of construction projects based upon the existing processes in each
Department.
This subpart describes the types of contracts that are available
and under what conditions as well as when and if bonding is necessary.
Davis-Bacon Wage and Labor Standards are applicable except for
employees of tribes and public non-profit tribal instrumentalities.
The contractor and subcontractors shall provide access to the
Secretary for inspection at any time. This is a factor of the
procurement relationship, the nature of construction, and the FAR
provisions and differs from program monitoring spelled out elsewhere in
the proposal. Construction requires an ongoing process of inspection to
protect the interest of the government in receiving a facility that
meets its requirements. After the fact inspection is often impractical
or useless and the timing must be determined by the progress of
construction rather than a set number or a calendar.
Architect and engineering services are included. The method of
selecting qualified architects and engineers is contained in this
Subpart and is designed to meet the requirements of the Brooks Act as
codified in the FAR.
Contractors will benefit from savings resulting from approved value
engineering proposals and from savings realized under fixed price
contracts. Unexpended funds under cost reimbursement contracts will be
returned to the Secretary since they are not considered savings as used
in section 106(a)(3) of the Act referring to contractor efficiencies.
Finally, subpart J provides for granting waivers of otherwise
applicable contracting laws and regulations. The Secretary will attempt
to respond to waiver requests before the award but failure to do so is
not a basis to postpone the contract award. Waiver denials are not
appealable and may be considered separate from the proposal. The
declination criteria do not apply to waiver requests. The tribe will be
notified in writing of the reason for any denial.
Subpart K--Retrocession, Recision, and Reassumption
Procedures are described when the retroceded contract is with a
tribe, a tribal organization serving one tribe, or a tribal
organization serving multiple tribes. Program division rules apply in
the latter case, and reference is made to these and the funding
provisions of subpart A.
Retrocession becomes effective one year after the date of the
request, or at such time as may be mutually agreed by the Secretary and
the tribe. Withdrawal of the tribe's request for retrocession may be
made only by mutual agreement between the tribe and the Secretary. If
the intent of the tribe is to continue operation of the program, the
Secretary must make a determination as to whether the tribe can
continue to operate in a satisfactory manner, in light of problems that
may have led to the request to retrocede. While a tribal resolution
itself does not require Secretarial approval, the effect of cancelling
the retrocession request and continuing to operate as if no request had
been made, does require Secretarial approval.
While a tribe's retrocession will generally be without prejudice,
if a program is reassumed, the Secretary may decline to enter into a
new contract with that Indian tribe or tribal organization until the
Secretary is satisfied that the conditions which caused the contract to
be rescinded have been corrected.
Subpart L--Discretionary Grants
This subpart implements the discretionary grant authorities given
to the DOI and DHHS in section 103 of the Act. Subpart L provides
information on the requirements that will be applicable to the
administration of these discretionary grant authorities. These
authorities are discretionary actions which may be taken by the
Secretaries and should not be confused with the self-determination
grants/contracts as authorized under section 102 of the Act.
There was considerable discussion as to whether the discretionary
authorities should be addressed in a separate document. There was
concern that eligible recipients would confuse this discretionary
authority with the terminology and procedures contained in the self-
determination authorities under the remainder of the Act. However, it
was determined that it would be in the best interest of all parties to
have all of the authorities contained in the Act addressed in a single
regulation.
The requirements in this subpart are essentially self contained
except that the subpart does refer to other sections of the regulation
and other documents that are standard conditions on discretionary
grants awarded by the two Departments.
Concern was expressed by a number of tribes that they would not be
provided with adequate notification of funds availability and
programmatic information. To accommodate this concern, Sec. 900.1203
provides that announcements on availability of funds, modifications
thereto, and program announcements will be made in the Federal Register
and copies provided to eligible applicants.
Concern had been expressed by a number of tribal representatives
that the regulations needed to contain language to assure objective
evaluation. Section 900.1205(g) provides that applications will be
reviewed in a consistent manner in accordance with agency review
requirements and Sec. 900.1205(h) provides that awards will be made on
the basis of merit as determined by evaluation of applications against
review criteria which have been published in the Federal Register.
Section 900.1210 implements section 7(b)(2) of the Act. The
proposed approach to the scope of Indian preference in this section is
similar to that taken under Sec. 900.605 discussed above.
Subpart M--Secretarial Reports
Subpart M provides specifications for two Secretarial reports. The
first implements section 106(c) of the Act, and includes information on
amounts provided to contractors for the previous fiscal year, and
estimated deficiencies in funding of contract support costs for the
current fiscal year.
The second report implements section 5(e) of the Act. This is the
Secretary's annual report to tribes and tribal organizations. The
report will detail the previous year's annual obligations for each
program operated directly by the Secretary.
Subpart N--Program Standards, DHHS
This subpart deals with program standards, data collection and
reporting, and quality assurance for health programs supported or
provided by the DHHS. These three functions, though their specifics
will vary from program to program, are necessary, interrelated, and
essential components of health programs and are part of any health
program taken over by a tribe.
This subpart establishes joint tribal/Federal processes to review
and advise on departmental standards, quality assurance programs, and
data collection and reporting.
In most cases the requirements of this subpart can be met by
including in proposals, contracts, and modifications assurances that
the requirements governing standards, data collection and reporting,
and quality assurance will be complied with.
With regard to health program standards, where Joint Commission on
the Accreditation of Health Care Organizations (JCAHO) or Health Care
Financing Administration (HCFA) accreditation standards or conditions
of participation exist for the program covered by the contract or
proposal, the assurance need only make reference to these. If there is
no applicable JCAHO or HCFA standard, the assurance must identify the
proposed standard (which may include tribal standards) and supply
sufficient information on the proposed standard to enable the
government to evaluate its sufficiency.
Health program data collection and reporting requirements are
spelled out in the Core Data Set Requirements (CDSR) which has already
been issued as a Federal Register notice. The current CDSR is
republished in this issue of the Federal Register for your convenience
in reviewing this notice of proposed rulemaking. The CDSR would be made
applicable to self-determination contractors. Any changes in the CDSR
will be published as a notice in the Federal Register, following review
and advice from a joint tribal/Federal participatory process. The goal
is to keep data collection and reporting to a minimum within good
management practices.
The contractor is not required to adopt the IHS data collection and
reporting system. The contract must contain an assurance that the
contractor will maintain or establish a data collection and reporting
system that meets the requirements of the CDSR and enables the
contractor to provide required data on at least a quarterly basis or
more frequently where required by the CDSR.
The proposal takes the approach that standards, quality assurance,
and data collection and reporting requirements should not be determined
through negotiations on a contract by contract basis. Standards and
quality assurance are necessary components of a health program and data
collection and reporting must have major elements of uniformity to be
useful.
The contract or proposal must contain an assurance that the
contractor will establish and maintain an appropriate quality assurance
program.
The Secretary must make known to the proposed contractor all
standards, quality assurance programs, and data collection and
reporting systems currently applicable to the Secretary's operation of
the program. The Secretary may not impose higher standards.
Fair and Uniform Provision of Services--Section 105(h) of the Act
requires that contracts and grants and regulations adopted by the
Secretary include provisions to assure the fair and uniform provision
by tribes and tribal organizations of services and assistance they
provide to Indians. Section 900.1404 in subpart N implements this
requirement for DHHS programs under contract. That section requires
contractors to assure the fair and uniform provision of services,
including access by Indian beneficiaries to tribal administrative or
judicial bodies empowered to adjudicate complaints. We have not
included a provision allowing Indian beneficiaries to complain directly
to the Secretary because DHHS regulations at 42 CFR 36.25 (1986)
already provide an appeal process for denials of contract health
services, which in our experience with contracted health programs is
the only area that warrants instituting a formal appeal process to the
Secretary.
Subpart O--Program Standards--DOI
Subpart O pertains only to the DOI. It provides that contractors
are to adhere to all program standards to which the Federal agency is
subject, including statutes, regulations, orders, policies, agency
manuals, industry standards, etc. The standards are only applicable,
however, to the extent that they have been in fact met by the Federal
agency and to the extent that they have been disclosed to the
contractor in advance of approval of the contract. As the standards
applicable to the Federal agency change, the revised standards will
apply to a contractor unless it shows that compliance would materially
increase its costs and sufficient funding is unavailable.
Section 900.1501(c) establishes a variance procedure for tribal
contractors who propose alternate means of meeting performance levels
or standards. The Secretary is to approve such variances to the extent
consistent with applicable law, meeting the trust responsibility to
Indians, and assurance of performance of the functions or activities at
a level comparable to that of the contracting agency. New contractors
who wish to include such variances in their initial proposal are
encouraged to seek pre-contract technical assistance to facilitate
approval.
During the development of the regulations, some tribal
representatives suggested that section 107 of the Act required that
every Federal program standard had to be individually specified in
these regulations or else they would not apply to tribal contractors.
Given the wide range of programs for the benefit of Indians operated by
the several bureaus of the DOI, it would be immensely impractical to
try to anticipate in these regulations every program standard that may
be applicable to every potentially contractible program. The Secretary
does not believe that the Congress intended to require that all
requirements applicable to the operation of every single contractible
program be set forth in this regulation, or any regulation for that
matter. For example, it would be very unreasonable to attribute to
Congress a desire that the Minerals Management Service Audit Manual,
which depends for its effectiveness on the fact that it is not
available to oil and gas producers, be publicly available, much less
subject to notice and comment. It is quite clear from the legislative
history of the Federal Oil and Gas Royalty Management Act, that
Congress insists that the same auditing standards be applied to oil and
gas operators, whether the auditing is done by a Federal employee, or
by States or Indian tribes. We conclude, therefore, that despite the
facially overbroad language, section 107 only requires that all Federal
requirements pertinent to obtaining a Self-Determination Contract be
promulgated as part of these rules.
Section 900.1501(e) requires that contractors and subcontractors
assure that employees working under self-determination contracts avoid
conflicts of interest arising from a financial or property interest,
receipt of gratuities from regulated parties, use of inside
information, or other specified ethical problems. Tribes are encouraged
to develop their own standards of conduct for officers and employees,
with sanctions for violations, which will govern persons employed under
self-determination contracts upon the Secretary's determination that it
provides adequate protection against conflicts prohibited of government
trustees. This provision reflects the very strict fiduciary standards
to which trustees and their agents are held under the law and the
requirements of section 105(a) of the Act that no contract for personal
services impair the Secretary's ability to meet responsibilities to any
Indian tribe or individual. Section 900.1501(e)(4) follows the Ethics
in Government Act, 18 U.S.C. 208(b)(4) in exempting interests arising
from a birthright in an Indian tribe or Alaska Native village
corporation, an Indian allotment, or in an Indian claims fund, while
prohibiting such employees from acting in a particular matter directly
involving his/her interest in an allotment or claims fund.
Section 900.1501(f) requires contract proposals, for programs that
have existing quality assurance plans, to include provisions for
quality assurance or an election to participate in the Secretary's
quality assurance plan for that program. Section 900.1501(g) requires a
program information system to assure fulfillment of the program data
requirements for the program as operated by the Secretary. Section
900.1502 implements section 105(h) of the Act which requires that ISDA
contracts and grants and these regulations include provisions to assure
the fair and uniform provision by ISDA contractors of the services and
assistance they provide to Indians under such contracts and grants.
This provision, applicable only to DOI contracts and grants, defines
the term ``fair and uniform provision of services'', and authorizes a
beneficiary who believes that he or she is not receiving services in a
fair and uniform manner to seek redress in an appropriate tribal forum.
Subpart P--Regulation Administration
This subpart implements section 107(c) of the Act governing
revision and amendments of these regulations, and section 105(a) of the
Act which authorizes the waiver of contracting laws and regulations
under certain conditions.
Section 900.1603 contains a process for tribal participation in
revision and amendments of these regulations, as required by the Act.
Section 900.1605 contains a procedure for the waiver of contracting
laws and regulations and for the discretionary waiver of these
regulations for a specific contract. Section 900.1605(c) specifies that
waiver requests contained in a contract proposal may be considered
separately from the proposal.
Issuance Statement--DOI
This rule is published in exercise of authority delegated by the
Secretary of Interior to the Assistant Secretary--Indian Affairs by 208
DM 8.
Public Participation Statement--DOI
The policy of the DOI is, whenever practical, to afford the public
an opportunity to participate in the rulemaking process. Accordingly,
interested persons may submit written comments regarding this proposed
rule to the locations identified in the Addresses section of this
document.
Executive Order 12778, Civil Justice Reform--DOI
The Department has certified to the Office of Management and Budget
that these proposed regulations meet the applicable standards provided
in section 2(a) and 2(b)(2) of Executive Order 12778.
Executive Order 12866
This rule will not: (1) Have an annual effect on the economy of
$100 million or more or adversely affect in a material way the economy,
a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
governments, or communities; (2) create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; or (4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
Executive Order. Therefore, the Secretaries have determined that this
rule is not a significant regulatory action under Executive Order
12866, and a significant regulatory action analysis is not required.
Further, this regulation will not have a significant economic impact on
a substantial number of small entities and, therefore, do not require a
regulatory flexibility analysis under the Regulatory Flexibility Act of
1980.
Executive Order 12630, Takings Implication Assessments--DOI
In accordance with Executive Order 12630, DOI has determined that
this rule does not have significant takings implications.
Executive Order 12612--Federalism
This rule has no significant impact on Federalism under Executive
Order No. 12612 because the rule governs the awarding of contracts and
grants to Indian tribes. It does not involve a state/Federal
relationship.
NEPA Statement--DOI
The DOI has determined that this proposed rule does not constitute
a major Federal action significantly affecting the quality of the human
environment and that no detailed statement is required pursuant to the
National Environmental Policy Act of 1969.
Paperwork Reduction Act
The following information collection requirements contained in this
rule have been approved by the Office of Management and Budget (OMB)
under 44 U.S.C. 3501 et seq., and assigned OMB clearance numbers 1076-
0091; 1076-0096; 1076-0088; 1076-0090; 0910-0002; 0917-0007; 0917-0010
and 0937-0189.
The following information collections required by this rule have
not been approved by the Office of Management and Budget (OMB) under 44
U.S.C. 3501 et seq. and are being sent to the OMB for review. This
information will not be solicited until OMB approval is obtained:
Patient Registration System; Dental Reporting System; Pharmacy
System; Environmental Health Activity Reporting and Facility Data
System's Mental Health and Social Services Reporting System; Chemical
Dependency Management Information System; Community Health Activity
Reporting System; Health Education Resource Management System;
Nutrition and Dietetic's Program Activities Reporting System; Clinical
Laboratory Workload Reporting System and the Fluoridation Reporting
System.
Authorship Statement--DOI
The primary authors of this document are James Thomas and Robin
York, BIA; George Skibine and Justin Patterson, Solicitor's Office; and
Dean Titcomb, Policy, Management and Budget.
List of Subjects in 25 CFR Part 900
Alaska natives, Administrative practice and procedure, Indians,
Indians-business and finance, Indians-education, Government contracts,
Grant Programs-Indians, Health, Health facilities, Reporting and
recordkeeping requirements, School construction.
Dated: October 12, 1993.
Ada E. Deer,
Assistant Secretary-Indian Affairs-DOI.
Dated: July 28, 1993.
Philip R. Lee,
Assistant Secretary for Health-DHHS.
Approved: August 2, 1993.
Donna E. Shalala,
Secretary--DHHS.
It is proposed to establish a new chapter V in title 25 of the Code
of Federal Regulations consisting at this time of part 900 to read as
set forth below.
Chapter V--Bureau of Indian Affairs, Department of the Interior and
Indian Health Service, Department of Health and Human Services
PART 900--INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE ACT
PROGRAM
Subpart A--General
Sec.
900.101 Purpose and Scope.
900.102 Definitions.
900.103 Policy Statements.
900.104 Effect on Existing Tribal Rights.
900.105 Effect of These Regulations.
900.106 Contractibility.
900.107 Program Division.
900.108 Amount of Funding.
900.109 Funding and/or Contractibility Impasse.
900.110 Limitation of Funds.
900.111 Carryover Funding.
900.112 Protection Against Funding Reductions.
900.113 Funding Reduction.
900.114 Increase to Contracts.
900.115 Indian Preference in Training and Employment.
900.116 Equal Opportunity and Civil Rights.
900.117 Penalties.
900.118 Anti-Kickback Act.
900.119 Personnel.
900.120 Availability of Information.
900.121 Record Retention and Access to Records.
900.122 Freedom of Information.
900.123 Privacy Act.
900.124 Monitoring.
Subpart B--Preaward and Proposal Process
900.201 Eligibility.
900.202 Tribal Resolution.
900.203 Pre-Application Technical Assistance.
900.204 Access to Federal Records.
900.205 Initial Proposal Requirements.
900.206 Review and Approval of Contract Proposals.
900.207 Declination.
Subpart C--Contract Award and Modification
900.301 Award Instrument.
900.302 Calendar Year Contract.
900.303 Types of Contracts.
900.304 Renewal and Continuation of Contracts.
900.305 Contract Modifications.
900.306 Consolidation of Mature Contracts.
900.307 Contents of Award Document.
900.308 Status of Contracts in Effect on Effective Date of
Regulations.
900.309 Designation as a Mature Contract.
900.310 Commencement of Services.
Subpart D--Financial Management
900.401 Purpose and Scope.
900.402 Standards for Financial Management.
900.403 Matching and Cost Participation.
900.404 Allowable/Unallowable Costs.
900.405 Waiver of Prior Approval Requirements.
900.406 Indirect Costs.
900.407 Failure to Agree.
900.408 Payment.
900.409 Program Income.
900.410 Reporting.
900.411 Audit.
900.412 Closeout.
900.413 Collection of Amounts Due.
Subpart E--Property Management
900.501 Purpose and Scope.
900.502 Federally-owned Personal Property.
900.503 Contractor-owned Personal Property Purchased With Contract
Funds.
900.504 Donation of Excess Personal Property.
900.505 Motor Vehicles.
900.506 Hazardous Property.
900.507 Recovery of Precious Metals.
900.508 Controlled Substances.
900.509 Federally-owned Real Property.
900.510 Contractor Provided Real Property.
900.511 Donation of Excess and Surplus Real Property.
900.512 Disposition of Property upon Retrocession or Recision.
900.513 Federal Quarters.
900.514 Closure of Facilities.
900.515 Non-IHS and Non-BIA Funds to Renovate or Modernize Health
Care Facilities.
Subpart F--Procurement Management
900.601 Purpose and Scope.
900.602 Procurement System Standards.
900.603 Competition.
900.604 Methods of Procurement.
900.605 Procurement from Indian Organizations, Indian-Owned
Economic Enterprises, Small and Minority Firms and Labor Surplus
Area Firms.
900.606 Cost and Price Analysis.
900.607 Awarding Agency Review.
900.608 Procurement Award Provisions.
900.609 Federal Sources of Supply.
900.610 Discounted Services.
Subpart G--[Reserved]
Subpart H--Appeals, Disputes and Equal Access to Justice Act
900.801 Appeals Process.
900.802 Appeals Process--Indian Health Service.
900.803 Appeals Process--Department of the Interior.
900.804 Equal Access to Justice Act (EAJA).
900.805 Post Award Contract Disputes.
900.806 Post Award Grant Disputes.
Subpart I--Liability Insurance and Federal Tort Claims Act Coverage
900.901 Liability Insurance and Motor Vehicle Coverage.
900.902 Medical Related Federal Tort Claims Act Provisions.
900.903 Non-Medical Related Federal Tort Claims Act Provisions.
900.904 Secretarial Statement of FTCA Coverage.
900.905 Notification to Government of Action Filed Against
Recipient.
Subpart J--Construction Contracts
900.1001 Purpose and Scope.
900.1002 General.
900.1003 Consultation on Facilities.
900.1004 Contract Process.
900.1005 Conflict of Interest.
900.1006 Award.
900.1007 Bonds and warranties.
900.1008 Indirect Cost.
900.1009 Davis-Bacon Wage and Labor Standards.
900.1010 Inspection and Acceptance.
900.1011 Architect/Engineer (A/E) Services.
900.1012 Payments.
900.1013 Savings on Construction Projects.
900.1014 Unobligated Funds.
900.1015 Status of Contracts in Effect on Effective Date of
Regulations.
900.1016 Waivers.
Exhibit I to Subpart J--Acquisition Regulation for Construction
Projects
Exhibit I-A--Federal Acquisition Regulation (FAR) Provisions and
Clauses for Firm Fixed-Price, Cost, or Cost-Sharing Types of Public Law
93-638 Construction Project Contracts
Exhibit I-B--Department of the Interior Acquisition Regulation
Provisions and Clauses for Department of the Interior Firm Fixed-Price,
Cost, or Cost-Sharing Types of Construction Project Contracts
Exhibit I-C--Health and Human Services Acquisition Regulation
Provisions and Clauses for Department of Health and Human Services Firm
Fixed-Price, Cost, or Cost-Sharing Types of Public Law 93-638
Construction Project Contracts
Exhibit I-D--Public Health Service Acquisition Regulation Provisions
and Clauses for Department of Health and Human Services Firm Fixed-
Price, Cost, or Cost-Sharing Types of Public Law 93-638 Construction
Project Contracts
Subpart K--Retrocession, Recision, and Reassumption
900.1101 Retrocession.
900.1102 Retrocession Procedures.
900.1103 Procedure in the Event of Breach of Contract by a Tribal
Organization.
900.1104 Retrocession Procedures Where a Contractor Serves Multiple
Tribes.
900.1105 Effect of Retrocession.
900.1106 Reassumption of Programs.
Subpart L--Discretionary Grants
900.1201 Applicability.
900.1202 Eligibility.
900.1203 Availability of Funds and Application Dates.
900.1204 Application.
900.1205 Application Review and Award.
900.1206 Use of Project Funds.
900.1207 Facilities Construction.
900.1208 Grant Appeals.
900.1209 Reports.
900.1210 Use of Indian Organizations and Indian-Owned Economic
Enterprises.
900.1211 Use of Government Personal Property.
Subpart M--Secretarial Reports and Consultation Requirements
900.1301 Secretary's Annual Report to Congress.
900.1302 Secretary's Annual Report to Indian Tribes and Tribal
Organizations.
Subpart N--Program Standards, Department of Health and Human Services
900.1401 Program Standards, Data, and Quality Assurance--Policy.
900.1402 Program Standards, Data and Quality Assurance--Assurances.
900.1403 Program Standards, Data and Quality Assurance--
Implementation.
900.1404 Fair and Uniform Provision of Services.
Subpart 0--Department of the Interior Program Standards
900.1501 General Program Standards.
900.1502 Fair and Uniform Provision of Services.
Subpart P--Regulation Administration
900.1601 Authority.
900.1602 Revisions and Amendments.
900.1603 Participation and Presentation.
900.1604 Rulemaking.
900.1605 Waivers.
900.1606 Information Collection.
Authority: 25 U.S.C. 450 et seq.
Subpart A--General
Sec. 900.101
Purpose and Scope.
(a) General. These regulations are established for the codification
of uniform policies and procedures for use by the Department of Health
and Human Services (DHHS) and the Department of the Interior (DOI) in
implementation of title I of the Indian Self-Determination and
Education Assistance Act, Public Law 93-638 as amended, and sections 1-
9 preceding that title. These regulations set out the rights and
responsibilities of Indian tribes and tribal organizations and of the
Departments with respect to the planning, conduct, and administration
by Indian tribes and tribal organizations of programs, or portions of
programs, authorized under specified laws or otherwise administered by
these Departments for the benefit of Indians because of their status as
Indians.
(b) Programs of other Departments and Agencies. Included under this
Part are programs administered (under current or future law or
interagency agreement) by the DHHS and the DOIfor the benefit of
Indians for which appropriations are made to other Federal agencies.
(c) This Part included in Contracts by Reference. Each contract,
including grants and cooperative agreements in-lieu-of contracts, shall
include by reference the provisions of this part, and any amendment
thereto, and they are binding on the Secretary and the contractor
except as otherwise specifically authorized by a waiver under
Sec. 900.1605 of subpart P. In the event of conflict between a
provision of subpart J of this part and a provision of any other
subpart(s) in a construction contract, the provisions of subpart J of
this part shall govern.
Sec. 900.102 Definitions.
Unless otherwise provided in this Part:
Act means section 1 through 9 and title I (the ``Indian Self-
Determination Act'') of the Indian Self-Determination and Education
Assistance Act, Public Law 93-638, as amended.
Architect-Engineer Services (A/E) means:
(1) Professional services of an architectural or engineering
nature, as defined by State law, if applicable, which are required to
be performed or approved by a person licensed, registered, or certified
to provide such services;
(2) Professional services of an architectural or engineering nature
performed by contract that are associated with research, planning,
development, design, construction, alteration, or repair of real
property; and
(3) Such other professional services of an architectural or
engineering nature, or incidental services, which members of the
architectural and engineering professions (and individuals in their
employ) may logically or justifiably perform, including studies,
investigations, surveying and mapping, tests, evaluations,
consultations, comprehensive planning, program management, conceptual
designs, plans and specifications, value engineering, construction
phase services, soils engineering, drawing reviews, preparation of
operating and maintenance manuals, and other related services.
Budget Period is the interval of time (usually 12 months) into
which the project period is divided for budgetary and funding purposes.
Capitalized Personal Property is all nonexpendable personal
property with an original acquisition cost of $5,000 or more.
Cognizant Federal Agency means a Federal agency assigned by the
Office of Management and Budget (OMB) to be responsible for negotiating
with the tribe or tribal organization and approving an indirect cost
agreement on behalf of the Federal Government; for auditing, reviewing
and approving audits; and for assuring compliance with the Single Audit
Act of 1984.
Construction means construction, alteration, or repair (including
dredging, excavating, and painting) of buildings, structures, or other
real property. For purposes of this definition, the terms ``buildings,
structures, or other real property'' include but are not limited to
improvements of all types, such as bridges, dams, plants, highways,
parkways, streets, subways, tunnels, sewers, mains, power lines,
cemeteries, pumping stations, railways, airport facilities, terminals,
docks, piers, wharves, ways, lighthouses, buoys, jetties, breakwaters,
levees, canals, and channels. Construction does not include the
manufacture, production, furnishing, construction, alteration, repair,
processing, or assembling of vessels, aircraft, or other kinds of
personal property.
Contract means, except for those contracts entered into under
subpart J of this part regulations or unless otherwise specified, a
non-procurement contract, or a grant or a cooperative agreement under
section 102 of the Act, or a grant or cooperative agreement under
section 103(b)(1) entered into in-lieu-of a contract under section 102
between a tribe or tribal organization and the appropriate Secretary.
The term contract when used in subpart J means a procurement contract.
Contract Appeals Board means the Interior Board of Contract Appeals
(IBCA).
Contract funding base means the base level from which contract
funding needs are determined, including all contract costs.
Contract support costs means reasonable costs for activities which
must be carried on by a tribe or tribal organization to ensure
compliance with the terms of the contract and prudent management, but
which normally are not carried on by the respective Secretary in his/
her direct operation of the program, or are provided by the Secretary
in support of the contracted program from resources other than those
under contract.
Contracting Officer means any person who, by appointment in
accordance with applicable regulations has the authority to enter into
and administer contracts on behalf of the United States of America and
make determinations and findings with respect thereto. For purposes of
construction contracts, the term also includes the authorized
representative of the Contracting Officer, acting within the limits of
his authority.
Contractor means the recipient of a contract as herein defined.
Cooperative agreement means a mechanism used either in lieu of a
contract or a discretionary grant under subpart L of this part when
substantial Federal programmatic involvement with the recipient during
performance is anticipated.
Days means calendar days.
Department(s) means the Department of Health and Human Services
(DHHS) or the Department of Interior (DOI), or both.
Direct program costs means recurring costs that can be identified
specifically with a particular contract objective.
Dismantling/Demolition means dismantling or demolition of
buildings, ground improvements and other real property structures and
for the removal of such structures or portions of them.
Expendable Personal Property is all personal property that may be
consumed or expended that has a useful life of less than one year after
being placed in use.
Flow-through funds means those funds appropriated to another agency
and then transferred to the Secretary for the operation of programs,
services, and functions under the Act.
Grant means, for the purposes of section 103 of the Act, a
discretionary financial assistance award under subpart L whereby money
and/or direct assistance in lieu of cash is provided to carry out
approved activities, or a cooperative agreement when substantial
Federal programmatic involvement with the recipient during performance
is anticipated.
Grantee means a recipient of a grant as herein defined.
Grant in lieu of a contract means a non-discretionary grant or
cooperative agreement entered into by either Secretary in lieu of a
contract under section 102, or entered into by the Secretary of HHS
under section 103(b)(1) of the Act. Such grants and cooperative
agreements are considered contracts as defined in this Section.
Indian means a person who is a member of an Indian tribe.
Indian-owned economic enterprise means any Indian owned commercial,
industrial or business activity established or organized for the
purpose of profit, provided that such Indian ownership shall constitute
not less than 51 percent of the enterprise.
Indian tribe means any Indian tribe, band, nation or other
organized group or community, including pueblos, rancherias, colonies
and any Alaska Native village or regional or village corporation as
defined in or established pursuant to the Alaska Native Claims
Settlement Act (85 Stat. 688) which is recognized as eligible for the
special programs and services provided by the United States to Indians
because of their status as Indians.
Indirect cost rate means the rate(s) arrived at through negotiation
between an Indian tribe or tribal organization and the appropriate
cognizant Federal agency.
Indirect costs means costs incurred for a common or joint purpose
benefiting more than one contract objective, or which are not readily
assignable to the contract objectives specifically benefitted without
effort disproportionate to the results achieved.
Mature contract means a contract that has been continuously
operated for three or more years, and for which there are no
significant and material audit exceptions in the most recent annual
financial audit report for the contractor and for which a contractor
has requested such status. A mature contract may be for a definite or
an indefinite term as requested by the tribe (or, to the extent not
limited by tribal resolution, by the tribal organization).
Non-Capitalized Personal Property is all personal property not
defined as capitalized personal property.
Nonexpendable Personal Property is all personal property that has a
useful life of more than one year after being placed in use.
Pass-through funds means those funds in a contract that do not
receive the same degree of administrative effort as do other direct
activities performed by a contractor. These funds may be for, but are
not limited to, subcontracts, capitalized equipment, and capital
improvements. They shall be limited to those funds which the contractor
and the Secretary agree upon or are so designated in the indirect cost
agreement or contract.
Personal Property is all supplies, materials, equipment, and other
property including expendable and nonexpendable property whether
capitalized or noncapitalized but does not include real property.
Program means the operation of services for tribal members and
other eligible beneficiaries.
Program income means income received by the contractor directly
generated by an activity supported by the contract, and earned only as
a result of the contract during the term of the contract.
Project Period is the total time for which support of a
discretionary project has been programmatically approved. A project
period may consist of one or more budget periods. The total project
period comprises the original project period and any extensions.
Real Property is any interest in land together with the
improvements, structures, and fixtures located thereon, including
prefabricated movable structures such as Butler-type storage warehouses
and Quonset huts, mobile homes and trailers with or without
undercarriages, and appurtenances thereto.
Secretary unless otherwise designated, means either the Secretary
of HHS or the Secretary of the Interior, or both, and any other Federal
officer or employee of either Department to whom an authority or duty
has been delegated or assigned. The Secretary reserves the right to
change any delegations or assignments indicated in this Part.
Sensitive Personal Property is all nonexpendable federally owned
personal property regardless of acquisition cost that is subject to
theft or pilferage. All firearms shall be considered sensitive personal
property.
Significant and material audit exceptions means any of the
following in an audit report concerning a contract:
(1) unresolved audit exceptions involving amounts aggregating the
greater of $15,000 or 5 percent of the amount of the contract(s);
(2) unresolved audit exceptions involving major financial reporting
deficiencies, or an opinion of the auditor qualifying the audit results
because of serious departure from generally accepted accounting
principles in the maintenance of the contractor's accounts or financial
records; or
(3) express findings of financial mismanagement or misappropriation
of funds or assets.
Term contract means a contract (other than a mature contract) which
is for a specific period of time, not to exceed three years unless
otherwise agreed to by the Secretary and the contractor. The term may
not be longer than that provided by any applicable tribal resolution
which limits the period of the contractor's authority.
Tribal organization means the recognized governing body of any
Indian tribe; any legally established organization of Indians which is
controlled, sanctioned, or chartered by such governing body or which is
democratically elected by the adult members of the Indian community to
be served by such organization and which includes the maximum
participation of Indians in all phases of its activities.
Trust resources means an interest in land, water, minerals, funds
or other assets or property which is held by the United States in trust
for an Indian tribe or an Indian or which is held by an Indian tribe or
Indian subject to a restriction on alienation imposed by the United
States.
Sec. 900.103 Policy statements.
(a) Congressional policy. (1) Congress has recognized the
obligation of the United States to respond to the strong expression of
the Indian people for self-determination by assuring maximum Indian
participation in the direction of educational as well as other Federal
services to Indian communities so as to render such services more
responsive to the needs and desires of those communities.
(2) Congress has declared its commitment to the maintenance of the
Federal Government's unique and continuing relationship with, and
responsibility to, individual Indian tribes and to the Indian people as
a whole through the establishment of a meaningful Indian self-
determination policy which will permit an orderly transition from the
Federal domination of programs for, and services to, Indians to
effective and meaningful participation by the Indian people in the
planning, conduct, and administration of those programs and services.
In accordance with this policy, the United States is committed to
supporting and assisting Indian tribes in the development of strong and
stable tribal governments, capable of administering quality programs
and developing the economies of their respective communities.
(3) Congress has further declared that a major national goal of the
United States is to provide the quantity and quality of educational
services and opportunities which will permit Indian children to compete
and excel in the life areas of their choice, and to achieve the measure
of self-determination essential to their social and economic well-
being.
(b) Secretarial policy. (1) It is the policy of the Secretary to
facilitate the efforts of Indian tribes and tribal organizations to
plan, conduct and administer programs, or portions thereof, which the
Departments are authorized to administer for the benefit of Indians
because of their status as Indians and for which funds are appropriated
by Congress.
(2) It is the policy of the Secretary to encourage Indian tribes
and tribal organizations to become increasingly knowledgeable about the
Department's programs administered for the benefit of Indians by
providing information on such programs, and the opportunities Indian
tribes have regarding them.
(3) It is the policy of the Secretary by these regulations to
provide a uniform and consistent set of rules for contracts and grants
under the Act. The rules contained herein are designed to facilitate
and encourage Indian tribes to participate in the planning, conduct,
and administration of those Federal programs serving Indian people.
These regulations shall afford Indian tribes and tribal organizations
the flexibility, information, and discretion necessary to design
contractible programs to meet the needs of their communities consistent
with their diverse demographic, geographic, economic, cultural, social,
religious and institutional needs. Such programs must be consistent
with standards set forth in these regulations and the contracts.
(4) It is the policy of the Secretary that contracting under the
Act is an exercise by Indian tribes of the government-to-government
relationship between the United States and the Indian tribes. When a
tribe undertakes a contract, there is a transfer of responsibility and
accountability to the tribal contractor for managing the day-to-day
operations of the contracted Federal program, and the tribe becomes the
entity primarily responsible for delivering the services. The
contracting tribe thereby accepts the responsibility and accountability
to the beneficiaries under the contract both for the use of the funds
and for the satisfactory performance of the program funded under the
program. The Secretary retains the responsibility to allocate and
account for appropriated funds; to conduct monitoring necessary to meet
the continuing obligations of the Secretary under the Act and other
laws; to ensure that the contracting tribe delivers contracted services
in a fair and uniform manner to all beneficiaries; and to ensure that a
process exists to adjudicate complaints under the contract. The
Secretary will continue to discharge the trust responsibilities vested
in the Secretary to Indian tribes and individual Indians.
(5) A fundamental premise of the Self-Determination Act is that
self-determination involves more than just contracting. Tribes also
have the right not to contract and such decision is equally an
expression of self-determination.
(6) The Secretary shall maintain budgetary consultation with tribal
governments or tribal organizations in the Secretary's budget process
relating to activities under the Act. This includes requesting tribal
participation in formulating annual budget requests in accordance with
guidelines provided by the Secretary.
(7) The Secretary recognizes that as programs are contracted by
Indian tribes and tribal organizations under self-determination
contracts, Secretarial functions will change in scope and extent. As
contracting increases, the Secretary will identify and provide
additional services resulting from changes in the Secretary's
functions, or provide savings to the contractors which will be used for
the purpose of providing contract services. The Secretary will ensure
that non-contracted programs are not adversely affected.
(8) The Secretary is committed to implementing and fully supporting
the policy of Indian self-determination by recognizing and supporting
the many positive and successful efforts and directions of tribal
governments and extending the applicability of this policy to all
operational components within the Department. By fully extending Indian
self-determination contracting to all operational components within the
Department having programs or portions of programs for the benefit of
Indians because of their status as Indians, it is the Secretary's
intent to support and assist Indian tribes in the development of strong
and stable tribal governments capable of administering quality programs
that meet the tribally determined needs and directions of their
respective communities. It is also the policy of the Secretary to have
all other operational components within the Department work
cooperatively with tribal governments on a government-to-government
basis so as to expedite the transition away from Federal domination of
Indian programs and make the ideals of Indian self-government and self-
determination a reality.
Sec. 900.104 Effect on existing tribal rights.
Nothing in these regulations shall be construed as:
(a) Affecting, modifying, diminishing, or otherwise impairing the
sovereign immunity from suit enjoyed by Indian tribes;
(b) Authorizing or requiring the termination of any trust
responsibility of the United States with respect to the Indian people;
(c) Requiring the Secretary to reduce funding for programs,
projects and activities serving a tribe to make funds available to
another tribe or tribal organization;
(d) Mandating an Indian tribe to apply; for a contract(s) or
grant(s) as described in section 102 or section 103 of the Act; or
(e) Impeding awards by other Departments and agencies of the United
States to Indian tribes to administer Indian programs under any other
applicable law.
Sec. 900.105 Effect of these regulations.
(a) These regulations are the exclusive provisions governing
contracts and grants under the Indian Self-Determination Act except as
otherwise provided by applicable laws and regulations.
(b) The regulations in this part do not change the eligibility
criteria that individuals must meet to be eligible for any program
operated by the Departments, and contractors must follow applicable
rules and regulations of the appropriate Secretary regarding
eligibility of applicants for assistance, benefits or services.
Sec. 900.106 Contractibility.
(a)(1) The Secretary, upon the request of any Indian tribe or
tribal organization by tribal resolution, shall enter into a
contract(s) with the tribe or tribal organization to plan, conduct, and
administer programs, or portions thereof:
(i) Provided by the Act of April 16, 1934, 48 Stat. 596, Johnson-
O'Malley Act, as amended;
(ii) Which the Secretary is authorized to administer for the
benefit of Indians under the Act of November 2, 1921, 42 Stat. 208,
Snyder Act, and Acts subsequent thereto;
(iii) Provided by the Secretary of HHS under the Act of August 5,
1954, 68 Stat. 674, Transfer Act, as amended;
(iv) Administered by the Secretary for the benefit of Indians for
which appropriations are made to agencies other than the Departments of
HHS and Interior; or
(v) For the benefit of Indians because of their status as Indians
without regard to the agency or office of the DHHS or the DOI within
which it is performed. A program or portion of a program is for the
benefit of Indians because of their status as Indians when:
(A) The authorizing statute or legislative history specifically
identifies Indians, because of their status as Indians, as primary or
significant beneficiaries of the program or portion of the program or
otherwise indicates that congressional intent was to benefit Indians
because of their status as Indians; or
(B) The appropriation of funds for the operation of the program or
portion of the program specifically targets Indians, because of their
status as Indians, or reflects an intent to benefit Indians, because of
their status as Indians, as primary or significant beneficiaries of the
appropriations, as evidenced in the statutory or committee report
language or the budget justifications submitted to the Appropriations
Committee; or
(C) Regulations or administration of a program or portion of a
program identify Indians, because of their status as Indians, or
reflect a Departmental intent to benefit Indians, because of their
status as Indians, as primary or significant recipients of the services
to be provided by the program or portion of the program.
(2) In order to be subject to the mandate of (a)(1) above, a
program or portion thereof must be authorized by Congress within one of
the categories listed in (a)(1) for which Congress has appropriated
funds.
(b) The Secretary of the Interior, upon the request of any Indian
tribe and from funds appropriated for the benefit of Indians pursuant
to the Act of November 2, 1921, 42 Stat. 208, Snyder Act and any Acts
subsequent thereto, is authorized under section 103(a) of the Act to
contract with any Indian tribe or tribal organization for:
(1) the strengthening or improvement of tribal government
including, but not limited to, the development, improvement,
maintenance, preservation, or operation of tribal facilities or
resources;
(2) The planning, training, or evaluation of their activities
designed to improve the capacity of an Indian tribe or tribal
organization to enter into a contract(s) pursuant to section 102 of the
Act and the additional cost associated with the initial years of
operation under such a contract(s); or
(3) The acquisition of land in connection with paragraphs (b) (1)
and (2) of this section: Provided, That in the case of land within
Indian country as defined in Chapter 53 of title 18 U.S.C. or which
adjoins on at least two sides lands held in trust by the United States
for the tribe or for individual Indians, the Secretary of the Interior
may, upon request of the tribe, acquire such land in trust for the
tribe.
(c) The Act directs the Secretary to contract for ``programs or
portions thereof.'' The term ``program'' is defined in Sec. 900.102 as
``the operation of services for tribal members and other eligible
beneficiaries.'' Service delivery programs subject to contracting under
these regulations are generally performed at the reservation level, but
may be performed at higher organizational levels within the DHHS and
DOI. In providing services under a contracted program, the tribe or
tribal organization may perform functions which would otherwise be
performed by Federal employees, such as determining the eligibility of
applicants for, and the amount and extent of, assistance, benefits, or
services in accordance with the terms of the contract and applicable
regulations of the appropriate Secretary: Provided, That the Secretary
shall not make any contract which would impair the ability to discharge
trust responsibilities to any Indian tribe or individuals or obligation
under the Constitution to ensure the laws are faithfully executed.
(d) Contracting for the operation of services to tribal members and
other eligible beneficiaries does not permit the transfer to the tribe
or tribal organization of inherently Federal responsibilities involving
the exercise of significant authority under the Constitution, and
functions integral to the exercise of discretion, judgment or oversight
vested in the Secretary by law or by virtue of the Secretary's trust
responsibilities. Such functions and responsibilities may only be
carried out for the Federal Government by Federal officials and are not
contractible under the Act. Examples of Federal responsibilities and
functions carried out for the Secretary and under the Secretary's
authority which are not contractible include, but are not limited to,
the following:
(1) Allocation, award (including discretionary grant funds), and
obligation of Federal funds and approving amounts of Federal
expenditures.
(2) The selection or nonselection of individuals for Federal
Government employment and the direction and control of Federal
employees including the approval of position descriptions and
performance standards for Federal employees except as authorized under
section 104 of the Act.
(3) Administration of Federal contracting and grant laws for the
Federal Government, including monitoring and auditing of Federal
contract and grant projects necessary to maintain the continuing trust,
programmatic and fiscal responsibilities of the Secretary. These
Federal responsibilities and functions include, but are not limited to,
determining what property or services are to be acquired or supported
by the Federal Government, the award and administration of Federal
contracts and grants, and determining for the Federal agency involved
whether contract and grant costs are reasonable, allocable, and
allowable.
(4) Deciding Federal administrative appeals or hearings, and the
exercise of supervisory review.
(5) Determination of the Secretary's views and recommendations
concerning Federal administrative appeals or litigation and
representation of the Secretary in Federal administrative appeals or
litigation.
(6) Formulation of the Secretary's and the President's policies as
expressed in budgetary and legislative recommendations and views and
the publication of regulations, policies or notices in the Federal
Register.
(7) Nondelegable Secretarial duties relating to trust resources.
(8) Federal agency determinations to issue discretionary Federal
licenses or permits.
(9) Federal agency determinations to:
(i) Acquire, use or dispose of, (whether by sale, lease or
otherwise) lands, interests in lands, natural resources or other
property;
(ii) To establish the terms (financial or otherwise) of acquisition
or disposition; and
(iii) In this connection, to render title opinions on behalf of the
United States or to order, prepare instructions for, and approve
appraisals, surveys and title examinations.
(10) Federal agency decisions determining the rights, or claims or
obligations of others in relation to the United States and the
correlative rights, claims, and obligations of the United States.
(11) Executive Branch determinations of, or Federal agency
decisions and orders imposing sanctions or penalties for, violations of
Federal statutes, regulations or orders, or breaches of permits,
grants, leases or contracts.
(e) In determining whether Federal responsibilities and functions
are contractible, the Secretary shall consider whether the
responsibility or function:
(1) Involves the discretionary exercise of Governmental authority
for or on behalf of the Secretary or the making of value judgments in
making decisions for the Federal Government (as distinguished from the
operation of services for tribal members, or activities eligible for
funding as contract support costs described in Sec. 900.109(b),
gathering information, providing advice or purely ministerial
functions);
(2) Impermissibly limits the degree of Federal discretion as
indicated by the finality of the proposed contractor action or the
degree to which contractor discretion would be circumscribed by
detailed laws, regulation or procedure;
(3) Can be implemented through special agency authority, such as
the power to deputize nonfederal personnel;
(4) Is required by law to be carried out by Federal officials; or
(5) Cannot be feasibly separated from the exercise of nondelegable
trust responsibilities or significant Federal authority for the Federal
Government under this or other laws.
(f) In order to limit the instances in which it is necessary to
reject a proposal because it may include noncontractible functions,
tribes and tribal organizations are encouraged to consult with the
Secretary prior to the submission of proposals when there is
uncertainty regarding the contractibility of a function. The purpose of
these consultations will be to reach agreement as to the functions in
the activity being considered for contracting that are contractible and
how tribal performance of such functions closely supportive of
noncontractible functions may be effectively coordinated with the
Secretary's performance of noncontractible trust or other
responsibilities. These agreements, to insure adequate Federal
oversight and capacity for independent judgement to meet legal
requirements, may be reflected in a memorandum of understanding between
the parties or in the terms of a contract or grant.
(g) The Secretary is not authorized to enter into a contract under
this Part if the applicant tribe does not benefit from the services
proposed for contracting as provided in section 4(1) of the Act.
(1) In determining whether an applicant tribe benefits from a
program proposed for contracting, the Secretary shall consider the
following:
(i) Whether the program to be contracted is within the tribe's
geographic base as defined by factors such as, but not limited to,
geographic service areas (e.g., Service Unit as defined in section
4(j)) of the Indian Health Care Improvement Act, 25 U.S.C. 1603,
current or former reservation boundaries, statutes, and court orders;
(ii) Whether the program was established for the tribe;
(iii) Whether a resolution would be required from the applicant
tribe if another tribe were to propose to contract for the program; and
(iv) Changed circumstances such as unification of two or more
tribes into a single tribe or division of a tribe into two or more
tribes.
(2) A tribe does not benefit from a program under section 4(1) of
the Act based only on the happenstance that some of its members find
themselves in the geographical area served by a local program and,
incidental to this, are served.
(3) Resolutions of support are not required from every tribe which
happens to have members who are served by a local program absent a
determination that that tribe itself benefits from the program.
(4) More than one tribe can benefit from the same program as a
result of such factors as a shared geographical base or program.
(5) A tribe does not have the authority to require the Secretary to
award a contract to serve its members who are located in an established
service area outside its own established service area unless it is
proposing to join the established service area and it has resolutions
of support from all tribes served by the established service areas.
(h) The Secretary is not authorized to enter into any contract
under this part if such a contract:
(1) Is for an activity or project which the Secretary determines
cannot be contracted before completing an environmental impact
statement or environmental assessment, pursuant to the National
Environmental Policy Act (NEPA), (42 U.S.C. 4321 et seq.); consultation
pursuant to the Endangered Species Act (ESA), (16 U.S.C. 1531 et seq.);
a consistency determination pursuant to the Coastal Zone Management Act
(16 U.S.C. 1451 et seq.); decision to undertake a project affecting a
historic property under section 106 of the National Historic
Preservation Act, (16 U.S.C. 469 et seq.); or other Federal statutory
prerequisite to a commitment to undertake a Federal activity or
project.
(2) Is for an activity or project which the Secretary has
determined would:
(i) Jeopardize the continued existence of an endangered or
threatened species;
(ii) Result in the destruction or adverse modification of the
habitat of such species;
(iii) Be inconsistent with an approved state coastal zone
management plan; or
(iv) Otherwise pose environmental risks the Secretary finds
unacceptable following review in an environmental assessment or
environmental impact statement.
(3) Is entered into on behalf of an Indian tribe that has not
approved the letting of the contract by tribal resolution; or
(4) Authorizes or requires the termination of any trust
responsibility of the United States with respect to the Indian people.
Sec. 900.107 Program division.
(a) Approving and funding a contract proposal may require that the
Secretary divide a program serving other tribes or individuals that are
not parties to the contract proposal. It is the Secretary's policy to
encourage all tribes affected by a proposed program division to confer
and resolve among themselves the division of program resources,
including funds, facilities, equipment, and personnel. A tribe or
tribal organization intending to submit a contract proposal is
encouraged to commence that inter-tribal consultation process as early
as possible, and preferably before submitting the proposal to the
Secretary. The Secretary will facilitate this government-to-government
dialogue to the extent resources are available.
(b) In order to facilitate contracting of programs serving more
than one tribe, the Secretary shall:
(1) Within 10 days of receiving a proposal from a tribe or tribal
organization to contract for its proposed share of a program serving
other tribes, send copies of the proposal to all affected tribes other
than those submitting the contract proposal;
(2) Within a specified time period, afford all tribes affected with
the opportunity to comment on the proposed division of the program; and
(3) Facilitate inter-tribal consultation with respect to the
proposed division of the program. In consulting with affected tribes,
the Secretary shall consider regional and local circumstances, and the
consultation process shall, to the extent practicable, accommodate such
unique circumstances.
(c) Based on consultation with all affected tribes identified in
paragraphs (a) and (b) of this section, the Secretary shall review the
proposed division of the available program resources, including funds,
equipment, personnel, and facilities and determine the appropriate
funding level for the proposed contract under Sec. 900.108. While the
Secretary is not required to reduce funding for programs, projects, or
activities serving one tribe to make funds available to another tribe
or tribal organization, the Secretary may identify additional funds
from any savings within the Federal contracting organization resulting
from reductions in the Secretary's functions.
(d) For purposes of determining whether or not to decline the
proposal under Sec. 900.207, the Secretary shall consider the effect
the proposed contract will have on the level, scope and quality of
services not only for those tribes and individuals to be served under
the contract proposal but also those tribes and individuals who are
served by the current program but who would not be served under the
contract proposal. A proposal to divide a program for purposes of
contracting may result in losing certain economies of scale realized in
the prior administration of the program. This may result in a reduction
in the level, scope or quality of services previously provided due to
contracting. Such reduction is not in itself a reason for declining a
contract proposal unless such reduction reaches the declination
criteria in Sec. 900.207.
(e) In the event the determinations made pursuant to this section
do not lead the Secretary to decline the contract proposal, but result
in the delivery of diminished services or resources to the contracting
tribes, to other tribes, or to both sets of tribes, the Secretary may
confer with all the affected tribes for the purpose of rearranging
priorities to better meet the needs of all the affected tribes.
(f) Approving and funding a contract proposal may require that the
Secretary divide a program, a portion of which is for the benefit of
Indians because of their status as Indians. In these cases, the tribe
or tribal organization and the Secretary shall, upon mutual agreement,
include in the contract provisions to assure adequate coordination and
division of the program to facilitate the ability of the Secretary and
the tribe or tribal organization to effectively carry out their
respective responsibilities. In order to facilitate the division of
such a program (or portion thereof), the Secretary shall, to the degree
practicable, make an effort to identify the affected beneficiaries and
assess the impacts of the contract on the noncontracting parties so as
to determine a reasonable way of coordinating and dividing the program.
Sec. 900.108 Amount of funding.
(a) Subject to the availability of appropriations, the amount of
funds to be provided for each budget period of the contract shall be
determined by the Secretary as follows:
(1) The Secretarial amount shall consist of the amount (exclusive
of funds provided under paragraph (a)(2) of this section) that the
Secretary would have provided for the Secretary's operation of the
program(s) to be contracted. This amount shall be determined based on
the processes actually utilized by the Secretary to allocate resources
among program activities; provided that the Secretary of DOI shall, in
the absence of advance allocation for the benefit of particular tribes,
allocate to each tribe its proportionate share of the expenditures
actually made on behalf of Indian tribes in the last complete fiscal
year, as adjusted by the current fiscal year's budget; and
(2) The Secretary shall add to the amount provided under paragraph
(a)(1) of this section an amount for contract support costs in
accordance with the allocation processes actually utilized by the
Secretary for funds made available from appropriations for this
purpose. Contract support costs are reasonable costs for activities
which must be carried out by the contractor to ensure compliance with
the terms of the contract and prudent management, but which are not
provided for under paragraph (a)(1) of this section because such costs:
(i) Would not normally be carried on by the Secretary in the direct
operation of the program to be contracted; or
(ii) Are provided by the Secretary in support of the contracted
program from resources other than those of the program activity to be
contracted as provided for under paragraph (a)(1) of this section.
(b) Contract support costs may be recurring or non-recurring and
may include, but are not limited to, the following examples, to the
extent they are allowable under Subpart D of this part:
(1) Employee benefits and related costs, including unemployment
taxes, retirement fund contributions and workers compensation insurance
or its equivalent;
(2) Executive direction and management including related policy and
planning functions, program evaluation, and quality assurance;
(3) Financial management, including accounting and other related
financial functions;
(4) Personnel management, including recruitment, staffing,
personnel classification, recordkeeping, benefits management, employee
counseling and other personnel management functions;
(5) Human resource development, including employee training and
career development;
(6) Procurement and materials management, including purchasing,
receiving, inventory management, warehousing and distributing
materials, and subcontracting;
(7) Records management, including activities involving the
management of current and cumulative records and filing systems
(including retention scheduling, storage, microfilming, and library
management);
(8) Data processing and information management, including system
design and analysis, programming, hardware, software and related
functions;
(9) Office services, including general clerical supplies and
personnel required for typing, copying, reception, telephone answering
services, mail management and general office management;
(10) Legal services, including reasonable expenses to retain legal
counsel for activities related to the operation of programs and
administrative matters, including policy and contract review and
employee functions, but not attorney fees for appeals and litigation
which are payable only under the Equal Access to Justice Act (EAJA);
(11) Auditing services, including provision of single audits
required under the Single Audit Act, including compliance reports,
audits of internal control, system certifications, examination of
financial statements; independent review of indirect cost proposals and
general assistance in review and improvement of financial systems;
(12) General support services, including outside services for
photocopying, transportation, communications and other similar
services;
(13) Various types of insurance;
(14) Governing bodies, including tribal councils, executive boards
or other bodies which are considered the governing body of tribes or
tribal organizations while acting in their role in support of
contracted programs;
(15) Facilities that house programs and related support services,
including rent and lease payments;
(16) Facilities operations and maintenance not duplicative of items
listed in paragraph (b)(15) of this section, includes costs of
electricity, fuel, water, sewer, refuse removal, housekeeping and
janitorial services, building and grounds maintenance, preventative
maintenance, snow removal, security guards and devices, etc.;
(17) Purchase of capital equipment; and
(18) Start-up costs (i.e., one time costs necessary to implement
the contract).
(c) The Secretary may provide for annual renegotiation of amounts
of such contracts to reflect changed circumstances and factors,
including but not limited to cost increases beyond the contractor's
control, significant decreases in the actual number of beneficiaries
served under the contract, or other significant changes in the scope of
the contract.
(d) The Secretary shall identify for the Indian tribe or tribal
organization detailed funding data supporting the amount identified in
paragraph (a)(1) of this section. At the contractor's request, the
Secretary shall assist the contractor in determining the reasonable
amount of contract support costs needed under paragraph (a)(2) of this
section.
(e) At the discretion of the Secretary, as programs are contracted
and as savings become available, the contracting Bureau or office will
identify such savings and may provide them to tribal contractors to the
extent to which:
(1) Support services to other programs, projects, or activities can
be maintained at satisfactory levels, and
(2) The Secretary can continue to fulfill the Secretary's trust
responsibility and other Federal obligations under this or other laws.
(f) The total contract award, consisting of available amounts
determined under paragraph (a) (1) and (2) of this section, can be
recovered from the Secretary in accordance with subpart D, as direct
costs or a combination of direct and indirect costs.
(g) When Congress provides additional funding specifically for an
Indian tribe or tribal organization, the amount provided shall be
deemed to include contract support costs, unless otherwise provided by
Congress.
(h) The Secretary is not required to reduce funding for programs
serving a tribe to make funds available to another tribe or tribal
organization.
(i) Where the contractor uses Federal employees under section 104
of the Act and the employees are compensated by the Federal Government,
an amount equivalent to the cost of their compensation shall be
deducted in annual budget negotiations. This amount shall be based upon
data furnished to the contractor by the Secretary (subject to a full
accounting to the contractor on the Secretary's actual expenditure of
such funds and to reimbursement to the contractor at the end of the
contract funding period of any unexpended portion of such amount). The
amount so deducted shall be negotiated and may be renegotiated at any
time with the contractor. Any disagreement over the Secretary's
accounting reimbursement (if any) shall be subject to appeal pursuant
to the Contract Disputes Act, as provided in subpart H of this part.
Where Federal employees are used pursuant to an Intergovernmental
Personnel Act Agreement, an agreement subject to section 214 of the PHS
Act, or other agreement, such agreement shall be subject to revocation
by the contractor at any time with or without cause, and shall
terminate no later than 60 days from the date of the contractor's
notification to the Secretary. In the event a contractor ceases
utilization of one or more such Federal employees prior to the end of
the current funding period, and absent utilization of a replacement
Federal employee, the Secretary shall within 60 days, reimburse to the
contractor the estimated unexpended portion of the amount previously
deducted, calculated from the last date of the Federal employee's
utilization. Additional amounts shall not be deducted from the award
without the consent of the contractor.
Sec. 900.109 Funding and/or contractibility impasse.
(a) If the tribe or tribal organization believes that the Secretary
has not accurately determined the amount of the contract pursuant to
Sec. 900.108 or disagrees with the Secretary's decision based on
Sec. 900.106 contractibility of some or all aspects of the contract
proposal, the tribe or tribal organization may appeal pursuant to
subpart H of this part.
(b) Pending resolution of appeals pertaining to a new proposal,
(1) The tribe or tribal organization and the Secretary may agree to
changes in the proposal.
(2) The Secretary will award a contract reflecting the agreement
including the contract amount and scope of work agreed upon.
(c) Pending resolution of appeals pertaining to annual funding of
ongoing contracts and renewal proposals, the Secretary shall provide
funding at the same level as the previous year, unless the parties
mutually agree to a different level of funding.
Sec. 900.110 Limitation of funds.
(a) It is anticipated that the amount of funds to be provided by
the Secretary for the current budget period as determined pursuant to
Sec. 900.108 and reflected in the contract award plus any carry-over
funds from previous budget periods will be adequate for the contractor
to perform all work and to comply with all contractual obligations for
the current budget period. The contractor agrees to use its best
efforts to perform all work and all obligations with such funds.
(b) The contract will specify the amount currently allotted to this
contract and available for payment by the Secretary for the current
budget period. If the amount currently allotted is less than the full
amount for the current budget period, any additional funds allotted by
the Secretary shall be accomplished by unilateral modification(s) to
the contract up to the full amount of funds to be provided by the
Secretary for the budget period.
(c) The Secretary is not obligated to reimburse the contractor for
costs incurred in excess of the total amount of funds allotted by the
Secretary to the contract for the current and prior budget periods; and
the contractor is not obligated to continue performance under the
contract or otherwise incur costs in excess of the amount then allotted
to the contract until the Secretary notifies the contractor in writing
that the amount allotted by the Secretary has been increased and
specifies an increased amount, which shall then constitute the total
amount allotted by the Secretary to the contract.
(d) To the extent the amount allotted by the Secretary to the
contract is increased as provided under paragraph (c) of this section,
any costs the contractor incurs prior to the increase, that are in
excess of the amount previously allotted by the Secretary, shall be
allowable to the same extent as if incurred afterward.
Sec. 900.111 Carryover funding.
(a) Any funds appropriated pursuant to the Act of November 2, 1921,
25 U.S.C. 13, or as otherwise authorized by law, awarded during a
contract funding period which are not expended during that period, may
be carried over and used in the succeeding contract funding period.
(b) Carryover funds shall be added to the award amount for the
succeeding period. The savings or unexpended funds shall not reduce the
amount that would have been made available by the respective Secretary
if there had been no unexpended funds. Savings and other unobligated
funds that are carried forward into a succeeding funding period will
not be used either to lower the priority for funding or to increase the
base in the succeeding year.
(c) Carryover funds may be used for the same general purpose for
which they were originally appropriated or authorized under the
contract without additional documentation or justification for such
use. Where funds are being contemplated for use for other purposes,
Secretarial approval is required, and the contractor must provide
sufficient information for the Secretary to evaluate the program merits
of the request and assess its impact on reprogramming which may be
accomplished without the approval of Congress.
Sec. 900.112 Protection against funding reductions.
The amount of funds for a contract shall not be reduced by the
Secretary to pay for:
(a) Contract monitoring or administration that may be performed by
or on behalf of the Secretary;
(b) Federal functions including, but not limited to, Federal pay
costs, Federal employee retirement benefits, automated data processing,
contract technical assistance or contract monitoring; or
(c) The costs, both direct and indirect, of Federal personnel
displaced by a contract.
Sec. 900.113 Funding reduction.
The amount of funds for a contract determined in Sec. 900.108 (a)
and (b) may be reduced in the initial and subsequent years only if one
or more of the following conditions exist:
(a) A reduction in the amount of the agency's appropriation for the
program to be contracted as compared to the previous appropriation for
that program. Unless the Appropriation Act or related Congressional
report provides specific directions, any such reduction shall be shared
proportionately among contracts and federally operated programs;
(b) An approval from an Indian tribe or tribal organization
authorized by tribal resolution;
(c) If a contract is with a multi-tribal consortium and at least
one member of the consortium withdraws its supporting resolution;
(d) A change in the amount of flow-through funds needed under a
contract. When the amount of flow-through funds is less than in the
previous year, the amount of the contract pursuant to the flow-through
funds may be reduced by an amount proportionate to the reduction in
flow-through funds;
(e) A decrease in the amount of the indirect cost portion of
contract support funds results from the application of the indirect
cost rate to a smaller base or from a smaller indirect cost rate; or
(f) In the case of the completion of a one-time contracted project
or portion(s) of a project, activity, or program, contracts may be
reduced by amounts corresponding to completed portions of a project,
activity, or program. Funds for one-time projects with a specific term
or completion date shall be funded on a nonrecurring basis.
Sec. 900.114 Increase to contracts.
Additional funds that may become available shall be provided to
contracted programs on the same basis as such funds are provided to
programs operated directly by the Secretary.
Sec. 900.115 Indian preference in training and employment.
(a) Contractors, subcontractors, grantees, and subgrantees shall,
to the greatest extent feasible, give preference to Indians regardless
of tribal affiliation in training and employment.
(b) Indian tribes and tribal organizations shall maintain such
records as are necessary to indicate compliance with this section.
(c) If any contractor, subcontractor, grantee, or subgrantee is
unable to fill its employment openings after giving full consideration
to Indians as required by paragraph (a), these employment openings may
then be filled by other than Indians under the conditions set forth in
Sec. 900.116.
(d) Any contract, subcontract, grant, or subgrant awarded pursuant
to the Act shall be subject to any supplemental Indian preference
requirements established by the tribe receiving services under the
contract, subcontract, grant, or subgrant, to the extent such
requirements are consistent with the purpose and intent of this
section.
Sec. 900.116 Equal opportunity and civil rights.
Subject to the Indian preference in training and employment
requirements of Sec. 900.115, any contract, subcontract, grant or
subgrant awarded pursuant to the Act shall prohibit discrimination
against any employee and applicant for employment because of race,
creed, color, national origin, sex, age, or handicap.
Sec. 900.117 Penalties.
Whoever, being an officer, director, agent, or employee of, or
connected in any capacity with any recipient of any contract or
subcontract, pursuant to the Act or the Act of April 16, 1934, 48 Stat.
596, as amended, embezzles, willfully misapplies, steals, or obtains by
fraud any of the money, funds, assets, or property which are the
subject of such a grant, subgrant, contract, or subcontract, shall be
fined not more than $10,000 or imprisoned for not more than two years,
or both, but if the amount so embezzled, misapplied, stolen, or
obtained by fraud does not exceed $100, he/she shall be fined not more
than $1,000 or imprisoned not more than one year, or both. The
contractor agrees to insert the above requirement in all subcontracts.
Sec. 900.118 Anti-Kickback Act.
The provisions of the Anti-Kickback Act of 1986, Public Law 86-695,
41 U.S.C. 51-58 are applicable to prime contracts and subcontracts
entered into under this regulation. Payment, directly or indirectly, by
or on behalf of a contractor or subcontractor in any tier under any
negotiated contract of any fee, gift or gratuity as an inducement or
acknowledgment for the award of a contract, subcontract or order is
prohibited.
Sec. 900.119 Personnel.
(a) A tribe or tribal organization, in accordance with section 104
of the Act, may utilize Federal employees for the operation of programs
authorized to be contracted under section 102 of the Act. A tribe or
tribal organization may elect to directly hire Federal employees, as
provided in (b) below; or enter into either an Intergovernmental
Personnel Act (IPA) agreement, as provided in (c), or an agreement
pursuant to section 214(d) of the Public Health Service (PHS) Act.
(b) Direct Hire: A tribe or tribal organization may employ Federal
personnel who were previously employed by a Federal agency in the
operation of programs authorized to be contracted under section 102 of
the Act. Such employees shall, upon the effective date of transfer, be
subject to a tribe's or tribal organization's personnel policies and
procedures, except that a tribe or tribal organization may agree to
extend to the affected employee the coverage, rights, and benefits
provided in section 104 (e) (1), (2), (3), and (g) of the Act.
(1) If the tribe or tribal organization, and the affected employee
agree to the above coverage, the tribe or tribal organization shall
arrange for appropriate contributions and employee deductions in
payment for coverage, rights, and benefits for the period of employment
with the tribe or tribal organization.
(2) Funds necessary for such contributions may be derived from
contract funds, as provided in Sec. 900.108(h).
(c) Intergovernmental Personnel Act. A tribe or tribal organization
may request temporary assignment of any Federal employee under an IPA
agreement to assist in performing the contract awarded under section
102 of the Act. The IPA agreement shall be entered into between the
tribe or tribal organization and the Secretary with the concurrence of
the affected employee.
(1) The agreement shall be for a period not to exceed 2 years with
an option to extend the period of assignment indefinitely in increments
of 2 years or less when it is determined that doing so will continue to
benefit both the Secretary and the tribe or tribal organization. In the
event the assigned Federal employee fails to complete the period of
assignment and there is another employee willing and available to do
so, the appropriate Secretary may, with the consent of the tribe or
tribal organization, assign the employee to complete the period of
assignment and may execute an agreement with the tribe or tribal
organization with respect to the replacement employee. Such agreement
may change the period of assignment.
(2) The assigned Federal employee shall remain an employee of the
Federal Government and shall be eligible for promotions, periodic step
increases, additional step increases, merit pay, and cash awards on the
same basis as other Federal employees.
(3) The costs necessary for the assignment may be negotiated
between the tribe or tribal organization and the appropriate Secretary.
Any tribe's or tribal organization's contributions may be derived from
contract funds, as provided in Sec. 900.108(h).
Sec. 900.120 Availability of information.
(a) Except as otherwise provided in law or regulations, and
providing that the release of information does not constitute an
unwarranted invasion of personal privacy, trade secrets or proprietary
data, the contractor shall make all reports and information concerning
the contract available to the Indian people served or represented by
the contractor.
(b) The contractor shall hold confidential all information obtained
from persons receiving services under the contract related to their
examination, care, and treatment, and shall not release such
information without the individual's consent except in accordance with
the Privacy Act and Department Privacy Act regulations and the alcohol
and drug abuse patient confidentiality regulations where applicable.
Under such regulations, individual patient information may be disclosed
to provide medical service to the individual, or as may be necessary to
monitor the operations of the program or otherwise protect the public
health. Information may also be disclosed in a form which does not
identify particular individuals.
(c) The contractor shall hold confidential all information obtained
from any person relating to the financial affairs of individual
Indians, lessees, permittees or contractors, and shall not release such
information without the individual's consent except in accordance with
the Privacy Act or other relevant law.
Sec. 900.121 Record retention and access to records.
(a) Recordkeeping. Each contractor shall keep records which will
allow the Secretary to meet legal records program requirements under
the Federal Records Act (44 U.S.C. 3101 et seq.) and to facilitate
contract retrocession or reassumption under Subpart K of this Part.
Such records shall, at a minimum, fully disclose:
(1) The amount and disposition of awarded funds;
(2) The cost of the contract;
(3) The cost of the contract supplied by other sources; and
(4) Such other financial information as will facilitate an
effective audit.
(b) Program Records. The contractor shall be responsible for
maintaining files of correspondence and other documents relating to the
administration of the contracted program pursuant to the Privacy Act (5
U.S.C. 552a).
(c) Retention of Records. (1) The contractor shall preserve and
make available its program, e.g., medical records, in accordance with
the General Records Schedules issued by the National Archives and
Records Administration in accordance with 36 CFR part 1228 and the
records retention schedules of the Federal agency providing the
contract. Upon expiration of a record's retention period, it shall be
returned to the Secretary for retirement to the National Archives in
accordance with 44 U.S.C. 3101-3314, and 36 CFR part 1228.
(2) Records other than program records shall be retained for three
years from the starting date specified in paragraph (c)(4) of this
section. If any litigation, claim, negotiation, audit or other action
involving the records has been started before the expiration of the
three-year period, the records shall be retained until the action is
completed.
(3) To avoid duplicate recordkeeping, a contractor and the
Secretary may make arrangements to retain records in a single location
which are needed for joint use.
(4) The retention period for the records of each budget period
starts on the day the contractor submits to the Secretary its last
expenditure report to the Secretary.
(5) Real property and equipment records. The retention period for
real property and equipment records starts from the date of the
disposition, replacement or transfer of the property or equipment.
(6) Indirect cost rate proposals, cost allocation plans, etc. This
paragraph applies to the following types of documents, and their
supporting records: Indirect cost rate computations or proposals, cost
allocation plans and any similar accounting computations of the rate at
which a particular group of costs is chargeable (such as composite
fringe benefit rates). If the proposal, plan, or other computation is
required to be submitted to the Secretary to form the basis for
negotiation of the rate, then the three-year retention period for its
supporting records starts from the date of each submission.
(7) Electronic, magnetic, photographic or other means may be
substituted for hard copies.
(d) Government Access. The Comptroller General of the United States
and the Secretary, or any of their authorized representatives, shall
until the expiration of three years after completion of the contract or
grant, have access (for the purpose of audit and examination) to any
books, documents, papers, and records of contractors and grantees,
which in the opinion of the Comptroller General or the Secretary may be
related or pertinent to the grant, contract, subcontract, subgrant or
other arrangements. Contractors and grantees shall include this
provision in all subcontracts and subgrants.
Sec. 900.122 Freedom of information.
Access to records maintained by the Secretary is governed by the
Freedom of Information Act (5 U.S.C. 552) and other applicable Federal
law. The Freedom of Information Act does not apply to records
maintained solely by Indian tribes and tribal organizations.
Sec. 900.123 Privacy Act.
The Privacy Act (5 U.S.C. 552a) is applicable to a system of
records that contain confidential information about individuals served
under Indian self-determination contracts. Individuals can obtain
access to their own records under the Privacy Act.
Sec. 900.124 Monitoring.
(a) Contractors are responsible for managing the day-to-day
operations of the contract and for monitoring activities to assure
compliance with the contract, applicable Federal requirements and that
performance goals are being achieved. Monitoring by the contractor must
cover each program, function or activity included in the contract.
(b) Monitoring by the Secretary shall be performed to adequately
maintain the continuing trust, programmatic, and fiscal
responsibilities of the Secretary, or as otherwise required by Federal
law.
(c) Each operating division, Departmental bureau or Departmental
agency or duly authorized representative(s), may make no more than one
annual formal performance monitoring visit per contract, unless:
(1) The contractor has agreed to such visit(s) either in a schedule
attached to the contract or otherwise, or
(2) There is reasonable cause to believe that grounds for
reassumption of the contract or other serious contract deficiency
exists, provided that such additional visits will be made after notice
to the contractor including the nature of the problem which requires
the additional visit.
(d) This section does not apply to technical assistance visits
requested by the contractor. It also does not apply to visits relating
to trust functions, approval of trust related transactions,
Catastrophic Health Emergency Fund transactions, or except as may be
provided for in subpart J.
(e) Nothing in this section is intended to limit government access
under Sec. 900.121(c) or Sec. 900.402(b).
Subpart B--Preaward and Proposal Process
Sec. 900.201 Eligibility.
Any federally recognized Indian tribe or tribal organization duly
authorized by a tribe is eligible to apply for a contract(s) or
grant(s) under the Act.
Sec. 900.202 Tribal resolution.
(a) A tribe exercises its sovereignty through a tribal resolution
when it decides to contract any program or portion thereof.
(1) Before the Secretary can enter into a contract, the Secretary
must be requested to do so by the Indian tribe or tribes to be served
under the contract. The request shall be in the form of a resolution by
the tribal governing body or bodies. No additional resolution shall be
required to serve eligible Indians from tribes located outside the same
geographical service area.
(2) If a tribe or tribal organization proposes to contract to
perform services benefiting more than one Indian tribe located within
the same geographical service area, an authorizing resolution from each
tribal governing body to be so served must be obtained. No additional
resolutions shall be required to serve eligible Indians from tribes
located outside the same geographical service area.
(3) For the Alaska area, the following order of precedence shall be
applied in determining which entity shall be recognized as the tribal
governing body.
(i) A recognized Indian Reorganization Act (IRA) Council, providing
governmental functions for the Alaska Native village;
(ii) If there is no IRA Council, the recognized traditional tribal
council providing governmental functions for the Alaska Native village;
(iii) If none of the tribal entities within paragraphs (a)(3) (i)
or (ii) of this section exists, the village corporations established
pursuant to the Alaska Native Claims Settlement Act; or
(iv) If none of the entities in paragraphs (a)(3) (i), (ii) or
(iii) of this section exists, the regional corporation established
pursuant to the Alaska Native Claims Settlement Act for the region
within which the Alaska Native community is located.
(4) The Secretary will accept resolutions authorizing a tribal
organization to apply for, negotiate, and execute multiple contracts on
behalf of the tribe(s) being served.
(5) A resolution shall remain in effect until such time as it
expires by its own terms or is rescinded.
(b) A tribal resolution shall include the following:
(1) The full name of the tribal governing body.
(2) The full name of the tribal organization, if applicable,
authorized by a tribe to enter into the contract(s).
(3) A brief description of the program(s) or portion(s) thereof to
be contracted, provided that no description shall be necessary when the
resolution generally authorizes a tribal organization to contract for
all programs subject to the Act.
(4) Any delegations of authorities or limitations of authorities.
(5) The expiration date, if any, of the authorities granted by the
resolution.
(6) Signatures of the tribal officials authorized by the tribal
governing body to sign resolutions.
(7) Nothing herein is intended to disturb or alter the validity or
effect of resolutions adopted prior to the promulgation of these
regulations.
Sec. 900.203 Pre-application technical assistance.
(a) The Secretary, upon the request of any Indian tribe or tribal
organization, as soon as possible, but not later than 45 days after
receipt of the request, and subject to the availability of resources,
either by contract or with Federal employees, shall commence to provide
technical assistance on a nonreimbursable basis to the requesting tribe
or tribal organization:
(1) To develop any new contract authorized pursuant to the Act;
(2) To provide for the assumption by such Indian tribe or tribal
organization of any program, or portion thereof, provided for in
section 102(a)(1) of the Act;
(3) To develop modifications to any proposal for a contract which
the Secretary has declined to approve pursuant to section 102 of the
Act; or
(4) To develop program requirements which differ from the
Secretary's requirements in Subpart O of this part.
(b) An Indian tribe or tribal organization may also apply for a
grant for technical assistance pursuant to section 103 of the Act and
Subpart L of this part.
(c) In order to facilitate the contracting process, tribes and
tribal organizations intending to contract for programs or portions of
programs under the Act, should request information concerning the
amount of funds available for the proposed contract from the Secretary
prior to submission of the contract proposal. Within 30 days of the
receipt of such request, the Secretary shall identify the Secretarial
amount and provide information regarding the availability of contract
support costs.
Sec. 900.204 Access to federal records.
(a) The Secretary shall provide information or access to records.
Access to Federal records generally is governed by the Freedom of
Information Act (FOIA), HHS FOIA regulations (45 CFR part 5) and DOI
FOIA regulations (43 CFR 4.5). Access to records on individual
patients, which are part of a system of records, is governed by the
Privacy Act, HHS Privacy Act regulations (45 CFR part 5b) and DOI
Privacy Act regulations (43 CFR part 2). Moreover, if an individual is
receiving or has received treatment for alcohol or drug abuse, access
to these medical records is governed by 42 CFR part 2, the
Confidentiality of Alcohol and Drug Abuse Patient Records Regulations.
(b) Upon receipt of a written request from a tribe or tribal
organization, the Secretary shall make information and/or records
available concerning the program or portion thereof to be contracted to
assist the tribe or tribal organization in preparing a contract
proposal.
(c) Information to be made available shall include, but is not
limited to:
(1) A description of the program services to be contracted and how
those services are delivered to the beneficiaries;
(2) Reports on program operations (or the facilities used therein)
for the past three years, including any program plan or program
information documents used by the Department in the administration of
the program;
(3) Present staffing pattern and grade levels for personnel
conducting the program activity to be contracted, including funded
vacancies, position descriptions, professional standards, and program
standards;
(4) Fiscal data and budget structure data, including data on the
amount of funds which have been provided by the appropriate Secretary
for the direct operation of the specific program(s) or portions thereof
to be contracted for the current and the past three fiscal years; and
(5) Existing appraisals, inventories, and assessments of trust
resources.
(d) The Indian tribe or tribal organization shall have access to
necessary Federal records at the appropriate office for review and
making copies of selected records. If the Indian tribe or tribal
organization requests identifiable records, the Secretary will furnish
the copies to the Indian tribe or tribal organization: Provided, That
where a large volume of records is requested and copying is not
practical or feasible, the records may be made available for inspection
and copying by tribal representatives at the government site. The
Secretary shall remain the custodian of any such records.
(e) Following a request from an Indian tribe or tribal
organization, the responding official shall provide updated information
regarding programmatic changes.
(f) Use of the information made available shall be subject to any
confidentiality requirement to which the agency is subject.
(g) In the event disagreements arise regarding access to records,
tribes and tribal organizations may request records pursuant to FOIA
and be afforded appeal rights pursuant to the Secretary's applicable
FOIA regulations.
Sec. 900.205 Initial proposal requirements.
A contract proposal shall consist of the following:
(a) Full name, address and telephone number of the Indian tribe or
tribal organization which is applying for the contract.
(b) Where the applicant is not an Indian tribe, the request shall
include:
(1) A copy of the applicant's organizational documents, e.g.,
charter, articles, bylaws, etc.
(2) Full name of Indian tribe(s) with which the Indian tribal
organization is affiliated.
(c) Full name of Indian tribe(s) and an identification of other
eligible Indians that the Indian tribe or tribal organization proposes
to serve.
(d) A copy of the authorizing resolution of the Indian tribe(s) to
be served or, if already provided, a reference to such resolution.
(e) Date of submission of the proposal.
(f) Signature of the authorized representative of the Indian tribe
or tribal organization and the date thereof.
(g) A contract statement of work proposed to be performed by the
contractor consisting of the following:
(1) Identification of geographical service area, if applicable, to
be served and identification of and estimated number of Indian people
who will receive benefits or services from the contract based on
available data, including tribal records.
(2) A descriptive narrative of what programs, or portions of
programs, the Indian tribe or tribal organization proposes to contract,
including a statement of goals and objectives, and a detailed
description of the approach and methodology, including identification
of program standards and quality assurance measures and assurances as
required by subparts N and O of this part.
(h) Detailed staffing plans and an identification of key personnel,
including experience, training and qualifications.
(i) If the proposed contract involves the administration of trust
resources, the proposal shall contain provisions to assure that
performance will adequately protect trust resources and may include
inventory levels and values to tribes and to individuals.
(j) Assurances as specified in subparts N and O.
(k) Separate budgets for the Secretarial amount
(Sec. 900.108(a)(1)) and contract support (Sec. 900.108(a)(2)). The
total proposed budget shall be displayed in two formats as follows:
(1) The amount proposed for each contract line items and for
contract support.
(i) For IHS, contract line items shall correspond to each budget
sub-activity specified in the annual budget justification (as may be
modified by Congressional action), e.g., hospitals and clinics, dental
health, community health representatives, and mental health.
(ii) For BIA, contract line items shall correspond to each program
specified in the annual budget justification (as may be modified by
Congressional action), e.g., social services, forestry, roads, and law
enforcement.
(iii) For non-BIA DOI bureaus and offices, contract line items
shall correspond to the lowest level of detail set out in the annual
budget justification for the bureau or office (as may be modified by
Congressional action).
(2) The amount proposed for each major category, e.g., personnel
(differentiating salary and fringe benefits), equipment, materials and
supplies, travel, subcontracts, and indirect costs, as appropriate.
(3) If the applicant proposes to recover indirect costs, the budget
shall include a copy of the most recent negotiated indirect cost
agreement or specify an estimated amount requested for indirect costs
pending timely establishment of a rate or lump sum.
(4) When other sources of funding are to be relied upon, the
amounts and the other sources should be identified separately.
(l) A listing of equipment, facilities, and buildings needed to
carry out the contract and how the Indian tribe or tribal organization
proposes to obtain them. Where equipment is shared by the programs to
be contracted and other non-contracted programs, equipment sharing or
other arrangements shall be so stated in the contract.
(m) A statement that the Indian tribe or tribal organization will
comply with the Single Audit Act of 1984.
(n) Assurance that the Indian tribe or tribal organization has and
maintains, or will have and maintain, financial, property, and
procurement management systems specified in these regulations.
(o) Assurance that the Indian tribe or tribal organization has and
maintains or will have and maintain a personnel management system that
prescribes occupational qualification standards that meet minimum
professional requirements and uses such system for the recruitment,
selection, and management of personnel.
(p) Any preaward costs requested by the Indian tribe or tribal
organization including the amount and time period to be covered.
(q) A statement assuring that services and assistance shall be
provided to all Indians eligible for services under the contract in a
fair and uniform manner as provided in Sec. 900.115.
(r) The proposed starting date and term of the contract.
(s) The extent of any planned use of Federal personnel, and other
Federal resources.
(t) In the case of a cooperative agreement, the nature and degree
of Federal programmatic involvement with the recipient anticipated
during the term of the agreement.
(u) In the event there is a potential conflict of interest on the
part of the contractor as an organization, a description of the
potential conflict and description of the procedures to be employed to
avoid an organizational conflict of interest. Such description shall be
included when the nature of the work to be performed under a proposed
contract may, without some restriction, (1) result in an unfair
competitive advantage to the contractor, (2) impair the contractor's
objectivity in performing the contract work, or (3) involve a conflict
between tribes and other beneficiaries of the program. Such procedures
shall include prompt disclosure of such conflicts, when they arise, and
a report to the Secretary on their resolution.
Sec. 900.206 Review and approval of contract proposals.
(a) Upon receipt of a contract proposal, the Secretary shall:
(1) Within 5 days notify the applicant in writing that the proposal
has been received. If the proposal does not contain the required
resolutions, it will be returned without further action.
(2) Within 10 days provide the notification specified in
Sec. 900.107(b) where applicable.
(3) Within 15 days, notify the applicant in writing of any missing
items required pursuant to Sec. 900.205. The notification shall require
that the missing items be submitted within 15 days of such
notification.
(4) Review the contract proposal to determine:
(i) The contractibility of the program or portion thereof to be
contracted pursuant to Sec. 900.106;
(ii) The validity of all required tribal resolutions;
(iii) The availability of funds, including whether the proposed
budget exceeds the secretarial amount identified in accordance with
Sec. 900.203(c) for the program or portion thereof to be contracted;
(iv) Whether declination issues exist;
(v) Whether the contract terminates any existing trust
responsibility of the United States with respect to Indian people; and
(vi) What analysis, if any is required for compliance with (or has
been performed in compliance with) the NEPA, the ESA, the CZMA, NHPA,
or other applicable Federal statutes, and the extent to which the tribe
or contractor may assist such analysis.
(b) The Secretary shall, within 90 days after receipt of a
proposal, approve the proposal unless, within 60 days of receipt, a
specific finding is made that the Secretary cannot enter into a
contract for any of the reasons in (a)(4) (i)-(v) above. If the
Secretary determines that the proposal cannot be approved for any of
the reasons in paragraphs (a)(4) (i) through (v) of this section, the
Secretary shall issue written notice to the tribe or tribal
organization within 60 days after receipt of the contract proposal. The
notice shall include, at a minimum:
(1) Detailed explanation of the reason for the decision not to
contract;
(2) An available appeal rights under subpart H of this part; and
(3) An available technical assistance.
(c) The 60 day deadline may be extended upon the request of the
Secretary and the written consent of the applicant. If no agreement is
reached, the 60 day deadline applies. The time periods shall commence
from receipt of the proposal, except that; upon notice to the tribe or
tribal organization that the proposal is incomplete as provided in
paragraph (a)(3) of this section, the tribe has the option of either:
submitting the missing items which upon receipt by the Secretary shall
be considered a new proposal from which the 60 day period shall
commence or; requiring the Secretary to make a determination 60 days
from receipt of the original proposal.
(d) If no action is taken to approve the contract proposal within
90 days, or for such longer time as extended pursuant to paragraph (c)
of this section, and absent a timely finding as provided in paragraph
(b) of this section, the contract proposal shall be deemed approved on
the 90th day or on the last day of any extension pursuant to paragraph
(c) of this section, at the funding level determined by the Secretary
under Sec. 900.108 and to the extent that the proposal is accompanied
by the requisite resolutions and addresses a program which is
contractible as provided in Sec. 900.106.
Sec. 900.207 Declination.
(a) The Secretary may, within 60 days of receipt of a proposal,
decline to contract for the specific causes provided in paragraph (b)
of this section. The burden of proof is on the Secretary to demonstrate
that one of the specific grounds for declination exists and that,
therefore, the application must be declined. The Secretary may not
decline to enter into a contract with a tribe or tribal organization
because of any objection that will be overcome through the contract.
(b) The Secretary may decline to contract when a specific finding
is made that:
(1) The services to be rendered to the Indian beneficiaries of the
particular program or function to be contracted will not be
satisfactory;
(2) Adequate protection of trust resources is not assured under the
criteria provided in these regulations; or
(3) The proposed project or function to be contracted for cannot be
properly completed or maintained by the proposed contract.
(c) The findings to be made under paragraph (b) (1) and (2) of this
section may be based upon the effect that funding the proposed contract
would have on the Indian beneficiaries or trust resources of that
portion of the program which would not be contracted, as provided in
Sec. 900.107.
(d) In determining whether to decline to enter into a contract as
provided in paragraph (b) of this section, the Secretary shall evaluate
the tribe or tribal organization's proposal with respect to the
following factors:
(1) The Statement of Work contains an approach and methodology for
accomplishing the goals and objectives of the proposal that will result
in the provision of satisfactory services.
(2) The Staffing Plan is consistent with the approach, methodology,
goals, and objectives in the Statement of Work and the experience,
training, and qualification of key personnel are appropriate to the
requirements of the program to be contracted.
(3) The financial, property, and purchasing systems are found to be
adequate and meet requirements of subparts D, E, and F of this part
based on such factors as:
(i) Past performance based on information from audits and site
visit reports;
(ii) Preaward site assessments;
(iii) Assurances regarding management systems contained in the
proposal; and
(iv) The expected ability to establish new systems or to improve
existing systems during contract performance.
(4) The impact of any plan to provide services to non-Indians under
the contract; and
(5) The results of any analysis required by law such as under the
NEPA, the ESA, or other applicable law.
(6) The equipment, buildings, and facilities listed for use in the
proposal and/or the plan to obtain the listed items will be adequate to
meet the requirements the proposal will place on them.
(e) In reviewing a proposal, the Secretary shall apply the
following rebuttable presumptions except as provided in paragraph
(e)(2)(iv) of this section:
(1) Tribal governing body resolution(s) required under
Sec. 900.205(d) shall be presumed to demonstrate that there is support
for the proposed contract by the community or communities covered by
the resolution(s).
(2) The tribal organization shall be presumed to have substantive
knowledge of the program to be contracted if it meets one or more of
the following conditions:
(i) The tribal organization has successfully, previously, managed a
similar program (through grant or contract) for which standards have
been established.
(ii) The tribal organization has made arrangements to develop its
knowledge of the program.
(iii) The members of the tribal organization have developed an
understanding of the issues involved with the program sufficient to
enable it to effectively carry out the contract operation.
(iv) The tribal organization is the tribal governing body, the
proposal has been made to the Secretary of the Interior, and that which
is being proposed for contracting is a tribal governmental program
operated by the Bureau of Indian Affairs (BIA). In this case only, the
presumption is an irrebuttable presumption.
(3) The personnel available to the tribal organization to carry out
the proposed contract will be presumed to be adequately trained if any
of the following conditions exist.
(i) The tribal organization has in place a personnel system that
prescribes occupational qualification standards that meet minimum
professional requirements and uses such system for the recruitment,
selection, and management of personnel.
(ii) If there is no personnel system, the tribe or tribal
organization has established position descriptions for key personnel to
be employed under the contract and agrees to establish within a
reasonable time a personnel system similar to the one described in
paragraph (e)(3)(i) of this section.
(f) If a contract proposal includes a project or function which is
related to the Secretary of the Interior's performance of a trust
responsibility in the area of trust resources, the Secretary shall
decline to contract if the proposal provides for:
(1) Completion or maintenance of the project or function to a
lesser standard than under the Secretary's administration;
(2) Activity which requires special skills for its performance and
the contractor's key staff does not meet Office of Personnel
Management's or excepted qualification standards, other accepted
professional standards appropriate to the discipline involved, or are
not otherwise recognized as technically qualified, notwithstanding the
presumptions in paragraph (c) of this section; or
(3) Activities involving unresolved conflicts of interest between
the contractor and the beneficial owners of the trust resources served
under the contract.
Subpart C--Contract Award and Modification
Sec. 900.301 Award instrument.
(a) A contract shall ordinarily be the award instrument used to
accomplish the purposes of section 102 of the Act. However, an Indian
tribe or tribal organization may request a grant or a cooperative
agreement in lieu of a contract to carry out the activities authorized
under section 102. In addition, certain activities authorized under
section 103(b)(1) of the Act (see Sec. 900.1202(b) of subpart L of this
part) may be funded through contracts.
(b) If a grant or cooperative agreement is used in lieu of a
contract under paragraph (a) of this section, the procedures prescribed
under subpart B shall apply and the resulting award shall be considered
a contract for purposes of this part except as otherwise specifically
provided herein.
(c) Where a cooperative agreement is the award instrument used to
accomplish the purposes of section 102 of the Act, the agreement shall
set forth the nature and extent of Federal programmatic involvement
anticipated during the term of the cooperative agreement.
Sec. 900.302 Calendar year contract.
Where requested by the contractor, a contract shall be on a
calendar year basis unless the Secretary and the Indian tribe or tribal
organization agree to a different period.
Sec. 900.303 Types of contracts.
Contracts shall be awarded on a cost-reimbursement basis unless the
Secretary and the tribe or tribal organization agree to an award on a
fixed-price or other basis. Contracts awarded on other than a cost-
reimbursement basis shall be subject to such terms and conditions as
may be agreed upon by the Secretary and the tribe or tribal
organization.
Sec. 900.304 Renewal and continuation of contracts.
(a) Renewal of fixed term contracts. (1) The Secretary shall renew
a contract for the same program(s) or portions(s) of the program(s) for
an additional term in accordance with this paragraph. Except as
provided in paragraph (a)(2) of this section, the contract renewal
shall be accomplished through a bilateral modification.
(2) The contractor shall submit a renewal proposal or notification
of intent not to renew to the Secretary at least 120 days in advance of
the expiration date of the contract. If the Secretary does not receive
either a renewal proposal or the notification by the indicated date,
the Secretary may either extend the contract for a term up to one year,
or take such other action as deemed necessary to assume responsibility
for the program upon expiration of the contract.
(3) The renewal proposal shall provide budget information in the
same detail and format as the original proposal and shall include any
significant proposed changes in the contract scope of work. The budget
for the initial year of the renewed term shall also include an estimate
of the amount of any carryover funds and a schedule for their
expenditure in order to calculate advance payments. If carryover funds
will not be used for the same general purposes for which they were
originally awarded, the proposal should contain a justification for any
proposed alternative use(s).
(4) The Secretary may extend a fixed term contract for a limited
period as agreed to by the Indian tribe or tribal organization pending
consideration of a renewal request.
(b) Annual funding of contracts. (1) The contractor shall provide
budget information in the same detail and format as the original
proposal for the upcoming year of the contract. The budget shall
include an estimate of the amount of any carryover funds and a schedule
for their expenditure in order to calculate advance payments. If they
will not be used for the same general purposes for which they were
awarded, the contractor shall provide justification for any proposed
alternate use(s).
(2) The annual budget shall be submitted at least 60 days prior to
the anniversary date of the award.
(3) If such a budget is not received within the specified 60 days,
the contract will be unilaterally modified to provide the funding at
the same level as the previous year, subject to availability of
appropriations.
Sec. 900.305 Contract modifications.
(a) All revisions and amendments to existing contracts, including
but not limited to shifting of funds between contract line items, will
be executed by bilateral modification except for:
(1) Correction by either party of typographical errors, changing
mailing addresses, or making other changes that do not modify the
contractual obligations of the parties;
(2) Addition by the Secretary of funds to partially fund contracts
within the previously approved funding amounts pursuant to
Sec. 900.110(b);
(3) Renewal by the Secretary of a contract pursuant to
Sec. 900.304(a)(2);
(4) Modification by the Secretary of a contract pursuant to
Sec. 900.304(b)(3);
(5) Funding reductions by the Secretary as provided in
Sec. 900.113; and
(6) Shifting by the contractor of not to exceed ten percent of
funds allocated to a BIA tribal priority allocation program to another
tribal priority allocation program included within the same contract.
(b) The Secretary shall have 30 calendar days from receipt of the
request to approve or disapprove the request made under paragraph (a)
of this section or notify the contractor when a response is
anticipated;
(c) If a proposed contract modification would result in a material
change in the scope, the population served, or the nature, standards or
objectives of the services to be provided, the tribe or tribal
organization shall submit a proposal pursuant to Sec. 900.205. All
other contractor initiated requests for modification should be in
writing and provide sufficient detail to allow for Secretarial review
and decision.
(d) Bilateral modifications do not require a resolution unless the
authorizing resolution pursuant to Sec. 900.202 requires a separate
resolution or otherwise limits the authority of the contractor.
(e) Rebudgeting. (1) The contractor is expected to carry out the
contract within the amount of funds provided. Changes within the total
amount provided may be accomplished without approval of the Secretary,
unless the change would require a bilateral modification of the
contract as provided in paragraph (a) of this section.
(2) If a contractor revises its budget pursuant to paragraph (e)(1)
of this section, the revised budget shall be reflected in and shall
accompany its next scheduled quarterly Financial Status Report.
(f) Retrocession modifications. Procedures for retrocession
modifications are contained in Sec. 900.1104 of subpart K of this part.
Sec. 900.306 Consolidation of mature contracts.
(a) Upon request of a contractor operating two or more mature
contracts, the Secretary may consolidate such contracts awarded by the
same agency or bureau within the Department. The Secretary may also,
upon request, consolidate such contracts of different agencies within
the same Department or of different Departments.
(b) A contractor may consolidate reports required by these
regulations under consolidated contracts.
Sec. 900.307 Contents of award document.
(a) The award document for non-construction contracts, which shall
also be used for modifications, as appropriate, shall include the
following:
(1) Type of Contract: Cost-reimbursement or fixed price.
(2) Statutory contracting and program authority.
(3) Contract Number: A unique identifier for each contract.
(4) Title of Project: The descriptive title for the work to be
accomplished.
(5) Indian Tribe or Tribal Organization: The name of the Indian
tribe or tribal organization receiving the award.
(6) Awarding Office: The Federal office making the award.
(7) Period of Performance: Fixed or indefinite term.
(8) Applicable Cost Principles: Citation of the applicable cost
principles, e.g., OMB Circular A-87, A-122, or A-21.
(9) Accounting and Appropriation Data: Accounting data pertinent to
the current budget period.
(10) Budget Period: The period of time covered by any funding
authorized by the award.
(11) Award Computation: The total amount of the negotiated budget
displayed in terms of both:
(i) The applicable contract line items as provided in
Sec. 900.205(k)(1); and
(ii) The major category breakdown specified in Sec. 900.205(k)(2).
(12) Amount Allotted: The amount currently allotted to this
contract and available for payment by the Secretary for the current
budget period.
(13) Carryover Funds: A statement of authority for carryover funds
if any, except for funds appropriated pursuant to the Act of November
2, 1921, 25 U.S.C. 13.
(14) Applicable Regulations: A statement incorporating this Part
into the contract by reference along with any modifications or waiver
to this Part agreed to by the Secretary and the Contractor.
(15) Special Terms and Conditions: Any special terms and conditions
agreed to by the Secretary and the Contractor.
(16) Statement of Work: A statement incorporating the statement of
work submitted in accordance with Sec. 900.205(g) into the contract by
reference along with any modifications to subpart H of this part agreed
to by the Secretary and the Contractor.
(17) Program Standards: A statement of program standards and
requirements pursuant to Subpart O of this part.
(18) Contractor Official: The official who has the legal authority
to sign the award, and request and sign modifications thereto, on
behalf of the Indian tribe or tribal organization.
(19) Contracting Officer: The Federal official with the authority
to enter into and administer contracts for the Secretary.
(20) Contracting Officer's Representative: The Federal official
responsible for monitoring contract performance;
(21) Tribal Project Director: The individual who directs the
project on behalf of the contractor.
(22) Federal Property Administrator: The individual assigned to
administer the contract requirements and obligations relating to
government property. In addition, provides technical assistance in the
area of Property Management/Administration to contractors, when
required.
(b) The contractor and the Secretary shall notify the other party
in writing of changes in designations under paragraphs (a) (18) through
(21) of this section. However, such notification does not confer on
either party the right to approve or disapprove the act of replacement
or the individual designated.
(c) In the case of contracts to assist the Secretary of the
Interior in the management of trust resources, the contract shall
provide for immediate suspension upon determination by the Secretary
that the contractor's continued performance would impair the
Secretary's ability to discharge his trust responsibility. The
contractor may appeal a suspension order under Sec. 900.805.
(d) The contract shall authorize the Secretary to require such
revisions in the statement of work as the Secretary determines to be
necessary to avoid jeopardy to an endangered or threatened species;
destruction or adverse modification of the habitat of such species;
inconsistency with an approved coastal zone management plan; or
environmental consequences deemed unacceptable following review in an
environmental assessment or environmental impact statement.
Sec. 900.308 Status of contracts in effect on effective date of
regulations.
(a) Fixed term contracts. (1) Any fixed term contract between the
Secretary and an Indian tribe or tribal organization, which was entered
into before the effective date of these regulations and which has 12
months or less remaining, shall continue until expiration of that
contract.
(2) Any such contract renewed after the effective date of these
regulations shall be subject to these regulations as of the date of the
renewal.
(b) Other contracts. (1) Existing contracts with more than 12
months remaining shall be subject to these regulations upon their
effective date, upon completion of the following process:
(2) The Secretary will notify the affected contractor in writing
within 45 days after the effective date of these regulations of any
areas of its existing contract(s) that are not in conformance with
these regulations.
(3) The contractor shall submit any required information to the
Secretary within 30 days of such notice.
(4) The above time frames may be extended by mutual agreement of
the Secretary and the contractor.
(5) In the event parties are unable to agree to a modification to
bring a contract into conformance with these regulations, the awarding
official shall issue a modification subject to appeal under
Sec. 900.802 or Sec. 900.803.
(c) Existing contracts for which contractors request mature
designation after the effective date of these regulations shall be
processed in accordance with (a) of this section. The initial 45 day
period will commence on the date of receipt of the contractor's written
request.
Sec. 900.309 Designation as a mature contract.
(a) Upon request by a tribal organization or the tribal
organization's Indian tribe to the Secretary, a contract awarded
pursuant to these regulations which meets the requirements for mature
contract status in Sec. 900.102, shall be designated mature consistent
with these regulations.
(b) A new activity may be added to an existing mature contract by
mutual agreement provided that the activity is similar to an activity
under that existing mature contract and does not require significantly
different expertise in program and financial management.
Sec. 900.310 Commencement of services.
(a) Contracts shall be awarded to Indian tribes or tribal
organizations no later than 120 days from receipt of a proposal which
is subsequently approved unless extended by mutual agreement.
(b) A contractor shall not incur costs for providing proposed
services under a contract until the contract is signed by both parties,
unless the Secretary authorizes preaward costs.
Subpart D--Financial Management
Sec. 900.401 Purpose and scope.
This Subpart establishes requirements for the administration of
funds provided under Self-Determination contracts, including minimum
standards for Financial Management Systems by Indian tribes and tribal
organizations (contractors).
Sec. 900.402 Standards for financial management.
(a) A contractor's financial management system must meet the
following standards:
(1) Financial reporting. Accurate, current, and complete disclosure
of its financial activities must be made in accordance with the
financial reporting requirements of this Part.
(2) Accounting records. Contractors must maintain records that
adequately identify the source and application of funds awarded
pursuant to these regulations. These records must contain information
pertaining to contracts or subcontracts and authorizations, obligations
(liquidated and unliquidated), unobligated balances, assets,
liabilities, outlays or expenditures, and income.
(3) Internal control. Effective control and accountability must be
maintained for all contract cash, real and personal property, and other
assets. Contractors must adequately safeguard all such property and
must assure that it is used only for authorized purposes.
(4) Budget control. Actual expenditures or outlays must be compared
with budgeted amounts for each contract. Financial information must be
related to performance or productivity data, including the development
of unit cost information whenever appropriate or when specifically
required in the contract or subcontract. If unit cost data are
required, estimates based on available documentation will be accepted
whenever possible.
(5) Source documentation. Accounting records must be supported by
such source documentation as canceled checks, paid bills, payrolls,
time and attendance records, contract and subcontract documents, and
other documentation as required in the contractor's financial
management system.
(b) The Secretary may review the adequacy of the financial
management system of an Indian tribe or tribal organization:
(1) As part of a preaward review;
(2) As part of the annual monitoring review;
(3) At any time subsequent to the award if warranted by unresolved
findings in the Single Audit Act of 1984 audit report, or when there is
other reason to believe that financial mismanagement or
misappropriation of funds has taken place; or
(4) At the contractor's invitation.
Sec. 900.403 Matching and cost participation.
Nothing in this subpart is intended to prohibit a contractor from
using contract funds to meet matching or cost participation
requirements under other Federal, State or other programs.
Sec. 900.404 Allowable/unallowable costs.
(a) The allowable costs of a contract consist of the allowable,
allocable, and reasonable direct and indirect costs actually incurred
in the performance of the contract, determined in accordance with the
cost principles as set forth in this part.
(b) OMB Circular A-87, A-122 or A-21, as amended, which otherwise
applies to a contractor is applicable to contracts entered into under
the Act. The applicable version of the OMB Circulars are those in
effect as of the date of final publication of these regulations. Any
revisions to these circulars which are promulgated by the Office of
Management and Budget shall apply as of the effective dates specified
in those revisions. The current version of the OMB circulars listed in
this part are available from the Division of Management Support, Bureau
of Indian Affairs, 1849 C St. NW, Washington, DC 20245.
Sec. 900.405 Waiver of prior approval requirements.
Notwithstanding the requirements of the applicable OMB cost
circulars regarding prior approval, the following categories of costs
that are charged directly, are not subject to the prior approval of the
Contracting Officer:
(a) Automatic Data Processing;
(b) Building Space and Related Facilities;
(c) Insurance and Indemnification;
(d) Management Studies;
(e) Professional Services; and
(f) Capital expenditures, exclusive of the cost of facilities.
Sec. 900.406 Indirect costs.
(a) Negotiation and reimbursement of indirect costs under
contracts. The negotiation of indirect costs under a contract shall be
covered by the following provisions and the cost principles defined in
these regulations. Reimbursement of indirect costs shall be within the
amount established for the contract under Sec. 900.108.
(1) Negotiation of indirect cost agreements. Contractors and the
Secretary will negotiate indirect cost agreements on an organization-
wide, multiple rate, self-determination contract(s), or lump sum basis,
as appropriate. Indirect cost rates may be either provisional-final or
fixed-with-a-carry-forward provision, as agreed to by the contractor
and cognizant Federal agency. However, if the fixed-with-a-carry-
forward provision is chosen, separate rates must be established for the
contract(s) funded by each Secretary under which an Indian tribe or
tribal organization receives self-determination awards, and for such
other grouping(s) of activities as may be appropriate in the
circumstances. Costs will be allocated to each rate in accordance with
the applicable cost principles. At an Indian tribe's or tribal
organization's request, the Secretary shall, subject to the
availability of resources, provide technical assistance in the
development of an indirect cost proposal.
(2) Indirect cost agreement proposals. Indian tribes and tribal
organizations shall submit to the cognizant Federal agency proposals to
finalize provisional-final rates and to establish rates for future
periods within 6 months after the expiration of their fiscal year or
such period as may mutually be agreed upon. These proposals must
contain information as specified by the cognizant Federal agency.
Negotiation of indirect cost rate(s) shall be undertaken as promptly as
practicable after receipt of a proposal.
(3) Negotiated indirect cost lump sums. Indian tribes and tribal
organizations and the Secretary may negotiate lump sums in lieu of an
indirect cost rate. Lump sums may be negotiated in those situations
where the amounts of indirect costs are small or the contractor has not
established an indirect cost rate. If an indirect cost lump sum is
proposed, the Indian tribe or tribal organization shall submit its
proposal to the Secretary as part of the contract proposal. The results
of the negotiation shall be set forth in the contract agreement.
(b) Negotiated indirect cost rate agreement. The results of each
negotiation shall be set forth in an agreement which shall specify, the
agreed to rate(s), the base(s) to which the rate(s) applies, and the
periods for which the rate(s) applies.
(c) Reimbursement/advances pending negotiated rates. Subsequent to
the receipt of an indirect cost rate proposal and pending establishment
of negotiated indirect cost rates, or negotiated dollar amounts, as
appropriate, for any period, a contractor shall be advanced funds or
reimbursed either at negotiated provisional rates or amounts or at
billing rates agreed to between the contractor and the Contracting
Officer, subject to appropriate adjustment when the rates or amounts
for that period are established.
(d) Shortfalls in indirect cost recovery. (1) Where an Indian tribe
or tribal organization has negotiated fixed-with-a-carry-forward
indirect cost rates and its allowable indirect cost recoveries are
below the level of indirect cost that the Indian tribe or tribal
organization should have received for its Indian Self-Determination Act
contracts in any given year from the application of its approved Indian
Self-determination Act contracts' indirect cost rate(s), and such
shortfall is the result of lack of full indirect cost funding by the
Federal agency, such shortfall in recoveries shall not form the basis
for any theoretical over-recovery or other adverse adjustment to any
future year's indirect cost rate or amount for such Indian tribe or
tribal organization, nor shall the agency seek to collect such
shortfall from the Indian tribe or tribal organization. This provision
shall be applied separately for each Indian Self-Determination Act
indirect cost rate negotiated.
(2) Over payments or under payments resulting from differences
between provisional and final rates shall be separately resolved by an
adjustment to either allowable or reimbursed costs assignable under
each Federal award affected by the rate.
(3) Indirect cost rate(s) negotiated for Indian Self-Determination
Act contracts shall not include any shortfalls experienced by the
contractor due to the failure of any Federal, State or other agency to
pay the full negotiated indirect cost rate.
(4) Actual underrecoveries experienced by a contractor due to the
failure of any Federal agency to pay the full negotiated indirect cost
rate may be paid by the Secretary to the contractor only at the
Secretary's option and only to the extent specifically authorized and
funded by Appropriation Acts.
(e) Indebtedness. Contractors shall not be held liable for amounts
of indebtedness attributable to theoretical or actual underrecoveries
or theoretical overrecoveries of indirect costs as defined in the
applicable cost principles, as appropriate, incurred for fiscal years
prior to Fiscal Year 1992. Theoretical overrecoveries will be
eliminated and actual overrecoveries shall be used to offset actual
underrecoveries. Any remaining actual overrecoveries or underrecoveries
may be reflected in future indirect cost rate negotiations.
Sec. 900.407 Failure to agree.
Any failure by the parties to agree on any final rate or rates
shall be considered a dispute concerning a question of fact for
decision by the Contracting Officer within the meaning of subpart H,
Sec. 900.805.
Sec. 900.408 Payment.
(a) Payments on any contract awarded pursuant to these regulations
may be made in advance or by way of reimbursement and in such
installments and on such conditions as the appropriate Secretary deems
necessary to carry out the contract. These conditions may include
requiring the contractor to establish a special bank account for
contract funds.
(b) When using advance payments, the transfer of funds shall be
scheduled consistent with program requirements and applicable
Department of Treasury regulations so as to minimize the time elapsing
between the transfer of such funds from the United States Treasury and
the disbursement thereof by the contractor, whether such disbursement
occurs prior to or subsequent to such transfer of funds.
(c) Where the actual disbursements are less than had been
anticipated when the advances were made, the Secretary may either
require the excess funds to be returned or adjust future payments to
bring the advances (including carryover funds) and disbursements into
compliance with program requirements and appropriate Department of
Treasury regulations.
(d) When a contractor is deficient with respect to its financial
management or administration of advance payments, fails to submit
quarterly financial reports, or fails to submit annual audits as
required by these regulations, the Secretary may convert the
contract(s) to a reimbursement payment method.
(e) In the event that the contractor fails to comply with the terms
of the contract including the provisions of these regulations, e.g.,
program reporting requirements, the Secretary will notify the
contractor and provide a reasonable period for the contractor to come
into compliance. During this period the Secretary shall provide
technical assistance subject to the availability of resources if
requested to do so. If the contractor remains out of compliance, the
Secretary may withhold from advances or reimbursement an amount of
funds which are estimated to be associated with the area of
noncompliance, e.g., cost of preparing and submitting program reports.
Such funds shall be released to the contractor upon subsequent
compliance.
Funds which are withheld are subject to appeal under Sec. 900.805.
(f) Contractors shall not be held accountable for interest earned
on advanced funds, pending their disbursement.
(g) Pursuant to the provisions of the Assignment of Claims Act of
1940, as amended (31 U.S.C. 3727, 41 U.S.C. 15), claims for moneys due
or to become due the contractor from the Secretary under a self-
determination contract, where payment is on a cost reimbursement basis,
may be assigned to a financial institution.
Sec. 900.409 Program income.
(a) Program income includes but is not limited to the following:
(1) Income received by or accruing to the contractor from third
party payers, e.g., insurance carriers, Medicare and Medicaid, from
fees for services performed for non-beneficiaries;
(2) Income from fees for services performed, from the use or rental
of real or personal property acquired with project funds, or from the
sale of commodities or items fabricated under an award;
(3) Income from payments of principal and interest on loans made
with program funds provided for such purpose in accordance with Federal
law; and
(4) Income from royalties and license fees for copyrighted
material, patents, and inventions.
(b) Costs incident to the generation of program income may be
deducted from gross income to determine program income.
(c) Taxes, special assessments, levies, fines, and other such
revenues raised by a tribe are not program income.
(d) Except as otherwise provided by law, program income earned
during the term of the contract shall be retained by the contractor and
shall be used for the general purposes of the contract and shall not
offset or limit the amount of funds provided to the contractor by the
Secretary.
(e) Medicare and Medicaid collections under title IV of Public Law
94-437, as amended, shall be governed by any statutory restrictions on
the use of such funds.
Sec. 900.410 Reporting.
(a) Contractors shall submit to the Contracting Officer, within 30
days of the end of each quarter of contract performance a completed
financial status report (SF-269A) supplemented with a statement
regarding the amount of program income and the following information
regarding the amount shown for total federal share:
(1) Amount, by category, both for the current reporting quarter and
cumulative for the budget period, for personnel, equipment and
supplies, subcontracts, other direct costs, and indirect costs; and
(2) The total, both for the current reporting quarter and
cumulative for budget period, for each contract line item identified in
the contract.
(b) For IHS contracts paid through the DHHS Payment Management
System (PMS), the contractor shall complete and submit to the specified
payment office within 45 days following the end of the quarter Standard
Form 272, Federal Cash Transactions Report, and when necessary, its
continuation sheet, Standard Form 272a. Quarterly reporting shall be
required until the project is closed out of PMS. For DOI contracts,
within 90 days of the end of the contract funding period, the
contractor must submit a year-end financial report which identifies an
estimate of carryover funding; however, the contractor may continue to
expend carryover funds notwithstanding this report.
(c) For IHS contracts, contractors shall submit program data as
provided in Subpart N of this Part.
(d) An annual narrative report, describing the program(s) and
services provided under the contract, including both progress achieved
and problems encountered, shall be submitted to the Contracting Officer
within 90 days of the end of the budget period.
(e) Each contractor shall publicly disclose and otherwise make
available copies of the reports required by (a) and (c) above to the
Indian people served under the contract.
Sec. 900.411 Audit.
(a) Contractors are responsible for obtaining audits in accordance
with the Single Audit Act of 1984 (31 U.S.C. 501-7) and the provisions
of OMB Circular A-128, ``Audits of State and Local Governments,'' or
OMB Circular A-133, ``Audits of Institutions of Higher Education and
Other Nonprofit Institutions,'' as appropriate.
(b) Each contractor is responsible for forwarding a copy of the
Single Audit Act of 1984 audit report to the cognizant Federal agency
and each Contracting Officer. The audit report shall be transmitted
within 30 days of receipt from the independent auditor. The audit
report must include the contractor's comments on the auditors' findings
and recommendations.
(c) The cognizant Federal agency shall notify the contractor of the
acceptance or rejection of the audit report within 60 days of the
receipt of the audit report. Based upon the report's compliance with
the Single Audit Act, a decision to reject a report shall be set forth
in writing together with the reason for rejection.
(d) Upon request from the cognizant agency, the contractor shall
provide to the audit resolution official within 30 days from the date
of the request, any comments or additional information which may have a
bearing on final determinations on the audit report's findings and
recommendations.
(e) Resolution of the audit report's findings and recommendations
is the responsibility of the contractor and the audit resolution
agency.
(f) The Secretary shall notify the contractor, through the awarding
official, of the disposition of the findings and recommendations
contained in the Single Audit Act of 1984 audit report within 6 months
from receipt of such audit report.
(g) Any right of action or other remedy (other than those relating
to a criminal offense) relating to any disallowance of costs shall be
barred unless the Secretary has given notice of any such disallowance
within 365 days of receiving any required and accepted annual single
agency audit report or, for any period covered by law or regulation in
force prior to enactment of the Single Audit Act of 1984 (chapter 75,
title 31, U.S.C.), any other required final audit report. Such notice
shall be subject to the Contracts Disputes Act provisions of these
regulations. Nothing in this paragraph shall be deemed to enlarge the
rights of the Secretary under section 16 of the Indian Reorganization
Act of June 18, 1934, 48 Stat. 984; 25 U.S.C. 476.
(h) To the extent that a single audit provides the Secretary with
information and assurances needed to carry out his overall
responsibilities, he/she shall rely upon and use such information.
However, the Secretary may make at no expense to the contractor, any
additional audits and investigations which are necessary to carry out
his responsibilities on awards made under these regulations. The
planning and performance of any additional Federal audit effort shall
not duplicate the work conducted under the Single Audit Act of 1984
audit.
Sec. 900.412 Closeout.
(a) Closeout is an administrative process which takes place after
the physical completion of the contract (e.g., end of project, end of
the contract term, retrocession, reassumption).
(b) In order for the Secretary to close out the contract, the
contractor must provide the following:
(1) Final financial status report (SF-269) (see Sec. 900.411(c)) or
invoice, if the contract is paid by the reimbursement method;
(2) A final performance report pursuant to Sec. 900.411(c) stating
that performance under the contract is complete;
(3) A final property report listing federally owned property in the
possession of the contractor;
(4) The single audits of the contractor for the period of the
contract; and
(5) A release statement as specified in (d) of this section.
(c) Upon receipt of the information required by (b) of this
section, the Secretary shall initiate action to ensure that any
outstanding claims or disputes under the contract have been settled and
shall determine the final amount payable under the contract, including
the application of final indirect cost rates for the contract period.
(1) If the amount payable exceeds the amount already paid to the
contractor, the Secretary will authorize payment of the additional
costs.
(2) If the amount advanced to the contractor exceeds the amount
payable, the contractor shall refund to the Government the amount over-
advanced exclusive of funds which are carried over under Sec. 900.111
of this part.
(d) As part of the closeout process, an authorized official of the
contractor shall complete and execute a release, in the standard form
utilized by the Secretary for this purpose, which:
(1) Releases the Government from liabilities, obligations, claims,
and demands under the contract; and
(2) Certifies that pursuant to the provisions of the contract
concerning allowable costs, the amount of any sustained audit
exceptions resulting from any audit made after final payment will be
refunded to the Government.
(e) Nothing in this regulation limits the right of the Secretary to
request an audit prior to closeout under Sec. 900.411(h).
(f) Closeout of a contract pursuant to this section does not
relieve the Contractor of its responsibility to maintain contract
related records as required by Sec. 900.121.
Sec. 900.413 Collection of amounts due.
(a) Any funds paid to a contractor in excess of the amount to which
the contractor is finally determined to be entitled under the terms of
the award constitute a debt to the Federal Government. If not paid
within a reasonable period after demand, the Federal agency may reduce
the debt by:
(1) Making an administrative offset against other requests for
reimbursements;
(2) Withholding advance payments otherwise due to the contractor;
or
(3) Other action permitted by law.
(b) Except where otherwise provided by statutes or regulations, the
Federal agency will charge interest on an overdue debt in accordance
with the Federal Claims Collection Standards (4 CFR ch. II). The date
from which interest is computed is not extended by litigation or the
filing of any form of appeal.
Subpart E--Property Management
Sec. 900.501 Purpose and Scope.
This subpart establishes the minimum requirements for the
management of property by Indian tribes and tribal organizations
(contractors) under self-determination contracts. Property management,
for the purposes of this Subpart, includes provision, use, and
disposition of both personal and real property.
Sec. 900.502 Federally-owned personal property.
(a) Provision of Federally-owned personal property. (1) In the case
of an initial request for a self-determination contract, the Secretary
shall provide a list of personal property to be furnished for direct
operation of the program to the tribe or tribal organization.
(2) The tribe or tribal organization may select from the
Secretary's list the personal property which it requires for use in
performance of the contract.
(i) For items shared by the Secretary and the contractor, an
agreement shall be negotiated stating the provisions of the shared use.
(ii) If shared use is agreed upon, title shall remain vested in the
Secretary.
(iii) If shared use is not agreed upon, the parties shall explore
the possibility of alternatives to provide for the contractor's need.
(3) A list of all federally-owned personal property to be utilized
under the contract shall be included in the contract.
(4) Requests for the use of federally-owned personal property which
arise after signing of the contract shall be submitted by the
contractor to the Secretary for approval. If the Secretary approves
such requests, the contract will be appropriately amended.
(5) All personal property made available for use under the contract
must, at the time of assignment to the contractor, conform to the
minimum standards established by the Occupational Safety and Health Act
of 1970 (84 Stat. 1590), as amended (29 U.S.C. 651).
(b) Title to Federally-owned personal property. Title to all
federally-owned personal property, furnished for use in performance of
the contract, shall remain vested in the Secretary.
(c) Use of Federally-owned personal property. Contractors will use,
account for and control federally-owned personal property in accordance
with the following:
(1) Accountability records shall include capitalized, non-
capitalized, and sensitive property.
(2) Procedures for managing personal property with an acquisition
value of $1,000 (including replacement property), whether acquired in
whole or in part with contract funds, until disposition takes place
will, as a minimum, meet the following requirements:
(i) Property records must be maintained that include a description
of the property, a serial number or other identification number, the
source of property, who holds title, the acquisition date, and cost of
the property, percentage of Federal participation in the cost of the
property, the location, use and condition of the property, and any
ultimate disposition data including the date of disposal and sale price
of the property.
(ii) A physical inventory of the property must be taken and the
results reconciled with the property records annually. Capitalized
personal property items must be reconciled with accounting records on
an annual basis. The contractor shall submit to the Secretary an annual
inventory listing within 30 days following the end of each budget
period. This information is required to enable the Secretary to
reconcile the Federal records with the contractor's records on an
annual basis.
(iii) A control system must be developed to ensure adequate
safeguards to prevent loss, damage, or theft of the property. Any loss,
damage, or theft shall be investigated.
(iv) Adequate maintenance procedures must be developed to keep the
property in good condition.
(v) If the contractor is authorized or required to sell the
property, proper sales procedures must be established to ensure the
highest possible return.
(vi) All firearms and any other items considered as sensitive
property by the contractor, regardless of dollar value, must be
controlled through detailed accountability records as described above.
(d) Care and Maintenance of Federally-owned personal property. (1)
The contractor shall maintain, repair, and protect federally-owned
personal property in its possession or control.
(2) The contractor is responsible for protecting the Federal
interest in any express warranties or guarantees covering federally-
owned personal property.
(e) Disposal of Federally-owned personal property. (1) In the event
federally-owned personal property which is used on a contract becomes
worn out due to fair wear and tear, the contractor shall notify the
Secretary in writing. Upon receipt of written instruction from the
Secretary, the contractor shall dispose of the property in accordance
with the guidance provided.
(2) In the event federally-owned personal property becomes lost,
stolen, or damaged beyond repair, the contractor shall notify the
Secretary in writing of all of the circumstances surrounding the loss,
theft, or damage. In the event of theft or vandalism, the contractor
shall also immediately inform local law enforcement authorities of the
theft or vandalism, and forward a copy of the police report with the
notification to the Secretary. The Secretary will convene a Board of
Survey in accordance with appropriate Agency requirements, and will
notify the contractor, in writing, of the findings and determinations
of the Board.
(3) Federally-owned personal property which is no longer needed for
use in the performance of the contract shall be reported to the
Secretary in writing. Disposition instructions will be forwarded from
the Secretary in writing.
Sec. 900.503 Contractor-owned personal property purchased with
contract funds.
(a) Title to personal property purchased with contract funds. The
contractor will take title to all personal property purchased under the
contract. Personal property which is purchased under the contract is
referred to in this regulation as contractor acquired personal property
subject to the provisions of Sec. 900.512.
(b) Procedures for using, managing, and disposing of contractor
acquired personal property. Contractors are authorized to follow their
own procedures for using, managing and disposing of personal property
as long as they conform to the requirements of this section.
(c) Use of contractor acquired personal property. (1) Personal
Property shall be used by the contractor for as long as it is needed
for the contract. When no longer needed for the contract, property may
be used in other activities currently or previously supported by a
Federal agency.
(2) The contractor shall also make personal property available for
use on other projects or programs currently or previously supported by
the Federal Government, providing such use will not interfere with the
work on the projects or program for which it was originally acquired.
First preference for other use shall be given to other programs or
projects supported by the awarding agency. User fees should be
considered if appropriate.
(3) When acquiring replacement personal property, the contractor
may use the property to be replaced as a trade-in or sell the property
and use the proceeds to offset the cost of the replacement property.
(d) Management of contractor acquired personal property. Personal
property procedures for managing personal property (including
replacement personal property), whether acquired in whole or in part
with contract funds, until disposition takes place will, as a minimum,
meet the following requirements:
(1) Property records must be maintained that include a description
of the personal property, a serial number or other identification
number, the source of property, who holds title, the acquisition date,
cost of the property, percentage of Federal participation in the cost
of the property, the location, use and condition of the property, and
any ultimate disposition data including the date of disposal and sale
price of the property.
(2) A physical inventory of the property must be taken and the
results reconciled with the property records at least once every two
years.
(3) A control system must be developed to ensure adequate
safeguards to prevent loss, damage, or theft of the property. Any loss,
damage, or theft shall be investigated.
(4) Adequate maintenance procedures must be developed to keep the
property in good condition.
(5) If the contractor is authorized or required to sell the
property, proper sales procedures must be established to ensure the
highest possible return.
(e) Care and replacement of contractor acquired personal property.
(1) The contractor shall maintain, repair, and protect contractor
acquired personal property.
(2) Contractor acquired personal property shall be eligible for
replacement funding, if any, on the same basis as if title to such
property were held by the Secretary, provided such property continues
to be used in a contracted program.
(3) The Secretary will annually advise the contractor of the
information which the contractor must provide in order to be considered
for allocation of maintenance and repair funds, if any.
(4) The contractor is responsible for protecting its interest in
any warranties or guarantees.
(f) Disposal of contractor acquired personal property. When
original or replacement personal property acquired under a contract or
subcontract is no longer needed for the original project or program or
for other activities currently or previously supported by a Federal
agency, disposition of the personal property will be made as follows:
(1) Items of personal property with a current per-unit fair market
value of less than $5,000 may be retained, sold or otherwise disposed
of with no further obligation to the awarding agency.
(2) Items of personal property with a current per unit fair market
value in excess of $5,000 may be retained or sold and the awarding
agency shall have a right to an amount calculated by multiplying the
current market value or proceeds from sale by the awarding agency's
share of the personal property.
(3) In cases where a contractor fails to take appropriate
disposition actions, the Contracting Officer may direct the contractor
to take excess and disposition actions.
Sec. 900.504 Donation of excess personal property.
(a) IHS and BIA excess. (1) In accordance with section 105 of the
Act, the Secretary may donate to the contractor excess personal
property which, for purposes of this section is defined as personal
property under the control of the BIA or IHS which is not required for
its needs and the discharge of its responsibilities. Personal property
will not be considered as excess to the BIA or IHS by virtue of the
execution of a contract which calls for performance by the contractor
of the activities in which the personal property was previously used.
(2) The Secretary shall periodically furnish to contractors a
listing of all excess personal property prior to reporting such
property to the GSA or to any other Federal agency as excess. Such
listing shall identify the agency official to whom a request for
donation shall be submitted.
(3) A contractor may submit to the designated agency official a
written request for donation of any excess personal property to be used
in the performance of their self-determination contracts.
(4) The date and time of receipt of the request shall govern
priority. In the event of ties, the designated agency official shall
award the item to the requestor with the lowest transportation costs.
(5) Decisions of the Secretary to donate personal property shall be
considered final, Provided, That the Secretary shall donate personal
property to a contractor only after determining that such personal
property will be used in the performance of a self-determination
contract.
(6) The contractor shall arrange for and bear the cost of any
necessary travel, packaging, shipping, and transportation associated
with inspection or delivery of such personal property. The contractor
shall assume, upon receipt of such property, all responsibility and
relieve the Secretary of all liability for such personal property,
ensuring its removal from its government location within 30 days after
receiving notification of approval unless the agency and the recipient
agree on a different time. These costs may be paid from contract funds.
(b) Other Federal excess or surplus personal property. In
accordance with the following procedures, the Secretary may acquire for
donation to contractors for use in performance of a self-determination
contract, personal property declared excess or surplus by any Federal
agency.
(1) Upon request, the Secretary shall provide listings of excess
and surplus personal property from all Federal agencies to the extent
available.
(2) The contractor shall notify the Secretary of its interest in
specific items of government excess or surplus personal property. The
Secretary will arrange for any desired inspection and notify the
contractor when the request is approved by the holding agency.
(3) The contractor shall arrange for and bear the cost of any
necessary travel, packaging, shipping, and transportation associated
with the inspection or delivery of such personal property. The
contractor shall assume, upon receipt of such property, all
responsibility and relieve the Secretary of all liability for such
personal property, ensuring its removal from its government location
within 30 days after receiving notification of approval unless the
agency and the recipient agree on a different time. These costs may be
paid from contract funds.
(c) Title. Title to all donated personal property shall vest in the
contractor subject to the provisions of Sec. 900.512.
(d) Disposition. When donated personal property is no longer
required for use in connection with the self-determination contract,
the contractor shall assume all responsibility for the disposition of
the personal property and shall relieve the Secretary of all liability
for such personal property.
Sec. 900.505 Motor vehicles.
(a) Obtaining motor vehicles. (1) Contractors shall obtain vehicles
for use in the performance of the contract in the most economical
manner from among the following sources: contractor-owned, HHS or DOI-
owned, contractor acquired, GSA Interagency Fleet Management System
(GSA-IFMS), GSA Consolidated Leasing Program (GSA-CLP), commercial
sources.
(2) Contractors shall submit requests for GSA-IFMS vehicles in
writing to the appropriate General Services Administration (GSA)
regional Federal Supply Service Bureau. GSA will advise the contractor
that the vehicle support will be provided through the GSA-IFMS, or
provide specific information concerning use of the GSA-CLP.
(b) Official use of motor vehicles. Contractors are responsible for
assuring that contractor employees use vehicles obtained under this
contract for official purposes only in the performance of the contract.
Official purposes do not include transportation between domicile and
place of employment unless specifically provided for under the terms of
the contract. Any costs arising from unauthorized use shall be borne by
the contractor.
Sec. 900.506 Hazardous property.
(a) The contractor shall handle, store, transport and dispose of
hazardous property in accordance with all applicable Federal
environmental laws and regulations.
Examples include: flammable solids or liquids, fatal or toxic
poisons, etiological agents, and radioactive materials.
(b) The Secretary shall provide, upon request by the contractor,
technical assistance on environmental and hazardous property matters.
Sec. 900.507 Recovery of precious metals.
(a) The contractor shall identify all contract activities that use
precious metals or generate precious metal bearing scrap. Precious
metals designated for recovery include: gold, silver, metals in the
platinum family and metal bearing scrap, such as used photographic hypo
solution and scrap film, silver alloys, and dental scrap. Other metal
bearing materials include electronic scrap, automatic data processing
equipment, welding and brazing wire, anodes and batteries.
(b) The contractor shall establish and maintain a program for the
recovery of precious metals when such items are used in the performance
of the contract.
(c) Contractors may use DOI, DHHS, GSA, or the Department of
Defense precious metal recovery programs and/or disposal contracts.
(d) Upon request, the Secretary will provide assistance in
establishing the required precious metals recovery program and in
conducting a survey of the contractor's activities that generate scrap
from these materials.
Sec. 900.508 Controlled substances.
The contractor shall comply with Food and Drug Administration and
Drug Enforcement Administration Regulations regarding recordkeeping,
security, and inventory requirements for controlled substances.
Sec. 900.509 Federally-owned real property.
(a) Provision of Federally-owned real property. (1) In connection
with any self-determination contract, the Secretary may permit a
contractor to utilize existing school buildings, hospitals, other
facilities, and all fixtures therein or appertaining thereto, within
the Secretary's jurisdiction under the terms and conditions of this
section.
(2) The Secretary shall provide a listing to the requesting
contractor of the real property which is used solely for the contracted
program(s) and that which is shared or pooled with other agency
programs not under contract.
(3) The contractor may elect to use any or all of the real property
listed for exclusive use of the program(s) proposed for contract.
(4) From the listing of real property shared with other programs
operated by the Secretary, the Secretary and the contractor shall
endeavor to negotiate an agreement for shared use. If shared use is not
agreed upon, the parties shall endeavor to negotiate alternatives to
provide for the contractor's needs, if any.
(b) Title to Federally-owned real property. The provision of
federally-owned real property pursuant to a contract conveys no title
or other legal interest in such real property. The contractor may not
sell, encumber, or otherwise convey an interest in such real property.
(c) Use of Federally-owned real property. (1) The contract shall
include a listing of the real property to be provided by the Secretary
for use under the contract.
(2) The contractor shall not modify, abandon, or divert the
property to any use other than that for which it was originally
provided without the prior written approval of the Secretary.
(3) Contractors shall not raise or demolish any Federal buildings
or structures without the prior written approval of the Secretary.
(4) In the event federally-owned real property becomes damaged,
deteriorated, or destroyed, the contractor shall notify the Secretary,
in writing, of all related circumstances surrounding the loss or
damage. In the event of arson or vandalism, the contractor shall also
immediately inform appropriate law enforcement authorities, and forward
a copy of the police report with the notification to the Secretary.
(d) Inventory. (1) The contractor shall review and annually certify
to the Secretary the itemized inventory of all real property including
federally-owned buildings, structures, and related fixtures provided by
the Secretary.
(2) The annual certification shall include adjustments for
capitalized improvements, i.e., increases or decreases in costs of
$5,000 or more affecting any line item or the total book value for the
property.
(e) Operations and maintenance of Federally-owned real property.
(1) Contractors who are responsible for operations and maintenance
shall submit to the Secretary annual work plans in accordance with
instructions provided by the Secretary.
(2) Work plans shall include all projected construction,
maintenance, and repair activities for the upcoming Federal fiscal
year.
(3) Data provided by contractors will be considered by the
Secretary in making annual funds allocations for operations,
maintenance, and repair activities. Such allocations will be on the
same basis as those for federally-operated programs.
(f) Disposition of Federally-owned real property. Federally-owned
real property which is no longer needed for use in the performance of
the contract shall be reported by the contractor, in writing, to the
Secretary and the contractor shall request written disposition
instructions from the Secretary.
Sec. 900.510 Contractor provided real property.
(a) Contractor-owned real property. The expenses associated with
the use and depreciation of real property owned by the contractor used
in the performance of a self-determination contract shall be recovered
in accordance with the cost principles covered in Subpart D. The
Secretary will not negotiate a separate lease agreement with the
contractor.
(b) Purchase of real property with contract funds. (1) A
contractor's purchase of additional space to be used in the performance
of a self-determination contract shall not obligate the Secretary to
provide additional employees or equipment, or to increase the level of
contract funds.
(2) The purchase of real property using Federal contract funds
requires specific legislative authority and Secretarial approval.
(3) Title to real property purchased by the contractor with
contract funds shall vest with the Federal Government.
(c) Lease of real property with contract funds. (1) Contractors who
have self-determination contracts with DOI may lease with existing
contract funds such real property as they determine necessary for the
performance of work or delivery of services under their contracts.
(2) Prior to leasing new, expanded, or replacement space with funds
appropriated to the IHS, contractors shall make an application, through
the IHS Area Office in accordance with the IHS Lease Priority System.
Approved projects will be included in the IHS Quarterly Report to the
Congress on Lease Space Activities.
(3) A contractor's lease of additional space to be used in the
performance of a self-determination contract shall not obligate the
Secretary to provide additional employees or equipment, or to increase
the level of contract funds.
(d) Use of Medicare/Medicaid funds. Contractors are prohibited from
using Medicare/Medicaid funds collected on behalf of the Secretary of
HHS pursuant to title IV of the Indian Health Care Improvement Act,
Public Law 94-437, 25 U.S.C. 1601 et seq., 42 U.S.C. 1395qq, 42 U.S.C.
1396j, for the lease, purchase, or renovation of real property used in
the performance of a contract, without Secretarial approval.
Sec. 900.511 Donation of excess and surplus real property.
(a) Excess IHS or BIA real property. (1) In accordance with section
105 of the Act, the Secretary may donate to the contractor excess real
property which, for purposes of this section, is defined as real
property under the control of the IHS or the BIA which is not required
for its needs and the discharge of its responsibilities. Real property
will not be considered as excess to the IHS or the BIA by virtue of the
execution of a contract which calls for performance by the contractor
of the activities for which the real property was previously used.
(2) The Secretary shall periodically furnish to contractors a
listing of the excess real property owned by the Secretary which may be
eligible for donation to be used in the performance of the contract.
(3) If the contractor requests conveyance of such property,
conveyance may be effected contingent on the following:
(i) A determination that the property is excess to the needs of the
BIA or IHS;
(ii) If requested by the Secretary, submission of a written
resolution requesting such conveyance from the tribal governing body of
the tribe serviced; and
(iii) The use of the property in the performance of a self-
determination contract.
(4) If more than one contractor applies for the same real property,
the Secretary may convey the excess real property to the contractor
with the lowest cost for habitability and most effective utilization.
(5) If the excess real property cannot be effectively utilized for
the purposes of a single contract, the Secretary may divide the parcel
to allow for multiple donations.
(6) If the excess real property cannot be divided, the Secretary
may rescind the excess determination and permit shared use.
(7) Decisions of the Secretary shall be considered final.
(8) When a contractor accepts donation of excess real property from
the Secretary, the following shall apply:
(i) Legal title to all excess real property conveyed by the
Secretary to the contractor shall vest in the contractor upon
acceptance of a proper deed of conveyance.
(ii) The contractor shall be solely responsible for the operations
and maintenance of all such real property, within available contract
funds.
(iii) The contract shall be amended to indicate any donation of
real property.
(b) Other Federal excess and surplus real property. (1) The
Secretary may acquire for donation to the contractor, for use in
connection with a contract, real property declared excess or surplus by
other Federal agencies pursuant to 41 CFR part 101-47.
(2) The Secretary shall periodically furnish GSA's listings of
excess or surplus government real property from all Federal agencies,
to the extent available, to all contractors located within the GSA
geographical region for which such listings are made.
(3) The contractor shall notify the Secretary of its interest in
any available excess or surplus government real property. The request
shall include a discussion of the intended use of the property for the
purposes of a contract, and a discussion of the site's applicability to
the program, projected renovation requirements and costs, and other
pertinent data concerning the intended use of the property. The
Secretary will arrange for any desired inspection and notify the
contractor when the request is approved by the holding agency.
(4) The Secretary shall request a waiver of fees for transfer to
the contractor in accordance with applicable GSA provisions. Legal
title to any excess or surplus government real property conveyed by the
Secretary to a contractor shall vest in the contractor upon acceptance
of a proper deed of conveyance. The contractor or grantee shall be
solely responsible for the operations and maintenance of all such real
property within available contract funds.
(c) The donation of excess real property to the contractor shall
not obligate the Secretary to provide additional employees or
equipment, or to increase the level of contract funds.
(d) All deeds for real property donated to the contractor pursuant
to paragraph (a) or (b) of this section shall contain a clause stating
that in the event of retrocession or recision, the Secretary shall have
the option to take title to the property.
Sec. 900.512 Disposition of property upon retrocession or recision.
(a) In the event of retrocession or recision of the contracted
program, the contractor shall return to the Secretary all government-
owned property made available to the contractor that is used in the
contracted program at the time of retrocession or recision.
(b) Title to any personal property, including supplies and
materials, acquired with contract funds and title to any personal or
real property donated for use under a contract shall vest in the
contractor subject to the condition that in the event of retrocession
or recision the Secretary shall have the option to take title to all
such property still in use or available for use under the contract. The
contractor shall, upon request by the Secretary, provide to the
Secretary a listing of all such property.
(c) The Secretary shall assume any packing, shipping or
transportation costs associated with the conveyance or delivery of
property to the Secretary.
Sec. 900.513 Federal quarters.
(a) Establishing rental rates and related charges. Rates for
Federal, contractor and grantee employees shall be established in
accordance with the requirements of OMB Circular A-45, as amended.
Rates for non-Federal, non- contractor and non-grantee occupants shall
be established in accordance with OMB Circular A-25, as amended.
(b) Collection of rents and related charges. (1) The Secretary
shall collect rents and related charges for quarters occupied by
Federal employees through payroll deduction.
(2) For all quarters occupied by contractor employees, the
contractor shall charge and collect all rents and related charges
through the use of its payroll deduction system, at the appropriate
rate as established by the Secretary.
(3) Alternate collection systems may be used to collect quarters
fees from non-Federal and non-contract tenants, and whenever Federal or
contractor assignments to quarters are of such nature as to preclude
the use of payroll deduction.
(c) Distribution and use of rents and related charges--(1)
Federally operated and maintained quarters. Within sixty (60) days of
collection, the contractor shall submit all rental collections to the
Secretary.
(2) Contractor operated and maintained quarters--(i) Option 1: All
contractors shall deposit quarters collections into a separate account.
These funds may be expended only for the operation and maintenance of
the quarters.
(A) All quarters collections made by the Secretary for Federal
employees occupying quarters shall be submitted to the contractor
within 60 days of receipt by the Secretary.
(B) All quarters collections and accrued interest shall remain
available in the separate account for quarters operation and
maintenance. These funds may not be used for major renovation,
expansion, replacement or new quarters construction activities.
(ii) Option 2: The contractor may choose to participate in the
applicable IHS Area Quarters Return (QR) Fund, or BIA agency-wide fund.
Under this option:
(A) The contractor shall collect all rental amounts due from
quarters occupied by its employees and other non-Federal tenants
permitted to occupy quarters.
(B) The Secretary shall collect all rental amounts due from
quarters occupied by Federal employees.
(C) All rental collections made by the Secretary and the contractor
shall be submitted to the appropriate Area Office or agency-wide
account within 60 days of receipt.
(D) The Secretary and contractor shall negotiate an annual work
plan and budget for the operations and maintenance of the Federal
quarters. The Secretary shall, within 60 days of receipt, disburse to
the contractor funds needed to comply with the negotiated quarters work
plan.
(iii) The contractor shall submit to the Secretary any requirements
for major renovation, expansion, replacement or new quarters
construction projects, for legislative review and approval.
(d) Management, operation and maintenance. The Secretary and
contractor shall manage, operate, and maintain Federal quarters for
which they are responsible in a safe and sanitary condition at all
times in accordance with any applicable Departmental handbooks (e.g.,
U.S. Public Health Service Quarters Management Handbook, as amended;
U.S. Department of Interior Quarters Handbook (400 DM)). Exceptions to
the handbook's provisions may be approved by the Contracting Officer on
an individual basis.
(e) Quarters records and accounting. (1) Contractors responsible
for the operation and maintenance of quarters shall maintain quarters
occupancy records, rental income receipt and utility data, and any
other documents necessary to assure proper accounting of quarters
occupancy and rental income.
(2) The contractor shall submit such records to the Secretary at
least annually or more frequently as specified in the terms of the
contract.
Sec. 900.514 Closure of facilities.
(a) No service hospital or other outpatient health care facility,
nor any portion of such hospital or facility may be closed if the
Secretary of HHS has not submitted to the Congress at least one year
prior to the date such hospital or facility (or portion thereof) is
proposed to be closed, an evaluation of the impact of such proposed
closure as required by sections 301(b)(1) and of Public Law 100-713,
section 105, 25 U.S.C. 450j.
(b) In accordance with section 301(b)(2) of Public Law 100-713, the
provisions of paragraph (a) of this section shall not apply to any
temporary closures of a facility or any portion of a facility if such
closure is necessary for medical, environmental, or safety reasons.
Sec. 900.515 Non-IHS and non-BIA funds to renovate or modernize health
care facilities.
(a) Subject to prior approval of the Secretary and in accordance
with applicable law, the Secretary is authorized to accept major
renovation or modernization by any Indian tribe of any IHS or BIA
facility or of any other Indian facility operated pursuant to a
contract, provided such renovation or modernization does not obligate
the Secretary to provide additional employees or equipment, and has the
approval of the Secretary.
(b) The renovation or modernization using non-IHS funds will not be
approved if the project would require diversion of IHS funds from a
higher priority facility. If, within 20 years of the modernization/
renovation, the facility ceases to be used as an IHS facility, the
tribe will receive the prorata remaining value of the modernization/
renovation.
Subpart F--Procurement Management
Sec. 900.601 Purpose and scope.
This Subpart establishes the minimum requirements for procurement
by Indian tribes and tribal organizations (contractors) when procuring
property and services under self-determination contracts. Procurement,
for purposes of this Subpart, includes both subcontracting and
purchasing.
Sec. 900.602 Procurement system standards.
(a) All contractors shall have procurement systems which at a
minimum:
(1) Provide for a review of proposed procurement to ensure
compliance with the requirements of this Subpart and to avoid the
purchase of unnecessary or duplicative items;
(2) Consider consolidation of items and use of intergovernmental
agreements, where appropriate;
(3) Require an analysis of lease versus purchase arrangements and
any other appropriate analysis to determine the most economical
approach;
(4) Ensure proposed recipients of subcontracts and purchase orders
are responsible and have the ability to perform successfully and have
not been suspended, debarred, or otherwise determined to be ineligible
by the Federal Government;
(5) Include a system to ensure that performance will be in
accordance with the terms, conditions and specifications of the
procurement;
(6) Require that records be maintained to detail the history of a
procurement, e.g., rationale for method of procurement, selection of
procurement type, selection of recipients, subcontractor and vendors,
price reasonableness, and required justifications;
(7) Include a written code of standards of conduct governing
performance of employees engaged in the selection, award and
administration of procurement, addressing avoidance of conflicts of
interest and penalties for acceptance of gratuities and favors;
(8) Ensure that time and material subcontracts will only be used if
no other type is suitable and the contractor includes a ceiling price
that the contractor exceeds at its own risk.
(9) Provide for settlement by the contractor of all contractual and
administrative issues arising out of a procurement. These issues
include source selection, protests, disputes, and claims.
(10) Include procedures providing for prompt disclosure to the
Secretary of information regarding unresolved issues relating to source
selection, protests, disputes, and claims.
(b) Contractors shall procure property and services in accordance
with this Subpart, except that at the option of the contractor, one of
the following may be used:
(1) 43 CFR part 12 (Recipients of DOI contracts); 45 CFR part 74
(Tribal organizations receiving DHHS awards); 45 CFR part 92 (Tribes
receiving DHHS awards); or
(2) The contractor's procurement procedures, if such procedures
meet the requirements of either this Subpart or the applicable
regulation cited in paragraph (b)(1) of this section.
(c) If one of the above options is selected by a contractor, it
must be reflected in the contract award. Contractors selecting the
option in paragraph (b)(2) of this section must provide a copy of their
procurement procedures to the Contracting Officer at the time the
option is selected.
Sec. 900.603 Competition.
Contractors shall ensure that all procurement are conducted in a
manner which will maximize competition. Written selection procedures
shall be developed and followed to ensure that all solicitations:
(a) Include a clear and accurate description of the required item;
(b) Not unduly restrict competition; and
(c) Identify all requirements which offerors must meet and all
factors that will be used in evaluating offers.
Sec. 900.604 Methods of procurement.
(a) Small purchase procedures. Small purchase procedures are
relatively simple and informal procurement methods for securing
services, supplies, or other property that do not cost more than
$25,000 in the aggregate (or any larger amount that may subsequently be
established in the Federal Acquisition Regulation after the issuance of
this Part) or such lower amount as may be established by the
contractor.
(b) Subcontracting. Subcontracing is required for all procurements
greater than $25,000 or not meeting the definition of small purchases.
Subcontracting shall be accomplished either by sealed bids or
negotiated procurement as provided below.
(1) Sealed bids. The sealed bid method requires pricing on a fixed-
price basis. In order for sealed bidding to be feasible, there must be
a complete, adequate, and realistic specification or purchase
description; two or more responsible bidders willing and able to
compete; the procurement must lend itself to a fixed-price contract;
and selection of the successful bidder must be made on the basis of
price. At a minimum sealed bidding requires:
(i) Public advertisement and opening of bids at the time and place
prescribed in the solicitation;
(ii) Solicitation from an adequate number of known suppliers and
clear definition of the required items or services;
(iii) Inclusion of any specifications and attachments and a
statement that a fixed-price award will be made to the lowest
responsive and responsible bidder;
(iv) Provision for the right to reject any or all bids if there is
sound documented reason; and
(v) Written justification by the contractor if an award is to be
made where only one bid was received or the award will be made to other
than the apparent low bidder.
(2) Procurement by competitive negotiations. This method is
generally used when conditions are not appropriate for the use of
sealed bids because negotiation of technical requirements, price, or
contract type is in order. Competitive negotiations are normally
conducted with more than one source submitting offers, and either a
fixed-price or cost-reimbursement contract will be awarded. When using
this method, requests for proposals must:
(i) Be solicited from an adequate number of qualified sources;
(ii) Be publicized;
(iii) Identify all evaluation factors and their relative
importance; and
(iv) Permit award(s) to the responsible firm(s) whose proposal is
most advantageous, with price and other factors considered.
(3) Procurement by noncompetitive negotiations. Noncompetitive
procurement is a form of negotiated procurement. If an award is to be
made without competition, the contractor shall prepare a written
justification which shall be maintained as part of the procurement
file. Noncompetitive procurement shall be used only when a competitive
award is infeasible and one of the following circumstances applies:
(i) The item is available from only one source;
(ii) The public exigency or emergency for the requirement will not
permit a delay resulting from competitive solicitation;
(iii) After solicitation of a number of sources, competition is
determined inadequate;
(iv) The estimated cost of the purchase is less than $2,500 or 10%
of the small purchase threshold or such other lessor amount established
by the contractor.
(4) Purchases from Federal sources of supply. Purchases from
Federal sources of supply, as provided in Sec. 900.605, are not subject
to the requirements of paragraphs (a) and (b) of this section.
(5) In any case where a solicitation specifies a ``brand name''
product or when an award will be made after only one offer is received
in response to a solicitation, the contractor shall prepare a written
justification for the action which shall be maintained as part of the
procurement file.
Sec. 900.605 Procurement from Indian organizations, Indian-owned
economic enterprises, small and minority firms and labor surplus area
firms.
(a) Contractors shall give preference to the greatest extent
feasible to Indian organizations and Indian-owned economic enterprises
regardless of tribal affiliation in the award of any procurement
entered into under the contract, and shall require subcontractors to
give such preference in any lower-tier awards (see Sec. 900.608(h)).
Indian preference requirements established by the tribe receiving
services shall also apply to the extent such requirements are
consistent with the purpose and intent of this section.
(b) If the contractor determines that there is no qualified Indian
organization or Indian-owned economic enterprise available to provide
the required product or service, the contractor should use a small or
minority firm (which includes woman-owned business enterprises) or a
labor surplus area firm, if possible.
(c) To ensure that potential qualified sources under paragraphs (a)
and (b) of this section are identified, the contractor shall place such
firms on solicitation lists, assure they are solicited when
appropriate, divide total requirements when feasible, establish
delivery schedules which encourage their participation, and shall
require such efforts by subcontractors and vendors in their procurement
as well.
Sec. 900.606 Cost and price analysis.
(a) Contractors must establish the reasonableness of cost or price
for every procurement action including modifications. The method and
degree of analysis is dependent on the facts surrounding the particular
procurement situation.
(b) Price analysis will be used to determine the reasonableness of
the proposed price when the contractor can compare proposed prices in a
competitive process, can compare the proposed price with a catalog or
market price of a commercial product sold in substantial quantities to
the general public or with prices set by law or regulation, or can use
other appropriate means.
(c) Cost analysis will be performed when the offeror is required to
submit the elements of the estimated cost. A cost analysis will also be
necessary when an adequate price analysis cannot be performed, e.g.,
when price competition is lacking, and for noncompetitive procurement,
including change orders.
(d) Contractors will negotiate profit, in fixed-price procurement,
or fees, in cost-reimbursable procurement, as a separate element of the
price for each procurement in which there is no price competition, and
in all cases where cost analysis is performed.
(e) Costs or prices based on estimates will be allowable only when
consistent with the Federal cost principles that are applicable to the
type of recipient.
(f) The cost plus a percentage of cost method of procurement shall
not be used.
Sec. 900.607 Awarding agency review.
(a) Contractors must make available, upon request of the awarding
agency, technical specifications on proposed procurement where the
awarding agency believes such review is needed to ensure that the item
and/or service specified is the one being proposed for purchase. This
review generally will take place prior to the time the specification is
incorporated into a solicitation document. However, if the contractor
desires to have the review accomplished after a solicitation has been
developed, the awarding agency may still review the specifications,
with such review usually limited to the technical aspects of the
proposed purchase.
(b) Contractors must, on request, make available for pre-award
review by the awarding agency procurement documents, such as requests
for proposals or invitations for bids, independent cost estimates,
etc., when:
(1) A contractor's procurement procedures or operation fails to
comply with the procurement standards in this section;
(2) The procurement is expected to exceed $25,000 and is to be
awarded without competition or only one bid or offer is received in
response to a solicitation;
(3) The procurement, which is expected to exceed $25,000, specifies
a ``brand name'' product;
(4) The proposed award over $25,000 is to be awarded to other than
the apparent low bidder under a sealed bid procurement;
(5) A proposed contract modification changes the scope of a
contract or increases the contract amount by more than $25,000.
(c) A contractor will be exempt from the pre-award review in
paragraph (b) of this section, if the awarding agency determines that
its procurement systems comply with the standards of this section.
(1) A contractor may request that its procurement system be
reviewed by the awarding agency to determine whether its system meets
these standards in order for its system to be certified. Generally,
these reviews shall occur where there is a continuous high-dollar
funding, and third-party contracts are awarded on a regular basis;
(2) A contractor may self-certify its procurement system. Such
self-certification shall not limit the awarding agency's right to
survey the system. Under a self-certification procedure, awarding
agencies may wish to rely upon written assurances from the contractor
that it is complying with these standards. A contractor will cite
specific procedures, regulations, standards, etc., as being in
compliance with these requirements and have its system available for
review.
Sec. 900.608 Procurement award provisions.
Procurement awards must, at a minimum, include the following
provisions:
(a) Administrative, contractual, or legal remedies in instances
where subcontractors violate or breach contract terms, and appropriate
sanctions and penalties. This affects all procurement other than small
purchases.
(b) Termination for cause and for convenience by the contractor
including the manner by which it will be effected and the basis for
settlement. This affects all procurement other than small purchases.
(c) Compliance with the Copeland ``Anti-Kickback'' Act (18 U.S.C.
874) as supplemented in Department of Labor regulations, 29 CFR part 3.
This affects all contracts for construction or repair.
(d) Compliance with sections 103 and 107 of the Contract Work Hours
and Safety Standards Act (40 U.S.C. 327-330) as supplemented by
Department of Labor regulations, 29 CFR part 5. This affects
construction subcontracts in excess of $2,000 and in excess of $2,500
for other subcontracts which involve the employment of mechanics or
laborers.
(e) The Secretary's requirements and regulations pertaining to
reporting, record retention and access to records (Secs. 900.121 and
900.204).
(f) The Secretary's requirements and regulations pertaining to
patent rights with respect to any discovery or invention which arises
or is developed in the course of or under such subcontract and
requirements and regulations with respect to copyrights and rights in
data.
(g) Compliance with the Walsh-Healey Public Contracts Act (41
U.S.C. 35-45), including the prohibition from employing convict labor
in the performance of the subcontract. This affects any subcontract for
the manufacture or furnishing of materials, supplies, articles, and
equipment.
(h) The requirement to give preference to qualified Indian
organizations and Indian-owned economic enterprises in the award of any
lower tier procurement consistent with the efficient performance of the
subcontract.
(i) The requirement to give preference to Indians in training and
employment as provided in Sec. 900.115, Indian Preference in Training
and Employment.
(j) Equal Opportunity and Civil Rights. Notice of the requirement
to provide, subject to the provisions in paragraph (i) of this section,
equal opportunity as provided in Sec. 900.116, Equal Opportunity and
Civil Rights.
(k) Davis-Bacon Wage and Labor Standards (40 U.S.C. 276(a)(2a-7).
All laborers and mechanics employed by subcontractors, in the
construction, alteration, or repair of buildings or other facilities in
connection with contracts and grants under this part shall be paid
wages not less than those on similar construction in the locality as
determined by the Secretary of Labor in accordance with the Davis-Bacon
Act of March 3, 1931, as amended and as supplemented by regulations
under 29 CFR part 5. This affects all construction procurement and
grants exceeding $2,000.
Sec. 900.609 Federal sources of supply.
In addition to those sources specified below, contractors are
authorized to utilize sources of supply used by the Secretary to the
extent agreed to by such sources. Contractors are authorized to utilize
the PHS Supply Center at Perry Point, Maryland, and the GSA's supply
sources for personal property and supplies that are to be used in the
performance of the contract.
Sec. 900.610 Discounted services.
Contractors are considered cost-reimbursement contractors for
purposes of GSA bulletins which provide such contractors access to
Federal Government rates or discounts, e.g., contract air carriers, for
use in the performance of the contract.
Subpart G--[Reserved]
Subpart H--Appeals, Disputes and Equal Access to Justice Act
Sec. 900.801 Appeals process.
This subpart applies to appeals and disputes arising from
contracts, grants used in lieu of contracts, cooperative agreements,
and discretionary grants awarded by the Secretary pursuant to the Act.
Sec. 900.802 Appeals process--Indian Health Service.
(a) Appeals of funding allocations. Determination of amounts
allocated under section 106 of the Act and Sec. 900.108 of these
regulations for initial contracts, contract modifications, or contract
renewals including annual funding negotiations under section 105(c)(2),
shall be subject exclusively to the appeals procedures set forth below:
(1) The determination of contract award amounts shall be based upon
section 106 of the Act or Sec. 900.108 of these regulations and not on
the declination criteria in section 102 of the Act.
(2) Review of the agency's funding allocation shall be limited to
whether the amount allocated was properly determined under existing IHS
allocation processes whether formal or informal.
(3) On being notified by the appropriate approving official that,
based on allocation made pursuant to the IHS allocation process, funds
are not available to finance the program or portion thereof at the
level requested, the tribal organization may, within thirty (30) days
after receipt of such notice, request a conference under (c) of this
section or file a written appeal to the Contract Funding Appeals Board
(FAB/Board). The written appeal should address why the tribe believes
the allocation processes were not accurately applied and may request a
hearing before the Board. The FAB shall consider such an appeal,
conduct any requested hearing thereon, and recommend a decision to the
Director, IHS, or the Director's representative, whose decision shall
be final.
(4) If a hearing is requested, it will be conducted within thirty
(30) calendar days from receipt of the written request for a hearing or
at such later time as may be agreed upon, and the notice of hearing
shall specify in writing the date, time, place, and purpose of the
hearing.
(5) The decision of the Director, IHS, or the Director's
representative, on the appeals will be rendered within 15 calendar days
from the date of receipt of the Board's recommendation by the Director,
IHS.
(6) The FAB shall be composed of five members appointed by the
Director, IHS, one of whom shall be designated to serve as Chairman.
For purposes of recommending a decision, a quorum shall consist of the
Chairman and not less than two other Board members.
(b) Appealable decisions other than funding allocations. The
following decisions shall be subject to the appeals procedures set
forth below:
(1) Declination to make amend or modify an award under section
102(a)(2) of the Act, or those applicable activities under section
103(b) of the Act.
(2) Rescission of the award and reassumption of the program award
under section 109 of the Act.
(3) Denial of mature contract status.
(4) Whether the tribe or tribal organization has the required
resolutions of approval from the tribes it proposed to serve under
Sec. 900.203, under section 4(e) of the Act; and
(5) Whether the activity is contractible under Sec. 900.106,
pursuant to section 102(a)(1) of the Act.
(6) Declination of construction contracts under Subpart J shall be
confined to the issue of whether the proposal meets the requirements of
the RFP. Disputes dealing with modification and change orders of
construction contracts shall be governed by Sec. 900.805.
(c) Grant appeals under subpart L. HHS grants awarded under subpart
L are subject to the appeal procedures for disputes of certain post-
award adverse determinations. Those appeal procedures are located at 42
CFR part 50, subpart D and 45 CFR part 16.
(d) Informal conference. (1) Within 30 days of receipt of an
appealable decision, an Indian tribe or tribal organization may:
(i) Request an informal conference under this section (the purpose
of an informal conference is to attempt to resolve issues expeditiously
and without the need for a formal hearing.); or
(ii) Appeal the decision under Sec. 900.802 (a) or (b).
(2) If the Indian tribe or tribal organization wishes an informal
conference, it shall file its request in the office of the official who
rendered the decision. The date of filing shall be the date of receipt
by or the date of personal delivery.
(3) The informal conference will be conducted by a designated
representative of the Director, IHS. With respect to program division
issues described in Sec. 900.107 of these regulations, all affected
tribes shall be notified of the conference and given an opportunity to
be parties. The informal conference will be held within 30 days of the
date the request was received or at such other time as may be agreed
upon and, to the extent feasible, shall be held at the office of the
requesting Indian tribe or tribal organization. If the meeting is more
than 50 miles from the office of the tribal organization, the Secretary
will authorize payment of transportation costs and per diem to allow
adequate representation of the parties. Individuals making
presentations must be either authorized representatives of the
Director, IHS, or of the other parties.
(4) The official who conducted the informal conference shall
prepare a report summarizing the results of the conference and a
recommended decision and mail it to the parties within 10 calendar days
of the conference.
(5) Within 30 days of its receipt of the informal conference report
and recommended decision, the Indian tribe or tribal organization may
file an appeal under Sec. 900.802 (a) or (b). If such an appeal is not
filed, the recommended decision shall become final.
(e) Notice of appeal under Sec. 900.802(b). (1) An Indian tribe or
tribal organization may file an appeal under paragraphs (b) (1) through
(5) of this section by filing a notice of appeal with the Departmental
Appeals Board, Civil Remedies Division, room 637-D, Humphrey Building,
200 Independence Avenue, SW., Washington, DC 20201, within 30 days of
its receipt of the decision being appealed or informal conference
recommended decision. The date of filing the notice of appeal is the
date of mailing or the date of personal delivery to the Board. The
Indian tribe or tribal organization shall serve copies of its notice of
appeal to the Director, IHS and on the official whose decision is being
appealed, and shall certify to the Board that it has done so.
(2) The Director, IHS, shall be a party to all appeals filed with
the Board from decisions made in the IHS. With respect to program
division issues described in Sec. 900.107 of these regulations, all
affected tribes shall be notified of the hearing date and given an
opportunity to be parties to the appeal.
(3) The notice of appeal shall contain a statement explaining why
the Indian tribe or tribal organization believes the decision or report
appealed from is in error and identifying the issues involved.
(4) A notice of appeal that is not timely filed or does not contain
the explanation required by paragraph (e)(3) of this section will be
dismissed for lack of jurisdiction.
(i) If an Indian tribe or tribal organization requests an extension
of time to file its notice of appeal, prior to expiration of the
specified time period, the request must be made in writing and good
cause shown as to why a notice of appeal cannot be filed within the
time period.
(ii) If an Indian tribe or tribal organization, after the time
period for filing an appeal has expired, requests additional time to
file a notice of appeal, a request for extension of time must be in
writing and good cause shown why the notice of appeal was not filed
within the stated time period. An extension may be granted if good
cause is shown.
(f) Initial determination by the Board. (1) Within five days of its
receipt of the tribal organization's notice of appeal, the Board will
determine whether the appeal is within the scope of paragraph (b) of
this section and so notify the parties provided that, if the Board is
unable to make a determination from the information included in the
notice of appeal, the Board may request additional statements from the
tribe or tribal organization and IHS. If additional statements are
required, the Board will make a determination within five days of its
receipt of the statements. If the Board determines that the appeal is
within the scope of paragraphs (b) (1) and (2) of this section, the
hearing will be conducted in accordance with paragraph (g) of this
section. If the Board determines that the appeal is within the scope of
paragraphs (b) (3) through (5) of this section, the Board may make a
determination from the information included in the notice of appeal and
any additional statements received from the tribal organization and the
Agency, or conduct a hearing under paragraph (g) of this section if a
material fact is at issue.
(2) If the appeal involves emergency reassumption issues, the
hearing will be conducted in accordance with paragraph (j) of this
section.
(g) Appeals where hearing is required. (1) Any required hearing
will be convened within 45 days of the Board's determination under
paragraph (f)(1) of this section, or as otherwise ordered by the Board.
At least 15 days prior to the hearing, the Director, IHS or the
Director's representative shall file and serve on the opposing parties
an answer to the notice of appeal. If the hearing is more than 50 miles
from the Indian tribe's or tribal organization's office, the Secretary
will authorize payment of transportation costs and per diem to allow
adequate representation of the Indian tribe or tribal organization. The
IHS will, at the request of the Administrative Law Judge (ALJ), render
whatever assistance is necessary in making arrangements for the formal
hearing.
(2) The hearing will be conducted by an ALJ appointed under 5
U.S.C. 3105. The hearing will be conducted in accordance with the
Administrative Procedure Act, 5 U.S.C. 554. The Indian tribe or tribal
organization and the Director, IHS, will be afforded the following
rights:
(i) The right to be represented by counsel.
(ii) The right to have the DHHS provide witnesses who are capable
of giving testimony on the issues.
(iii) The right to cross examine witnesses.
(iv) The right to produce oral and documentary evidence.
(v) The right to require testimony under oath and the production of
documents by subpoena both at hearings and depositions.
(vi) The right to a copy of the transcript of the hearing and all
documentary evidence introduced.
(vii) All other rights afforded by the Administrative Procedure
Act, 5 U.S.C. 554; and
(viii) The right to take depositions, demand production of
documents and serve interrogatories.
(h) Representation of IHS issues. The IHS will be represented at
hearings by the Public Health Division of the Office of the General
Counsel, DHHS, and/or the DHHS Regional Attorneys Offices.
(i) Decisions on IHS issues. Within 30 days after conclusion of the
formal hearing, under paragraph (b) of this section, the ALJ shall
prepare and issue to the parties a recommended decision containing
findings of fact and conclusion of law on all the issues, and obtain
receipt for delivery. Within 15 days of the ALJ's decision, any party
may file exceptions or other comments on the recommended decision with
the Assistant Secretary for Health (ASH) or ASH's designee in the OASH.
Any such exceptions must be precise and supported by specific citations
to the record. The recommended decision shall become final within 20
calendar days after the close of the foregoing comment period unless
the ASH modifies or reverses the decision. In reviewing the recommended
decision, the ASH may consider and determine all issues properly
presented, including questions of law and policy. Where it is alleged
that erroneous findings of fact have been made by the ALJ, the review
shall be limited to determining whether the record discloses that the
findings are supported by substantial evidence. Any such decision by
the ASH or the ASH's representative shall be in writing, shall specify
the findings of fact or conclusions of law that are modified or
reversed, and shall give reasons for such modification or reversal.
This is the final administrative decision.
(j) Hearing in the case of emergency reassumption. (1) Where the
Area Director gives notice to a tribal organization that he/she intends
immediately to rescind a contract or grant and resume control or
operation of a program activity or service, he/she shall at the same
time notify the Departmental Appeals Board, who shall appoint an ALJ to
hold a hearing within 10 days or such later date as the tribal
organization may approve. The hearing shall be conducted pursuant to
paragraph (g) of this section. Within 25 calendar days after conclusion
of the formal hearing, the ALJ shall prepare and issue a recommended
decision, containing findings of fact and conclusions of law and obtain
receipt of delivery to the parties. Within 10 days after receipt of the
recommended decision of the ALJ, any party may file exceptions or other
comments on the recommended decision with the Director, IHS. Any such
exceptions must be precise and supported by specific citations to the
record.
(2) The recommended decision shall become final 15 calendar days
after the close of the foregoing comment period unless the ASH or his/
her representative modifies or reverses the decision. In his review of
the recommended decision, the ASH may consider and determine all issues
properly presented, including questions of law and policy. Where it is
alleged that erroneous findings of fact have been made by the ALJ,
review shall be limited to determining whether the record discloses
that the findings are supported by substantial evidence. Any such
decision by the ASH or his/her representative shall be in writing,
shall specify the findings of fact or conclusions of law that are
modified or reversed, and shall give reasons for such modification or
reversal. This is the final administrative decision.
(k) A pending appeal shall not affect or constitute a barrier to
the negotiation or award of a pending contract.
Sec. 900.803 Appeals Process--Department of the Interior.
(a) Appealable decisions. The following decisions shall be subject
to the appeals procedures set forth below:
(1) Declination to make, amend or modify an award pursuant to
section 102 of the Act.
(2) The determination of contract, contract modification, or
contract renewal award amounts under section 106 of the Act and
Sec. 900.108 of these regulations.
(3) Decisions relating to the contractibility of a program under
section 102(a)(1) of the Act and Sec. 900.106 of these regulations.
(4) Recision and reassumption of awards pursuant to section 109 of
the Act.
(5) Denial of mature contract status.
(6) Decisions relating to the validity of required tribal
resolutions under section 4(e) of the Act and Sec. 900.202 of these
regulations.
(7) Decisions relating to the award of discretionary grants under
subpart L of these regulations.
(8) All other appealable preaward decisions by a Federal official
as specified in these regulations, except for denials under the Freedom
of Information Act, 5 U.S.C. 552, which may be appealed under 43 CFR
part 2.
(b) Decision statements. An Official who renders an appealable
decision shall include the following statement in the decision:
(Within 30 days of the receipt of this decision, you may request
an informal conference under 25 CFR 900.803(c), or appeal this
decision under 25 CFR 900.803(d). Should you decide to appeal this
decision to the Interior Board of Indian Appeals (IBIA) under 25 CFR
900.803(d), you may request a hearing on the record. The IBIA, or Ad
Hoc Board to whom this appeal may be referred, will determine
whether you are entitled to such a hearing under 25 CFR 900.803(e).
Failure to request a hearing on the record will be considered a
waiver of any right you may have to such a hearing. An appeal to the
IBIA under 25 CFR 900.803(d) must be filed with the IBIA at the
following address: Board of Indian Appeals, U.S. Department of the
Interior, 4015 Wilson Boulevard, Arlington, Virginia 22203.)
(c) Informal conference. The purpose of an informal conference is
to attempt to resolve issues expeditiously and without the need for a
formal hearing.
(1) Within 30 days of its receipt of an appealable decision, an
Indian tribe or tribal organization may:
(i) Request an informal conference under this paragraph; or
(ii) Appeal the decision under paragraph (d) of this section.
(2) If the Indian tribe or tribal organization requests an informal
conference, it shall file its request in the office of the official who
rendered the decision. The date of filing shall be the date of mailing
or the date of personal delivery to such official's office.
(3) The informal conference will be conducted by the Secretary or
by the Secretary's designated representative. The informal conference
will be held within 30 days of the date the request was filed or at
such time as may be agreed upon and to the extent feasible shall be
held at the office of the Indian tribe or tribal organization. If the
meeting is more than 50 miles from the office of the tribal
organization, the Secretary will authorize payment of transportation
costs and per diem to allow adequate representation of the Indian tribe
or tribal organization. Interested parties entitled to present their
positions shall be limited to authorized representatives of the
Secretary and the Indian tribe or tribal organization.
(4) The official who conducted the informal conference shall
prepare a report summarizing the results of the conference and a
recommended decision, and mail it to the Indian tribe or tribal
organization within 10 days of the conference. The recommended decision
shall include the following statement:
Within 30 days of the receipt of this recommended decision, you
may file an appeal with the IBIA under 25 CFR 900.803(d). You may
request a hearing on the record. The IBIA or Ad Hoc Board to whom
this appeal has been referred, will determine, whether you are
entitled to such a hearing under 25 CFR 900.803(e). Failure to
request a hearing on the record will be considered a waiver of any
right you may have to such a hearing. An appeal to the IBIA under 25
CFR, 900.803(d) must be filed with the IBIA at the following
address: Board of Indian Appeals, U.S. Department of the Interior,
4015 Wilson Boulevard, Arlington, Virginia 22203.
(5) Within 30 days of the receipt of the informal conference report
and recommended decision, the Indian tribe or tribal organization may
file an appeal under paragraph (d) of this section. If such an appeal
is not filed, the recommended decision shall become final.
(d) Notice of appeal. (1) An Indian tribe or tribal organization
may file an appeal under paragraphs (c)(1) or (c)(5) of this section by
filing a notice of appeal with the Board of Indian Appeals, U.S.
Department of the Interior, 4015 Wilson Boulevard, Arlington, Virginia
22203, within 30 days of its receipt of the decision being appealed or
informal conference recommended decision. The date of filing the notice
of appeal is the date of mailing or the date of personal delivery to
the Board. The Indian tribe or tribal organization shall serve copies
of its notice of appeal on the Secretary and on the official whose
decision is being appealed, and shall certify to the Board that it has
done so. The Secretary shall be a party to all appeals filed within the
Board of Indian Appeals.
(2) The notice of appeal shall contain a statement explaining why
the Indian tribe or tribal organization believes the decision or report
appealed from is in error and identifying the issues involved. The
notice of appeal shall indicate whether the tribe or tribal
organization wishes a hearing on the record. Failure to request such a
hearing will be considered a waiver of the tribe's or tribal
organization's right to such a hearing and will result in appeal
proceedings without any evidentiary hearing unless the Board of Indian
Appeals or Ad Hoc Board determines that such a hearing is necessary.
(e) Initial determinations by the Board of Indian Appeals or Ad Hoc
Appeals Board. (1) Appeals from decisions of BIA officials.
(i) Within 5 days of its receipt of the tribe's or tribal
organizations's notice of appeal, the Board of Indian Appeals will
determine whether the appeal is within the scope of paragraphs (a) (1)
through (4) of this section provided that, if the Board is unable to
make a determination from the information included in the notice of
appeal, the Board may request additional statements from the tribal
organization and the appropriate Federal agency. If additional
statements are required, the Board will make a determination within 5
days of its receipt of the statements.
(ii) If the Board of Indian Appeals determines that an appeal is
within the scope of paragraphs (a) (5) through (8) of this section, it
will request the administrative record under 43 CFR 4.335. The Board
will notify the parties that the appeal will be considered under the
regulations at 43 CFR part 4, subpart D, except that the case will be
docketed immediately without consideration of the 20 day period set
forth in 43 CFR 4.336.
(2) Appeals from decisions of DOI officials other than officials of
the BIA.
(i) Immediately upon receipt of an appeal, the Board of Indian
Appeals will refer it to the Director, Office of Hearings and Appeals,
if it appeals a decision of a DOI official other than an official of
the BIA.
(ii) Within 4 days of referral by the Board of Indian Appeals, the
Director will appoint an Ad Hoc Board to hear the appeal.
(iii) The Ad Hoc Appeals Board will follow the procedures in this
Subpart and the procedures of the Board of Indian Appeals in 43 CFR
part 4, subpart D, as modified by this Subpart.
(iv) Within 5 days of appointment by the Director, the Ad Hoc
Appeals Board will determine whether the appeal is within the scope of
paragraphs (a) (1) through (4) of this section provided that, if the
Board is unable to make a determination from the information included
in the notice of appeal, the Board may request additional statements
from the tribal organization and the appropriate official of the DOI.
If additional statements are required, the Board will make a
determination within 5 days of its receipt of the statements.
(v) If the Ad Hoc Appeals Board determines that an appeal is within
the scope of paragraphs (a) (5) through (8) of this section, it will
request the administrative record under 43 CFR 4.335. The Ad Hoc
Appeals Board will notify the parties that the appeal will be
considered in accordance with the Board of Indian Appeals' regulations
at 43 CFR part 4, subpart D, except that the case will be docketed
immediately without consideration of the 20 day period set forth in 43
CFR 4.336.
(f) Appeals where hearing is required. (1) If the Board of Indian
Appeals or Ad Hoc Appeals Board determines that the appeal is within
the scope of paragraphs (a) (1) through (4) of this section and a
hearing has been requested, except for emergency reassumption appeals
handled under paragraph (g) of this section, it will refer the appeal
to the Hearings Division of the Office of Hearings and Appeals, U.S.
Department of the Interior, for a hearing under 43 CFR 4.337(a).
(2) The hearing will be convened within 45 days of the Board's
referral, or on such date as agreed upon by the parties or as ordered
by the ALJ. At least 15 days prior to the hearing, the Secretary shall
file and serve on the Indian tribe or tribal organization an answer to
the notice of appeal. If the hearing is more than 50 miles from the
Indian tribe's or tribal organization's office, the Secretary will
authorize payment of transportation costs and per diem to allow
adequate representation of the Indian tribe or tribal organization. The
Secretary will, at the request of the ALJ, render whatever assistance
is necessary in making arrangements for the formal hearing.
(3) The hearing will be conducted in accordance with the
Administrative Procedure Act, 5 U.S.C. 554. The Indian tribe or tribal
organization and the Secretary will be afforded the following rights:
(i) The right to be represented by counsel;
(ii) The right to have the Secretary provide witnesses who are
capable of giving testimony on the issues;
(iii) The right to cross examine witnesses;
(iv) The right to produce oral and documentary evidence;
(v) The right to require testimony under oath and the production of
documents by subpoena both at hearings and depositions;
(vi) The right to a copy of the transcript of the hearing and all
documentary evidence introduced;
(vii) The right to take depositions, demand production of documents
and serve interrogatories; and
(viii) All other rights afforded by the Administrative Procedure
Act, 5 U.S.C. 554.
(4) The ALJ shall prepare a recommended decision, in accordance
with 43 CFR 4.338, within 30 days of the conclusion of the hearing.
(5) In accordance with 43 CFR 4.339, within 30 days after receipt
of the recommended decision of the ALJ, any party may file exceptions
or other comments on the decision with the Board of Indian Appeals or
Ad Hoc Appeals Board.
(6) The Board of Indian Appeals or Ad Hoc Appeals Board will issue
a decision within 15 days of receipt of statements from both parties to
the appeals or with 60 days of the hearing, whichever comes first. The
Board's decision shall be final for the Department, subject to 43 CFR
4.5.
(g) Hearing in the case of emergency reassumption. When the
Secretary gives notice to a tribe or tribal organization that the
Secretary intends to immediately rescind a contract or grant and resume
control or operation of a program, activity or service, the Secretary
shall at the same time notify the Deputy Director, Office of Hearings
and Appeals, U.S. Department of the Interior, 4015 Wilson Boulevard,
Arlington, Virginia, 22203 who shall appoint an ALJ to hold a hearing
within 10 days or such later date as the tribal organization may
approve. The hearing shall be conducted under paragraph (f)(3) of this
section. Within 30 calendar days after the conclusion of the formal
hearing, the ALJ shall prepare and issue a decision containing findings
of fact and conclusions of law, and shall transmit the decision to the
parties by Certified Mail, Return Receipt Requested. The ALJ's decision
shall be final, unless appealed to the Board of Indian Appeals under 43
CFR part 4, subpart D. If the initial decision in an appeal under this
paragraph was made by a DOI official other than an official of the BIA,
the Board of Indian Appeals will refer the appeal to the Director,
Office of Hearings and Appeals, who will appoint an Ad Hoc Appeals
Board to hear the appeal.
(h) Effects of pending appeals. A pending appeal shall not affect
or constitute a barrier to the negotiation of a pending contract.
Sec. 900.804 Equal Access to Justice Act (EAJA).
(a) The EAJA, 5 U.S.C. 504 and 28 U.S.C. 2412, shall apply to
administrative appeals pending on or filed after the date of enactment
of the Indian Self-Determination and Education Assistance Act
Amendments of 1988 by Indian tribes or tribal organizations regarding
contracts governed by these regulations. These provisions do not apply
to discretionary grants governed by these regulations.
(b) The EAJA claims for DOI will be handled under regulations at 43
CFR part 4, subpart F, Secs. 4.601-4.619 and EAJA claims for HHS will
be handled under regulations at 45 CFR part 13.
Sec. 900.805 Post award contract disputes.
(a) This section applies to all contracts under the Act and to all
disputes with respect to the awarding official's decisions on matters
relating to such contracts except for decisions which are covered under
Sec. 900.802 and Sec. 900.803.
(b) It is the Federal Government's policy to attempt to resolve all
contractual disputes by mutual agreement at the awarding official's
level, without the need for litigation. The awarding official, before
issuing a decision on a claim, should consider the use of informal
discussions between the parties by individuals who have not
participated substantially in the matter in dispute to aide in
resolving the differences.
(c) Initiation of a claim. (1) A claim is a written demand or
written assertion by one of the contracting parties seeking, as a
matter of right, the payment of money in a sum certain, the adjustment
or interpretation of contract terms, or other relief arising under the
contract. However, a written demand or written assertion by the Indian
tribe or tribal organization seeking the payment of money exceeding
$50,000 is not a claim under the Contract Disputes Act of 1978 until
certified as required by section 6.c(1) of the Contract Disputes Act. A
voucher, invoice, or other routine request for payment that is not in
dispute when submitted is not a claim. The submission may be converted
to a claim, by written notice to the Contracting Officer by the
contracting official designated under Sec. 900.307, if it is disputed
either as a liability or amount or is not acted upon in a reasonable
time.
(2) Indian tribes' or tribal organizations' claims shall be
submitted in writing to the Contracting Officer for a decision. The
Contracting Officer shall document the contract file with evidence of
the date of receipt of any submission from the Indian tribe or tribal
organization deemed to be a claim. Claims submitted to an Indian tribe
or tribal organization by the awarding official shall be in writing and
shall be provided to the contractor by the Contracting Officer
addressed to the contractor official designated under Sec. 900.307.
(3) Written decision. The Contracting Officer shall issue a written
decision on any government claim initiated against an Indian tribe or
tribal organization. In the same manner, the Contracting Officer shall
issue a written decision on any claim against the United States as
filed by a tribe or tribal organization pursuant to these regulations.
(d) Indian Tribe or Tribal Organization Claim Certification. (1) An
Indian tribe's or tribal organization's claim exceeding $50,000 shall
be accompanied by a certification that:
(i) The claim is made in good faith;
(ii) Supporting data are accurate and complete to the best of the
Indian tribe's or tribal organization's knowledge and belief; and
(iii) The amount requested accurately reflects the contract
adjustment for which the Indian tribe or tribal organization believes
the government is liable.
(2) The aggregate amount of both the increased and decreased costs
shall be used in determining when the dollar thresholds have been met.
(3) The certification shall be executed by a senior official of the
tribe or tribal organization with primary control over the services
provided under the contract.
(e) Interest on claims. The Federal Government shall pay interest
on an Indian tribe's or tribal organization's claim on the amount found
due and unpaid from:
(1) The date the Contracting Officer receives the properly
certified claim, if required; or
(2) The date payment otherwise would be due, if that date is later,
until the date of payment.
(3) Simple interest on claims shall be paid at the rate fixed by
the Secretary of the Treasury pursuant to Public Law 92-41 (85 Stat.
97) for the Renegotiation Board, which is applicable to the period
during which the Contracting Officer receives the claim and then at the
rate applicable for each six-month period as fixed by the Secretary of
the Treasury during the pendency of the claim.
(f) Suspected fraudulent claims. If the Indian tribe or tribal
organization is unable to support any part of the claim and there is
evidence that the inability is attributed to misrepresentation of fact;
i.e., ``misrepresentation of fact'' as used in this section, means a
false statement of substantive fact, or any conduct with leads to the
belief of a substantive fact material to proper understanding of the
matter in hand, made with the intent to deceive or mislead, or to fraud
on the part of the Indian tribe or tribal organization, the Contracting
Officer shall refer the matter to the agency official responsible for
investigating fraud.
(g) Contracting officer's decision. When a claim by or against an
Indian tribe or tribal organization cannot be satisfied or settled by
mutual agreement and a decision on the claim is necessary, the awarding
official shall issue such a decision.
(1) The decision shall review the facts pertinent to the claim and
reflect any legal or other advisory assistance received and shall:
(i) Be in writing;
(ii) Describe the claim or dispute;
(iii) Reference the pertinent contract terms;
(iv) State the factual areas of the agreement and disagreement;
(v) State the Contracting Officer's decision based on the facts and
outlining supporting rationale; and
(vi) Contain the following:
(This is a final decision of the Contracting Officer. You may
appeal this decision to the Contract Appeals Board. If you decide to
appeal, you must, within 90 days from the date you receive this
decision, mail or otherwise furnish written notice to the Contract
Appeals Board and provide a copy to the Contracting Officer from whose
decision the appeal is taken. The notice shall indicate that an appeal
is intended, reference the decision and the award number. Instead of
appealing to the Contract Appeals Board, you may bring action in the
U.S. Claims Court or the United States District Courts within 12 months
of the date you receive this notice.)
(2) The Contracting Officer shall furnish a copy of the decision to
the Indian tribe or tribal organization by certified mail, return
receipt requested, or by any other method that provides evidence of
receipt. This requirement shall apply to decisions on claims initiated
by or against the Indian tribe or tribal organization.
(3) The Contracting Officer shall issue the decision within the
following time limitations:
(i) For claims of $50,000 or less, 60 days after receiving a
written request from the Indian tribe or tribal organization that a
decision be rendered within that period or within a reasonable time
after receipt of the claim if the Indian tribe or tribal organization
does not make such a request.
(ii) For claims over $50,000, 60 days after receiving a certified
claim; provided, however, that if a decision will not be issued within
60 days, the Contracting Officer shall notify the Indian tribe or
tribal organization, within that period of time, of the time within
which a decision will be issued.
(4) In the event of undue delay by the awarding official in
rendering a decision on a claim, the Indian tribe or tribal
organization may request the Contract Appeals Board to direct the
Contracting Officer to issue a decision in a specified time period
determined by the Contract Appeals Board.
(5) Any failure by the Contracting Officer to issue a decision
within the required time periods will be deemed a decision denying the
claim and will authorize the Indian tribe or tribal organization to
file an appeal or suit on the claim.
(6) The amount determined payable under the decision, less any
portion already paid, should be paid, if otherwise proper, without
waiting for action by an Indian tribe or tribal organization concerning
an appeal. Such payment shall be without prejudice to the rights of
either party.
(h) Contracting officer's duties upon appeal. The awarding official
shall provide data, documentation, information, and support as may be
required by the Contract Appeals Board for use on a pending appeal from
the Contracting Officer's decision.
(i) Obligation to Continue Performance. Indian tribes and tribal
organizations are required to continue performance during appeal of any
claims to the same extent as they would have been required had there
been no dispute.
(j) Effect of Pending Dispute. A pending dispute shall not affect
or constitute a barrier to the negotiation or award of any contract.
(k) Appeals of Cost Disallowances. In any appeal involving a
disallowance of costs, the Board of Contract Appeals will give due
consideration to the factual circumstances giving rise to the
disallowed costs, and shall seek to determine a fair result without
rigid adherence to strict accounting principles. The determination of
allowability shall assure fair compensation for the work or service
performed, using cost and accounting data as guides, but not rigid
measures, for ascertaining fair compensation.
Sec. 900.806 Post award grant disputes.
(a) HHS grants awarded under Subpart L are subject to appeal
procedures for disputes of certain post award adverse determinations.
Those appeal procedures are located at 42 CFR part 50, subpart D and 45
CFR part 16.
(b) DOI grants awarded under subpart L are subject to the following
procedures concerning appeal of post award decisions:
(1) A decision concerning a post award dispute shall be issued in
writing by the Contracting Officer. The decision shall be sent by
certified mail or personally delivered to the Indian tribe or tribal
organization concerned and shall include a statement that it may be
appealed in accordance with the procedures in paragraph (b)(2) of this
section.
(2) An Indian tribe or tribal organization may file a notice of
appeal with the Board of Indian Appeals, U.S. Department of the
Interior, 4015 Wilson Boulevard, Arlington, Virginia 22203, within 30
days of its receipt of the awarding official's decision. The date of
filing the notice of appeal is the date of mailing or the date of
personal delivery to the Board. The Indian tribe or tribal organization
shall serve copies of its notice of appeal on the Secretary and on the
appropriate Contracting Officer, and shall certify to the Board that it
has done so.
(3) The notice of appeal shall contain a statement explaining why
the Indian tribe or tribal organization believes the decision being
appealed from is in error and explaining the issues involved.
(4) The procedures in 43 CFR part 4, subpart D, shall be applicable
to appeals under this section, except that the case shall be docketed
immediately without consideration of the 20 day period set forth in 43
CFR 4.336.
Subpart I--Liability Insurance and Federal Tort Claims Act Coverage
Sec. 900.901 Liability insurance and motor vehicle coverage.
(a) Beginning in 1990, the Secretary shall be responsible for
obtaining or providing liability insurance or equivalent coverage on
the most cost-effective basis, for Indian tribes, tribal organizations,
and tribal contractors carrying out contracts, grant agreements and
cooperative agreements pursuant to the Act.
(b) In obtaining or providing such coverage, the Secretaries shall
take into consideration the extent to which liability under such
contracts, grants, or cooperative agreements is covered by the Federal
Tort Claims Act (FTCA), so as to ensure that there is no duplication of
coverage.
(c) In obtaining or providing such coverage, the Secretary shall,
to the greatest extent practicable, give preference to coverage
underwritten by Indian-owned economic enterprises as defined in section
3 of the Indian Financing Act of 1974, 25 U.S.C. 1451, et seq., except
that for purposes of this section, such enterprises may include non-
profit corporations.
(d) Any coverage obtained or provided by the Secretary shall
contain a provision that the insurance carrier shall waive any right it
may have to raise as a defense the sovereign immunity of an Indian
tribe from suit, but that such waiver shall extend only to claims the
amount and nature of which are within the coverage and limits of the
policy and shall not authorize or empower such provider of coverage to
waive or otherwise limit the Indian tribe's sovereign immunity outside
or beyond the coverage or limits of the policy of insurance.
(1) No such waiver may waive immunity to the extent of any
potential liability for interest prior to judgment or for punitive
damages or for any other limitation on liability imposed by the law of
the State in which the alleged injury occurs.
(2) Any such liability insurance policy or equivalent coverage
obtained or provided by the Secretary pursuant to this Subpart shall
contain an exclusion for any claims covered by the FTCA.
(e) The Secretary shall provide a written statement of the scope
and limits of insurance coverage provided by any national insurance
plan to each Indian tribe, tribal organization, or Indian contractor
carrying out a contract, grant, or cooperative agreement under Public
Law 93-638. In like manner, the Secretary shall also provide a prompt
statement of any changes in the scope or limits of any national
insurance plan. Where evidence of insurance is required by an
applicable law and where any such national insurance plan applies, the
Secretary shall provide an appropriate certificate or statement as
required by such law.
(f) The cost of insurance beyond that provided by any national
insurance plan required by law or regulation or for the responsible or
businesslike operation of a contract, grant, or cooperative agreement
under Public Law 93-638 shall be a valid cost to the contract.
Sec. 900.902 Medical related Federal Tort Claims Act provisions.
(a) The FTCA coverage extends to the claims of any person for
personal injury or death arising from the performance of medical,
surgical, dental, or related functions of contractors carrying out
contracts, grant agreements or cooperative agreements pursuant to the
Act. Such coverage is the exclusive remedy a claimant may pursue for
such injury or death.
(1) For purposes of determining FTCA coverage, a contractor
carrying out and performing such functions shall be deemed a part of
the PHS, DHHS, and its employees (including those persons acting on
behalf of such entity in an official capacity, temporarily or
permanently in the service of such entity, whether with or without
compensation) shall be deemed employees of the PHS while acting within
the scope of their employment in carrying out the contract or
agreement.
(2) Only those contractors carrying out Public Law 93-638
contracts, grants, or cooperative agreements are deemed part of the PHS
for purposes of FTCA coverage. Subcontractors or subgrantees providing
services to the Public Law 93-638 contractor or grantee are not covered
by the FTCA. Based on the statute and the legislative history, the only
exceptions to the exclusion of subcontractors and subgrantees from FTCA
coverage are Indian organizations that have subcontracts with the
California Rural Indian Health Board to carry out comprehensive IHS
service programs within geographically defined service areas in
California.
(b) Employees of such a contractor shall be deemed to be acting
within the scope of their employment in carrying out a contract or
agreement pursuant to the Act when their employment requires them to
provide medical, surgical, dental or related services to the general
population, either in facilities operated by the contractor or in non-
contractor facilities under a staff privileges agreement.
(c) Medical, surgical, dental or related functions carried out
under contracts or agreements include but are not limited to the
following:
(1) The conduct of clinical studies and investigations; and
(2) The provision of emergency services including the operation of
emergency motor vehicles where claims are filed after November 29,
1990.
(d) Persons who may assert claims under this section include all
individuals, whether Indian or non-Indian, having a claim for personal
injury or death arising from the performance of medical, surgical,
dental, or related functions by a contractor carrying out a contract,
grant agreement, or cooperative agreement pursuant to the Act,
including non-Indian individuals lawfully served, whether or not on a
fee basis, pursuant to statutory or regulatory authority or the terms
of such contract or agreement.
(e)(1) An individual (or his or her legal representative) filing a
claim within the scope of the coverage specified in this section shall,
before commencing any Federal court action, file an administrative
claim by filing a completed Standard Form 95 (Claim for Damage, Injury
or Death) or by submitting in writing comparable information (including
a definite amount of monetary damage claimed) with the Chief, PHS
Claims Branch, room 18-20, Parklawn Building, 5600 Fishers Lane,
Rockville, Maryland 20857. Such claims must be filed within two years
after such claim accrues and as provided in 28 U.S.C. 2401.
(2) If a contractor (or employee of such entity) receives such a
claim (or is served with a summons or complaint in a legal action),
such entity or employee shall immediately forward such claim (or
summons or complaint) to the PHS Claims Branch and, in the case of
receipt of summons or complaint, shall immediately inform by telephone
the Chief, Litigation Branch, Business and Administrative Law Division,
Office of the General Counsel, DHHS. Such entity or employee shall also
forward with the claim the following materials:
(i) Four copies of the claimant's medical records of treatment,
inpatient and outpatient, and any correspondence as well as reports by
consultants;
(ii) A narrative summary of the care and treatment involved;
(iii) The names and addresses of all personnel who were involved in
the care and treatment of the claimant; and
(iv) Any comments or opinions treating employees believed to be
pertinent to the allegations contained in the claim.
(3) Contractors and their employees shall fully cooperate with the
PHS Claims Branch and Office of the General Counsel, DHHS, in the
investigation of claims. Such entities and their employees shall allow
complete access to patient records and any other relevant information
in connection with the investigation and evaluation of any claim
arising under this section.
(f) Employees referred to in paragraph (a)(1) of this section may
have occasion to obtain staff privileges at a non-contract facility in
order to provide care to eligible beneficiaries. Pursuant to a staff
privileges agreement with a non-contract facility, these employees may
be required to provide reciprocal medical services to the general
population. Where such assistance is extended, and where no additional
compensation is received by such medical personnel for the performance
of such assistance, such personnel shall be deemed, for purposes of
FTCA coverage under this section, to be acting within the scope of the
contract or agreement and within their employment when performing such
services. Reciprocal medical services are:
(1) Cross-covering other medical personnel who temporarily cannot
attend their patients;
(2) Assisting other personnel with surgeries or procedures;
(3) Assisting with unstable patients or at deliveries; or
(4) Assisting in any patient care situation where additional
assistance by health care personnel is needed.
(g) The FTCA coverage extended by section 102(d) of the Act extends
to all medical, surgical, dental or related services performed under
the scope of work set forth in the contract, grant agreement, or
cooperative agreement of an Indian tribe, tribal organization, or
Indian contractor, regardless of whether such services are funded under
the Act or paid or reimbursed from some other source. Employees of such
organizations shall be deemed to be acting within the scope of the
contract or agreement when performing such services.
(h) Contractors administering contracts, grant agreements, or
cooperative agreements pursuant to the Act are authorized to provide
services to individuals, whether Indian or non- Indian, on the same
basis as services would be provided by the Secretary in the absence of
such contract or agreement. Non-beneficiaries and non-Indians may be
served under such contract or agreement as provided by applicable laws
and regulations, e.g., Health Services for Ineligible Persons, section
813 of the Indian Health Care Improvement Act, Public Law 94-437, as
amended; (25 U.S.C. 1680c); Examination and Treatment of Federal
Employees, section 324 of the PHS Act (42 U.S.C. 251); Treatment of
other Federal beneficiaries under Economy Act arrangements, 31 U.S.C.
1535; temporary treatment of non-beneficiaries in emergency situations,
42 CFR 32.111; and any other authorizations as may in the future be set
forth in statute or regulation. For purposes of this section, the scope
of the contract shall be deemed to include the provision of services to
all Indian beneficiaries, and non-beneficiaries and non-Indians as
provided herein.
(i) Federal employees detailed to or working for a contractor or
grantee under authority of the Intergovernmental Personnel Act are
covered by the FTCA to the same extent as they would be covered if
working for a Federal agency.
(j) Under authority of section 813(d) of the Indian Health Care
Improvement Act, Public Law 94-437, as amended, 25 U.S.C. 1680c(d),
hospital privileges in facilities operated under a contract may be
extended to non-IHS health care practitioners. Where the conditions
under which such hospital privileges are extended include the
requirement that the non-IHS health care practitioners provide services
to IHS beneficiaries, such practitioners may be regarded as employees
of the Federal Government for purposes of Federal tort claims under 28
U.S.C. 1346(b) and 28 U.S.C. chapter 171 only when treating IHS
beneficiaries (including anyone made eligible under sections 813(a) and
(b) of Public Law 94-437) (25 U.S.C. 168 and (b). When treating non-IHS
beneficiaries, such practitioners are not considered employees of the
Federal government for FTCA purposes.
Sec. 900.903 Non-Medical Related Federal Tort Claims Act Provisions.
(a) The non-medical related FTCA coverage of Indian tribes, tribal
organizations, or Indian contractors carrying out contracts, grants, or
cooperative agreements under Public Law 93-638, varies from time to
time. Non-medical FTCA coverage, therefore, must be determined on an ad
hoc basis as claims arise.
(b) Non-medical FTCA coverage applies to contracts, grants, and
cooperative agreements under authority of Public Law 93-638 for claims
arising from functions performed under such contracts, grants, and
cooperative agreements on or after October 1, 1989, and to any claims
first filed on or after October 24, 1989, regardless of when the
function complained of was performed.
(c) For periods covered by the FTCA, a contractor carrying out such
a contract, grant agreement, or cooperative agreement shall, for
purposes of FTCA coverage, be deemed a part of the PHS or the BIA, as
appropriate, and a contractor's employees shall be deemed employees of
the agency while acting within the scope of their employment in
carrying out the contract or agreement.
(d) Claims covered by this section shall, when arising out of a
contract, grant, or cooperative agreement with PHS, be processed in the
same general manner as set forth in Sec. 900.902.
(e) Claims covered by this section shall, where arising out of a
contract, grant, or cooperative agreement with DHHS components other
than PHS, be processed in accordance with the procedures then
applicable to these components.
(f) Claims covered by this section shall, when arising out of a
contract, grant, or cooperative agreement with any agency or office of
the DOI, be processed in accordance with the procedures then in effect
for the DOI relating to claims under the FTCA.
Sec. 900.904 Secretarial statement of FTCA coverage.
The Secretary shall provide a statement verifying any coverage by
the FTCA to each Indian tribe, tribal organization, or Indian
contractor carrying out a contract, grant, or cooperative agreement
under Public Law 93-638. In like manner, the Secretary shall also
provide a prompt statement of any change in FTCA coverage. Where
evidence of insurance is required by an applicable law and where the
FTCA applies, the Secretary shall provide an appropriate certificate or
statement as required by such law.
Sec. 900.905 Notification to Government of action filed against
recipient.
(a) The recipient of a contract, grant, or cooperative agreement
under the Act (herein referred to as recipient) shall give the awarding
official immediate notice in writing of:
(1) Any action, including any proceeding before an administrative
agency, filed against the recipient arising out of the performance of a
contract, grant, or cooperative agreement including, but not limited
to, the performance of any subcontract hereunder; and
(2) Any claim against the recipient the cost and expense of which
is allowable under Subpart D.
(b) Unless otherwise directed by the awarding official, the
recipient shall furnish immediately to the awarding official copies of
all pertinent papers received by the recipient with respect to such
action or claim.
(c) To the extent not in conflict with any applicable policy of
insurance, except as may otherwise be provided under Secs. 900.902 and
900.903, the recipient may, with the awarding official's approval,
settle any such action or claim.
(d) If required by the awarding official, except as may otherwise
be provided under Secs. 900.902 and 900.903, the recipient shall:
(1) Effect an assignment and subrogation in favor of the government
of all the recipient's rights and claims (except those against the
government) arising out of any such action or claim against the
recipient; and
(2) Authorize representatives of the Secretary to settle or defend
any such action or claim and to represent the recipient in, or to take
charge of, any action.
(e) If the settlement or defense of an action or claim is
undertaken by the government, the contractor shall furnish all
reasonable assistance in effecting a settlement or asserting a defense.
Subpart J--Construction Contracts
Sec. 900.1001 Purpose and scope.
(a) This subpart establishes requirements for the design,
construction, repair, improvement, expansion, or demolition of one or
more Federal facilities. In addition, it shall apply to tribal
facilities where the Secretary is authorized by law to design,
construct and/or renovate such tribal facilities. These requirements
may include architect-engineer services and construction services as
defined in Federal Acquisition Regulation (48 CFR 36.102), and
dismantling/demolition services as defined in 48 CFR 37.300. At the
Secretary's option, such contracts may include the procurement of
movable equipment, furnishings including works of art, and special
purpose equipment, when part of a construction contract let under this
subpart.
(b) This subpart does not cover functions generally performed by
Federal employees such as preliminary budget planning, justification
and execution, general program planning, updating inventory of needs,
financial management, accounting, procurement planning and management,
personnel management, property management, design reviews, appraisals,
title searches, leasing, archaeological studies, and obtaining rights
of way. These activities to the extent contractible are covered by the
other subparts of this regulation.
Sec. 900.1002 General.
(a) In accordance with section 105(a) of Public Law 93-638, as
amended, self-determination construction contracts, unlike other self-
determination contracts, are procurement contracts and remain subject
to the FAR and Agency Supplemental Acquisition Regulations, as amended,
unless waived by the Secretary. In addition, this subpart and exhibit I
identify the FAR solicitation provisions and contract clauses that
apply to construction contracts and/or subcontracts.
(b) Provisions of other subparts of this part are not applicable to
this subpart unless their application is specifically provided in the
following list:
(1) Subpart A, Secs. 900.102, 900.105, 900.118 through 900.121,
900.122 and 900.123;
(2) Subpart B, Secs. 900.201 and 900.202;
(3) Subpart H, Secs. 900.802(b)(6), 900,802 (c) through (j), and
900.804 through 900.806;
(4) Subpart I, Secs. 900.901-900.905;
(5) Subpart P, Secs. 900.1601-900.1604.
Sec. 900.1003 Consultation on facilities.
Prior to entering into a contract for the expenditure of any funds
under this subpart for the design, construction, or renovation of any
facility, the Secretary will consult with any tribe(s) that would be
significantly affected by such an expenditure to determine, and
whenever practicable, to honor tribal preferences concerning size,
location, type, and other characteristics of such facility.
Sec. 900.1004 Contract process.
(a) Right of first refusal. Within 30 days after the Secretary's
allocation of funds for a specific design and construction project, the
Secretary will notify the tribe(s) to be benefitted of the availability
of the funds for the project. The Secretarial notice may offer
technical assistance in the application process, as desired by the
tribe(s). The tribe(s) will have 30 days from the date of receipt of
the notice to notify the Secretary of its intent to contract for the
project design and/or construction under the Act. Such notification
shall include authorizing resolutions from other tribes if the project
benefits more than one tribe.
(b) Absence of tribal notification. If a notification is not
received, the tribe(s) will be precluded from later submitting a
proposal to contract for the project under the Act. Once an alternate
contracting process is publicly announced, the tribe's decision not to
contract under the Act will not act as a bar to its bidding on or
contracting for the construction project under any other act or
process.
(c) Solicitation and application process. Upon receipt of notice of
the intention to contract in accordance with paragraph (a) of this
section, the Secretary shall either issue a ``Request for Proposal''
(RFP) to the tribe or tribal organization or assist in the development
of an application as follows:
(1) Application (DOI). After receipt of the notice of intention to
contract in accordance with Sec. 900.203, the Secretary of Interior
shall respond promptly to any request by the tribe for technical
assistance. With technical assistance being provided to the tribe, the
Secretary of Interior will provide, using the provisions of 48 CFR
15.4, the Program of Requirements (POR), Project Summary or Statement
of Work for the Project. Technical assistance may include a project
orientation, explanation of the POR and FAR requirements, and guidance
with the preparation of technical and price proposals. When the
application, responsive to the POR, is received from the tribe, the 60
day time period in Sec. 900.206 shall commence. The Secretary of
Interior will evaluate the application in accordance with the criteria
of the POR and applicable FAR provisions to determine whether the
application is acceptable, including whether the price is fair and
reasonable and whether the terms and conditions of the application are
acceptable. The application may be declined pursuant to
Sec. 900.207(b)(3). Any appeal under subpart H of this part shall be
confined to the issue of whether the proposal meets the requirements of
the government.
(2) Request for proposal. The Secretary will follow applicable
provisions of 48 CFR 15.4 in preparing the RFP, and will furnish a POR
or other statement of work which will provide the applicable standards
for the project as part of the RFP. These standards shall be based on
applicable local, state, and Federal requirements and industry
standards, as determined by the Secretary.
(i) The RFP will establish a time period for processing the
proposal based on the complexity of the project and related processing
and audit requirements. This period will not exceed 180 days following
receipt of a complete proposal, and the proposal will either be
declined or deemed approved within this period unless the period is
extended by mutual agreement of the Secretary and tribal organization.
(ii) The RFP will specify the Secretary's determination of the
appropriate type of contract, taking into account the following
factors:
(A) Any stated preference of the contractor;
(B) Whether the project involves uncertainties of contract
performance that prevent costs from being estimated with a reasonable
degree of accuracy;
(C) The type of contract providing the greatest incentive for
efficient and economic performance of the contract;
(D) Whether the contractor's accounting system is adequate for a
cost-reimbursement contract; and
(E) The experience of the contractor in bidding and performing
fixed price contracts.
(iii) The proposal must respond to the RFP and the Secretary will
evaluate the proposal in accordance with the criteria in the RFP which
shall include fairness and reasonableness of price and applicable FAR
provisions and if the Secretary determines that the proposal does not
meet the requirements of the RFP it shall be declined under
Sec. 900.207(b)(3). Any appeal under subpart H shall be confined to the
issue of whether the proposal meets the requirements of the RFP.
Sec. 900.1005 Conflict of interest.
If there is a potential conflict of interest on the part of the
contractor as an organization, a description of the potential conflict
and a narrative of the procedures to be employed to avoid an
organizational conflict of interest shall be included as part of the
proposal. Such a description shall be included when the nature of the
work to be performed under a proposed contract may, without some
restriction, result in an unfair competitive advantage to the
contractor, impair the contractor's objectivity in performing the
contract work, or involve a conflict between tribes and other
beneficiaries of the program. The procedures shall include prompt
disclosure of such conflicts, when they arise, and a report to the
Secretary on their resolution.
Sec. 900.1006 Award.
(a) Construction contracts with tribes or tribal organizations may
be awarded as firm fixed-price contracts or cost or cost-sharing types
of cost-reimbursement contracts. This subpart and exhibit I identify
the solicitation provisions and contract clauses that apply to these
types of contracts and their subcontracts.
(b) The Secretary and tribal organizations may mutually agree to
enter into another type of contract when special circumstances make the
use of a firm fixed-price contract, cost, or cost-sharing type of
contract inappropriate. In these cases, the applicable provisions and
clauses will also be established by mutual agreement.
(c) The award document will be the appropriate document as
prescribed in the FAR.
(d) Fixed price contracts shall not be converted to cost-
reimbursement contracts.
(e) Subcontracts awarded by tribes and tribal organizations under
construction contracts shall be fixed-price, unless the use of another
type of contract is approved by the Secretary.
(f) Subject to internal Agency approval, letter contracts may be
used when the Secretary's interests demand that the contractor be given
a binding commitment so that work can start immediately and a
negotiated definitive contract is not possible in sufficient time to
meet the requirement. Letter contracts will be replaced by a formal
contract consistent with these regulations within 180 days after the
date of letter contract or before completion of 50 percent of the work
to be performed, whichever occurs first.
Sec. 900.1007 Bonds and warranties.
(a) A tribe or tribal organization contracting for a construction
project is not required to furnish performance and payment bonds as
required by the Miller Act of August 24, 1935 (49 Stat. 793), as
amended, except where the construction contract is a fixed-price
contract. Bonding agreements for fixed-price contracts shall also
contain a provision which requires the bonding company or its designee
to complete the contract if the contractor defaults. However, when
actually performing construction work, all construction contractors and
subcontractors, including tribally owned enterprises, operating under a
fixed-price contract, shall furnish both performance and payment bonds
as specified below:
(1) When required, a performance bond shall have a surety or
sureties satisfactory to the approving official, in an amount he/she
deems adequate for the protection of the United States. The performance
bond shall be 100 percent of the contract price when it exceeds the
small purchases limitation.
(2) When required, a payment bond shall have a surety or sureties
satisfactory to the approving official for the protection of all
persons supplying labor and material in the prosecution of the work
provided for in the contract or subcontract. Whenever the total amount
payable by the terms of the contract is not more than $1,000,000, the
payment bond shall be one-half the total amount payable by the terms of
the contract or subcontract. Whenever the total amount payable by the
terms of the contract is more than $1,000,000 but not more than
$5,000,000, the payment bond shall be 40 percent of the total amount
payable by the terms of the contract or subcontract. Whenever the total
amount payable by the terms of the contract or subcontract is more than
$5,000,000, the payment bond shall be $2,500,000.
(3) In lieu of furnishing corporate or individual sureties, the
contractor or subcontractor may furnish United States bonds or notes in
an amount equal at their market value to the specified sum of the
bonds.
(b) All contracts and subcontracts for construction projects shall
require warranties for construction and equipment from the contractor,
subcontractors, and suppliers. All warranties required and executed in
writing will be made and delivered to the Secretary. The contractor or
subcontractor are required to enforce the warranties on behalf of the
Secretary within the warranty period.
Sec. 900.1008 Indirect cost.
In calculating the indirect costs associated with a construction
contract, the Secretary shall take into consideration only those costs
associated with the administration of the contract and shall not take
into consideration those moneys actually passed on by the tribal
organization to construction contractors and subcontractors.
Sec. 900.1009 Davis-Bacon wage and labor standards.
All laborers and mechanics, except employees of tribes and public
non-profit tribal instrumentalities, employed by contractors or
subcontractors in the construction, alteration, or repair (including
painting or decorating) of buildings or other facilities in connection
with contracts or subcontracts under this part shall be paid wages not
less than those on similar construction in the locality as determined
by the Secretary of Labor in accordance with the Davis-Bacon Act of
March 3, 1931, as amended.
Sec. 900.1010 Inspection and acceptance.
(a) The Secretary shall have access to work in preparation or
progress at any time, and the contractor and its subcontractors shall
provide access for inspection. Final payment for work performed will
not be made until the Secretary conducts a final inspection and
determines that the work complies with all contract requirements.
Generally the Secretary shall complete the final inspection within
thirty calendar days of receipt of written notice from the contractor
of completion of the work.
(b) The contractor is responsible for managing the day-to-day
operations at the construction project site to ensure that all work,
including subcontractor's work, conforms with the construction
drawings, specifications, and contract terms.
Sec. 900.1011 Architect/engineer (A/E) services.
(a) When a contractor subcontracts for A/E services:
(1) The requirement for A/E services must be publicly announced for
a minimum of 30 calendar days;
(2) The subcontractor must be selected on the basis of its
demonstrated competence and qualifications to perform the type of
services that are required; and
(3) The cost of the subcontract that is negotiated must be fair and
reasonable.
(b) The evaluation of a potential A/E subcontractor shall be
undertaken by an evaluation board established by the contractor and
composed of members who, collectively, have experience in architecture,
engineering, construction, or related professions. Private
practitioners may be utilized on the evaluation board. Each board will
consist of at least 5 members of which a majority shall be architects
or engineers. However, no firm shall be eligible for award of an A/E
services subcontract by the contractor while any of its principals,
associates, or employees are participating as members of the evaluation
board or participated as members of the evaluation board when the firm
was evaluated.
(c) The evaluation board shall:
(1) Review the current data files on eligible firms and their
responses to a public notice concerning the particular project;
(2) Evaluate the firms in accordance with (f) below;
(3) Conduct formal interviews, obtain additional data, and verify
references with at least three of the most highly qualified firms
regarding concepts and the relative utility of alternative methods of
furnishing the required services, when the prospective A/E contract is
estimated to exceed the small purchases limitation. Architect-engineer
fees shall not be considered in these discussions; and
(4) Prepare a selection report for the designated selection
authority recommending, in order of preference, at least three firms
that are considered to be the most highly qualified to perform the
required services. The report shall include a description of the
discussions and evaluation conducted by the board to allow the
selection authority to review the considerations upon which the
recommendations are based.
(d) Final selection of the successful A/E subcontractor shall be
made by the official designated to perform that function on behalf of
the Indian tribe or tribal organization. The final selection shall be
submitted to the Secretary for concurrence before proceeding with
negotiations. If the most highly qualified firm recommended by the
evaluation board as the top ranked in order of preference is not
selected, the deviation must be justified and the selection authority
will obtain prior approval from the Secretary for the proposed
deviation.
(e) As an alternate to the processes described in paragraphs (c)
and (d) of this section, the processes in this paragraph may be used to
select firms for contracts not expected to exceed the small purchases
limitation.
(1) Selection by the board. The board shall review and evaluate A/E
firms in accordance with paragraph (c) of this section, except that the
selection report shall serve as the final selection list.
(2) Selection by the chairperson of the board. When the board
decides that formal action by the board is not necessary in connection
with a particular selection, the following procedures shall be
followed:
(i) The chairperson of the board shall perform the functions
required in paragraph (c) of this section.
(ii) The designated tribal selection authority shall review the
report and approve it or return it to the chairperson for appropriate
revision.
(3) Use of Agency Indefinite Delivery A/E Contractors: In lieu of a
separate formal selection process, the board or the chairperson of the
board with the approval of the tribal selection authority may use any
Agency indefinite-delivery A/E contractor whose general area contract
coverage includes the project site.
(f) When evaluating potential A/E subcontractors, contractors shall
be guided by the following selection criteria: the professional
qualifications necessary for satisfactory performance of required
services; specialized experience and technical competence in the type
of work required; capacity to accomplish the work in the required time;
past performance in terms of cost control; quality of work; compliance
with performance schedules; location in the general area of the
project, if application of this criterion leaves an appropriate number
of qualified firms given the nature and size of the project; and
acceptability under other appropriate evaluation criteria.
(g) Subcontracts for A/E services will be negotiated between the
contractor and the potential A/E subcontractors, beginning with the
firm considered best qualified (i.e., the top ranked in the final
selection evaluation) in accordance with the provisions of 48 CFR
36.606. If an agreement cannot be reached with the top ranked firm,
negotiations with the second ranked firm are authorized. All A/E
services will be obtained by negotiated fixed price subcontracts and
the A/E fees for design shall not exceed the statutory limitation of 6
percent of the estimated construction contract price.
(h) The A/E subcontract shall, as a minimum, contain the
requirements of A/E liabilities in 48 CFR 36.608. All A/E firms will be
required to have a liability insurance ``occurrence'' policy to cover
any act or omission occurring through the construction contract
warranty period.
Sec. 900.1012 Payments.
All contract payments, except agreed upon advance payments, will be
based upon verified work in place. Payments will be made on a fixed
unit price basis or will be scheduled in accordance with an approved
construction schedule cost breakdown, e.g., showing percentage of work
performed by component, such as project management, site improvement,
piping, carpentry, mechanical, electrical, etc. At its request, a
contractor may receive advance payments under its construction contract
on terms agreed to by the Secretary and the contractor. Where advanced
payments have been authorized, any conflicts between Sec. 900.409 and
FAR clauses 48 CFR 52.232-5, 52.232-10, 52.237-4 and 52.237-4 (Alt. I),
shall be resolved in favor of Sec. 900.409. If the contractor fails to
comply with the material terms and conditions of its contract as
determined by the Secretary, payments may be withheld as per section
105(b) of the Act.
Sec. 900.1013 Savings on construction projects.
Funds obligated to a cost-reimbursement construction contract
remaining upon completion of the project (including reimbursement of
the contractor for all authorized expenditures) shall be returned to
the Secretary. However, when the funds remaining are savings resulting
from an implemented value engineering proposal (as defined by the FAR
clause 48 CFR 52.248-3 listed in exhibit I) which was developed by the
contractor, accepted by the Secretary, and which reduces the
construction or life cycle facility costs, the amount of such
difference shall remain obligated to the contractor for reimbursement
of project enhancements or additional benefits under the contract.
Sec. 900.1014 Unobligated funds.
Congressionally appropriated construction project funds greater
than the amount of the contract award and the reserve for contingency
may be reprogrammed to other projects in accordance with agency
reprogramming procedures.
Sec. 900.1015 Status of contracts in effect on effective date of
regulations.
Any construction contract between the Secretary and an Indian tribe
or tribal organization, which was entered into before the effective
date of the regulations and which is still in effect, shall continue
until completion of construction and expiration, or termination of the
contract. A contractor may submit a written request, for consideration
and possible approval, that these regulations be incorporated in its
construction contract.
Sec. 900.1016 Waivers.
(a) For the purposes of a specific contract or contracts and
pursuant to section 105(a) of the Act, the Secretary may, for good
cause shown, grant a waiver of any Federal contracting law or
regulation that the Secretary determines is inconsistent with the
provisions of the Act or is not appropriate for the purposes of the
contract(s) involved. In determining whether to grant a waiver for a
particular contract for good cause, the Secretary shall consider:
(1) Whether there are unusual circumstances which make the law or
regulations to be waived inappropriate for the particular contract
involved; and
(2) Whether the waiver will alleviate substantial hardship which
could not have been avoided by diligent action of the contractor or
which is due to factors beyond the control of the contractor.
(b)(1) Initiation of requests. Requests for waivers may be
initiated by a tribe or tribal organization, and sent to the
Contracting Officer for processing in accordance with Departmental
procedures.
(2) Contents of request. Waiver requests shall be in writing and
shall include at least the following information:
(i) Identification of the Federal contracting law and/or regulation
for which a waiver is requested;
(ii) Reason for the waiver request, including impact on the tribe
or tribal organization if the request is not approved;
(iii) The intended effect of the waiver;
(iv) The length of time for which it can be anticipated that the
waiver will be required; and
(v) Identification of specific contract(s) to which the waiver will
apply. If more than one contract is involved, each specific contract
shall be identified and a request shall be made for a class waiver for
such contracts to alleviate the need for separate, duplicative
approvals.
(c) Waiver requests which are contained in a contract proposal may
be considered separately from the proposal at the discretion of the
Secretary. The declination criteria in Sec. 900.206, do not apply to
such requests for waivers. While the Secretary will endeavor to respond
to a request for waiver prior to award, failure by the Secretary to act
on a request for a waiver shall not be grounds to postpone the contract
award pending the Secretary's determination.
(d) Whenever a waiver is requested by a tribe or tribal
organization and such request is denied, the Secretary will notify the
tribe or tribal organization of the reasons for the denial in writing.
(e) The decision of the Secretary with regard to waivers is final
for the Department.
Exhibit I to Subpart J--Acquisition Regulation for Construction
Projects
The specific Federal Acquisition Regulation (FAR) (48 CFR
chapter 1), Department of Health and Human Services Acquisition
Regulations (HHSARs) (48 CFR chapter 3), Department of Interior
Acquisition Regulations (DIAR) (48 CFR chapter 14), and Public
Health Service Acquisition Regulations (PHSARs) that apply to Indian
Self-Determination construction contracts have been selected by the
Secretary in accordance with section 105(a) of the Act and are set
forth below.
(a) The clauses listed in exhibit I are hereby incorporated with
the same force and effect as if they were given in full text and are
made a part hereof, unless waived by the Secretary, under
Sec. 900.1002 for construction contracts under the Act. The FAR
clauses that are applicable to any specific construction project are
those designated as ``required'' and those that are determined as
applicable by the nature and type of the contract and construction
project. An applicable FAR clause may, by mutual agreement, be
waived for a specific contract except for those FAR clauses
identified as ``required'' or ``required when applicable.''
(b) The Public Law 93-638 Contractor shall incorporate the
clauses listed in the ``Subcontract'' columns in exhibit I in each
subcontract when applicable, and shall fully enforce these clauses
and give the government full access to the site and records when
appropriate. There shall be no privity of contract between the
Federal Government and the subcontractor.
(c) To the extent 48 CFR parts 1 through 51 and 53 of the FAR
prescribe the use of the FAR clauses identified in this exhibit I,
they may be used by the Secretary in negotiating the type of
contract and the clauses that will be applicable in proposals,
solicitations, and contracts for construction projects under the
Act. The Secretary will, upon request, furnish the tribes with
copies of the applicable regulations, and clauses and will assist
the tribes in adapting any clauses to tribal solicitations and
subcontracts. The Secretary shall use the clause arrays from exhibit
I which he/she believes are appropriate to the instant contract.
Those FAR clauses that have mandatory requirement clauses will be
included in all construction contracts.
Exhibit I-A--Federal Acquisition Regulation (FAR) Provisions and
Clauses for Firm Fixed-Price, Cost, or Cost-Sharing Types of Public
Law 93-638 Construction Project Contracts
Column Headings and Codes
Purpose/Type of Construction Contract
A/E--Architectural/Engineering contract as defined in FAR subpart 36.1.
CRC--Cost or cost-sharing type of cost-reimbursement construction
contract as defined in FAR subparts 16.3 and 36.1.
DDR--Dismantling, demolition, or removal of improvements contract as
defined in FAR subpart 37.3.
FPC--Firm fixed-price construction contract as defined in FAR subpart
16.2 and 36.1.
PRI--Prime contract; i.e., P.L. 93-638 contract with tribal
organization.
SUB--Subcontract under the P.L. 93-638 contract.
Reason for Waiving Specific Provisions and Clauses
1--Provision or clause is inconsistent with the type and/or purpose of
the contract involved.
2--Provision or clause is inconsistent with P.L. 93-638.
Application of Provisions and Clauses
R--Required in all cases.
A--Required when applicable based on criteria contained in the FAR;
e.g., when contract amount exceeds a FAR-specified dollar threshhold.
O--Required when determined to be appropriate by the Contracting
Officer on a case-by-case basis.
Notes
In accordance with Sec. 900.1005(i) of the regulation, this matrix
assumes that subcontracts will be awarded on a fixed-price basis.
The P.L. 93-638 (prime) contractor is responsible for incorporating
clauses into its subcontracts, when applicable, as identified in the
SUB columns.
The DDR columns pertains to contracts that are solely for the
dismantling, demolition, or removal of improvements. Contracts which
combine these services with construction are categorized as
construction.
--------------------------------------------------------------------------------------------------------------------------------------------------------
FPC FPC CRC DDR DDR A/E A/E
Provision or clause Prescribed in PRI SUB PRI PRI SUB PRI SUB Notes
--------------------------------------------------------------------------------------------------------------------------------------------------------
52.202-1Definitions.................................................. 2.201 R -- R R -- R --
HHS will substitute the Definitions clause at HHSAR 352.202-1
52.202-1Alternate I.................................................. 2.201 R -- R R -- R --
Same comment as under the basic clause above
52.203-1Officials Not to Benefit..................................... 3.102-2 R R R R R R R
52.203-2Certificate of Independent Price Determination............... 3.103-1 -- A -- -- A -- A
This provision is directed at preventing collusion among contractors,
and is irrelevant for ``638'' prime contracts because there is only
one source
52.203-3Gratuities................................................... 3.202 R R R R R R R
52.203-4Contingent Fee Represent and Agreement....................... 3.404(b) -- A -- -- A -- A
52.203-5Covenant Against Contingent Fees............................. 3.404(c) R R R R R R R
52.203-6Restrictions on Subcontractor Sales to Govt.................. 3.503-2 -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to supply and services
contracts
52.203-7Anti-Kickback Procedure...................................... 3.502-3 R R R R R R R
52.203-8Requirement for Certificate of Procurement Integrity......... 3.104-10(a) A A A A A A A
52.203-8Alternate I.................................................. 3.104-10(a) A A A A A A A
52.203-9Requirement for Certificate of Procurement Integrity-- 3.104-10(b) A A A A A A A
Modification.
52.203-10Price or Fee Adjustment for Illegal or Improper Activity.... 3.104(10)(c) A A A A A A A
52.203-11Certification and Disclos. Regarding Payments to Influence 3.808(a) -- A -- -- A -- A
Certain Federal Transactions.
52.203-12Limitation on Payments to Influence Certain Federal 3.808(b) A A A A A A A
Transactions.
52.203-13Procurement Integrity--Service Contracting.................. 3.104-10(d) -- -- -- -- -- -- -- 1
Clause not relevant because it applies to service contracts
52.204-1Approval of Contract......................................... 4.103 -- -- -- -- -- -- -- 1
Clause not relevant because DOI and HHS rely on pre-award review
procedures
52.204-2Security Requirements........................................ 4.404(a) -- -- -- -- -- -- -- 1
No ``638'' construction project contracts require these security
procedures pertaining to classified documents
52.204-2Alternate I.................................................. 4.404(b) -- -- -- -- -- -- -- 1
Not relevant for same reason as 52.204-2 above
52.204-2Alternate II................................................. 4.404(c) -- -- -- -- -- -- -- 1
Not relevant for same reason as 52.204-2 above
52.204-3Taxpayer Identification...................................... 4.904 A -- A A -- A --
Only required for tribal organizations that pay taxes
52.204-4Contractor Establishment Code................................ 4.603 A -- A A -- A --
52.207-1Notice of Cost Comparison (Sealed Bid)....................... 7.305(a) -- -- -- -- -- -- -- 1
Not relevant because ``638'' contracts are negotiated, and not
directed at comparing costs of Contractor and Government performance
52.207-2Notice of Cost Comparison (Negotiated)....................... 7.305(b) -- -- -- -- -- -- -- 1
Not relevant because ``638'' contracts not directed at comparing
costs of Contractor and Government performance
52.207-3Right of First Refusal of Employment......................... 7.305(c) -- -- -- -- -- -- -- 2
Right of first refusal not relevant to ``638''
52.207-4Economic Purchase Quantity--Supplies......................... 7.203 -- -- -- -- -- -- -- 1
Provision not relevant because it pertains to supply contracts
52.208-1Required Sources for Jewel................................... 8.203-1(a) A A A -- -- -- --
Bearing and Related Items
52.208-2Jewel Bearings and Related Items Certificate................. 8.203-1(c) A A A -- -- -- --
52.208-3Conflicts.................................................... 8.309(a) -- -- -- -- -- -- -- 1
Clause not relevant because it applies to utility service contracts
52.208-4Vehicle Lease Payments....................................... 8.1104(a) -- -- -- -- -- -- -- 1
Clause not relevant because it applies to leasing of motor vehicles
52.208-5Condition of Leased Vehicles................................. 8.1104(b) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.208-4 above
52.208-6Marking of Leased Vehicles................................... 8.1104(c) -- -- -- -- -- -- -- 1
Clause not relevant for reason as 52.208-4 above
52.208-7Tagging of Leased Vehicles................................... 8.1104(d) -- -- -- -- -- -- -- 1
Clause not relevant for reason as 52.208-4 above
52.209-1Qualification Requirements................................... 9.206-2 -- -- -- -- -- -- -- 1
Clause not relevant to construction contracts
52.209-3First Article Approval--Contractor Testing................... 9.308-1 (a)(1) and -- -- -- -- -- -- -- 1
(b)(1)
Clause not relevant to construction contracts
52.209-3Alternate I.................................................. 9.308-1 (a)(2) and -- -- -- -- -- -- -- 1
(b)(2)
Clause not relevant to construction contracts
52.209-3Alternate II................................................. 9.308-1 (a)(3) and -- -- -- -- -- -- -- 1
(b)(3)
Clause not relevant to construction contracts
52.209-4First Article Approval--Govt. Testing........................ 9.308-2 (a)(1) and -- -- -- -- -- -- -- 1
(b)(1)
Clause not relevant to construction contracts
52.209-4Alternate I.................................................. 9.308-2 (a)(1) and -- -- -- -- -- -- -- 1
(b)(3)
Clause not relevant to construction contracts
52.209-4Alternate II................................................. 9.308-2 (a)(1) and -- -- -- -- -- -- -- 1
(b)(3)
Clause not relevant to construction contracts
52.209-5Certificate Regarding Debar., Suspens., etc.................. 9.409(a) A A A A A A A
52.209-6Protecting the Government Interest When Contracting With 9.409(b) A A A A A A A
Contractors Suspended, Debarred or Proposed for Debarment.
52.209-7Organizational Conflicts of Interest Certificate--Marketing 9.507-1(b) -- -- -- -- -- -- -- 2
Consultants.
Provision not relevant to ``638'' process because directed at
preventing conflicting roles that might bias a Contractor's
judgement, or preventing unfair competitive advantage
52.209-8Organizational Conflicts Interest Certificate--AAS........... 9.507.1(c) -- -- -- -- -- -- -- 1
Provision not relevant because directed at advisory and assistance
services
52.210-1Availability of Specs Listed in GSA Index.................... 10.011(a) A A A A -- -- --
52.210-2Availability of Specs Listed in DOD Index.................... 10.011(b) -- -- -- -- -- -- -- 1
Provision provided for use by DOD and not relevant here
52.210-3Availability of Specs Not Listed in GSA...................... 10.011(c) A A A -- -- -- --
52.210-4Availability for Examin. of Specs Not Listed in GSA Index.... 10.011(d) A A A -- -- -- --
52.210-5New Material................................................. 10.011(e) -- -- -- -- -- -- -- 1
Not relevant because intended for supply contracts
52.210-6Listing of Used or Reconditioned Material, Residual Inventory 10.011(f) -- -- -- -- -- -- -- 1
Not relevant because intended for supply contracts, or service
contracts which involve the incidental furnishing of parts
52.210-7Used or Reconditioned Material, Residual Inventory,.......... 10.011(g)(1) -- -- -- -- -- -- -- 1
Not relevant for same reason as 52.210-6 above.
52.212-1Time of Delivery............................................. 12.104(a)(2) -- -- -- O O -- --
52.212-1Alternate I.................................................. 12.104(a)(2) -- -- -- O O -- --
52.212-1Alternate II................................................. 12.104(a)(2) -- -- -- O O -- --
52.212-1Alternate III................................................ 12.104(a)(2) -- -- -- O O -- --
52.212-2Desired and Required Time of Delivery........................ 12.104(a)(3) -- -- -- O O -- --
52.212-2Alternate I.................................................. 12.104(a)(3) -- -- -- O O -- --
52.212-2Alternate II................................................. 12.104(a)(3) -- -- -- O O -- --
52.212-2Alternate III................................................ 12.104(a)(3) -- -- -- O O -- --
52.212-3Commencement, Prosecution, and Completion of Work............ 12.104(b) R R -- -- -- -- --
52.212-3Alternate I.................................................. 12.104(b) A A -- -- -- -- --
52.212-4Liquidated Damages--Supplies, Services, or R&D............... 12.204(a) -- -- -- -- -- -- -- 1
This liquidated damages clause not relevant because involves
supplies, services, R&D
52.212-5Liquidated Damages Construction.............................. 12.204(b) O O O -- -- -- --
52.212-5Alternate I.................................................. 12.204(b) O O O -- -- -- --
52.212-6Time Extensions.............................................. 12.204(c) A A A -- -- -- --
52.212-7Notice of Priority Rating for National Defense Use........... 12.304(a) -- -- -- -- -- -- -- 1
Provision not relevant because involves National Defense procurements
52.212-8Defense Priority and Allocation Requirements................. 12.304(b) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.212-7 above
52.212-9Variation in Quantity........................................ 12.403(a) -- -- -- -- -- -- -- 1
Clause not relevant because pertains to supply contracts or service
contracts involving supplies
52.212-10Delivery of Excess Quantities............................... 12.402(b) -- -- -- -- -- -- -- 1
Clause not relevant because pertains to supply contracts
52.212-11Variation in Estimated Quantity............................. 12.403(c) A A -- -- -- -- --
52.212-12Suspension of Work.......................................... 12.505(a) A A -- -- -- A A
52.212-13Stop-Work Order............................................. 12.505(b)(1) -- -- -- -- -- -- -- 1
Clause not relevant because pertains to supply, service, and R&D
contracts
52.212-13Alternate I................................................. 12.505(b)(2) -- -- -- -- -- -- -- 1
Alternate not relevant for same reason as 12.505(b)(2) above
52.212-14Stop-Work Order Facilities.................................. 12.505(c) -- -- -- -- -- -- -- 1
Clause not relevant because pertains to facilities acquisition or
consolidated facilities contracts
52.212-15Government Delay of Work.................................... 12.505(d) -- -- -- -- -- -- -- 1
Clause not relevant because pertains to supply contracts
52.213-1Fast Payment Procedure....................................... 13.305 -- -- -- -- -- -- -- 1
Clause not relevant because pertains to supply contracts
52.213-2Invoices..................................................... 13.507(c) -- -- -- -- -- -- -- 1
Clause not relevant because pertains to subscriptions and
publications
52.213-3Notice To Supplier........................................... 13.507(d) -- -- -- -- -- -- -- 1
Clause not relevant because pertains to unpriced purchase orders
52.214-1Solicitation Definit. Sealed Bidding......................... 14.201-6(b)(1) -- A -- -- A -- --
Provision applicable to sealed bid subcontracts when the tribe does
not have an approved procurement system pursuant to Part F of the
Regulation
52.214-2Type of Business Organization--Sealed Bidding................ 14.201-6(b)(2) -- A -- -- A -- --
Provision subject to the same comment as 52.214-1 above
52.214-3Amendments to Invitations for Bids........................... 14.201-6(b)(3) -- A -- -- A -- --
Provision subject to the same comment as 52.214-1 above
52.214-4False Statements in Bids..................................... 14.201-6(b)(4) -- A -- -- A -- --
Provision subject to the same comment as 52.214-1 above
52.214-5Submission of Bids........................................... 14.201-6(c)(1) -- A -- -- A -- --
Provision subject to the same comment as 52.214-1 above
52.214-6Explanation to Prospective Bidders........................... 14.201-6(c)(2) -- A -- -- A -- --
Provision subject to the same comment as 52.214-1 above
52.214-7Late Submissions, Modifications, and Withdrawals of Bids..... 14.201-6(c)(3) -- A -- -- A -- --
Provision subject to the same comment as 52.214-1 above
52.214-9Failure to Submit Bid........................................ 14.201-6(e)(1) -- -- -- -- -- -- -- 1
Provision not relevant because it pertains to the maintenance of
bidders lists
52.214-10Contract Award--Sealed Bidding.............................. 14.201-6(e)(2) -- -- -- -- A -- --
52.214-12Preparation of Bids......................................... 14.201-6(f) -- A -- -- A -- --
Provision subject to the same comment as 52.214-1 above
52.214-13Telegraphic Bids............................................ 14.201-6(g)(1) -- O -- -- O -- --
52.214-13Alternate I................................................. 14.201-6(g)(2) -- -- -- -- -- -- -- 1
Provision not relevant because pertains to perishable subsistence
solicitations
52.214-14Place of Performance Sealed Bidding......................... 14.201-6(h) -- -- -- -- -- -- -- 1
Provision not necessary because place of performance specified for
construction
52.214-15Period for Acceptance of Bids............................... 14.201-6(i) -- -- -- -- A -- --
Provision subject to the same comment as 52.214-1 above
52.214-16Minimum Bid Acceptance Period............................... 14.201-6(j) -- -- -- -- A -- --
Provision subject to the same comment as 52.214-1 above.
52.214-17Affiliated Bidders.......................................... 14.201-6(k) -- A -- -- A -- -- .......
Provision subject to the same comment as 52.214-1 above
52.214-18Preparation of Bids--Construction........................... 14.201-6(l) -- A -- -- -- -- -- .......
Provision subject to the same comment as 52.214-1 above
52.214-19Contract Award-Sealed--Bidding--Construction................ 14.201-6(m) -- A -- -- A -- --
Provision subject to the same comment as 52.214-1 above
52.214-20Bid Samples................................................. 14.201-6(o)(1) -- -- -- -- -- -- -- 1
Provision not relevant because bid samples not practically necessary
52.214-20Alternate I................................................. 14.201-6(o)(2)(i) -- -- -- -- -- -- -- 1
Alternate not relevant for same reason as provision above
52.214-20Alternate II................................................ 14.201-6(o)(2)(ii) -- -- -- -- -- -- -- 1
Alternate not relevant for same reason as provision above
52.214-21Descriptive Literature...................................... 14.201-6(p)(1) -- -- -- -- -- -- -- 1
Provision not practically relevant because pertains to situations
where information not otherwise readily available must be submitted
to allow the Government to evaluate technical acceptability
52.214-21Alternate I................................................. 14.201-6(p)(2) -- -- -- -- -- -- -- 1
Alternate not relevant for same reason as provision above
52.214-22Evaluation of Bids for Multiple Awards...................... 14.201-6(q) -- A -- -- A -- -- .......
See comment under 52.214-1 above. Also, the provision only applies to
bids for multiple awards
52.214-23Late Submis., Mods, and Withdrawals of Tech. Proposals Under 14.201-6(r) -- -- -- -- -- -- -- 1
Two-Step Sealed Bidding.
Two-step process not planned for use under Pub. L. 93-638
52.214-24Multiple Technical Proposals................................ 14.201-6(s) -- -- -- -- -- -- -- 1
Provision not relevant for same reason as 52.214-23 above
52.214-25Step Two of Two-Step Sealed Bidding......................... 14.201-6(t) -- -- -- -- -- -- -- 1
Provision not relevant for same reason as 52.214-23 above
52.214-26Audit--Sealed Bidding....................................... 14.201-7(a) -- A -- -- A -- --
Clause subject to the same comment as 52.214-1 above
52.214-27Price Reduction for Defect. Cost or Pricing Data-- 14.201-7(b)(1) -- A -- -- A -- --
Modifications--Sealed Bidding.
Clause subject to the same comment as 52.214-1 above
52.214-28Subcontractor Cost or Pricing Data--Mods Sealed Bidding..... 14.201-7(c)(1) -- A -- -- A -- --
Clause subject to the same comment as 52.214-1 above
52.214-29Order of Precedence Sealed Bidding.......................... 14.201-7(d) -- -- -- -- -- -- -- 1
Clause not applicable to contracts such as A/E and construction for
which the uniform contract format is not required
52.214-30Annual Representation and Certifications Sealed Bidding..... 14.201-6(u) -- -- -- -- -- -- -- 1
Provision not relevant because involves use of annual representations
and certifications
52.214-31Facsimile Bids.............................................. 14.201-6(w) -- O -- -- O -- -- 1
52.214-32Late Submissions, Mods, and Withdrawals of Bids (Overseas).. 14.201-6(c)(4) -- -- -- -- -- -- -- 1
Provision not relevant because pertains to bids submitted outside U.S
52.214-33Late Submissions, Mods, and Withdrawals of Tech. Prop. Under 14.201-6(v) -- -- -- -- -- -- -- 1
Two-Step (Overseas).
Provision not relevant because pertains to technical proposals
submitted outside U.S
52.214-34Submission of Offers in English Language.................... 14.201-6(x), 15.407(k), -- -- -- -- -- -- -- 1
25.407(c)
Clause not practically relevant because no problem foreseen in
receiving offers written in other than English
52.214-35Submission of Offers in U.S. Currency....................... 14.201-6(y), 15.407(i), -- -- -- -- -- -- -- 1
25.4-7(c)
Provision not practically relevant because no problem foreseen in
receiving offers involving other than U.S. currency
52.215-1Examination of Records by Comptroller General................ 15.106-1(b) A A A A A A A
52.215-2Audit-Negotiation............................................ 15.106-2(b) A A A A A A A
52.215-2Alternate I.................................................. 15.106-2(b) A A A -- -- -- --
52.215-3Solicitation for Info or Planning Purposes................... 15.405-2 -- -- -- -- -- -- -- 1
Solicitations will not be issued for these purposes
52.215-4Notice of Possible Standardization........................... 15.407(b) -- -- -- -- -- -- -- 1
Provision not relevant because it pertains to supply solicitations
52.215-5Solicitation Definitions..................................... 15.407(c)(1) A A A A A A A
Provision applicable to subcontracts when the tribe does not have an
approved procurement system pursuant to Part F of the Regulation
52.215-6Type of Business Organization................................ 15.407(c)(2) A A A A A A A
Provision subject to the same comment as 52.215-5 above
52.215-7Unnecessarily Elaborate Proposals or Quotations.............. 15.407(c)(3) -- -- -- -- -- -- -- 1
Provision has no practical application
52.215-8Amendments to Solicitations.................................. 15.407(c)(4) A A A A A A A
Provision subject to the same comment as 52.215-5 above
52-215-9Submission of Offers......................................... 15.407(c)(5) -- A -- -- A -- A
Provision subject to the same comment as 52.215-5 above
52.215-10Late Submissions, Mods, and Withdrawals of Proposals........ 15.407(c)(6) -- A -- -- A -- A
Provision subject to the same comment as 52.215-5 above
52.215-11Authorized Negotiators...................................... 15.407(c)(7) A A A A A A A
Provision subject to the same comment as 52.215-5 above
52.215-12Restriction on Discl. and Use of Data....................... 15.407(c)(8) -- -- -- -- -- -- -- 1
Provision not relevant because HHS will use the provision at HHSAR
352.215-12 and DOI will use the provision at DIAR 1452.215-12
52.215-13Preparation of Offers....................................... 15.407(d)(1) -- -- -- -- -- A A
52.215-14Explanation to Prospective Offers........................... 15.407(d)(2) -- A -- -- A -- A
Provision subject to the same comment as 52.215-5 above
52.215-15Failure to Submit Offer..................................... 15.407(d)(3) -- -- -- -- -- -- -- 1
Provisions not relevant because it pertains to maintenance of bidder
lists
52.215-16Contract Award.............................................. 15.407(d)(4) -- A -- -- A -- A
Provision subject to the same comment as 52.215-5 above
52.215-16Alternate I................................................. 15.407(d)(4)(ii) -- A -- A -- -- --
Alternate subject to the same comment as 52.215-5 above
51.215-16Alternate II................................................ 15.407(d)(4)(iii) -- -- -- -- -- -- -- 1
Alternate not relevant because it pertains to DOD, Coast Guard, and
NASA solicitation
52.215-16Alternate III............................................... 15.407(d)(4)(iv) -- -- -- -- -- -- -- 1
Alternate III not relevant for same reason as Alternate II above
52.215-17Telegraphic Proposals....................................... 15.407(e)(1) -- O -- -- O -- O
52.215-17Alternate I................................................. 15.407(e)(2) -- -- -- -- -- -- -- 1
Alternate not relevant because pertains to perishable subsistence
items
52.215-18Facsimile Proposals......................................... 15.407(i) -- O -- -- O -- O
52.215-19Period for Acceptance of Offer.............................. 15.407(f) -- -- -- -- -- -- A
Provision subject to the same comment as 52.215-5 above
52.215-20Place of Performance........................................ 15.407(g) -- -- -- -- -- -- A
Provision subject to the same comment as 52.215-5 above
52.215-21Changes or Additions to Make-or-Buy Program................. 15.708 -- -- -- -- -- -- -- 1
Clause not relevant because it applies only to Make-or-Buy programs
52.215-21Alternate I................................................. 15.708 -- -- -- -- -- -- -- 1
Alternate not relevant for same reason as basic clause above
52.215-21Alternate II................................................ 15.708 -- -- -- -- -- -- -- 1
Clause not relevant for same reason as basic clause above
52.215-22Price Reduction for Defective Cost or Pricing Data.......... 15.804-8(a) A A A A A A A
52.215-23Price Reduction for Defective Cost or Pricing Data--Mods.... 15.804-8(b) A A A A A A A
52.215-24Subcontractor Cost or Pricing Data.......................... 15.804-8(c) A A A A A A A
52.215-25Subcontractor Cost Pricing Data--Mods....................... 15.804-8(d) A A A A A A A
52.215-26Integrity of Unit Prices.................................... 15.812-2(a) -- -- -- -- -- -- -- 1
Clause not applicable to construction projects
52.215-26Alternate I................................................. 15.812-2(b) -- -- -- -- -- -- -- 1
Alternate not relevant for same reason as basic clause above
52.215-27Termination of Defined Benefit Pension Plans................ 15.804-8(e) -- -- -- -- -- -- -- 1
Clause not applicable because it involves cost principles in FAR
Subpart 31.2, and ``638'' contracts will rely on cost principles in
A-87
52.215-30Facilities Capital Cost of Money............................ 15.904(a) -- A -- -- A -- A
52.215-31Waiver of Facilities Capital Cost of Money.................. 15.904(b) -- A -- -- A -- A
52.215-32Certification of Commercial Pricing for Parts or Components. 14.214, 15.813-7(a)(1) -- -- -- -- -- -- -- 1
Clause not relevant because pertains to major systems contracts
52.215-32Alternate I................................................. 14.214, 15.813-7(a)(2) -- -- -- -- -- -- -- 1
Alternate not relevant for same reason as basic clause above
52.215-33Order of Precedence......................................... 15.406-3(b) -- -- -- -- -- -- -- 1
Clause not relevant because only pertains to awards subject to
uniform contract format, and A/E and construction are not subject to
this requirement
52.215-34Evaluation of Offers for Multiple Awards.................... 15.407(h) -- A -- -- A -- A
Provision applicable only if multiple awards envisioned
52.215-35Annual Reps and Certs Negotiation........................... 15.407(i) -- -- -- -- -- -- -- 1
Provision not relevant because annual Representations and
Certifications are not authorized for 638 contracts
52.215-36Late Submissions, Mods, and Withdrawals of Proposals 15.407(c)(9) -- -- -- -- -- -- -- 1
(Overseas).
Provision not relevant because pertains to submissions to a
Contracting Office outside U.S
52.215-37Commercial Pricing Certificate--Notice...................... 14.214, 15.813-7(b) -- -- -- -- -- -- -- 1
Provision not relevant because it pertains to major systems contracts
52.215-38Preparation of Offers Construction.......................... 15.407(k) A A A -- -- -- --
52.215-39Revision or Adjustment of Plans for Postretirement Benefits 15.804-8(f) -- -- -- -- -- -- -- 1
Other than Pens.
Clause not applicable because it involves cost principles in FAR
Subpart 31.2, and ``638'' contracts will rely on cost principles in
A-87
52.216-1Type of Contract............................................. 16.105 A A A A A A A
52.216-2Economic Price Adjust. Standard Supplies..................... 16.203-4(a) -- -- -- -- -- -- -- 1
Clause not relevant because pertains to supply contracts
52.216-3Economic Price Adjust. Semistandard Supplies................. 16.203-4(b) -- -- -- -- -- -- -- 1
Clause not relevant because pertains to supply contracts
52.216.4Economic Price Adjust.--Labor and Material................... 16.203-4(c) -- -- -- -- -- -- -- 1
Clause not relevant because 638 contracts do not contain labor or
material cost factors that are subject to change
52.216-5Price Redetermination--Prospective........................... 16.205-4 -- -- -- -- -- -- -- 1
Clause not relevant because 638 contracts are not quantity production
or services contracts involving extended performance periods for
which it is impossible to negotiate fair and reasonable prices
52.216-6Price Redetermination--Retroactive........................... 16.206-4 -- -- -- -- -- -- -- 1
Clause not relevant because it is directed at R&D contracts
52.216-7Allowable Cost and Payment................................... 16.307(a) -- -- R A -- A --
FAR Subpart 16.307(a) prescribes modifying the clause to substitute
reference to Subpart 31.6 for Subpart 31.2 in case of awards to
State and Local Governments
52.216-8Fixed Fee.................................................... 16.307(b) -- -- -- -- -- -- -- 1
Clause not relevant because Cost-Plus-Fixed-Fee Contract would not be
one of the types of contracts used
52.216-9Fixed Fee--Construction...................................... 16.307(c) -- -- -- -- -- -- -- 1
Clause not relevant for same reason provided under 52.216-8 above
52.216-10Incentive Fee............................................... 16.307(d) -- -- -- -- -- -- -- 1
Clause not relevant because incentive-type contracts would not be
used
52.216-11Cost Contract--No Fee....................................... 16.307(e)(1) -- -- A A -- A --
52.216-11Alternate................................................... 16.307(e)(2) -- -- -- -- -- -- -- 1
Alternate not relevant because directed at R&D contracts
52.216-12Cost Sharing Contract--No Fee............................... 16.307(f)(1) -- -- A A -- A --
52.216-12Alternate I................................................. 16.307(f)(2) -- -- -- -- -- -- -- 1
Alternate not relevant because directed at R&D contracts
52.216-13Allowable Cost and Payment--Facilities...................... 16.307(g)(1) -- -- -- -- -- -- -- 1
Clause not relevant because directed at consolidated facilities or
facilities acquisition contracts
52.216-13Alternate I................................................. 16.307(g)(2) -- -- -- -- -- -- -- 1
Alternate not relevant because directed at facilities acquisition
contracts
52.216-14Allowable Cost and Payment--Facilities Use.................. 16.307(h) -- -- -- -- -- -- -- 1
Clause not relevant because directed at facilities-use contracts
52.216-15Predetermined Indirect Cost Rates........................... 16.307(1) -- -- -- -- -- -- -- 1
Clause not relevant because directed at R&D contracts
52.216-16Incentive Price Revision--Firm Target....................... 16.405(a) -- -- -- -- -- -- -- 1
Clause not relevant because incentive-type contracts would not be
used
52.216-16Alternate................................................... 16.405(a) -- -- -- -- -- -- -- 1
Alternate not relevant for same reason as basic clause. In addition,
Alternate directed at contracts involving supplies or services to be
ordered under a provisioning document or Government option
52.216-17Incentive Price Revision--Successive Targets................ 16.405(b) -- -- -- -- -- -- -- 1
Clause not relevant for reason provided under 52.216-16 above
52.216-17Alternate................................................... -- -- -- -- -- -- -- 1
Alternate not relevant for same reasons as Alternate to 52.216-16
above
52.216-18Ordering.................................................... 16.505(a) -- -- -- -- -- -- -- 1
Clause not relevant because directed at indefinite delivery contracts
52.216-19Delivery Order Limitations.................................. 16.505(b) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.216-18 above
52.216-20Definite Quantity........................................... 16.505(c) -- -- -- -- -- -- -- 1
Clause not relevant because only applies to definite quantity
contracts
52.216-21Requirements................................................ 16.505(d) -- -- -- -- -- -- -- 1
Clause not relevant because only applies to requirements contracts
52.216-21Alternate I................................................. 16.505(d) -- -- -- -- -- -- -- 1
Alternate not relevant for same reason as basic clause above
52.216-21Alternate II................................................ 16.505(d) -- -- -- -- -- -- -- 1
Alternate not relevant for same reason as basic clause above
52.216-21Alternate III............................................... 16.505(d) -- -- -- -- -- -- -- 1
Alternate not relevant for same reason as basic clause above
52.216-22Indefinite Quantity......................................... 16.505(e) -- -- -- -- -- -- -- 1
Clause not relevant because only applies to indefinite quantity
contracts
52.216-23Execution and Commencement of Work.......................... 16.603-4(b)(1) A -- A A -- A
52.216-24Limitation of Government Liability.......................... 16.603-4(b)(2) A -- A A -- A --
52.216-25Contract Definitizat........................................ 16.603-4(b)(3) A -- A A -- A --
52.216-25Alternate I................................................. 16.603-4(b)(3) -- -- -- -- -- -- -- 2
Clause not relevant because used for awards based on price
competition
52.216-26Payments of Allowable Costs Before Definit.................. 16.603-4(c) -- -- A A -- A --
52.217-1Limitation of Price and Contractor Obligation................ 17.105(a)(1) -- -- -- -- -- -- -- 1
Clause not relevant because used for multiyear contracts in which
total funds not awarded with the contract
52.217-2Cancellation of Items........................................ 17.105(a)(2) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as in 52.217-1 above
52.217-2Alternate I.................................................. 17.105(a)(2) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as in 52.217-1 above
52.217-3Evaluation Exclusive of Options.............................. 17.208(a) -- -- -- -- -- -- -- 2
Provision not relevant because it contemplates more than one
potential source
52.217-4Evaluation of Options Exercised at Time of Contract Award.... 17.208(b) -- -- -- -- -- -- -- 2
Provision not relevant for same reason as in 52.217-3 above
52.217-5Evaluation of Options........................................ 17.208(c) -- -- -- -- -- -- -- 2
Provision not relevant for same reason as in 52.217-3 above
52.217-6Option for Increased Quantity................................ 17.208(d) -- -- -- -- -- -- -- 1
Clause not relevant because directed at supplies
52.217-7Option for Increased Quantity--Separately Priced Line Item... 17.208(e) -- -- -- -- -- -- -- 1
Clause not relevant because directed at supplies
52.217-8Option to Extend Services.................................... 17.208(f) -- -- -- -- -- -- -- 1
Clause not relevant because FAR Section 17.200 states that FAR
Subpart 17.2 not applicable to A/E or construction. While options
are permissible with A/E and construction contracts, the FAR does
not currently prescribe option provisions or clauses for these
contracts
52.217-9Option to Extend Term of Contract............................ 17.208(g) -- -- -- -- -- -- -- 1
Clause not relevant because directed as contracts with specified
terms (e.g., food service) rather than end products
52.219-1Small Business Concern Representation........................ 19.304(a) -- O -- -- O -- O
52.219-2Small Disadvantaged Business Concern Rep..................... 19.304(b) -- O -- -- O -- O
52.219-3Woman-Owned Small Business Respresent........................ 19.304(c) -- O -- -- O -- O
52.219-4Notice of Small Business Small Purch. Set-Aside.............. 19.508(a) -- -- -- -- -- -- -- 1
Provision not relevant because pertains to small purchases of
supplies or services
52.219-5Notice of Total Small Business-Labor Surplus Area Set-Aside.. 19.508(b) -- O -- -- O -- O
52.219-5Alternate I.................................................. 19.508(b) -- -- -- -- -- -- -- 1
Alternate not practically relevant because pertains to situations
where SBA has determined that no small business manufacturers exist,
and this typically invovles supply-type procurements
52.219-6Notice of Total Small Business Set-Aside..................... 19.508(c)1 -- O -- -- O -- O
52.219-6Alternate I.................................................. 19.508(c) -- -- -- -- -- -- -- 1
Alternate not practically relevant for same reason provided under
Alternate I to 52.219-5 above
52.219-7Notice of Partial Small Business Set-Aside................... 19.508(d) -- -- -- -- -- -- -- 1
Clause not relevant because mechanism of a partial set-aside is too
cumbersome for tribal procurement systems to accomodate
52.219-7Alternate I.................................................. 19.508(d) -- -- -- -- -- -- -- 1
Alternate not practically relevant for same reason provided under
Alternate I to 52.219-5 above
52.219-8Utilization of Small and Small and Disadvantaged Business 19.708(a) -- A -- -- A -- A
Concerns.
P.L. 93-638 contracts (the prime contracts) are covered by Section
900.605(b) of proposed regulation
52.219-9Small Business and Small Disadvantaged Business 19.708(b)(1) A -- A A -- A --
Subcontracting Plan.
52.219-9Alternate I.................................................. 19.708(b)(1) A -- A A -- -- --
52.219-10Incentive Subcontracting Program for Small Disadv. Business 19.708(c)(1) -- -- -- -- -- -- -- 1
Concerns.
Clause not relevant because no incentives (or fees) are paid to
``638'' contractors, and because incentive contracting is too
cumbersome for tribal procurement systems to accomodate for
subcontractors
52.219-11Special 8(a) Contract Conditions............................ 19.811-3(a) -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to contracts with the SBA
52.219-11Alternate I................................................. 19.811-3(a) -- -- -- -- -- -- -- 1
Same reason as 52.219-11 above
52.219-12Special 8(a) Subcontract Conditions......................... 19.811-3(b) -- -- -- -- -- -- -- 1
Same reason as 52.219-11 above
52.219-12Alternate I................................................. 19.811-3(b) -- -- -- -- -- -- -- 1
Same reason as 52.219-11 above
52.219-13Utilization of Women-Owned Businesses....................... 19.902 -- A -- -- A -- A
The P.L. 93-638 (prime) contract is covered by Section 900.605(b) of
the proposed regulation
52.219-14Limitations on Subcontracting............................... 19.508(e) & 19.811-3(e) -- A -- -- A -- A
52.219-15Notice of Participat. by Organizations for the Handicapped.. 19.508(f) -- O -- -- O -- O
52.219-16Liquidated Damages--Small Business-Small Business 19.708(b)(2) -- -- -- -- -- -- -- 1
Contracting Plan.
Clause not practical because achievement of small business
subcontracting goals may be complicated by factors such as Indian
preference and tribal employment regulations
52-219-17Section 8(a) Award.......................................... 19.811-3(c) -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to contracts with the SBA
52.219-18Notification of Competition Limited to Eligible 8(a) 19.811-3(d) -- -- -- -- -- -- -- 1
Concerns.
Same as under 52.219-17 above
52.219-18Alternate I................................................. 19.811-3(d)(1) -- -- -- -- -- -- -- 1
Same as under 52.219-17 above
52.219-18Alternate II................................................ 19.811-3(d)(2) -- -- -- -- -- -- -- 1
Same as under 52.219-17 above
52.219-18Alternate III............................................... 19.811-3(d)(3) -- -- -- -- -- -- -- 1
Same as under 52.219-17 above
52.219-19Small Business Concern Representation for the Small Business 19.1007(a) -- -- -- -- -- -- -- 1
Compet. Demonstration Program.
Provision not relevant because changing coverage makes program too
cumbersome for tribal procurement systems to accomodate
52.219-20Notice of Emerging Small Business Set-Aside................. 19.1007(b) -- -- -- -- -- -- -- 1
Provision not relevant for same reason as 52.219-19 above
52.219-21Small Business Size Representation for Targeted Industry 19.1007(c) -- -- -- -- -- -- -- 1
Categories Under.
Clause not relevant for same reason as 52.219-19 above
52.219-22SIC Code and Small Business Size Standard................... 19.304(d) -- O -- -- O -- O
52.220-1Preference for Labor Surplus Area Concerns................... 20.103(b) -- O -- -- O -- O
52.220-2Notice of Total Labor Surplus Area Set-Aside................. 20.202 -- O -- -- O -- O
52.220-3Utilization of Labor Surplus Area Concerns................... 20.302(a) -- O -- -- O -- O
52.220-4Labor Surplus Area Subcontracting Program.................... 20.302(b) O -- O O -- O --
52.222-1Notice to the Govt of Labor Disputes......................... 22.103-5(a) A A A A A A A
HHS cost-reimbursement prime contracts awards will normally include
the more comprehensive clause at PHSAR 352.280-4(a)(14)
52.222-2Payment of Overtime Premiums................................. 22.103-5(b) -- -- A A -- A --
52.222-3Convict Labor................................................ 22.202 A A A A A A A
52.222-4Contract Work Hours and Safety Stds Act--Overtime Comp....... 22.305 A A A A A -- --
52.222-6Davis-Bacon Act.............................................. 22.407(a) A A A -- -- -- --
Note: This clause is not applicable to prime contractors performing
the contract work with tribal force accounts, but is applicable when
the prime contractor is a private business corporation, whether
owned by the tribe or tribal members. In all cases, the prime
contractor is responsible for including the Clause in its
subcontracts, and for furnishing IHS with information on
subcontractor conformance with the requirements
52.222-7Withholding of Funds......................................... 22.407(a) A A A -- -- -- --
See note under 52.222-6 above
52.222-8Payrolls and Basic Records................................... 22.407(a) A A A -- -- -- --
See Note under 52.222-6 above
52.222-9Apprentices & Trainees....................................... 22.407(a) A A A -- -- -- --
See note under 52.222-6 above
52.222-10Compliance with Copeland Act Requirements................... 22.407(a) A A A -- -- -- --
52.222-11Subcontracts (Labor Standards).............................. 22.407(a) A A A -- -- -- --
See note under 52.222-6 above
52.222-12Contract Termination--Debarment............................. 22.407(a) A A A -- -- -- --
See note under 52.222-6 above
52.222-13Compliance With Davis-Bacon and Related Act Regulations..... 22.407(a) A A A -- -- -- --
See note under 52.222-6 above
52.222-14Disputes Concerning Labor Standards......................... 22.407(a) A A A -- -- -- --
See note under 52.222-6 above
52.222-15Certification of Eligibility................................ 22.407(a) A A A -- -- -- --
See note under 52.222-6 above
52.222-16Approval of Wage Rates...................................... 22.407(b) -- -- A -- -- -- --
Clause does not apply to subcontractors because it only pertains to
cost-reimbursement construction, and all subcontracts will be fixed-
price
52.222-17Labor Standards for Construction Work--Facilities Contracts. 22.407(d) -- -- -- -- -- -- -- 1
Clause not relevant because pertains to facilities contracts
52.222-19Walsh-Healey Public Contracts Act Rep....................... 22.610(a) -- A -- -- -- -- --
52.222-20Walsh-Healey Public Contracts Act........................... 22.610(b) -- A -- -- -- -- --
52.222-21Certification of Non-segregated Facilities.................. 22.810(a)(1) A A A A A A A
52.222-22Previous Contracts and Compliance Reports................... 22.810(a)(2) A A A A A A A
52.222-23Notice of Requirement for Affirmative Action to ensure EEO.. 22.810(b) A A A -- -- -- --
52.222-24Preaward On-site EEO Review................................. 22.810(c) -- -- -- A A A A
52.222-25Affirmative Action Compliance............................... 22.810(d) -- -- -- A A A A
52.222-26Equal Opportunity........................................... 22.810(e) A A A A A A A
While covered in Sections 900.607(10) and 960.120 of the Regulation,
other FAR EEO clauses refer to this clause
52.222-26Alternate I................................................. 22.810(e) A A A A A A A
52.222-27Affirmative Compliance Requirements for Construction........ 22.810(f) A A A -- -- -- --
52.222-28Equal Opportunity Preaward Clearance of Subcontractors...... 22.810(g) -- -- -- A A -- --
52.222-29Notification of Visa Denial................................. 22.810(h) -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to contracts performed in a
foreign country
52.222-35Affirmative Action for Special Disabled and Vietnam Era 22.1308(a)(1) A A A A A A A 1
Veterans.
52.222-35Alternate I................................................. 22.1308(a)(2) -- -- -- -- -- -- --
Alternate would only be relevant in unlikely event that Agency and
OFCCP waived some of terms of the basic clause
52.222-36Affirmative Action for Handicapped Workers.................. 22.1408(a) A A A A A A A 1
52.222-36Alternate I................................................. 22.1408(b) -- -- -- -- -- -- --
Alternate would only be relevant in unlikely event that Agency and
OFCCP/DOL waived some of the terms of the basic clause
52.222-37Employment Reports on Special Disabled Veterans and Veterans 22.1308(b) A A A A A A A
of Vietnam Era.
This Clause relates to 52.222-35 above
52.222-40Service Contract Act of 1965 as Amended--Contr. of $2,500 or 22.1005 -- -- -- -- A -- A
less.
This Clause has no practical relevant because it pertains to
contracts of $2,500 or less
52.222-41Service contract Act of 1965 as Amended..................... 22.1006(a) -- -- -- -- A -- A
52.222-42Statement of Equivalent Rates for Federal Hires............. 22.1006(b) -- -- -- -- A -- A
52.222-43Fair Labor Standards Act and Service Contr. Act--Price 22.1006(c)(1) -- -- -- -- A -- A
Adjustment (Multiple Year and Option Contracts).
52.222-44Fair Labor Standards Act and Service Contr. Act--Price 22.1006(c)(2) -- -- -- -- A -- A
Adjustment.
52.222-45Notice of Compensation for Professional Empl................ 22.1103 -- -- -- -- -- - --
Provision is not relevant because it pertaints to contracts with
significant numbers of professional employees, and appears to
exclude A/E
52.222-46Evaluation of Compen. for Professional Employees............ 22.1103 -- -- -- -- -- -- --
Provision is not relevant for same reason provided under 52.222-45
above
52.222-47SCA Minmium Wages and Fringe Benefits Applic. to Successor.. 22.1006(d) -- -- -- -- -- -- --
Contract......................................................... 22,1012-3(d)(i)
Clause not relevant because it pertains to a contract which succeeds
a current contract for substantially the same service
52.222-48Exemption from Applic. of Service Contract Act Provisions 22.1006(e)(1) -- -- -- -- -- -- --
for Contracts for Maint., Calibration, and.
Clause not relevant because it pertains to contracts for maintenance,
calibration, and/or repair of ADP, scientific and medical, office,
or business equipment
52.222-49Service Contract Act--Place of Performance.................. 22.1006(f) -- -- -- -- -- -- --
Unknown.......................................................... 22.1009-4(c) -- -- -- -- -- -- -- 1
Clause not practically relevant because it only applies to contracts
where the place of performance is unknown, and appears to exclude A/
E
52.223-1Clean Air and Water Certification............................ 23.105(a) A A A A A A A A
52.223-2Clean Air and Water Act...................................... 23.105(b) A A A A A A A A
52.223-3Hazardous Material Identification and Material Safety Data... 23.303 A A A A A A A A
52.223-4Recovered Material Certification............................. 23.405 A A A A A A A A
52.223-5Certification Regarding a Drug-Free Workplace................ 23.505(a) A A A A A A A A
52.223-6Drug-Free Workplace.......................................... 23.505(b) A A A A A A A A
52.223-7Notice of Radioactive Materials.............................. 23.602 A A A A A A A A
52.224-1Privacy Act Notification..................................... 24.104(a) -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to contracts where the
design, development, or operation of a system of records on
individuals is required
52.224-2Privacy Act.................................................. 24.104(b) -- -- -- -- -- -- -- 1
Clause not relevant for the same reason as 52.224-1 above
52.225-1Buy American Certificate..................................... 25.109(a) -- -- -- -- -- -- -- 1
Provision not relevant because it pertains to supply contracts and
service contracts that involve the furnishing of supplies
52.225-2Waiver of Buy American Act for Civil Aircraft and Related 25.109(c) -- -- -- -- -- -- -- 1
Articles.
Provision not relevant because it pertains to the acquisition of
civil aircraft and related articles
52.225-3Buy American Act--Supplies................................... 25.109(d) -- -- -- -- -- -- -- 1
Clause not relevant for the same reason as 52.255-1 above
52.225-5Buy American Act--Construction Materials..................... 25.205 A A A -- -- -- --
52.225-6Balance of Payments Program Certificate...................... 25.305(a) -- -- -- -- -- -- -- 1
Provision not relevant because it pertains to supplies or services
for use outside the United States
52.225-7Balance of Payments Program.................................. 25.305(c) -- -- -- -- -- -- -- 1
Clause not relevant for the same reason as 52.225-6 above
52.225-8Buy American Act--Trade Agreements Act--Balance of Payments 25.407(a)(1) -- -- -- -- -- -- -- 1
Program Certificate.
Provision not relevant because it does not pertain to construction or
A/E
52.225-9Buy American Act--Trade Agreements Act--Balance of Payments 25.407(a)(2) -- -- -- -- -- -- -- 1
Program.
Clause not relevant for the same reason as 52.225-8 above
52.225-10Duty Free Entry............................................. 25.605(a) A A A -- -- -- --
52.225-11Restrictions on Certain Foreign Purchases................... 25.704 R R R -- -- -- --
52.225-14Inconsistency Between English Version and Translation of 25.902 -- -- -- -- -- -- -- 1
Contract.
Clause not relevant because translation into another language is not
anticipated
52.226-1Utilization of Indian Organizations and Indian-Owned Economic 26.104 -- -- -- -- -- -- -- 1
Enterprises.
This clause is not necessary because Section 900.605 of the
Regulation requires that preference be given to Indian organizations
and enterprises
52.227-1Authorization and Consent.................................... 27.201-2(a) A A A A A A A
52.227-1Alternate I.................................................. 27.201-2(b) -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to R&D
52.227-1Alternate II................................................. 27.201-2(c) -- -- -- -- -- -- -- 1
Clause not relevant because it only pertains to communication
services
52.227-2Notice and Assistance Regarding Patent and Copyright 27.202-2 A A A -- -- A A
Infringement.
52.227-3Patent Indemnity 27.203-2(a), 27.203-4(a)(2)................. 27-203-1(b) -- -- -- -- -- -- -- 1
Clause not relevant because it excludes construction
52.227-3Alternate I.................................................. 27-203-2(b) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.227-3 above
52.227-3Alternate II................................................. 27-203-2(b) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.227-3 above
52.227-3Alternate III................................................ 27-203-2(c) -- -- -- -- -- -- -- 1
Clause not relevant because it only pertains to communications
services
52.227-4Patent Indemnity-Construction Contracts...................... 27.203-5 A A A A A -- --
52.227-4Alternate I.................................................. 27.203-5 O O O O O -- --
52.227-5Waiver of Indemnity.......................................... 27.203-6 A A A A A -- --
52.227-6Royalty of Information....................................... 27.204-2 A A A A A -- --
52.227-6Alternate I.................................................. 27.204-2 -- -- -- -- -- -- -- 1
Alternate not relevant because it pertains to communications services
and facilities by a common carrier
52.227-7Patents--Notice of Government Licensee....................... 27.204-3(c) A A A -- -- -- --
52.227-9Refund of Royalties.......................................... 27.206-2 A A -- -- -- -- --
52.227-10Filing of Patent Applications--Classified Subject Matter 27.207-2 -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to classified subject matter
52.227-11Patent Rights--Retention by the Contractor (Short Form)..... 27.303(a)(1) O O O -- -- O O
52.227-11Alternate I................................................. 27.303(a)(3) O O O -- -- O O
52.227-11Alternate II................................................ 27.303(a)(3) O O O -- -- O O
52.227-11Alternate III............................................... 27.303(a)(4) O O O -- -- O O
52.227-11Alternate IV................................................ 27.303(a)(5) O O O -- -- O O
52.227-12Patent Rights--Retention by the Contractor (Long Form) -- -- -- -- -- -- -- -- 1
27.303(b)(1).
Clause not required because patent matters can be addressed using the
short form patent rights clause at FAR 52.227-11
52.227-12Alternate I................................................. 27.303(b)(2) -- -- -- -- -- -- -- 1
Alternate not relevant for the same reason as the basic clause above
52.227-12Alternate II................................................ 27.303(b)(2) -- -- -- -- -- -- -- 1
Alternative not relevant for the same reason as the basic clause
above
52.227-13Patent Rights--Acquisition by the Government................ 27.303(c)(1) -- -- -- -- -- -- -- 1
Clause not required because the clause at FAR 52.227-11 will be
available for use, and because the contract work will be performed
within the United States
52.227-13Alternate I................................................. 27.303(c)(3) -- -- -- -- -- -- -- 1
Alternate not relevant for the same reason as the basic clause above
52.227-13Alternate II................................................ 27.303(c)(3) -- -- -- -- -- -- -- 1
Alternate not relevant for the same reason as the basic clause above
52.227-14Rights in Data--General..................................... 27.409(a)(1) -- -- -- -- -- -- -- 1
Clause not practically relevant because chance of data being
produced, furnished, or acquired under demolition contracts is
negligible; and because construction and A/E are covered by the
clause at FAR 52.227-17
52.227-14Alternate I................................................. 27.409(b) -- -- -- -- -- -- -- 1
Alternate not relevant for the same reason as the basic clause above
52.227-14Alternate II................................................ 27.409 (c) and (g) -- -- -- -- -- -- -- 1
Alternate not relevant for the same reason as the basic clause above
52.227-14Alternate III............................................... 27.409 (d) and (g) -- -- -- -- -- -- -- 1
Alternate not relevant for the same reason as the basic clause above
52.227-14Alternate IV................................................ 27.409(e) -- -- -- -- -- -- -- 1
Alternate not relevant for the same reason as the basic clause above
52.227-14Alternate V................................................. 27.409(f) -- -- -- -- -- -- -- 1
Alternate not relevant for the same reason as the basic clause above
52.227-15Representation of Limited Rights Data and Restricted 27.409(g) -- -- -- -- -- -- -- 1
Computer Software.
Provision not relevant because only used in conjunction with 52.227-
14
52.227-16Additional Rights in Data--Special Works.................... 27.409(h) -- -- -- -- -- -- -- 1
Clause not relevant because only pertains to experimental,
developmental, research, or demonstration work
52.227-17Rights in Data--Special Works............................... 27.409(i) O O O -- -- O O
52.227-18Rights in Data--Existing Works.............................. 27.409(j) -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to audiovisual and similar
works
52.227-19Commercial Computer Software--Restricted Rights............. 27.409(k) -- -- -- -- -- -- -- 1
Clause not relevant because pertains to acquisition of existing
computer software
52.227-20Rights in Data--SBIR Program................................ 27.409(l) -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to small business innovation
research contracts
52.227-21Technical Data Certification, Revision, and Withholding of 27.409(q) -- -- -- -- -- -- -- 1
Payment--Major Systems.
Clause not relevant because it pertains to major systems acquisitions
52.227-22Major Systems--Minimum Rights............................... 27.409(r) -- -- -- -- -- -- -- 1
Clause not relevant for the same reason as 52.227-21 above
52.227-23Rights to Proposal Data (Technical)......................... 27.409(s) -- O -- -- -- -- O
Clause not relevant because it pertains to acquiring unlimited rights
in technical data contained in a successful proposal
52.228-1Bid Guarantee................................................ 28.101-3(b) -- A -- -- A -- --
52.228-2Additional Bond Security..................................... 28.106-4 A A -- A A -- --
52.228-3Workers' Compensation Insurance (Defense Base Act)........... 28.309(a) -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to employees working outside
the U.S.
52.228-4Workers' Compensation and War-Hazard Insurance Overseas...... 28.309(b) -- -- -- -- -- -- -- 1
Clause not relevant for the same reason as 52.228-3 above
52.228-5Insurance--Work on a Government Installation................. 28.310 A A A A A A A A
52.228-6Insurance--Immunity From Tort Liability...................... 28.311-1 -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to R&D work
52.228-7Insurance--Liability to Third Persons........................ 28.311-2 -- -- -- -- -- -- -- 1
Clause does not apply to construction and A/E contracts
52.228-7Alternate I.................................................. 28.311-2 -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.228-7 above
52.228-7Alternate II................................................. 28.311-2 -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.228-7 above
52.228-8Liability and Insurance--Leased Motor Vehicles............... 28.312 -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to contracts for the leasing
of motor vehicles
52.228-9Cargo Insurance.............................................. 28.313(a) -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to contracts for
transportation or transportation-related services
52.228-10Vehicular and General Public................................ 28.313(b) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.228-9 above
52.228-11Pledges of Assets........................................... 28.203-6 A A -- A A -- --
52.229-1State and Local Taxes........................................ 29.401-1 -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to contracts for leased
equipment
52.229-2North Carolina State and Local Sales and Use Tax............. 29.401-2 A A A -- -- -- --
52.229-2Alternate I.................................................. 29.401-2 -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to vessel repair contracts
52.229-3Federal, State, and Local Taxes.............................. 29.401-3 -- A -- -- A -- A
52.229-4Federal, State, and Local Taxes (Noncompetitive Contr)....... 29.401-4 A A -- A A A A
52.229-5Taxes--Contracts Performed in U.S. Possessions of Puerto Rico 29.401-5 -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to contracts performed in
U.S. possessions or Puerto Rico
52.229-6Taxes--Foreign-Fixed Price Contracts......................... 29.402-1(a) -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to contracts performed in a
foreign country
52.229-7Taxes--Fixed Price Contracts with Foreign Governments........ 29.402-1(b) -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to contracts with a foreign
Government
52.229-8Taxes--Foreign Cost-Reimbursement Contracts.................. 29.402-2(a) -- -- -- -- -- -- -- 1
Clause not relevant for the same reason as 52.229-6 above
52.229-9Taxes--Cost-Reimbursement Contracts with Foreign Governments 29.402-2(b) -- -- -- -- -- -- -- 1
Reimbursement Contracts.
Clause not relevant for the same reason as 52.229-6 above
52.229-10State of New Mexico Gross Receipts and Compensating Tax..... 29.401-6(b) -- -- -- -- -- -- -- 1
Clause is not applicable to prime contracts because the tax does not
apply to ``638'' contracts, and is not applicable to subcontracts
because coverage is limited to cost-reimbursement contracts and
``638'' construction subcontracts will be fixed price
52.230-1Cost Accounting Standards Notices and Certification.......... 30.201-3 A A A A A A A
Provision and prescription reflect FAC 90-12 published in the Federal
Register as an interim rule on August 31, 1992
52.230-2Cost Accounting Standards.................................... 30.201-4(a) A A A A A A A
Clause and prescription reflect FAC 90-12 published in the Federal
Register as an interim rule on August 31, 1992
52.230-3Disclosure and Consistency of Cost Accounting Standards...... 30.201-4(b)(1) A A A A A A A
Same comment as under 52.230-2 above
52.230-4Consistency in Cost Accounting Practices..................... 30.201-4(c) -- -- -- -- -- -- -- 1
Same comment as under 52.230-2 above. Clause has no potential
application because it pertains to awards to United Kingdom
contractors
52.230-5Administration of Cost Accounting Standards.................. 30.201-4(d)(1) A A A A A A A
Same comment as under 52.230-2 above
52.230-6(FAC 90-12 removed this clause) ....................... ..... ..... ..... ..... ..... ..... .....
52.232-1Payments..................................................... 32.111(a)(1) -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to supply, service, or
communication services contracts
52.232-2Payments Under Fixed-Price Research and Development Contracts 32.111(a)(2) -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to R&D contracts
52.232-3Payments under Personal Services Contracts................... 32.111(a)(3) -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to personal services
contracts
52.232-4Payments under Transportation Contracts and Transportation 32.111(a)(4) -- -- -- -- -- -- -- 1
Related Services.
Clause not relevant because it pertains to transportation contracts
52.232-5Payments under Fixed-Price Construction Contracts............ 32.111(a)(5) R R -- -- -- -- --
52.232-6Payments under Communication Service Contracts with Common 32.111(a)(6) -- -- -- -- -- -- -- 1
Carriers.
Clause not relevant because it pertains to regulated communication
services by common carrier contractors
52.232-7Payments under Time and Materials and Labor-Hour Contracts... 32.111(b) -- -- -- -- -- -- -- 1
Clause not relevant because time and materials and labor hour
contracts would not be used
52.232-7Alternate I.................................................. 32.111(b) -- -- -- -- -- -- -- 1
Alternate not relevant for same reason as basic clause above
52.232-7Alternate II................................................. 32.111(b) -- -- -- -- -- -- -- 1
Alternate not relevant for same reason as basic clause above
52.232-8Discounts for Prompt Payment................................. 32.111(c)(1) -- -- -- A A -- --
52.232-9Limitation on Withholding of Payments........................ 32.111(c)(2) -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to supply, R&D, service, time
and materials, or labor hour contracts
52.232-10Payments under Fixed-Price A/E Contracts.................... 32.111(d)(1) -- -- -- -- -- A A
52.232-11Extras 32.111(d)(2)......................................... -- -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to supply, service, or
transportation contracts and has no application to the specific
types involved here
52.232-12Advance Payments............................................ 32.412(a) A -- A A -- A --
52.232-12Alternate I................................................. 32.412(b) A -- A A -- A --
52.232-12Alternate II................................................ 32.412(c) -- -- A A -- A --
52.232-12Alternate III............................................... 32.412(d) A -- A A -- A --
52.232-12Alternate IV................................................ 32.412(e) A -- A A -- A --
52.232-12Alternate V................................................. 32.412(f) A -- A A -- A --
52.232-13Notice of Progress Payments................................. 32.502-3(a) -- -- -- -- -- -- -- 1
Provision not relevant because it pertains to contracts where
progress payments are based on costs. (Construction and A/E progress
payments are based on a percentage or share of completion, and their
payments clauses contain the progress payment criteria)
52.232-14Notice of Availability of Progress Payments Exclusively for 32.502-3(b)(2) -- -- -- -- -- -- -- 1
Small Business Concerns.
Provision not relevant for same reason as 52-232-13 above
52.232-15Progress Payments Not Included.............................. 32.502-3(c) -- -- -- -- -- -- -- 1
Provision not relevant for same reason as 52-232-13 above
52.232-16Progress Payments........................................... 32.502-4(a) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52-232-13 above
52.232-16Alternate I................................................. 32.502-4(b) -- -- -- -- -- -- -- 1
Alternate not relevant for same reason as 52-232-13 above
52.232-16Alternate II................................................ 32.502-4(c) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52-232-13 above
52.232-17Interest.................................................... 32.617(a) -- A -- -- A -- A
52.232-18Availability of Funds....................................... 32.705-1(a) A -- A A -- A --
52.232-19Availability of Funds for the Next Fiscal Year.............. 32.705(b) -- -- -- -- -- A --
Clause not relevant because it pertains to indefinite delivery or
requirement service contracts
52.232-20Limitation of Cost.......................................... 32.705-2(a) -- -- A A -- A --
52.232-21Limitation of Cost (Facilities)............................. 32.705-2(b) -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to consolidated facilities,
facilities acquisition, or facilities use contracts
52.232-22Limitation of Funds......................................... 32.705-2(c) -- -- -- -- -- -- -- 1
While this clause is included for use where applicable, HHSAR 332.702
prohibits incrementally funded construction, A/E, or demolition
contracts by HHS at this time
52.232-23Assignment of Claims........................................ 32.806(a)(1) A O A A O A O
52.232-23Alternate I................................................. 32.806(a)(2) A O A A O A O
52.232-24Prohibition of Assignment of Claims......................... 32.806(b) A O A A O A O
52.232-25Prompt Payment.............................................. 32.908(c) -- -- -- R R A --
52.232-26Prompt Payment for Fixed-Price Architect-Engineer Contracts. 32.908(a) -- -- -- -- -- A R
52.232-27Prompt Payment for Construction Contracts................... 32.908(b) R R R -- -- -- --
52.232-28Electronic Funds Transfer Payment Methods................... 32.908(d) A -- A A -- A --
52.233-1Disputes..................................................... 33.215 A -- A A -- A --
The FAR clause is not suitable for P.L. 93-638 subcontracts, and P.L.
93-638 prime contractors should prepare and utilize appropriate
clauses for the subcontracts
52.233-1Alternate I.................................................. 33.215 A -- A A -- A --
Comment above on need for special clause in subcontracts also applies
to this alternate
52.233-2Service of Protest........................................... 33.106(a) -- -- -- -- -- -- -- 1
The FAR provision is not relevant to prime ``638'' contracts because
protests on awardability will be governed by Section 900.801(b) of
the Regulation. The FAR provision is not suitable for solicitations
for ``638'' subcontracts, and the prime contractors should prepare
and utilize appropriate ones
52.233-3Protest After Award.......................................... 33.106(b) -- -- -- -- -- -- -- 2
The clause is not relevant because post-award protests will not occur
under ``638''
52.233-3Alternate I.................................................. 33.106(b) -- -- -- -- -- -- -- 2
Alternate not relevant for same reason as basic clause above
52.236-1Performance of Work by the Contractor........................ 36.501(b) A A -- -- -- -- --
52.236-2Differing Site Conditions.................................... 36.502 A A -- A A -- --
52.236-3Site Investigation and Conditions Affecting Work............. 36.503 A A -- A A -- --
52.236-4Physical Data................................................ 36.504 A A -- -- -- -- --
52.236-5Material and Workmanship..................................... 36.505 R R R -- -- -- --
52.236-6Superintendence by the Contractor............................ 36.506 A A -- A A -- --
52.236-7Permits and Responsibilities................................. 36.507 R R R A A -- --
52.236-8Other contracts.............................................. 36.508 A A -- A A -- --
52.236-9Protection of Existing Vegetation, Structures, Equipment, 36.509 A A -- A A -- --
Utilities, and Improvements.
52.236-10Operations & Storage Areas.................................. 36.510 A A -- A A -- --
52.236-11Use and Possession Prior to Completion...................... 36.511 A A -- -- -- -- --
52.236-12Cleaning Up................................................. 36.512 A A -- A A -- --
52.236-13Accident Prevention......................................... 36.513(a) A A -- A A -- --
52.236-13Alternate I................................................. 36.513(b) A A -- A A -- --
52.236-14Availability and Use of Utility Services.................... 36.514 A A -- A A -- --
52.236-15Schedules for Construction Contracts........................ 36.515 O O -- -- -- -- --
52.236-16Quality Surveys............................................. 36.516 O O -- -- -- -- --
52.236-16Alternate I................................................. 36.516 O O -- -- -- -- --
52.236-17Layout of Work.............................................. 36.517 A A -- -- -- -- --
52.236-18Work Oversight in Cost Reimbursement Construction Contr..... 36.518 -- -- R -- -- -- --
52.236-19Organ. & Direction of the Work.............................. 36.519 -- -- R -- -- -- --
52.236-21Specifications and Drawings for Construction................ 36.521 A A -- A A -- --
52.236-21Alternate I................................................. 36.521 A A -- A A -- --
52.236-21Alternate II................................................ 36.521 A A -- A A -- --
52.236-22Design Within Funding Limitations........................... 36.609-1(c) -- -- -- -- -- A A
52.236-23Responsibility of the Architect-Engineer Contractor......... 36.609-2(b) -- -- -- -- -- A A
52.236-24Work Oversight in Architect-Engineer Contracts.............. 36.609-3 -- -- -- -- -- A A
52.236-25Requirements for Registration of Designers.................. 36.609-4 -- -- -- -- -- A A
52.237-1Site-Visit................................................... 37.110(a) -- -- -- A A A A
52.237-2Protection of Government Bldgs, Equip., Vegetation........... 37.110(b) -- -- -- A A A A
52.237-3Continuity of Services....................................... 37.110(c) -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to acquisitions where
successor contracts are anticipated
52.237-4Payment by Government to Contractor.......................... 37.304(a) -- -- -- A A -- --
52.237-4Alternate I.................................................. 37.304(a) -- -- -- A A -- --
52.237-5Payment by Contractor to Government.......................... 37.304(b) -- -- -- A A -- --
52.237-6Incremental Payment by Contractor to Government.............. 37.304(c) -- -- -- A A -- --
52.237-7Indemnification and Medical Liability Insurance.............. 37.403 -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to nonpersonal health care
service contracts
52.237-8Severance Payments to Foreign Nationals Employed Under a 37.110(f) -- -- -- -- -- -- -- 1
Service Contract Performed Outside US.
Clause not relevant because it pertains to contracts for services
performed outside the US
52.242-1Notice of Intent to Disallow Costs........................... 42.802 -- -- R A -- A --
52.242-2Production Progress Reports.................................. 42.1107(a) -- -- -- -- -- A --
52.242-10F.o.b. Origin--Govt Bills of Lading or Prepaid Postage...... 42.1404-2(a) -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to using Government bills of
lading or prepaid postage (which do not apply here)
52.242-11F.o.b. Origin--Govt Bills of Lading or Indicia Mail......... 42.1404-2(b) -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to using Government bills of
lading or indicia mail, which will not be used here
52.242-12Report of Shipment (RESHIP)................................. 42.1406-2 -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to safety or security needs
for advance notice of shipments, or carload or truckload shipments
52-242-13Bankruptcy.................................................. 42.903 A -- A A -- A --
52-243-1Changes--Fixed Price......................................... 43.205(a)(1) -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to supply contracts
52.243-1Alternate I.................................................. 43.305(a)(2) -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to service contracts other
than A/E or professional services
52.243-1Alternate II................................................. 43.205(a)(3) -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to service contracts other
than A/E, transportation, or R&D
52.243-1Alternate III................................................ 43.205(a)(4) -- -- -- -- -- A A
52.243-1Alternate IV................................................. 43.205(a)(5) -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to transportation contracts
43.243-1Alternate V.................................................. 43.205(a)(6) -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to R&D contracts
52.243-2Changes--Cost Reimbursement.................................. 43.205(b)(1) -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to supply contracts
52.243-2Alternate I.................................................. 43.205(b)(2) -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to service contracts
52.243-2Alternate II................................................. 43.205(b)(3) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52-243-2 above
52.243-2Alternate III................................................ 43.205(b)(4) -- -- A -- -- -- --
52.243-2Alternate IV................................................. 43.205(b)(5) -- -- -- -- -- -- -- 1
Clause not relevant because pertains to facilities contracts
52.243-2Alternate V.................................................. 43.205(b)(6) -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to R&D contracts
52.243-3Changes--Time & Materials or Labor Hours..................... 43.205(c) -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to time and materials and
labor hour contracts, which will not be used for construction under
P.L. 93-638
52.243-4Changes...................................................... 43.205(d) A A -- A A -- --
52.243-5Changes and Changed Conditions............................... 43.205(e) A A -- -- -- -- --
52.243-6Change Order Acctg........................................... 43.205(f) O O O -- -- -- --
52.243-7Notification of Changes...................................... 43.107 -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to negotiated research and
development contracts or those involving the supply of major weapons
systems.
52.244-1Subcontracts (Fixed-Price Contracts)......................... 44.204(a)(1) A A -- A A -- --
52.244-1Alternate I.................................................. 44.204(a)(3) O O -- O O -- --
52.244-2Subcontracts (Cost Reimbursement and Letter Contracts)....... 44.204(b) -- -- A A -- A --
52.244-2Alternate I.................................................. 44.204(b) -- -- -- -- -- -- -- 1
Alternate not relevant because it is only for use by DOD, Coast
Guard, or NASA
52.244-3Subcontracts (Time & Materials & Labor Hour Contracts)....... 44.204(c) -- -- -- -- -- -- -- 1
Clause not relevant because it only applies to time and materials and
labor hour contracts, which will not be used for construction under
P.L. 93-638
52.244-4Subcontractors and Outside Associates and Consultants........ 44.204(d) -- -- -- -- -- A A
52.244-5Competition in Subcontracting................................ 44.204(e) A -- A A -- A --
52.245-1Property Records............................................. 45.106(a) A O A A O A O
52.245-2Govt Property (Fixed Price Contracts)........................ 45.106(b)(1) A O -- A O A O
52.245-2Alternate I.................................................. 45.106(b)(2) A O -- A O A O
52.245-2Alternate II................................................. 45.106(b)(3) -- -- -- -- -- -- -- 1
Alternate not relevant because it pertains to contracts for basic or
applied research
52.245-3Identification of Government-Furnished Property.............. 45.106(c) A O -- -- -- -- --
52.245-4Govt Furnished Property (Short Form)......................... 45.106(d) O O -- O O O O
52.245-5Govt Property (Cost-Reimbursement, Time and Material or Labor- 45.106(f)(1) -- -- A A O A O
Hour Contracts).
52.245-5Alternate I.................................................. 45.106(f)(2) -- -- -- -- -- -- -- 1
Alternate not relevant because it applies to contracts for basic or
applied research
52.245-6Liability for Govt Property (Demolition Services Contracts).. 45.106(g) -- -- -- R R -- --
52.245-7Government Property (Consolid. Facilities)................... 45.302-6(a) -- -- -- -- -- -- -- 1
Clause not relevant because it applie to consolidated facilities
contracts.
52.245-8Liability for the Facilities................................. 45.302-6(b) -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to consolidated facilities,
facilities acquisition, or facilities use contracts.
52.245-9Use and Charges.............................................. 45.302-6(c) -- -- -- -- -- -- -- 1
Clause not relevant because it applies to consolidated facilities or
facilities use contracts, or contracts involving the provision of
Government production and research property.
52.245-10Government Property (Facilities Acquisition)................ 45.302-36(d) -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to facilities or facilities
use contracts or when Government production and research property is
provided.
52.245-11Govt Property (Facilities Use).............................. 45.302(e)(1) -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to facilities acquisition
contracts.
52.245-11Alternate I................................................. 45.302(e)(2) -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to basic or applied research
contracts.
52.245-12Contract Purpose (Nonprofit Educational Institutions)....... 45.302-7(a) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.245-11 above
52.245-13Accountable Facilities (Nonprofit Educational Institutions). 45.302-7(b) -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to facilities contracts
52.245-14Use of Govt Facilities...................................... 45.302-7(c) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.245-11 above
52.245-15Transfer of Title to the Facilities......................... 45.302-7(d) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.245-8 above
52.245-16Facilities Equipment Modernization.......................... 45.302-7(e) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.245-8 above
52.245-17Special Tooling............................................. 45.306-5 -- -- -- -- -- -- -- 1
Clause not relevant because we do not anticipate contracts that
involve special tooling
52.245-18Special Test Equipment...................................... 45.307-3 -- -- -- -- -- -- -- 1
Clause not relevant because we do not anticipate contracts that
involve special test equipment
52.245-19Govt Property Furnished ``As Is.''.......................... 45.308-2 -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to contracts where Government
production and research property is furnished
52.246-1Contractor Inspection Requirements........................... 46.301 -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to supply and service
contracts
52.246-2Inspection of Supplies Fixed Price........................... 46.302 -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to supply contracts or
service contracts that involve the furnishing of supplies
52.246-2Alternate I.................................................. 46.302 -- -- -- -- -- -- -- 1
Alternate not relevant because it pertains to fixed-price incentive
contracts involving the furnishing of supplies
52.246-2Alternate II................................................. 46.302 -- -- -- -- -- -- -- 1
Alternate not relevant because it pertains to fixed-price with
retroactive price redetermination contracts involving the furnishing
of supplies
52.246-3Inspection of Supplies--Cost Reimbursement................... 46.303 -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to cost-reimbursement
contracts involving the furnishing of supplies
52.246-4Inspection of Services--Fixed Price.......................... 46.304 -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to fixed-price service
contracts, or supply contracts that involve the furnishing of
services
52.246-5Inspection Services--Cost Reimbursement...................... 46.305 -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to cost-reimbursement service
contracts, or supply contracts that involve the furnishing of
services
52.246-6Inspection--Times and-Material and Labor Hour................ 46.306 -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to time and materials or
labor hour contracts that will not be used for construction under
P.L. 93-638
52.246-6Alternate I.................................................. 46.306 -- -- -- -- -- -- -- 1
Alternate not relevant for same reason as basic clause
52.246-7Inspection of Research and Development--Fixed Price.......... 46.307(a) -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to R&D contracts
52.246-8Inspection of Research and Development--Cost Reimbursement... 46.308 -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52-246-7 above
52.246-8Alternate I.................................................. 46.308 -- -- -- -- -- -- -- 1
52.246-9Inspection of Research and Development (Short Form).......... 46.309 -- -- -- -- -- -- -- 1
52.246-10Inspection of Facilities.................................... 46.310 -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to facilities contracts
52.246-11Higher Level Contract Quality Requirement (Govt 46.311 -- -- -- -- -- -- -- 1
Specifications).
Clause not relevant because P.L. 93-638 construction projects do not
meet the appropriate complex or critical item definitions used here
52.246-12Inspection of Const......................................... 46.312 A A -- -- -- -- -- 1
52.246-13Inspection--Dismantling, Demolition, or Removal of 46.313 -- -- -- R R -- -- 1
Improvements.
52.246-14Inspection of Transp........................................ 46.314 -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to freight transportation
contracts
52.246-15Certificate of Conformance.................................. 46.315 -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to supply and services
contracts
52.246-16Responsibility for Supplies................................. 46.316 -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to supply R&D, or service
contracts involving the furnishing of supplies
52.246-17Warranty of Supplies of a Noncomplex Nature................. 46.710(a)(1) -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to supply, contracts
52.246-17Alternate I................................................. 46.710(a)(2) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.246-17 above
52.246-17Alternate II................................................ 46.710(a)(3) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.246-17 above
52.246-17Alternate III............................................... 46.710(a)(4) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.246-17 above
52.246-17Alternate IV................................................ 46.710(a)(5) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.246-17 above
52.246-17Alternate V................................................. 46.710(a)(6) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.246-17 above
52.246-18Warranty of Supplies of a Complex Nature.................... 46.710(b)(1) -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to supply and R&D contracts
52.246-18Alternate I................................................. 46.710(b)(2) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.246-18 above
52.246-18Alternate II................................................ 46.710(b)(3) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.246-18 above
52.246-18Alternate III............................................... 46.710(b)(4) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.246-18 above
52.246-18Alternate IV................................................ 46.710(b)(5) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.246-18 above
52.246-19Warranty of Systems and Equipment under Performance Specs. 46.710(c)(1) -- -- -- -- -- -- -- 1
or Design Criteria.
Clause not relevant because it pertains to systems and equipment
contracts
52.246-19Alternate I................................................. 46.710(c)(2) -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to systems and equipment
contracts
52.246-19Alternate II................................................ 46.710(c)(3) -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to systems and equipment
contracts
52.246-19Alternate III............................................... 46.710(c)(4) -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to systems and equipment
contracts
52.246-20Warranty of Services........................................ 46.710(d) -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to service contracts
52.246-21Warranty of Construction.................................... 46.710(e)(1) O O -- -- -- -- --
52.246-21Alternate I................................................. 46.710(e)(2) O O -- -- -- -- --
52.246-23Limitation of Liability..................................... 46.805 -- -- -- -- -- -- -- 1
Clause not applicable to construction or A/E contracts (per FAR
Subpart 46.801)
52.246-24Limitation of Liability--High Value Items................... 46.805(a) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.246-23 above
52.246-24Alternate I................................................. 46.805(a) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.246-23 above
52.246-25Limitation of Liability--Services........................... 46.805(a)(4) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.246-23 above
52.247-1Commercial Bill of Lading--Notations......................... 47.104-4 O O O O O -- --
52.247-2Permits, Authorities, or Franchises.......................... 47.207-1(a) ..... ..... ..... ..... ..... ..... ..... 1
Clause not relevant because it pertains to contracts for
transportation or transportation-related services
52.247-3Capability to Perform a Contract for the Relocation of a 47.207-1(b)(1) -- -- -- -- -- -- -- 1
Federal Office.
Clause not relevant for same reason as 52.247-2 above
52.247-3Alternate I 47.207-1(b)(2)................................... -- -- -- -- -- -- -- -- 1
Alternate not relevant for same reason as 52.247-2 above
52.247-4Inspection of Shipping & Receiving Facilities................ 47.207-1(c) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.247-2 above
52.247-5Familiarization with Conditions.............................. 47.207-1(d) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.247-2 above
52.247-6Financial Statement.......................................... 47.207-1(e) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.247-2 above
52.247-7Freight Excluded............................................. 47.207-3(d)(2) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.247-2 above
52.247-8Estimated Weights or Quantities Not Guaranteed 47.207-3(e)(2) -- -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.247-2 above
52.247-9Agreed Weight--General Freight............................... 47.207-4(a)(1) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.247-2 above
52.247-10Net Weight--General Freight................................. 47.207-4(a)(2) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.247-2 above
52.247-11Net Weight--Household Goods or Office Furniture............. 47.207-4(b) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.247-2 above
52.247-12Supervision, Labor or Materials............................. 47.207-5(b) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.247-2 above
52.247-13Accessorial Services--Moving Contracts...................... 47.207-5(c) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.247-2 above
52.247-14Contractor Responsibility for Receipt of Shipment........... 47.207-5(d) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.247-2 above
52.247-15Contractor Responsibility for Loading and Unloading......... 47.207-5(e) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.247-2 above
52.247-16Contractor Responsibility for Returning Undelivered Freight. 47.207-5(f) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.247-2 above
52.247-17Charges..................................................... 47.207-6(a)(2) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.247-2 above
52.247-18Multiple Shipments.......................................... 47.207-6(c)(5)(i) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.247-2 above
52.247-19Stopping in Transit For Partial Unloading................... 47.207-6(c)(5)(ii) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.247-2 above
52.247-20Estimated Quantities or Weights for Evaluation of Offers.... 47.207-6(c)(6) -- -- -- -- -- -- -- 1
Provision not relevant for same reason as 52.247-2 above
52.247-21Contractor Liability for Personal Injury and/or Property 47.207-7(c)-- -- -- -- -- -- -- -- 1
Damage.
Clause not relevant for same reason as 52.247-2 above
52.247-22Contractor Liability for Loss of and/or Damage to Freight 47.207-7(d) -- -- -- -- -- -- -- 1
other than Household Goods.
Clause not relevant for same reason as 52.247-2 above
52.247-23Contractor Liability for Loss of and/or Damage to Household 47.207-7(e) -- -- -- -- -- -- -- 1
Goods.
Clause not relevant for same reason as 52.247-2 above
52.247-24Advance Notification by the Government...................... 47.207-8(a)(1) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.247-2 above
52.247-25Govt-Furnished Equip. with or without Operators............. 47.207-8(a)(2)(i) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.247-2 above
52.247-26Govt Direction and Marking.................................. 47.207-8(a)(3) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.247-2 above
52.247-27Contract Not Affected by Oral Agreement..................... 47.207-8(b) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.247-2 above
52.247-28Contractor's Invoices....................................... 47.207-9(c) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.247-2 above
52.247-29F.o.b. Origin............................................... 47.303-1(c) -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to the application of
transportation and traffic management considerations in the
acquisition of supplies
52.247-30F.o.b. Origin Contractor's Facility......................... 47.303-2(c) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.247-29 above
52.247-31F.o.b. Origin, Freight Allowed.............................. 47.303-3(c) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.247-29 above
52.247-32F.o.b. Origin, Freight Prepaid.............................. 47.303-4(c) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.247-29 above
52.247-33F.o.b. Origin, with Differentials........................... 47.303-5(c) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.247-29 above
52.247-34F.o.b. Destination.......................................... 47.303-6(c) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.247-29 above
52.247-35F.o.b Destination, within Consignee's Premises.............. 47.303-7(c) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.247-29 above
52.247-36F.a.s. Vessel Port of Shipment.............................. 47.303-8(c) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.247-29 above
52.247-37F.o.b. Vessel, Port of Shipment............................. 47.303-9(c) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.247-29 above
52.247-38F.o.b. Inland Carrier, Point of Exportation................. 47.303-10(c) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.247-29 above
52.247-39F.o.b. Inland Point, Country of Importation................. 47.303-11(c) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.247-29 above
52.247-40Ex Dock, Pier, or Warehouse, Port of Importation............ 47.303-12(c) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.247-29 above
52.247-41C&f, Destination............................................ 47.303-13(c) -- -- -- -- -- -- -- 1
Clause not relevant for the same reason as 52.247-29 above
52.247-42C.i.f. Destination.......................................... 47.303-14(c) -- -- -- -- -- -- -- 1
Clause not relevant for the same reason as 52.247-29 above
52.247-43F.o.b. Designated Air Carrier's Terminal, Point of 47.303-15(c) -- -- -- -- -- -- -- 1
Exportation.
Clause not relevant for the same reason as 52.247-29 above
52.247-44F.o.b. Designated Air Carrier's Terminal, Point of 47.303-16(c) -- -- -- -- -- -- -- 1
Importation.
Clause not relevant for the same reason as 52.247-29 above
52.247-45F.o.b. Origin and/or F.o.b. Destination Evaluation.......... 47.305-2(b) -- -- -- -- -- -- -- 1
Provision not relevant for the same reason as 52.247-29 above
52.247-46Shipping Point(s) Used in Evaluation of F.o.b. Origin Offers 47.305-3(b)(4)(ii) -- -- -- -- -- -- -- 1
Provision not relevant for the same reason as 52.247-29 above
52.247-47Evaluation--F.o.b. Origin................................... 47.305-3(f)(2) -- -- -- -- -- -- -- 1
Provision not relevant for the same reason as 52.247-29 above
52.247-48F.o.b. Destination Evidence of Shipment..................... 47.305-4(c) -- -- -- -- -- -- -- 1
Clause not relevant for the same reason as 52.247-29 above
52.247-49Destination Unknown......................................... 47.305-5(b)(2) -- -- -- -- -- -- -- 1
Provision not relevant for the same reason as 52.247-29 above
52.247-50No Evaluation of Transportation Costs....................... 47.305-5(c)(1) -- -- -- -- -- -- -- 1
Provision not relevant for the same reason as 52.247-29 above
52.247-51Evaluation of Export Offers................................. 47.305-6(e) -- -- -- -- -- -- -- 1
Provision not relevant for the same reason as 52.247-29 above
52.247-51Alternate I................................................. 47.305-6(e)(1) -- -- -- -- -- -- -- 1
Alternate not relevant for the same reason as the basic provision
above
52.247-51Alternate II................................................ 47.305-6(e)(2) -- -- -- -- -- -- -- 1
Alternate not relevant for the same reason as the basic provision
above
52.247-51Alternate III............................................... 47.305-6(e)(3) -- -- -- -- -- -- -- 1
Alternate not relevant for the same reason as the basic provision
above
52.247-52Clearance and Docum. Requirements Shipments to DOD Air or 47.305-6(f)(2) -- -- -- -- -- -- -- 1
Water Terminal Transshipment Points.
Clause not relevant for the same reason as 52.247-29 above
52.247-53Freight Classification Description.......................... 47.305-9(b)(1) -- -- -- -- -- -- -- 1
Provision not relevant for the same reason as 52.247-29 above
52.247-54Diversion of Shipment under F.o.b. Destination Contracts.... 47.305-11(b)(2) -- -- -- -- -- -- -- 1
Clause not relevant for the same reason as 52.247-29 above
52.247-55F.o.b. Point for Delivery of Govt-Furnished Property........ 47.305-12(a)(2) -- -- -- -- -- -- -- 1
Clause not relevant for the same reason as 52.247-29 above
52.247-56Transit Arrange............................................. 47.305-13(a)(3)(i) -- -- -- -- -- -- -- 1
Provision not relevant for the same reason as 52.247-29 above
52.247-57Transportation Transit Privilege Credits.................... 47.305-13(b)(4) -- -- -- -- -- -- -- 1
Clause not relevant for the same reason as 52.247-29 above
52.247-58Loading, Blocking, and Bracing of Freight Car Shipments..... 47.305-12(a)(2) -- -- -- -- -- -- -- 1
Clause not relevant for the same reason as 52.247-29 above
52.247-59F.o.b. Origins--Carload and Truckload Shipments............. 47.305-16(a) -- -- -- -- -- -- -- 1
Clause not relevant for the same reason as 52.247-29 above
52.247-60Guaranteed Shipping Characteristics......................... 47.305-16(b)(1) -- -- -- -- -- -- -- 1
Clause not relevant for the same reason as 52.247-29 above
52.247-61F.o.b. Origin--Minimum Size of Shipments.................... 47.305-16(c) -- -- -- -- -- -- -- 1
Clause not relevant for the same reason as 52.247-29 above
52.247-62Specific Quantities Unknown................................. 47.305-16(d)(2) -- -- -- -- -- -- -- 1
Clause not relevant for the same reason as 52.247-29 above
52.247-63Preferences for U.S.--Flag Air Carriers..................... 47.405 -- -- -- -- -- -- -- 1
Clause has no practical relevance to ``638'' A/E and construction
contracts
52.247-64Preference for Privately Owned U.S.--Flag Commercial Vessels 47.507(a) A A A A A -- --
52.247-64Alternate I................................................. 47.507(b) A A A A A -- --
52.247-64Alternate II................................................ 47.507(c) A A A -- -- -- --
52.248-1Value Engineering............................................ 48.201(b) -- -- -- A A -- --
52.248-1Alternate I.................................................. 48.201(c) -- -- -- A A -- --
52.248-1Alternate II................................................. 48.201(d) -- -- -- A A -- --
52.248-1Alternate III................................................ 48.201(e)(1) -- -- -- A A -- --
52.248-2Value Engineering Program--Architect Engineer................ 48.201(f) -- -- -- -- -- A A
52.248-3Value Engineering--Construction.............................. 48.202 A A A -- -- -- --
52.248-3Alternate I.................................................. 48.202 A A A -- -- -- --
52.249-1Termination for Convenience of the Govt (Fixed-Price) (Short 49.502(a)(1) A A -- A A -- --
Form).
52.249-1Alternate I.................................................. 49.502(a)(2) -- -- -- A A -- --
52.249-2Termination for Convenience of the Govt (Fixed-Price)........ 49.502(b)(1)(i) A A -- -- -- -- --
Note: Clause only used in conjunction with one of the alternatives.
52.249-2Alternate I.................................................. 49.502(b)(1)(ii) A A -- -- -- -- --
52.249-2Alternate II................................................. 49.502(b)(1)(iii) -- -- -- -- -- -- -- 1
Alternate not relevant because ``638'' contractors would not be
compelled to pay interest on excess termination payments received
from the Government.
52.249-2Alternate III................................................ 49.502(b)(1)(iii) A -- -- -- -- -- --
52.249-3Termination for Convenience of the Govt (Dismantling, 49.502(b)(2) -- -- -- A A -- --
Demolition, or Removal of Improvements).
52.249-3Alternate I.................................................. 49.502(b)(2) -- -- -- A -- -- --
52.249-4Termination for Convenience of the Government (Services Form) 49.502(c) -- -- -- -- -- -- -- 1
Clause not relevant because pertains to service contracts.
52.249-5Termination for Convenience of the Govt (Educational and 49.502(d) -- -- -- -- -- -- -- 1
Other Nonprofit Institutions).
Clause not relevant because pertains to R&D contracts
52.249-6Termination (Cost-Reimbursement)............................. 49.503(a)(1) -- -- A -- -- A .....
52.249-6Alternate I.................................................. 49.503(a)(2) -- -- A -- -- -- --
52.249-6Alternate II................................................. 49.503(a)(3) -- -- -- -- -- -- -- 1
Clause not relevant because other alternatives address construction
52.249-6Alternate III................................................ 49.503(a)(3) -- -- A -- -- -- --
52.249-6Alternate IV................................................. 49.503(a)(4) -- -- -- -- -- -- -- 1
Clause not relevant because pertains to time and materials and labor
hour contracts
52.249-6Alternate V.................................................. 49.503(a)(4) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as Alternate IV above
52.249-7Termination (Fixed-Price Architect-Engineer)................. 49.503(b) -- -- -- -- -- A A
52.249-8Default (Fixed-Price Supply and Service)..................... 49-504(a)(1) -- -- -- -- -- -- -- 1
Clause not relevant because pertains to supply and service contracts
52.249-8Alternate I.................................................. 49.504(a)(2) -- -- -- -- -- -- -- 1
Clause not relevant because pertains to transportation or
transportation-related contracts
52.249-9Default (Fixed-Price Research and Development)............... 49.504(b) -- -- -- -- -- -- -- 1
Clause not relevant because pertains to R&D contracts
52.249-10Default (Fixed-Price Construction).......................... 49.504(c)(1) A A -- A A -- --
Note: For DDR, clause only used in conjunction with Alternate I
52.249-10Alternate I................................................. 49.504(c)(2) -- -- -- A A -- --
52.249-10Alternate II................................................ 49.504(c)(3) O O -- -- -- -- --
52.249-10Alternate III............................................... 49.504(c)(3) -- -- -- O O -- --
52.249-11Termination of Work (Consolidated Facilities or Facilities 49.505(a) -- -- -- -- -- -- -- 1
Acquisition.).
Clause not relevant because pertains to consolidated facilities and
facilities acquisition contracts
52.249-11Alternate I................................................. 49.505(a) -- -- -- -- -- -- -- 1
Clause not relevant for same reason as 52.249-11 above
52.249-12Termination (Personal Services)............................. 49.505(b) -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to personal services
contracts
52.249-13Failure to Perform.......................................... 49.505(c) -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to facilities contracts
52.249-14Excusable Delays............................................ 49.505(d) -- -- -- -- -- -- -- 1
Clause not relevant because pertains to cost-reimbursement fee supply
services, construction, or R&D contracts, or time and materials,
labor-hour, consolidated facilities, and facilities aquisition
contracts
52.250-1Indemnification Under Public Law 85-804...................... 50.403-3 A A A A A A A
Clause involves indemnification of contractor against unusually
hazardous or nuclear risks, and would seldom be necessary
52.250-1Alternate I.................................................. 50.403-3 -- -- A A A A A A
52.251-1Govt Supply Sources.......................................... 51.107 A -- A A -- A --
52.251-1Alternate I.................................................. 51.107 -- -- -- -- -- -- -- 1
Clause not relevant because pertains to facilities contracts
52.251-2Interagency Fleet Management System (IFMS) Vehicles and 51.205 -- -- A A -- A --
Related Services.
52.252-1Solicitation Provisions Incorp. by Reference................. 52.107(a) A A A A A A A
52.252-2Clause Incorp. by Reference.................................. 52.107(b) A A A A A A A
52.252-3Alteration in Solicitation................................... 52.107(c) -- -- -- -- -- -- -- 2
Provision is not relevant because it pertains to alterations in
solicitations which are not necessary in the non-competitive ``638''
process
52.252-4Alterations in Contract...................................... 52.107(d) -- -- -- -- -- -- -- 2
Clause is not relevant because alterations will be bilateral
52.252-6Authorized Deviations in Clauses............................. 52.107(f) A A A A A A A
52.253-1Computer Generation of Forms................................. 53.111 A A A A A A A
--------------------------------------------------------------------------------------------------------------------------------------------------------
Exhibit I-B--Department of the Interior Acquisition Regulation
Provisions and Clauses for Department of the Interior Firm Fixed-
Price, Cost, or Cost-Sharing Types of Construction Project
Contracts
Column Headings and Codes
The column headings and codes used in this Exhibit are identical to
those used in Exhibit I-A.
DOI Acquisition Regulation Provisions and Clauses
----------------------------------------------------------------------------------------------------------------
FPC FPC CRC DDR DDR A/E A/E
Provision or clause Prescribed in PRI SUB PRI PRI SUB PRI SUB Notes
----------------------------------------------------------------------------------------------------------------
1452.204-70Release of Claims.. 1404.804-70 R R R R R -- --
1452.204-71Indian Preference.. 1404.7003(a) R R R R R R R
1452.204-72Indian Preference 1404.7003(b) 1404.7005 R R R R R R R
Program.
1452.210-70Brand Name or Equal 1410.004-70(c) R A R -- -- -- --
1452.215-70Examination of 1415.413-70 R A R R A R A
Records by the Dept. of
Interior.
1452.228-70Liability Insurance 1428.301 A A A A A -- --
----------------------------------------------------------------------------------------------------------------
Exhibit I-C--Health and Human Services Acquisition Regulation
Provisions and Clauses for Department of Health and Human Services
Firm Fixed-Price, Cost, or Cost-Sharing Types of P.L. 93-638
Construction Project Contracts
Column Headings and Codes
The column headings and codes used in this Exhibit are identical to
those used in Exhibit I-A
HHS Acquisition Regulation Provisions and Clauses
--------------------------------------------------------------------------------------------------------------------------------------------------------
FPC FPC CRC DDR DDR A/E A/E
Provision or clause Prescribed in PRI SUB PRI PRI SUB PRI SUB Notes
--------------------------------------------------------------------------------------------------------------------------------------------------------
352.202-1Definitions................................................. Clause preamble R -- R R -- R --
352.202-1Alternate I................................................. Clause preamble -- -- A A -- A --
352.215-12Restriction on Discl. and Use of Data...................... Provision preamble R A R R A R A
352.215-72Pre-Proposal Conference.................................... Provision preamble -- -- -- -- -- -- -- 1
This provision is not relevant because it pertains to a competitive
acquisition process
352.216-70Negotiated Overhead Rates--Fixed........................... Clause preamble -- -- -- -- -- -- -- 1
This clause is not relevant because it pertains to contracts with
educational institutions and non-profit organizations, and tribal
organizations are categorized as state and local governments
352.216-72Additional Cost Principles................................. 316.307(j) -- -- -- -- -- -- -- 1
This clause is not relevant for the same reason provided under
352.216-70 above
352.224-70Confidentiality of Information............................. 324.7004 -- -- -- -- -- -- -- 1
This clause is not relevant because construction project contracts do
not involve the type of confidential information on individuals or
proprietary information at issue here
352.228-7Insurance--Liability to Third Persons....................... Clause preamble -- -- R A -- A --
352.232-9Withholding of Contract Payments............................ Clause preamble R A R R A R A
352.232-71Cost Sharing............................................... 335.070 -- -- -- -- -- -- -- 1
This clause is not relevant because it pertains to R&D contracts
352.232-73Method of Payment--Letter of Credit........................ 332.406 -- -- -- -- -- -- -- 1
This clause is not relevant because it only applies to advance
payments to specific States and State universities listed in the
HHSAR
352.232-74Estimated Cost and Fixed Fee--Increment Funded Contract.... Clause preamble -- -- -- -- -- -- -- 1
This clause is not relevant because it pertains to incrementally
funded contracts, and these types of contracts are not used for A/E
or construction within HHS at this time
352.232-75Incremental Funding........................................ Provision preamble -- -- -- -- -- -- -- 1
This provision is not relevant because it pertains to incrementally
funded contracts, and these types of contracts are not used for A/E
or construction within HHS at this time
352.233-70Litigation and Claims...................................... Clause preamble -- -- R A -- A --
352.237-70Consulting Services Reporting.............................. 337.270 -- -- -- -- -- -- -- 1
This clause is not relevant because it pertains to contracts for
consulting services
352.242-71Final Decisions on Audit Findings.......................... Clause preamble -- -- R A -- A --
352.249-14Excusable Delays........................................... Clause preamble -- -- -- -- -- -- -- 1
This clause is not relevant because our contracts will contain a FAR
default clause
352.270-1Accessibility of Meetings, Conferences, and Seminars/Persons 370.102 -- -- -- -- -- -- -- 1
with Disabilities.
This clause is not relevant because our P.L. 93-638 construction
project contractors will not be required to conduct meetings,
conferences, or seminars
352.270-2Indian Preference........................................... 370.202(a) -- A -- -- A -- A 1
The clause is not relevant to prime contracts because HHSAR
explicitly excludes it for P.L. 93-638 contracts, but it is
applicable to subcontracts where the tribe lacks an approved
procurement system
352.270-3Indian Preference Program................................... 370.202(b) -- A -- -- A -- A 1
See comment under 352.270-2 above
352.270-4Pricing of Adjustments...................................... Clause preamble R -- -- -- A -- A --
352.270-5Key Personnel............................................... Clause preamble -- -- R -- A -- A --
352.270-6Publications and Publicity.................................. Clause preamble -- -- -- -- -- -- -- 1
This clause is not relevant because it is directed at research
contracts that may lead to publishable findings
352.270-7Paperwork Reduction Act..................................... Clause preamble R -- R R -- R --
--------------------------------------------------------------------------------------------------------------------------------------------------------
Exhibit I-D--Public Health Service Acquisition Regulation
Provisions and Clauses for Department of Health and Human Services
Firm Fixed-Price, Cost, or Cost-Sharing Types of P.L. 93-638
Construction Project Contracts
Column Headings and Codes
The column headings and codes used in this Exhibit are identical to
those used in Exhibit I-A.
PHS Acquisition Regulation Provisions and Clauses
--------------------------------------------------------------------------------------------------------------------------------------------------------
FPC FPC CRC DDR DDR A/E A/E
Provision or clause Prescribed in PRI SUB PRI PRI SUB PRI SUB Notes
--------------------------------------------------------------------------------------------------------------------------------------------------------
352.215-10Late Proposals, Mods, and Withdrawals of Proposals......... 315.412 -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to competitively acquired R&D
services
352.223-70Safety and Health.......................................... 323.7002 and 323.7003 -- -- -- -- -- -- -- 1
Clause not relevant because construction covered by Clause 352.223-71
below
352.223-71Safety and Health Construction............................. 323.7005 R R R R R -- --
352.232-70Additional Payment Provision............................... Clause preamble R R -- -- -- -- --
352.280-1Protection of Human Subjects................................ 352.380-4 -- -- -- -- -- -- -- 1
Provision not relevant because it pertains to contracts involving the
use of human beings as subjects in research activities.
352-280-2Care of Laboratory Animals.................................. 352.380-4 -- -- -- -- -- -- -- 1
Provision not relevant because it pertains to contracts involving the
use of live vertebrate animals as subjects in research activities
352.280-3Maximum Allowable Cost for Drugs............................ 352.380-4 -- -- -- -- -- -- -- 1
Clause not relevant because it pertains to the procurement of drugs
(The PHSAR clauses under 352.280-4(a) relate to cost-reimbursement
contracts)
352.280-4(a)(1)Definitions........................................... 352.380-4 -- -- -- -- -- -- -- 1
Clause not relevant because construction project contracts will
include the clause at HHSAR 352.202-1
352.280-4(a)(2)Disputes.............................................. 352.380-4 -- -- -- -- -- -- -- 1
Clause not relevant because construction project contracts will
include the clause at FAR 52.233-1, Disputes
352.280-4(a)(3)Limitation of Cost.................................... 352.380-4 -- -- -- -- -- -- -- 1
Clause not relevant because construction project contracts will
include the clause at FAR 52.232-20, Limitation of Costs
352.280-4(a)(4)Allowable Cost........................................ 352.380-4 -- -- -- -- -- -- -- 1
Clause not relevant because subject is covered by Section 900.404 of
the Regulation
352.280-4(a)(5)Negotiated Overhead Rates............................. 352.380-4 -- -- -- -- -- -- -- 1
Indirect costs are covered by Sections 900.409 and 900.1004(m) of the
Regulation
352.280-4(a)(6)Payment............................................... 352.380-4 -- -- -- -- -- -- -- 1
Clause not relevant because payment is covered under Section 900.1007
of the Regulation
352.280-4(a)(7)Advance Payments...................................... 352.380-4 -- -- -- -- -- -- -- 1
Clause not relevant because construction project contracts will
contain the clause at FAR 52.232-12, Advance Payments
352.280-4(a)(8)Examination of Records................................ 352.380-4 -- -- -- -- -- -- -- 1
Clause not relevant because construction project contracts will
contain the clause at FAR 52.215-1, Examination of Records by
Comptroller General
352.280-4(a)(9)Inspection and Reports................................ 352.380-4 -- -- -- -- -- -- -- 1
Clause not relevant because subject is covered in Section 900.1005 of
the Regulation
352.280-4(a)(10)Subcontracting....................................... 352.380-4 -- -- -- -- -- -- -- 1
Clause not required because construction project contracts will
contain the clause at FAR 52.244-2, Subcontracts (Cost Reimbursement
and Letter Contracts)
352.280-4(a)(11)Accounts, Audit, and Records......................... 352.380-4 -- -- -- -- -- -- -- 1
Clause not required because the subject is addressed in Section
900.126 of the Regulation and the clauses at FAR 52.215-1,
Examination of Records by Comptroller General, and at FAR 52.215-2,
Audit--Negotiations
352.280-4(a)(12)Govern.-Furnsh. Property............................. 352.380-4 -- -- -- -- -- -- -- 1
Clause not relevant because cost-reimbursement contracts for
construction projects will contain the clause at FAR 52.245-5,
Government Property (Cost-Reimbursement, Time and Material, or Labor-
Hour Contracts)
352.280-4(a)(13)Changes.............................................. 352.380-4 -- -- -- -- -- -- -- 1
Clause not relevant because cost-reimbursement contracts for
construction projects will contain the clause at FAR 52.243-2,
Changes (Cost Reimbursement)(Alternative III)
352.280-4(a)(14)Notice to the Government of Delays................... 352.380-4 -- -- R A -- A --
This PHSAR clause is more comprehensive than the clause at FAR 52.222-
1, which is limited to delays resulting from labor disputes
352.280-4(a)(15)Retrocession......................................... 352.380-4 -- -- -- -- -- -- -- 1
Clause not relevant because cost-reimbursement contracts for
construction contracts will contain the clause at FAR 52.249-6,
Termination (Cost-Reimbursement)
352.280-4(a)(16)Assumption and Reassumption of Contract Prog......... 352.380-4 -- -- -- -- -- -- -- 1
Clause not relevant for the same reason provided under 352.280-
4(a)(15) above
352.280-4(a)(17)Key Personnel........................................ 352.380-4 -- -- -- -- -- -- -- 1
Clause not relevant because cost-reimbursement contracts for
construction projects will contain the clause at HHSAR 352.270-5,
Key Personnel
352.280-4(a)(18)Litigation and Claims................................ 352.380-4 -- -- -- -- -- -- -- 1
Clause not relevant because construction project contracts will
contain the clause at FAR 52.244-2, Subcontracts (Cost-Reimbursement
and Letter Contracts)
352.280-4(a)(19)Indemnity and Insurance.............................. 352.380-4 -- -- -- -- -- -- -- 1
Clause not relevant because construction project contracts will
include the clause at FAR 52.228-5, Insurance--Work on a Government
Installation
352.280-4(a)(20)Overtime............................................. 352.380-4 -- -- R A -- A --
This clause is directed at obtaining prior Contracting Officer
approval for overtime, rather than ensuring its proper compensation
352.280-4(a)(21)Foreign Travel....................................... 352.380-4 -- -- -- -- -- -- -- 1
Clause not relevant because foreign travel is highly improbable under
P.L. 93-638 construction project contracts
352.280-4(a)(22)Questionnaires and Surveys........................... 352.380-4 -- -- -- -- -- -- -- 1
The clause is not relevant because P.L. 93-638 construction project
contracts will contain the clause at HHSAR 352.270-7, Paperwork
Reduction Act
352.280-4(a)(23)Printing............................................. 352.380-4 -- -- -- -- -- -- -- 1
Clause not relevant because printing of 25,000 pages is highly
improbable under P.L. 93-638 construction project contracts
352.280-4(a)(24)Services of Consultants.............................. 352.380-4 -- -- -- -- -- -- -- 1
This clause is not relevant because it pertains to consultant
services
352.280-4(a)(25)Assignment of Claims................................. 352.380-4 -- -- -- -- -- -- -- 1
This clause is not relevant because construction project contracts
will contain the clause at FAR 52.232-23, Assignment of Claim
352.280-4(a)(26)Contract Work Hours and Safety Standard Act--Overtime 352.380-4 -- -- -- -- -- -- -- 1
Comp..
This clause is not relevant because construction project contracts of
a character subject to this Act will contain the clause at FAR
52.222-4
352.280-4(a)(27)Walsh-Healey Public Contracts Act.................... 352.380-4 -- -- -- -- -- -- -- 1
Clause not relevant because subcontracts of a character subject to
this Act will be covered by the clause at FAR 52.222-20
352.280-4(a)(28)Equal Opportunity.................................... 352.380-4 -- -- -- -- -- -- -- 1
Clause not relevant because the subject is covered by Section 960.120
of the Regulation and the clause at 52.222-26, Equal Opportunity
352.280-4(a)(29)Indian Pref. in Training............................. 352.380-4 -- -- -- -- -- -- -- 1
Clause not relevant because the subject is covered in Subpart A of
the Regulation
352.280-4(a)(30)Cert. of Nonsegregated Facilities.................... 352.380-4 -- -- -- -- -- -- -- 1
Clause is not relevant because construction project contracts will
contain the clause at FAR 52.222-21, Certification of Non-Segregated
Facilities
352.280-4(a)(31)Convict Labor........................................ 352.380-4 -- -- -- -- -- -- -- 1
Clause is not relevant because construction project contracts will
contain the clause at FAR 52.222-3, Convict Labor
352.280-4(a)(32)Officials Not To Benefit............................. 352.380-4 -- -- -- -- -- -- -- 1
Clause is not relevant because construction project contracts will
contain the clause at FAR 52.203-1, Officials Not To Benefit
352.280-4(a)(33)Buy American Act Sup. & Serv......................... 352.380-4 -- -- -- -- -- -- -- 1
Clause is not relevant because it pertains to supply contracts and
service contracts that involve the furnishing of supplies
352.280-4(a)(34)Anti-Kickback Act.................................... 352.380-4 -- -- -- -- -- -- -- 1
Clause is not relevant because construction project contracts will
contain the clause at FAR 52.302-7, Anti-Kickback Procedures
352.280-4(a)(35)Use of Indian Business Concerns...................... 352.380-4 -- -- -- -- -- -- -- 1
Clause not relevant because subject covered elsewhere in the
Regulation
352.280-4(a)(36)Payment of Interest on Contractor's Claims........... 352.380-4 -- -- -- -- -- -- -- 1
The clause is not relevant because construction project contracts
will include the clause at FAR 52.233-1, Disputes
352.280-4(a)(37)Fair and Equal Treat. of Indian People............... 352.380-4 -- -- -- -- -- -- -- 1
The clause is not relevant because it pertains to contracts for
medical services
352.280-4(a)(38)Price Reduction for Defective Cost or Pricing Data... 352.380-4 -- -- -- -- -- -- -- 1
The clause is not relevant because construction project contracts
will contain the clauses at FAR 52.215-22 and 52.215-23 on price
reductions for defective data
352.280-4(a)(39)Subcontractor Cost and Pricing Data.................. 352.380-4 -- -- -- -- -- -- -- 1
The clause is not relevant because construction project contracts
will contain the clauses at FAR 52.215-24 and 52.215-25 on
subcontractor cost or pricing data
352.280-4(a)(40)Penalties............................................ 352.380-4 -- -- -- -- -- -- -- 1
Clause not relevant because subject covered elsewhere in the
Regulation
352.280-4(a)(41)Effect on Existing Rights............................ 352.380-4 -- -- -- -- -- -- -- 1
This subject is covered in Section 900.104 of the Regulation
352.280-4(a)(42)Gen. Services Admin. Supply Sources.................. 352.380-4 -- -- -- -- -- -- -- 1
The clause is not relevant because construction project contracts may
contain the clause at FAR 52.251-1, Government Supply Sources
(The PHSAR clauses under 352.280-4(b) pertain to fixed-price
contracts)
352.280-4(b)(1)Definitions........................................... 352.380-4 -- -- -- -- -- -- -- 1
Clause not relevant because construction project contracts will
include the clause at HHSAR 352.202-1
352.280-4(b)(2) Disputes............................................. 352.380-4 -- -- -- -- -- -- -- 1
Clause not relevant because construction project contracts will
include the clause at FAR 52.233-1, Disputes
352.280-4(b)(3)Contract Work Hours and Safety Standard Act--Overtime 352.380-4 -- -- -- -- -- -- -- 1
Comp.
This clause is not relevant because construction project contracts of
a character subject to this Act will contain the clause at FAR
52.222-4
352.280-4(b)(4)Walsh-Healey Public Contracts Act..................... 352.380-4 -- -- -- -- -- -- -- 1
Clause not relevant because subcontracts of a character subject to
this Act will be covered by the clause at 52.222-20
352.280-4(b)(5)Convict Labor......................................... 352.380-4 -- -- -- -- -- -- -- 1
Clause is not relevant because construction project contracts will
contain the clause at FAR 52.222-3, Convict Labor
352.280-4(b)(6)Notice to the Government of Delays.................... 352.380-4 -- -- -- -- -- -- -- 1
The clause is not relevant because fixed-price contracts for
construction projects will contain the clause at FAR 52.249-10,
Default, (Fixed Price Construction). This FAR clause includes the
requirement for notice of delays
352.280-4(b)(7)Assignment of Claims.................................. 352.380-4 -- -- -- -- -- -- -- 1
This clause is not relevant because construction project contracts
will contain the clause at FAR 52.232-23, Assignment of Claim
352.280-4(b)(8)Officials Not To Benefit.............................. 352.380-4 -- -- -- -- -- -- -- 1
Clause is not relevant because construction project contracts will
contain the clause at FAR 52.203-1, Officials Not To Benefit
352.280-4(b)(9)Anti-Kickback Act..................................... 352.380-4 -- -- -- -- -- -- -- 1
Clause is not relevant because construction project contracts will
contain the clause at FAR 52.302-7, Anti-Kickback Procedures
352.280-4(b)(10)Penalties............................................ 352.380-4 -- -- -- -- -- -- -- 1
Clause not relevant because subject covered elsewhere in the
Regulation
352.280-4(b)(11)Buy American Act..................................... 352.380-4 -- -- -- -- -- -- -- 1
Clause is not relevant because it pertains to supply contracts and
service contracts that involve the furnishing of supplies
352.280-4(b)(12)Equal Opportunity.................................... 352.380-4 -- -- -- -- -- -- -- 1
Clause not relevant because the subject is covered by Section 960.120
of the Regulation and the clause at 52.222-26, Equal Opportunity
352.280-4(b)(13)Cert. of Nonsegregated Facilities.................... 352.380-4 -- -- -- -- -- -- -- 1
Clause is not relevant because construction project contracts will
contain the clause at FAR 52.222-21, Certification of Non-Segregated
Facilities
352.280-4(b)(14)Subcontracting....................................... 352.380-4 -- -- -- -- -- -- -- 1
Clause not required because fixed-price contracts for construction
projects will contain the clause at FAR 52.244-1, Subcontracts
(Fixed-Price Contracts)
352.280-4(b)(15)Competition in Subcontracting........................ 352.380-4 -- -- -- -- -- -- -- 1
Clause not required because construction project contracts will
contain the clause at FAR 42.244-5, Competition in Subcontracting
352.280-4(b)(16)Use of Indian Business Concerns...................... 352.380-4 -- -- -- -- -- -- -- 1
Clause not relevant because subject covered elsewhere in the
Regulation
352.280-4(b)(17)Indian Pref. in Training............................. 352.380-4 -- -- -- -- -- -- -- 1
Clause not relevant because subject covered in Subpart A of the
Regulation
352.280-4(b)(18)Inspection........................................... 352.380-4 -- -- -- -- -- -- -- 1
The clause is not relevant because construction project contracts
will contain the inspection clauses at 52.246-12 and 52.246-13
352.280-4(b)(19)Changes.............................................. 352.380-4 -- -- -- -- -- -- -- 1
Clause not relevant because fixed-price contracts for construction
projects will contain the changes clause at FAR 52.243-1 (Alternate
III) or at FAR 52.243-4
352.280-4(b)(20)Retrocession......................................... 352.380-4 -- -- -- -- -- -- -- 1
Clause not relevant because fixed-price contracts for construction
projects will contain the termination for convenience clause at FAR
52.249-1, -2, -3, or -7, and the termination for default clause at
FAR 52.249-10
352.280-4(b)(21)Assumption and Reassumption of Contract Prog......... 352.380-4 -- -- -- -- -- -- -- 1
Clause not relevant for same reason provided under 352.280-4(b)(20)
above
352.280-4(b)(22)Payment of Interest on Contractor's Claims........... 352.380-4 -- -- -- -- -- -- -- 1
The clause is not relevant because construction project contracts
will include the clause at FAR 52.233-1, Disputes
352.280-4(b)(23)Govern.-Furnsh. Property............................. 352.380-4 -- -- -- -- -- -- -- 1
Clause not relevant because fixed-price contracts for construction
projects will contain the clause at FAR 52.245-2, Government
Property (Fixed-Price Contracts)
352.280-4(b)(24)Examination of Records by the Comp. General 352.380-4 -- -- -- -- -- -- -- 1
Clause not relevant because construction project contracts will
contain the clause at FAR 52.215-1, Examination of Records by
Comptroller General
352.280-4(b)(25)Indemnity and Insurance.............................. 352.380-4 -- -- -- -- -- -- -- 1
Clause not relevant because construction project contracts will
include the clause at FAR 52.228-5, Insurance--Work on a Government
Installation
352.280-4(b)(26)Fair and Equal Treat. of Indian People............... 352.380-4 -- -- -- -- -- -- -- 1
The clause is not relevant because it pertains to contracts for
health care and similar types of services to individual IHS
beneficiaries
352.280-4(b)(27)Reports to the Indian People and Annual Reports...... 352.380-4 -- -- -- -- -- -- -- 1
Clause not relevant because it is covered in the Regulation
352.280-4(b)(28)Questionnaires and Surveys........................... 352.380-4 -- -- -- -- -- -- -- 1
The clause is not relevant because P.L. 93-638 construction project
contracts will contain the clause at HHSAR 352.270-7, Paperwork
Reduction Act
352.280-4(b)(29)Printing............................................. 352.380-4 -- -- -- -- -- -- -- 1
Clause not relevant because printing of 25,000 pages is highly
improbable under P.L. 93-638 construction project contracts
352.280-4(b)(30)Price Reduction for Defective Cost or Pricing Data 352.380-4 -- -- -- -- -- -- -- 1
The clause is not relevant because construction project contracts
will contain the clauses at FAR 52.215-22 and 52.215-23 on price
reductions for defective data
352.280-4(b)(31)Subcontractor Cost and Pricing Data.................. 352.380-4 -- -- -- -- -- -- -- 1
The clause is not relevant because construction project contracts
will contain the clauses at FAR 52.215-24 and 52.215-25 on
subcontractor cost or pricing data
352.280-4(b)(32)Advance Payments..................................... 352.380-4 -- -- -- -- -- -- -- 1
Clause not relevant because construction project contracts will
contain the clause at FAR 52.232-12, Advance Payments
352.280-4(b)(33)Effect on Existing Rights............................ 352.380-4 -- -- -- -- -- -- -- 1
This subject is covered in Section 900.104 of the Regulation
352.280-4(b)(34)Federal, State and Local Taxes....................... 352.380-4 -- -- -- -- -- -- -- 1
Clause not relevant because fixed-price contracts for construction
projects will contain the clause at FAR 52.229-3, Federal, State,
and Local Taxes
(This clause pertains to both cost-reimbursement and fixed-price
contracts)
352.280-6Demurrage Charge Provisions for Reusable Cylinders and Clause preamble -- -- -- -- -- -- -- 1
Containers
Clause not relevant because it pertains to contracts involving the
delivery of items in Contractor-furnished reusable gas cylinders or
other containers
Note: It is anticipated that certain provisions and clauses in PHSAR
part 352 will be renumbered in order to better align the subject
matter with text portions of the FAR HHSAR, and PHSAR.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Subpart K--Retrocession, Recision, and Reassumption
Sec. 900.1101 Retrocession.
(a) Prior to the expiration date of the contract, a tribe has a
right to return responsibility for the operation of a contract to the
Secretary. At the discretion of the Secretary, a portion of the
operation of a contract may be retroceded.
(b) When a contractor experiences specific problems with the
operation of a contract and the tribe is considering the possibility of
retrocession, technical assistance may be offered by the Secretary or a
tribe may request such assistance to avoid retrocession.
(1) The request for technical assistance should be made in writing
by either the tribe or tribal organization.
(2) In the event of such a request, the Secretary shall:
(i) Meet with the appropriate officials of the tribe and tribal
organization to develop a plan for the provision of technical
assistance to avoid retrocession; and
(ii) Provide to the extent possible special technical assistance to
assist the contractor to operate satisfactorily the program and enable
it to avoid retrocession.
(c) Retrocession shall become effective one year from the date of
the request for retrocession, or at such date as may be mutually agreed
by the Secretary and the tribe, except as provided for in
Sec. 900.1102(c).
Sec. 900.1102 Retrocession procedures.
(a) If a tribe submits a resolution requesting retrocession of a
contract, the following procedures shall be followed:
(1) The tribe shall transmit its resolution to the Secretary; and
(2) The Secretary shall meet with the tribe within 15 days of
receipt of the request to develop a plan. The plan may include
technical assistance in providing for continuation of services. Such
assistance may be provided by Federal personnel or by means of a grant
pursuant to section 103(d) and (e) of the Act. Such technical
assistance may include the special technical assistance as provided in
Sec. 900.1101(b), if agreed to by the tribe.
(b) If, after the Secretary has provided technical assistance to
avoid retrocession, a tribe continues with its decision to retrocede,
the Secretary shall again meet with the authorized representative(s) of
the tribe and take the following actions:
(1) Establish a plan for an orderly transfer of responsibilities
which may include:
(i) A plan to inventory and account for materials, supplies, and
equipment and to assess the condition of facilities and real property;
(ii) An accounting of funds, and an assessment of current and
anticipated obligations and cost of operations until assumption of the
contract by the Secretary;
(iii) An identification of all records required to be maintained by
the tribe or the tribal organization in relation to the contract and to
the contracted function(s);
(iv) An assessment of the status of the contract being retroceded;
and
(v) A plan for the provision of services pending retrocession
including the identification of the assistance to be provided by the
Secretary.
(2) On the effective date of retrocession the contractor shall, to
the extent provided in Sec. 900.502 (a) and (b), deliver to the
Secretary, all unencumbered funds, remaining supplies on hand, and all
property, equipment, records and materials identified in paragraph
(b)(1)(i) of this section. Any disagreement will be resolved in
accordance with Sec. 900.805.
(c) By mutual agreement a tribe may withdraw or modify its request
for retrocession by resolution.
Sec. 900.1103 Procedure in the event of breach of contract by a tribal
organization.
(a) In the event of a breach of contract by a tribal organization
because of its failure to perform, the tribe may decide to assume
direct operation of the program, in which case it shall:
(1) Immediately meet with the tribal organization and follow the
procedures set forth to develop a plan for the orderly transition of
contract responsibilities to the tribe. Such a plan may include the
provisions specified in Sec. 900.1102(b)(1) (i) through (v); except
that the tribe may establish a plan for employment of existing staff,
or other provisions for hiring of necessary staff.
(2) Prepare and submit a proposal under Sec. 900.206 to contract
for all or a portion of the activities of the current contract. If a
proposal is approved, the contract may not go into effect before the
effective date of the contract termination. If the proposal is
declined, the Secretary retains the responsibility for those services
formerly provided by the tribal organization to the tribe. As such, the
Secretary may make appropriate arrangements to provide the services,
including direct operation and contracting for the services from any
qualified provider. When the Secretary does not have sufficient
resources on hand to immediately perform the work, the Secretary may,
for temporary periods of the shortest duration possible, contract with
a contractor that is not a tribe or tribal organization. However, in
such cases, the advice of the tribe(s) shall be obtained in advance to
determine how they desire the services to be rendered.
(3) At the tribe's option, request that the activities in the
current contract serving the tribe's members be added to an existing
contract, provided that the activities are similar to those carried on
under the contract and do not require significantly different expertise
in program and financial management. Such a request will be considered
a request to modify the contract and shall be processed in accordance
with the provisions in Sec. 900.305(c).
(b) On the date the tribe contracts for the operation of the
program, the tribal organization shall, to the extent provided in
Sec. 900.502 (a) and (b), deliver to the tribe all remaining
unencumbered funds, supplies on hand and all property, equipment,
records, and materials, identified in Sec. 900.1102 (b)(1)(i).
(c) If the tribe decides to authorize a contract with another
tribal organization, the provisions in Secs. 900.206 and 900.207 shall
apply.
(d) If the tribe decides to request a retrocession, the procedures
set forth in Secs. 900.1101 and 900.1102 shall be followed.
(e) When the contract is with a tribal organization performing
services benefiting more than one tribe, the tribal organization shall
inform the tribes involved of its intent to terminate its obligation
under the contract. Each tribe shall follow the options as set forth in
paragraphs (a), (b) and (c) of this section.
Sec. 900.1104 Retrocession procedures where a contractor serves
multiple tribes.
(a) When one or more, but not all, of the tribes served by a
contractor request retrocession, Secs. 900.1101 and 900.1102 shall
apply to the retroceding tribe(s) and the tribal organization. The
contractor shall submit a request for a contract modification covering
the changed circumstances including the program description and funding
amounts for any remaining portion of the contract. In addition, the
Secretary shall:
(1) Assess available resources and capabilities to provide services
independently of and in addition to those being provided under the
contract.
(2) Meet with the tribes requesting retrocession and explain the
level of services that will be available upon retrocession.
(3) Explore with the retroceding tribe(s) the options set forth in
Sec. 900.1103(a) (1) and (2).
(b) When a portion of a contracted program is withdrawn from a
tribal organization's program (either because the program portion is to
be retroceded to the Secretary, operated directly by the retroceding
tribes(s), or operated by a different tribal organization) the amount
of funds, property, equipment, records and materials remaining in the
tribal organization's contract to serve the remaining tribe(s) shall be
negotiated and determined pursuant to Secs. 900.107 and 900.108.
Sec. 900.1105 Effect of retrocession.
(a) A tribe's retrocession of a contract shall be without prejudice
to:
(1) Any other contract to which it is a party;
(2) Any other contract it may request; and
(3) Any future request by the tribe to contract for the programs or
portions thereof covered by the retroceded contract insofar as the
conditions which led to the retrocession are no longer a factor.
(b) The Secretary shall endeavor to provide to the Indian tribe(s)
and Indians served by a retroceded program not less than the same level
of funding, and the same quantity and quality of services that would
have been provided if there had been no retrocession. The Secretary may
exercise his/her discretionary authority to determine if services can
be best delivered by the Secretary, or can be provided by a contract
with another source.
Sec. 900.1106 Reassumption of programs.
(a) Non-emergency reassumption. (1) If the Secretary determines
that the performance under a contract involves the violation of the
rights, such as those guaranteed under the Indian Civil Rights Act, or
endangerment of the health, safety, or welfare of any persons,
including endangerment of trust resources; or gross negligence or
mismanagement in the handling or use of funds provided to the
contractor under the contract, the Secretary shall notify the
contractor and the tribe(s) served by the contractor in writing of such
deficiencies and request that the contractor take such corrective
action as the Secretary may prescribe within a specified period of
time, which in no event shall be less than 45 days or may furnish
technical advice and assistance to help overcome the deficiencies in
the contract performance.
(2) If the Secretary makes a determination that the contractor has
not taken action to correct the deficiencies brought to the
contractor's attention as provided in paragraph (a)(1) of this section,
the Secretary will notify the contractor and the tribe(s) served by the
contractor in writing of the determination to reassume the program. The
reassumption notification shall set forth the reasons for the
determination and shall inform the contractor of its right to request a
hearing on the record in accordance with Secs. 900.802 and 900.803
within 30 days of receiving the reassumption notice. In the event an
appeal is not filed or, if filed, is resolved finally in favor of the
Secretary, the Secretary may rescind the contract in whole or in part
and reassume control or operation of the program or service.
(b) Emergency reassumption. If the Secretary determines that a
contractor's performance under a contract poses an immediate threat of
imminent harm to safety, the Secretary may immediately rescind the
contract in whole or in part and, if deemed appropriate, assume control
or operation of the program, activity, or service involved. Upon such
reassumption, the Secretary will immediately notify the contractor and
the tribe(s) served by the contractor in writing of such action and the
basis thereof, including a statement of reasons for the Secretary's
determination which supports the finding of an immediate threat, and
inform the contractor of its right to request a hearing on the record
under Secs. 900.802 or 900.803 within 10 days of the reassumption or
such later date as the contractor may approve.
(c) Whether or not an appeal is filed, the contractor shall cease
all work under the contract upon the effective date of a reassumption
under paragraphs (a) and (b) of this section. The contractor may be
reimbursed for actual windup costs.
(d) Except as provided in paragraph (b) of this section, on the
effective date of the reassumption, the contractor shall, to the extent
provided in Sec. 900.502 (a) and (b), deliver to the Secretary all
unencumbered funds, supplies, materials, equipment, facilities, and
records maintained by the contractor, required under the contract, and
needed for continuation of the assumed program. Any disputes will be
resolved in accordance with Sec. 900.805.
(e) The Secretary may decline to enter into a new contract with
that Indian tribe or tribal organization and may retain control of the
program or function until the Secretary is satisfied that the
conditions which caused the contract to be rescinded have been
corrected.
(f) The Secretary shall endeavor to provide to the Indian tribe(s)
and Indians served by a reassumed program not less than the same
quantity and quality of services it would have provided if there had
been no contract. Resources required to operate a reassumed program
will be provided by the Secretary to the extent that they are available
for that fiscal year. However, if current resources are not sufficient
to maintain the program at its planned level, the program may be
reduced until the required resources become available, at which time
the program will resume at a level not less than the same quality and
quantity that would have been provided if there had been no contract
reassumption.
(g) In the event of reassumption of a program from a contractor
serving one or more tribes other than the contractor, the Secretary
shall explore with such tribes the options to contract program(s) as
set forth in Sec. 900.1103(a) (1) and (2).
(h) Nothing in this section shall contravene requirements of the
Occupational Safety and Health Act of 1970, as amended 29 U.S.C. 251.
Subpart L--Discretionary Grants
Sec. 900.1201 Applicability.
(a) The regulations of this Subpart are applicable to discretionary
grants awarded pursuant to section 103 of Public Law 93-638, 25 U.S.C.
450h, as amended.
(b) The requirements of this Subpart are not applicable to grants
awarded in lieu of contracts as specified by section 102 of the Act.
Those grants are subject to the self-determination contract
requirements of Sec. 900.206.
(c) In addition to subpart L, the following sections of this part
are applicable to grants:
(1) Subpart A, Secs. 900.101(a), Purpose and scope, general;
900.102, Definitions; 900.103(a)(2), Policy statements, Congressional
policy; 900.104, Effect on existing tribal rights; 900.105, Effect of
these regulations; 900.115, Indian preference in training and
employment; 900.116, Equal opportunity and civil rights; and 900.117,
Penalties;
(2) Subpart I, Secs. 900.901, Liability insurance and motor vehicle
coverage; 900.902, Medical Related Federal Tort claims; 900.903, Non-
medical related Federal Tort Claims Act provisions;
(3) Subpart J, Sec. 900.1004, Davis Bacon Wage and Labor Standards;
and
(4) Subpart P, Secs. 900.1601, Regulation administration, 900.1603,
Participation and presentation, 900.1604, Rulemaking, and 900.1605,
Waivers.
(5) In the event of conflict with any other subpart of these
regulations the provisions of subpart L will apply.
(6) The use of contract support funds is not applicable to
discretionary grant awards made under this subpart. All applicable
direct and indirect costs will be included in the award amount.
(7) The provisions of any other Act notwithstanding, any funds made
available to a tribe or tribal organization under grants pursuant to
section 103 of the Act, 25 U.S.C. 450(h), may be used as matching
shares for any other Federal grant programs which contribute to the
purposes for which grants under this section are made.
Sec. 900.1202 Eligibility.
(a) Under section 103(e) of the Act the Secretary is authorized
upon the request of any Indian tribe or tribal organization to make
grants to any tribal organization for:
(1) Obtaining technical assistance from providers designated by the
tribal organization, including tribal organizations that operate mature
contracts, for the purposes of program planning and evaluation,
including the development of any management systems necessary for
contract management and the development of cost allocation plans for
indirect cost rates, and
(2) Planning, designing, monitoring, and evaluating Federal
programs serving the tribe, including Federal administrative support
functions.
(b) Under section 103(b) of the Act, the Secretary of HHS may make
grants to any tribe or tribal organization for:
(1) The development, construction, operation, provision, or
maintenance of adequate health facilities or services, including the
training of personnel for such work, from funds appropriated to IHS for
Indian health services or facilities, or
(2) Projects for planning, training, evaluation, or other
activities designed to improve the capacity of a tribal organization to
enter into a contract or contracts pursuant to section 102 of the Act,
25 U.S.C. 450(f).
(3) Grant applications for activities in paragraph (b)(1) of this
section, which are being performed by IHS, or were performed by IHS and
are now administered by a tribe(s) or tribal organization(s) under a
grant will be processed as grants in lieu of contracts as specified by
section 102 of the Act, 25 U.S.C. 450(f), and are subject to the self-
determination contract requirements of this regulation.
(c) Under section 103(a) of the Act the Secretary of DOI is
authorized to make grants for:
(1) The strengthening or improvement of tribal government,
including, but not limited to: the development, improvement, and
administration of planning, financial management, or merit personnel
systems; the improvement of tribally funded programs or activities; or
the development, construction, improvement, maintenance, preservation,
or operation of tribal facilities or resources;
(2) the planning, training, evaluation of other activities designed
to improve the capacity of a tribal organization to enter into a
contract or contracts pursuant to section 102 of this Act and the
additional costs associated with the initial years of operation under
such a contract or contracts; or
(3) the acquisition of land in connection with paragraphs (1) and
(2) of this section, provided that, in the case of land within
reservation boundaries or which adjoins on at least two sides lands
held in trust by the United States for the tribe or for individual
Indians, the Secretary of the Interior may, upon the request of the
tribe, acquire such land in trust for the tribe under this section.
Sec. 900.1203 Availability of funds and application dates.
(a) Applications will be received and awards made by the officials/
offices which the Secretary shall prescribe through notice in the
Federal Register with copies of such notices to be sent to eligible
applicants.
(b) Any priorities for funding which are not based on legislative
requirements must be announced in the Federal Register with copies of
notices to be sent to eligible applicants.
(1) Whenever time permits, agencies shall provide the public an
opportunity to comment on intended funding priorities.
(2) This would include such issues as a priority for unique needs
or conditions for delineated discretionary grant activities.
(c) The Secretary will publish a notice in the Federal Register
indicating the allotment of funds and categories of activities for
which awards may be made under this subpart and shall send copies of
such notices to eligible applicants. The Secretary may revise such
allotments and categories and shall promptly publish a notice of such
revisions in the Federal Register with copies to eligible applicants.
(d) The Secretary shall publish and distribute, at least 60 days
prior to the application due date, to all tribes and tribal
organizations, the total amount of funding for grants, including
minimum and maximum funding levels and portion or portions of funds
retained by the Secretary for administrative and other costs.
(1) The Secretary may reduce the number of days of advance notice
when adherence to the 60 day notification time frame will adversely
impact the Secretary's ability to evaluate applications and award funds
in a timely manner.
(2) The rationale for less than the 60 day time frame must be
provided to the public.
Sec. 900.1204 Application.
(a) Forms for applying for grants shall be those approved by the
Office of Management and Budget (OMB).
(b) Each application shall include, at a minimum:
(1) A description of the applicant;
(2) A description of the geographic location of the project and the
area to be served by the proposed project;
(3) A narrative description of the project, including the need for
the project, project goals and objectives and a work and time schedule
to accomplish each goal and objective, a description of the population
to be served if appropriate, results and benefits anticipated,
methodology, and a discussion of the criteria to be used to evaluate
the results and success of the project; and
(4) any other narrative and statistical data that may be required
in the Federal Register announcement.
(c) All applications must contain a copy of the applicable
resolutions from each tribe to be served.
(d) In addition, in the following circumstances:
(1) Where an applicant proposes to obtain technical assistance
from:
(i) A known third party, the application must contain the name and
qualifications, including a resume, of the technical assistance
provider, a schedule and description of the services to be provided,
and a detailed budget for the services;
(ii) An unknown third party, the application must include a
schedule and a detailed description of the services to be done as well
as a qualifications and experience statement reflecting the
requirements for performing the work and a detailed budget for the work
to be performed.
(2) Where the applicant proposes to plan, design, monitor, and/or
evaluate Federal programs, describe the program and/or function and the
rationale for such an activity.
(e) The following additional assurances also need to be submitted:
(1) That services will be provided in a fair and uniform manner,
consistent with need, to all participants.
(2) That a mechanism will be maintained for dealing with complaints
regarding the delivery of services or performance of project
activities;
(3) Project personnel:
(i) Will hold confidential all information obtained from
participants in the project related to their examination, care, and
treatment;
(ii) Shall not release such information without the individual's
consent except as may be required by law, as may be necessary to
provide service to the individual, or as may be necessary to monitor
the operations of this program or otherwise protect the public; and
(iii) May disclose information in a form which does not identify
particular individuals.
(4) Activities will be conducted with the approval, support, and
involvement of the tribe(s) or Indian communities in the area served by
the local facility and program; and
(5) The applicant has, or will have, the administrative and
managerial capabilities to conduct the proposed project except as
otherwise provided by special terms and conditions for the award.
(f) When a cooperative agreement is proposed, the applicant should
specify the nature of the Federal involvement requested.
(g) After the initial budget period within a project period, the
grantee may submit a noncompetitive application which shall include a
standard OMB face page, budget request for the budget period, a report
of progress and a description of any change from what was described in
the original application.
Sec. 900.1205 Application review and award.
(a) Grant award factors.
The Secretary shall award grants under this subpart for projects
which will best promote the purposes of the Act, taking into account at
a minimum the following:
(1) The compatibility of the applicant's proposed project with the
published Federal program announcement;
(2) the applicant's need for assistance;
(3) the apparent capability of the applicant to carry out the
project;
(4) the soundness of the applicant's plan for conducting the
project and for assuring effective utilization of grant funds;
(5) the reasonableness of the budget in relation to the scope of
the project and available funds; and
(6) for technical assistance grants, the qualifications and
experience of the technical assistance provider for the activity
proposed.
(b) Application review. The Secretary shall review applications in
a consistent manner in accordance with agency review requirements.
(c) Competitive awards. Awards shall be made on the basis of merit
as determined by evaluation of applications against review criteria
which have been published in the Federal Register. In some instances,
competition may be limited and the rationale for such limitation must
be published in the Federal Register.
(d) Award. The Notice of Award must specify how long the Secretary
intends to support the project without requiring the applicant to again
recompete for funds.
(1) The award period, also called the project period, will usually
be for 1 to 3 years, however:
(i) Each grant award will generally be for a one year budget
period; and
(ii) decisions regarding continuation of funding and the funding
level of such awards will be made after consideration of such factors
as the grantee's progress and management practices and the availability
of funds.
(2) In all cases, awards require a determination by the Secretary
that funding is in the best interests of the Federal Government.
(3) Neither the approval of any application nor the award of any
grant commits the Federal Government to make any additional,
supplemental, continuation, or other award with respect to any approved
application or portion of an approved application.
(4) Cooperative agreement awards shall specify the substantive
programmatic involvement on the part of the Federal Government.
Sec. 900.1206 Use of Project Funds.
(a) A grantee shall spend funds it receives under this subpart
according to:
(1) The approved application and budget;
(2) The authorizing legislation;
(3) Specific special terms of the award;
(4) This subpart;
(5) The requirements of 43 CFR part 12 for the DOI; and
(6) For DHHS, 45 CFR part 92 or 74 as appropriate and the PHS
Grants Policy Statement.
(b) Unless restricted by appropriation, grantees are authorized to
carry over unobligated grant funds remaining at the end of a budget
period as additional grant authority under a competing or noncompeting
continuation award.
(c) Program income resulting from the operation of programs under
this Act may be retained and used for the purposes specified by, and
under the conditions of, the grant agreement. There are no Federal
requirements governing the disposition of program income earned after
the end of the award period.
(d) To the extent they provide special benefits to Indians, grants
under this subpart are exempted from the requirements of section 601 of
the Civil Rights Act of 1964, 42 U.S.C. 200d, prohibiting
discrimination on the basis of race, color, or national origin, by
regulation at 45 CFR 80.3(d) which provides, with respect to Indian
health services that:
An individual shall not be deemed subjected to discrimination by
reason of his exclusion from the benefits of a program limited by
Federal law to individuals of a particular race, color, or national
origin different from his.
Sec. 900.1207 Facilities construction.
This Section applies only to grants for construction awarded by the
DHHS, PHS, IHS under authorities granted to the Secretary.
(a) The Secretary shall consider grant applications for
construction funds only when submitted in response to a specific grant
program announcement for construction activities issued in accordance
with Sec. 900.1203.
(b) An applicant for a construction grant must provide the required
certifications as set forth in the OMB approved applications.
(c) The plans and specifications for the project will conform to
the minimum standards of construction and equipment specified in
Sec. 900.1012 and the grant award or in documents specified in the
grant award.
(d) Facilities constructed under a grant pursuant to this Subpart
may not in any manner be leased back to the Secretary.
(e) Notwithstanding any other authority in this Subpart,
construction grantees are subject to the terms and conditions as
specified in Sec. 900.1206.
(f) Applicants and recipients must comply with programmatic
requirements contained in the specific grant program announcement.
Sec. 900.1208 Grant appeals.
(a) The DHHS grants awarded under this Subpart are subject to
appeal procedures for disputes of certain post award adverse
determinations. Those appeal procedures are located at 42 CFR part 50,
subpart D and 45 CFR part 16.
(b) For DOI grants, adverse determinations are subject to the
Interior appeals provisions in subpart H of these regulations.
Sec. 900.1209 Reports.
(a) Grantees will submit, as appropriate, Standard Form 269 or 269A
to report the status of funds for all non-construction and construction
grants.
(1) Grantees will submit annual financial and performance reports
which are due 90 days after the end of each grant budget period, and
final financial and performance reports which shall be due 90 days
after the expiration or termination of each grant.
(2) The Secretary may require quarterly financial and performance
reports which shall be due 30 days after the end of each reporting
period.
(3) No more frequent reporting may be required without the
agreement of the grantee organization.
(b) Performance reports will contain, for each grant, brief
information on the following:
(1) A comparison of actual accomplishments to the objectives
established for the period.
(2) Where the output of the project can be quantified, a
computation of the cost per unit of output may be required if that
information will be useful.
(3) The reasons for slippage if established objectives were not
met.
(4) Additional pertinent information including, when appropriate,
analysis and explanation of high unit costs.
(c) For construction performance reports the DHHS, IHS will require
additional formal performance reports and additional detailed
information only when considered necessary and never more frequently
than quarterly.
(d) Grantees shall submit reports in response to specific requests
for programmatic information which have been approved by OMB.
(e) Events may occur between scheduled performance reporting dates
which have significant impact on the grant supported activity. In such
cases, the grantee must inform the Federal awarding agency as soon as
the following types of conditions become known:
(1) Problems, delays, or adverse conditions which will materially
impair the ability to meet the objective of the award.
(2) This disclosure must include a statement of the action taken,
or contemplated, and any assistance needed to resolve the situation.
(3) Favorable developments which enable meeting the time schedules
and objectives sooner or at less cost than anticipated or producing
more beneficial results than originally planned.
(f) Each recipient of Federal financial assistance shall make the
above cited reports and information available to the Indian people it
serves or represents.
Sec. 900.1210 Use of Indian organizations and Indian-owned economic
enterprises.
To the greatest extent feasible, grantees shall give preference to
qualified Indian organizations and Indian-owned economic enterprises
regardless of tribal affiliation, in the award of any procurement
entered into under the grant, consistent with the efficient performance
of such grant. The grantee shall also comply with any Indian preference
requirements established by the tribe receiving services under the
grant to the extent such requirements are consistent with the purpose
and intent of this section.
Sec. 900.1211 Use of Government personal property.
The Secretary may:
(a) Permit an Indian tribe or tribal organization in carrying out a
grant to utilize existing school buildings, hospitals, and other
facilities and all equipment therein or appertaining thereto, and other
personal property owned by the Government within the Secretary's
jurisdiction under such terms and conditions as may be agreed upon for
their use and maintenance;
(b) Donate to an Indian tribe or tribal organization the title to
any personal property found to be in excess to the needs of the BIA,
the IHS, or the GSA, including property and equipment purchased with
funds under a grant agreement;
(c) Acquire excess or surplus personal property for donation to an
Indian tribe or tribal organization if the Secretary determines the
property is appropriate for use by the tribe or tribal organization for
a purpose for which a grant agreement is authorized under the Act;
(d) Permit an Indian tribe or tribal organization to utilize the
PHS Supply Center at Perry Point, Maryland; the Department of Veterans
Affairs supply system for medical supplies and medical equipment; the
Department of Defense supply system for medical supplies and medical
equipment; and the GSA supply sources for personal property and
supplies that are to be used in the performance of the grant project.
Subpart M--Secretarial Reports and Consultation Requirements
Sec. 900.1301 Secretary's annual report to Congress.
The Secretary shall provide an annual report in writing on or
before March 15 of each year to Congress on the implementation of the
Act. The report shall be provided to each Indian tribe and tribal
organization included in the report no later than the time it is
presented to Congress. The report shall include:
(a) An accounting of the total amounts of funds obligated for each
program and budget activity for direct contract program costs and
contract support costs, which includes any indirect costs, as provided
in Sec. 900.108, during the previous fiscal year;
(b) An accounting of any deficiency of funds needed to provide
required contract support costs, which includes indirect costs for each
contract for the current fiscal year;
(c) The indirect cost rate and type of rate, negotiated lump sum,
or other amount of indirect costs, for each contractor negotiated with
the appropriate Secretary;
(d) The direct cost base and type of base from which the indirect
cost rate is determined for each contractor;
(e) The indirect cost pool amounts, lump sum amounts, and the types
of costs included in the indirect cost pools; and
(f) The amount of contract support estimated to be charged directly
for each contract negotiated with the Secretary.
Sec. 900.1302 Secretary's annual report to Indian tribes and tribal
organizations.
(a) Within 90 days after the close of each Federal fiscal year, the
Secretary shall report in writing to each Indian tribe or tribal
organization.
(b) The report shall detail the previous fiscal year's annual
obligations for each program operated directly by the Secretary. A
comparison of total allocation and total obligations will be estimated:
(1) At the BIA Agency, IHS Service Unit, or other comparable
organizational unit, or other field location by tribe;
(2) at the Area Office or other regional office in the aggregate;
and
(3) at the Headquarters or national office in the aggregate.
(c) The report shall detail actual and planned current fiscal year
staffing levels for each:
(1) BIA Agency, IHS Service Unit, or other comparable
organizational unit, or other field location;
(2) Area Office, or regional office; and
(3) Headquarters, or national office.
(d) The report shall include an estimate of the number of Indian
people to be served by each program.
Subpart N--Program Standards, Department of Health and Human
Services
Sec. 900.1401 Program standards, data, and quality assurance--policy.
(a) The provision of quality health services is the goal of both
the DHHS and tribally operated health programs. Quality assurance
programs, which include the collection and reporting of accurate data,
are the means by which compliance with standards is measured, problems
identified, and corrective action plans are developed and implemented
to ensure quality services to the Indian people. The programs include
the provision of clinical services to treat and ameliorate acute and
chronic diseases and public health services designed to promote health,
prevent diseases, and protect the public's health. Program standards,
data collection and reporting, and quality assurance are necessary,
interrelated, and essential parts of a satisfactory health program.
(b) The Secretary shall establish joint tribal/Federal
participation processes to review and advise on departmental program
standards, quality assurance programs, and Core Data Set Requirements
(CDSR). Modifications to the CDSR will be made to keep them to a
minimum consistent with good management practices.
(c) Responsibility for the day-to-day operation of contracted
health programs rests with the tribal contractor in accordance with the
assurances set forth in the contract proposal and the resulting
contract. This responsibility includes ensuring that appropriate
standards, data collection and reporting, and quality assurance
programs are in place and maintained.
(d) Nothing in this subpart is intended to create any additional
declination or reassumption criteria.
Sec. 900.1402 Program standards, data and quality assurance--
assurances.
The following assurances must be included in proposals, contracts,
and contract modifications:
(a) Assurance on program standards. This assurance shall consist of
either:
(1) An assurance that the contractor will comply with applicable
Joint Commission on the Accreditation of Health Care Organizations
(JCAHO) or Health Care Finance Administration (HCFA) accreditation
standards or conditions of participation. Identification of JCAHO or
HCFA standards in the Assurance will be sufficient without further
specification in the contract proposal; or
(2) Where JCAHO or HCFA standards are not applicable, the Assurance
shall identify what other national, state, professional, agency, or
tribal standards the contractor proposes to use for the clinical or
public health services to be provided. In such cases, the contractor
shall submit with its Assurance a copy of the standards proposed for
use or provide sufficient details to enable the proposed standards to
be evaluated for their appropriateness and adequacy for the provision
of quality health services and the protection of the public's health.
The standards must include a process to ensure that incidents of
infections or communicable diseases and other public health hazards are
reported in a timely manner to appropriate county, state, or federal
public health authorities.
(b) Assurance on data collection and reporting. The contract
proposal shall include an assurance that the contractor will maintain,
or establish and maintain, a data collection and reporting system that
will provide the data necessary to plan, direct and assure the delivery
of quality health care services and provide for the reporting of
accurate and complete data compatible with the CDSR of the IHS
reporting systems which are applicable to the program or programs to be
covered by the contract.
(1) The contract proposal shall indicate whether the contractor
will use the IHS data collection and reporting system or the
contractor's own manual or automated system.
(2) The contractor is not required to use the IHS data collection
and reporting system so long as the contractor's own data collection
and reporting system provides for the transmission of accurate and
complete data at least quarterly or as otherwise required to meet the
CDSR of the applicable IHS information systems.
(3) The contractor's data collection and reporting systems, if
automated, must also meet the applicable automated record security
requirements of the Computer Security Act of 1987, Public Law 100-275.
(c) Assurance on quality assurance. The contract proposal shall
include an assurance that the contractor will establish and maintain a
quality assurance program which includes evaluation components to
assess management and program processes; measure compliance with
applicable standards; identify problems which are important to the
delivery of adequate health care; and develop and implement corrective
action plans.
Sec. 900.1403 Program standards, data and quality assurance--
implementation.
(a) When a tribe or tribal organization wishes to assume management
of a program, the Secretary shall make available all program standards,
data reporting requirements and quality assurance requirements,
including any risk management plans used in the operation of the
program or activity proposed for assumption.
(b) Current awards for programs that do not meet the requirements
in this section or where the underlying award is silent on program
standards, program data or quality assurance must meet the requirements
in Sec. 900.1402 in the first request for continuation or annual
funding made subsequent to the effective date of these regulations.
(c) The Secretary will provide technical assistance for development
and implementation of a quality assurance program.
(d) The CDSR and any changes as a result of Sec. 900.1401(b) are to
be published as a general notice in the Federal Register.
(e) No additional reporting requirements will be imposed without
agreement of the tribal contractor except as may be required by law,
such as section 602 of the Indian Health Care Improvement Act or
implementing regulations.
(f) The Secretary will provide technical assistance to tribal
contractors to enable them to convert their data into the formats and
appropriate transmission media required by the IHS information systems.
(g) No distinction will be made between new, current, mature and
term contracts or grants relevant to the applicability and
implementation of the assurances as provided in accordance with
Sec. 900.1402 or Sec. 900.1403.
(h) The program standards provided for in Sec. 900.1402 may not be
less than standards which are currently being applied in the program as
operated by the Secretary except as required by law or regulation. In
carrying out the contract, the tribal contractor may not be required by
the Secretary to adhere to any standards higher than those identified
in the contract as provided in Sec. 900.1402.
(i) Nothing in this subpart is intended to preclude tribal
contractors from modifying health priorities within individual programs
or services to better meet the health needs of their beneficiaries, so
long as such modifications are compatible with and are covered by
assurances set forth in Sec. 900.1402 and, where appropriate because
such modifications would represent a significant addition, deletion or
change under the current contract, follow the requirements of subpart C
for the modification of contracts.
(j) The cost of operations to meet the requirements of this entire
section is an allowable cost pursuant to subpart D under a self-
determination award, whether it be a contract, grant, or cooperative
agreement.
Sec. 900.1404 Fair and uniform provision of services.
(a) Contractors shall assure the fair and uniform provision of the
services and assistance they provide to Indians including access by
Indian beneficiaries of the program to be contracted to tribal
administrative or judicial bodies empowered to adjudicate complaints,
claims and grievances brought by such Indian beneficiaries against the
contractor arising out of the performance of the contract. Services
provided pursuant to a contract under this subpart shall be provided by
the contractor to all beneficiaries under a contract consistent with
applicable priorities, policies and regulations and shall make no
discriminatory distinctions among beneficiaries. Such discriminatory
distinctions include but are not limited to the following:
(1) Denying a beneficiary any service or benefit or availability of
a facility;
(2) Providing any service or benefit to a beneficiary which is
different, or is provided in a different manner or at a different time
from those provided to other beneficiaries under a contract; subjecting
a beneficiary to segregation or separate treatment in any manner
related to the receipt of any service; restricting a beneficiary in any
way from an advantage or privilege provided to others receiving any
service benefit; treating a beneficiary differently from others in
determining whether the individual satisfies any admission, enrollment,
quota, eligibility membership, or other requirements or conditions
which must be met in order to be provided any service or benefit; the
assignment of times or places for the provision of services on the
basis of discriminatory distinctions which may be made of the
beneficiaries to be served.
Subpart O--Department of the Interior Program Standards
Sec. 900.1501 General program standards.
(a) Purpose and scope. (1) This subpart addresses program standards
for the Secretary's operation of programs that may be contracted to
tribes and authorized tribal organizations pursuant to the authorities
found in Public Law 93-638, as amended. The Secretary's standards may
be used in evaluating proposals to determine whether to approve or
decline a contract.
(2) Where the Secretary determines that the contract proposal as
submitted will not produce minimum satisfactory results in accordance
with the statutory declination criteria, negotiations as well as
technical assistance will be used in an endeavor to avoid declination.
(3) To expedite review and approval of contract proposals, pre-
application technical assistance under Sec. 900.203(a)(4) is encouraged
where a tribe or tribal organization wishes to select or develop
program standards in a proposal which differ from the Secretary's
standards in this subpart.
(b) Program standards. (1) Except as otherwise provided in these
regulations, contractors shall adhere to all program standards to which
the Federal agency is subject, subject to the variance procedures in
(c), including statutes, regulations, orders, policies, agency manuals,
guidelines, industry standards and personnel qualifications, but only
to the extent such standards are referenced or set out in the contract
or this subpart and have actually been observed by the government in
its operation of the particular program.
(2) The standards applicable to a particular program shall be
furnished within a reasonable time after the receipt of a request for
those applicable standards from a tribe or tribal organization, but in
no case shall a contractor be held to a standard not disclosed to the
contractor prior to approval of the contract, unless such standard is
contained in law or regulations.
(3) Should any statute, regulation, order, policy, manual,
guideline or industry standard or other requirement that is listed in
this subpart or identified to the contractor prior to contracting be
revised, the contractor shall observe the revised standards applicable
to other contractors and government employees subject to the variance
procedures in (c), unless it satisfies the Federal contracting officer
that compliance with the revision would materially increase its cost
under the contract and supplemental funding is unavailable.
(4) Should the standards or requirements applicable to Federal
employees rely upon State licensure requirements or codes not directly
applicable on the tribal reservation, the government and the tribe
shall determine comparable standards for contractors on the reservation
before approval of the contract.
(5) In the absence of standards the Secretary and the tribe or
tribal organization shall negotiate suitable standards for the
operation of the program to be contracted.
(6) A standard more rigorous than those met by the Secretary in
direct operation of the program may be selected by mutual consent.
(c) Variance. The contractor may propose alternative means of
meeting performance levels or standards set by regulations, orders,
policies, etc., or the industry or profession. The Secretary shall
approve such alternatives to promote the purposes of the Act to the
extent consistent with applicable law, meeting the trust responsibility
to Indians, and assurance of performance of the functions or activities
at a level comparable to that of the government.
(1) Requests for variance prior to contract issuance shall be
treated under the provisions of Sec. 900.206.
(2) Requests for variance after a contract has been issued shall be
considered a contract modification subject to the provisions of
Sec. 900.305.
(d) Coordination of programs. The Secretary shall coordinate the
program(s) or portion(s) thereof carried out by the Secretary, with
those carried out by a tribal contractor(s).
(1) A contract proposal shall include an assurance that the Indian
tribe or tribal organization will coordinate its programs with the
program(s) or portion(s) carried out by the Secretary or by other
tribes or tribal organizations.
(2) The proposal shall describe the methods for coordination with
other governments and organizations in carrying out the contract.
(i) To provide for the orderly transition in the delivery of
programs to individual Indians and Indian tribes, a period of
transition or cooperative management may be provided to meet the
requirements of the Indian tribe and the Secretary's responsibility.
(ii) This period of transition must be executed within available
funds by a cooperative agreement between the Indian tribe and the
Secretary.
(e) Conflicts of interest. (1) Contractors and subcontractors may
elect to utilize and maintain their written code of standards of
conduct governing the performance of their officers and employees.
Until such written code has been approved by the Secretary, upon
certification by the Departmental Ethics Office that it provides
adequate protection from conflicts of interest prohibited of
governmental trustees, contractors and subcontractors shall ensure
that, at a minimum, no officer or employee or agent:
(i) Has a financial or property interest that conflicts
substantially with his or her responsibilities in performance of the
contract;
(ii) Uses inside information, not available to the general public,
obtained through his or her performance of the contract, for private
gain for himself or any person other than the tribe;
(iii) Receives or solicits any gratuities, favors or anything of
monetary value from anyone other than the contractor in connection with
services rendered under the contract; and
(iv) Takes any action to be performed under the contract which:
(A) Might result in use of tribal office, employment or role as an
agent for his personal private gain or the gain of his employer;
(B) Gives preferential treatment to any person, except as
authorized by applicable law;
(C) He cannot take with independence or impartiality (when
required); or
(D) Is outside official channels, which includes channels
identified in the contract;
(2) Membership in an Indian tribe, band or pueblo which receives
services from the Secretary, or ownership of interests in an Indian
Corporation established under the Indian Reorganization Act or Alaska
Native Claims Settlement Act, shall not be considered a conflicting
interest. Nor shall an interest arising solely from a birthright:
(i) In an Indian tribe, band, nation, community or Alaska Native
village corporation;
(ii) In an Indian allotment, the title to which is held in trust by
the United States or which is inalienable by the allottee without the
consent of the United States; or
(iii) In an Indian claims fund held in trust by the United States,
be considered a prohibited financial interest, but no officer or
employee shall be permitted to take any action in a particular matter
directly involving his allotment or interest in a claims fund.
(3) The code or assurance may except from its prohibitions
unsolicited gifts of nominal intrinsic value and provide procedures for
employees to divest themselves of such interests, or for reassignment
or restriction of duties of employees with conflicts.
(4) The contractor shall give appropriate notice of its code or
assurance to contract personnel and require the disclosure of potential
conflicts. The contractor shall promptly resolve such conflicts and
report to the Secretary, and to the tribal governing body, any
conflicts that arise as soon as they become evident and the resolution
thereof promptly thereafter.
(5) Such a code or assurance shall provide for penalties, sanctions
or other disciplinary actions for violations of the standards and a
procedure for hearing of complaints that the code or assurance has been
violated.
(f) Quality assurance. For programs operated by the Secretary which
have existing quality assurance plans, a contract proposal shall
include quality assurance plans, subject to the inclusion of funds in
the contract award to cover the cost of such plans. The plan shall
provide for examination of:
(1) The structure in which the service is provided;
(2) The process of providing the service; and
(3) The outcome expected as the result of delivering that service
by including the following:
(i) Self evaluation and assessment of management and program
processes;
(ii) Review of internal management operations and procedures;
(iii) Continuing comparison of management and program activity to
stated standards; and
(iv) Evaluation and assessment of collected information relating
the level of achievement attained in meeting specified standards.
(4) The quality assurance plan shall provide for the preparation
and implementation of corrective actions to bring performance to
acceptable levels when established standards are not met.
(5) The quality assurance plan shall provide for monitoring of that
plan as implemented by the contractor, and any necessary corrective
actions.
(6) In lieu of a plan as provided in paragraphs (f) (1) through (5)
of this section, the contractor may elect to participate in the
Secretary's quality assurance plan covering such program.
(g) Program data. A properly maintained program information system
is essential in determining program requirements, justifying program
funding, providing a base for quality assurance, providing for
effective program management, protecting trust assets, and fulfilling
statutory requirements.
(1) The Secretary shall make available to an Indian tribe or tribal
organization data formats, edit and transmission media requirements,
and the program information system used in the Secretary's direct
operation of the program.
(2) If a contract proposal includes assumption of responsibility
for meeting the requirements of a program information system to support
the delivery of services, the proposal must either:
(i) Ensure fulfillment of the program data requirements for the
program as operated by the Secretary; or
(ii) Set out an alternative method of providing the Secretary with
the data minimally necessary to fulfill statutory requirements and to
ensure that the program is properly completed and maintained, services
are satisfactory and trust resources, if any, are adequately protected.
(3) A contract proposal may include conversion to the Secretary's
data system, hardware, or software, or from a manual to a computerized
system, if arrangements are made for the timely transmission of data in
a form agreed to by the contractor and the Secretary. The proposal
shall provide an assurance that data will be submitted according to a
schedule mutually agreed upon.
(4) A contract proposal may provide for a phase-in of the program
information system requirements or for a joint management system. In
such a situation, funds for maintenance of the system may be divided
between the contractor and the agency in accordance with the division
of responsibilities.
Sec. 900.1502 Fair and uniform provision of services.
(a) Contractors shall assure the fair and uniform provision of the
services and assistance they provide to beneficiaries of the program to
be contracted. Services provided pursuant to a contract under this part
shall be provided by the contractor to all beneficiaries consistent
with applicable priorities, policies, and regulations and shall make no
discriminatory distinction among beneficiaries. Such discriminatory
distinctions include but are not limited to the following:
(1) Denying a beneficiary any service or benefit or availability of
a facility;
(2) Providing any service or benefit to a beneficiary which is
different or is provided in a different manner or at a different time
from those provided to other beneficiaries under a contract;
(3) Subjecting a beneficiary to segregation or separate treatment
in any manner related to the receipt of any service;
(4) Restricting a beneficiary in any way from an advantage or
privilege provided to others receiving any service benefit;
(5) Treating a beneficiary differently from others in determining
whether the individual satisfies any admission, enrollment, quota,
eligibility membership, or other requirements or condition which must
be met in order to be provided any service or benefit.
(b) A beneficiary of a contracted program who believes that the
contractor is administering the program in violation of the provisions
of this section may file a complaint with an appropriate tribal
administrative or judicial body empowered to adjudicate any complaint,
claim, or grievance brought by such Indian beneficiary against the
contractor arising out of the performance of the contract.
Subpart P--Regulation Administration
Sec. 900.1601 Authority.
These regulations are prepared, issued, and maintained jointly by
the Secretary of HHS and the Secretary of the Interior pursuant to
section 107(a) of the Act.
Sec. 900.1602 Revisions and amendments.
(a) Subject to the authority in Sec. 900.1601, revisions and
amendments to these regulations may be made by either Secretary upon
notice to and concurrence of the other Secretary in accordance with the
requirements of 5 U.S.C. 552 and 553.
(b) Any revision or amendment made to a regulation, OMB circular,
or other codified directive referenced in these regulations shall be
incorporated into these regulations upon its effective date as
published in the Federal Register.
(c)(1) Except as noted in paragraph (c)(2) of this section, other
revisions or amendments to these regulations shall be subject to the
procedures in Sec. 900.1603.
(2) If the Secretary determines that a revision or amendment to
these regulations is administrative or editorial in nature and does not
alter the substantive meaning of these regulations, the revision or
amendment may be promulgated without regard to the procedures in
Sec. 900.1603 pursuant to 5 U.S.C. 553.
Sec. 900.1603 Participation and presentation.
(a) The Secretary shall, with participation of Indian tribes and
before revising or amending these regulations, whether at the
Secretary's initiative or upon a request by an Indian tribe or tribal
organization take the following actions:
(1) Except as provided in Sec. 900.1602 (b) and (c)(2), the
Secretary shall consult with, and solicit the participation of, Indian
tribes and tribal organizations in developing any proposed revision or
amendment to these regulations at least 60 days prior to presentation
of the proposed revision or amendment made in paragraph (b) of this
section.
(2) The Secretary shall initially meet with Indian tribes and
tribal organizations to obtain their views and to establish regulatory
issues.
(3) The Secretary shall then develop a draft regulation or draft
regulation specification for any proposed changes to these regulations
and submit these to Indian tribes and tribal organizations. Subsequent
to, but in no case sooner than 60 days after submission of the draft
regulation or draft regulation specification to the Indian tribes and
tribal organizations, the Secretary shall develop a notice of proposed
rulemaking (NPRM).
(4) To the extent practicable, the Secretary shall consult with
appropriate national or regional Indian organizations in the
development of the NPRM.
(b) After required clearances, the NPRM shall be submitted to the
Committee on Interior and Insular Affairs of the United States House of
Representatives and the Select Committee on Indian Affairs of the
United States Senate.
Sec. 900.1604 Rulemaking.
After completion of participation and presentation in accordance
with Sec. 900.1603, the Secretary shall publish an NPRM in the Federal
Register. The NPRM shall provide for at least a 60 day comment period.
Sec. 900.1605 Waivers.
(a) For the purposes of a specific contract or contracts, the
Secretary may, for good cause shown, grant a waiver of any Federal
contracting law or regulation that the Secretary determines is
inconsistent with the provisions of the Act or is not appropriate for
the purposes of the contract(s) involved. In addition, for a specific
contract or contracts, the Secretary may, as a matter of administrative
discretion, waive for good cause a provision of these regulations if
the Secretary finds that a waiver is in the best interests of persons
to be served under the contract. In determining whether to grant a
waiver for good cause, the Secretary shall consider:
(1) Whether there are unusual circumstances that make the law or
regulations to be waived inappropriate for the particular contract
involved; or
(2) Whether the waiver will alleviate substantial hardship which
could not have been avoided by diligent action of the contractor or
which is due to factors beyond the control of the contractor.
(b) Requests for waivers may be initiated by a tribe or tribal
organization, and sent to the Contracting Officer for processing in
accordance with Departmental procedures.
(c) Waiver requests shall be in writing and shall include at least
the following information:
(1) Identification of the Federal contracting law and/or regulation
for which a waiver is requested;
(2) Reason for the waiver request, including impact on the tribe or
tribal organization if the request is not approved;
(3) The intended effect of the waiver;
(4) The length of time for which it can be anticipated that the
waiver will be required; and
(5) Identification of specific contract(s) to which the waiver will
apply. If more than one contract is involved, each specific contract
shall be identified and a request shall be made for a class waiver for
such contracts to alleviate the need for separate, duplicative
approvals.
(d) Waiver requests which are contained in a contract proposal may
be considered separately from the proposal at the discretion of the
Secretary. The declination criteria in Sec. 900.206 do not apply to
such requests for waivers. While the Secretary will endeavor to respond
to a request for waiver prior to award, failure by the Secretary to act
on a request for a waiver shall not be grounds to postpone the contract
award pending the Secretary's determination.
(e) Whenever a waiver requested by a tribe or tribal organization
is denied, the Secretary will notify the tribe or tribal organization
of the reasons for the denial in writing.
(f) The decision of the Secretary with regard to waivers is final
for the Department.
Sec. 900.1606 Information collection.
The following information collection requirements contained in this
rule have been approved by the OMB under 44 U.S.C. 3501 et seq. and
assigned OMB clearance numbers 1076-0091; 1076-0096; 1076-0090; 0910-
0002; 0917-0007; 9017-0010 and 0937-0189. The following information
collections required by this rule have not been approved by the OMB
under 44 U.S.C. 3501 et seq. and are being sent to the OMB for review:
Patient Registration System; Dental Reporting System; Pharmacy System;
Environmental Health Activity Reporting and Facility Data System;
Mental Health and Social Services Reporting System; Chemical Dependency
Management Information System; Community Health Activity Reporting
System; Health Education Resource Management System; Nutrition and
Dietetics's Program Activities Reporting System; Clinical Laboratory
Workload Reporting System and the Fluoridation Reporting System. This
information will not be solicited until OMB approval is obtained.
[FR Doc. 94-199 Filed 1-19-94; 8:45 am]
BILLING CODE 4160-16-P and 4310-02-P