[Federal Register Volume 61, Number 16 (Wednesday, January 24, 1996)]
[Proposed Rules]
[Pages 2038-2077]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-497]




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Part III





Department of the Interior





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Bureau of Indian Affairs



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Department of Health and Human Services





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Indian Health Service



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25 CFR Chapter V and Part 900



Indian Self-Determination and Education Assistance Act Amendments; 
Proposed Rule

  Federal Register / Vol. 61, No. 16 / Wednesday, January 24, 1996 / 
Proposed Rules   

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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Indian Health Service

25 CFR Chapter V and Part 900

RINs 1076-AC20; 0905-AC98


Indian Self-Determination and Education Assistance Act Amendments

AGENCIES: Bureau of Indian Affairs, Indian Health Service, 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 section 107 of the Indian Self-Determination Act, as amended, 
including Title I, Public Law 103-413, the Indian Self-Determination 
Contract Reform Act of 1994. A joint rule, as required by section 
107(a)(2)(A)(ii) of the Act, will permit the Departments 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. In section 107(a)(1) of the Act Congress delegated to the 
Departments limited legislative rulemaking authority in certain 
specified subject matter areas, and the joint rule addresses only those 
specific areas. As required by section 107(d) of the Act, the 
Departments have developed this proposed rule with active tribal 
participation, using the guidance of the Negotiated Rulemaking Act.

DATES: Comments must be submitted on or before March 25, 1996. We will 
send copies of this notice of proposed rulemaking (NPRM) to each tribe. 
We especially invite comments from individual tribes, tribal members 
and tribal organizations.

ADDRESSES: Written comments to these rules may be sent to Betty J. 
Penn, Indian Self-Determination Amendments Regulations Comments, Indian 
Health Service, Room 6-34, 5600 Fishers Lane, Parklawn Building, 
Rockville, MD 20857. Comments will be made available for public 
inspection at this address from 8:30 a.m. to 5:00 p.m., Monday through 
Friday beginning approximately 2 weeks after publication. Comments will 
also be available for public inspection at the Department of the 
Interior, 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, Room 4627, 1849 C Street N.W., Washington, DC 20240, 
Telephone (202) 208-3708 or Merry Elrod, Division of Self-Determination 
Services, Office of Tribal Activities, Indian Health Service, Room 6A-
19, 5600 Fishers Lane, Parklawn Building, Rockville, MD 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 and 
other eligible persons. The Act was further amended by the Technical 
Assistance Act and other Acts, Public Law 98-250; Public Law 100-202; 
Interior Appropriations Act for Fiscal Year 1988, Public Law 100-446; 
Indian Self-Determination and Education Assistance Act Amendments of 
1988, Public Law 100-472; Indian Reorganization Act Amendments of 1988, 
Public Law 100-581; miscellaneous Indian Law Amendments, Public Law 
101-301; Public Law 101-512; Indian Self-Determination and Education 
Assistance Act Amendments of 1990, Public Law 101-644; Public Law 102-
184; Public Law 103-138; Indian Self-Determination Act Amendments of 
1994, Public Law 103-413; and Public Law 103-435. Of these, the most 
significant were Public Law 100-472 (the 1988 Amendments) and Public 
Law 103-413 (the 1994 Amendments).
    The 1988 Amendments substantially revised the Act in order ``to 
increase tribal participation in the management of Federal Indian 
programs and to help ensure long-term financial stability for tribally-
run programs.'' Senate Report 100-274 at 2. The 1988 Amendments were 
also ``intended to remove many of the administrative and practical 
barriers that seem to persist under the Indian Self-Determination 
Act.'' Id. at 2. In fashioning the amendments, Congress directed that 
the two Departments develop implementing regulations over a 10-month 
period with the active participation of tribes and tribal 
organizations. In this regard, Congress delegated to the Departments 
broad legislative rulemaking authority.
    Initially the two Departments worked closely with tribes and tribal 
organizations to develop new implementing regulations, culminating in a 
joint compromise September 1990 draft regulation reflecting substantial 
tribal input. Thereafter, however, the two Departments continued work 
on the draft regulation without any further tribal input. The revised 
proposed regulation was completed under the previous administration, 
and the current administration published the proposed regulation (NPRM) 
for public comment on January 20, 1994, at 59 FR 3166. In so doing, the 
current administration expressed its concern over the absence of tribal 
participation in the regulation drafting process in the years following 
August 1990, and invited tribes to closely review the NPRM for possible 
revisions.
    Tribal reaction to the January 1994 proposed regulation was 
extremely critical. Tribes, tribal organizations, and national Indian 
organizations criticized both the content of the NPRM and its length, 
running over 80 pages in the Federal Register. To address tribal 
concerns in revising the proposed regulations into final form, the 
Departments committed to establish a Federal advisory committee that 
would include at least 48 tribal representatives from throughout the 
country, and be jointly funded by the two Departments.
    In the meantime, Congress renewed its examination into the 
regulation drafting process, and the extent to which events since the 
1988 amendments, including the lengthy and controversial regulation 
development process, justified revisiting the Act anew. This 
Congressional review eventually led to the October 1994 amendments. 
(Similar efforts by tribal representatives to secure amendments to the 
Act in response to the developing regulations had been considered by 
Congress in 1990 and 1992.)
    The 1994 amendments comprehensively revisit almost every section of 
the original Act, including amending the Act to override certain 
provisions in the January 1994 NPRM. Most importantly for this new 
NPRM, the 1994 amendments also remove Congress' prior delegation to the 
Departments of general legislative rulemaking authority. Instead, the 
Departments' authority is strictly limited to certain areas, a change 
explained in the Senate report that accompanied the final version of 
the bill:

    Section 105 of the bill addresses the Secretaries' authority to 
promulgate interpretative regulations in carrying out the mandates 
of the Act. It amends section 107 (a) and (b) of the Act by limiting 
the delegated authorization of the Secretaries to 

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promulgate regulations. This action is a direct result of the failure 
of the Secretaries to respond promptly and appropriately to the 
comprehensive amendments developed by this committee six years ago.
* * * * *
    Section 105(l) amends Sec. 107(a) by delegating to the Secretary 
the authority only to promulgate implementing regulations in certain 
limited subject matter areas. By and large these areas correspond to 
the areas of concern identified by the Departments in testimony and 
in discussions. Beyond the areas specified in subsection (a) * * * 
no further delegated authority is conferred.

    Sen. Rep. No. 103-374 at 14. For this reason, the new NPRM covers 
substantially fewer topics than the January 1994 NPRM. As specified by 
Congress, the new NPRM is limited to regulations relating to chapter 
171 of title 28 of the United States Code, commonly known as the 
``Federal Tort Claims Act;'' the Contract Disputes Act of 1978 (41 
U.S.C. 601 et seq.); declination and waiver procedures; appeal 
procedures; reassumption procedures; discretionary grant procedures for 
grants awarded under section 103 of the Act; property donation 
procedures arising under section 105(f) of the Act; internal agency 
procedures relating to the implementation of this Act; retrocession and 
tribal organization relinquishment procedures; contract proposal 
contents; conflicts of interest; construction; programmatic reports and 
data requirements; procurement standards; property management 
standards; and financial management standards. All but two of these 
permitted regulatory topics--discretionary grant procedures and tribal 
organization relinquishment procedures--are addressed in this NPRM.
    The 1994 amendments also require that, if the Departments elect to 
promulgate regulations, the Departments must use the notice and comment 
procedures of the Administrative Procedure Act, and must promulgate the 
regulations as a single set of regulations in title 25 of the Code of 
Federal Regulations. Section 107(a)(2). Finally, the 1994 amendments 
require that any regulations must be developed with the direct 
participation of tribal representatives using as a guide the Negotiated 
Rulemaking Act of 1990. This latter requirement is also explained in 
the accompanying Senate Report:

    To remain consistent with the original intent of the Act and to 
ensure that the input received from the tribes and tribal 
organizations in the regulation drafting process is not disregarded 
as has previously been the case, section 107 also has been amended 
by adding a new subsection (d), requiring the Secretaries to employ 
the negotiated rulemaking process.

    Sen. Rep. No. 103-374 at 14. As a result of the October 1994 
amendments and earlier initiatives previously discussed, the 
Departments chartered a negotiated rulemaking committee under the 
Federal Advisory Committee Act. The committee's purpose is to develop 
regulations that implement amendments to the Act.
    The committee has 63 members. Forty-eight of these members 
represent Tribes--two tribal members from each BIA area and two from 
each IHS area. Nine members are from the Department of the Interior and 
six members are from the Department of Health and Human Services. 
Additionally, four individuals from the Federal Mediation and 
Conciliation Service served as facilitators. The committee is co-
chaired by four tribal representatives and two Federal representatives. 
While the committee is much larger than usually chartered under the 
Negotiated Rulemaking Act, its larger size was justified due to the 
diversity of tribal interests and programs available for contracting 
under the Act.
    The committee agreed to operate based on consensus decisionmaking. 
The Departments committed to publish all consensus decisions as the 
proposed rule. The committee further agreed that any committee member 
or his/her constituents could comment on this proposed rule.
    In order to complete the regulations within the statutory 
timeframe, the committee divided the areas subject to regulation among 
six working groups. The workgroups made recommendations to the 
committee on whether regulations in a particular area were desirable. 
If the committee agreed that regulations were desirable, the workgroups 
developed options for draft regulations. The workgroups presented their 
options to the full committee, where the committee discussed them and 
eventually developed the proposed regulations.
    The first meeting of the committee was in April of 1995. At that 
meeting, the committee established six workgroups, a meeting schedule, 
and a protocol for deliberations. Between April and September of 1995, 
the committee met five times to discuss draft regulations produced by 
the workgroups. Each of these meetings generally lasted three days. 
Additionally, the workgroups met several more times between April and 
September to develop recommendations for the committee to consider.
    The policy of the Departments is, whenever possible, to afford the 
public an opportunity to participate in the rulemaking process. All of 
the sessions of the committee were announced in the Federal Register 
and were open to the public.
    The Departments commend the ability of the committee to cooperate 
and develop a proposal that addresses the interests of the tribes and 
the Federal agencies. This negotiated rulemaking process is a model for 
developing successful Federal and tribal partnerships in other 
endeavors. The consensus process allowed for true bilateral 
negotiations between the Federal government and the tribes in the best 
spirit of the government-to-government relationship.
    In developing regulatory language, full committee consensus was 
reached on the regulations which follow under subparts ``A'' through 
``P.'' In addition, at the request of tribal and Federal 
representatives, the Secretaries have agreed to propose and publish 
additional introductory materials under subpart ``A.'' Where the full 
committee could not reach consensus as defined in its protocol, this 
preamble includes a brief description of the issue, along with the 
Federal and tribal positions when available. The public is invited to 
comment on these issues as well as on the proposed regulations.
    Where the tribal position is stated it reflects dissatisfaction 
with proposed resolution of the issues by the Federal representatives 
and preference for alternative language as put forth by the tribes. 
Where the Federal position is stated, it represents the official views 
of the Departments, as expressed by the designated Federal officials. 
The paragraphs below address five areas of disagreement within the 
committee. The five areas are: internal agency procedures, 
confidentiality, conflicts of interest, and two areas of Secretarial 
policy.

Key Areas of Disagreement

Internal Agency Procedures

    The tribal representatives of the negotiated rulemaking committee 
believe the Act requires that provisions concerning the internal 
procedures of the Departments of the Interior and Health and Human 
Services must be drafted by the negotiated rulemaking committee and 
should be included in the final regulation.
    The tribal representatives' goal is to have uniform procedures 
among the Federal agencies for the implementation and interpretation of 
the Act and these regulations. Further, tribal representatives believe 
that, unless the internal agency procedures subpart is 

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included in these regulations, the Federal agencies may use internal 
agency procedures to limit the effect of the 1994 amendments of the 
Act.
    Previously, in the House and Senate Reports that accompanied the 
final version of the 1994 bill each committee observed:

    The recently promulgated proposed regulations severely undercut 
Congress' intent in the original Act and those amendments to 
liberalize the contracting process and to put these programs firmly 
in the hands of the tribes. The proposed January 1994 regulations 
erect a myriad of new barriers and restrictions upon contractors 
rather than simplifying the contracting process and freeing tribes 
from the yoke of excess Federal oversight and control.

    Sen. Rep. No. 103-374 at 14; Cong. Rec. at H-11145 (daily ed. Oct. 
6, 1994). Tribal representatives believe that internal agency 
procedures may be used in this same way again if allowed to be created 
outside the negotiated rulemaking process.
    For purposes of soliciting comments the tribal representatives 
recommend the following regulation provision to address the issue of 
internal agency procedures:

Internal Agency Procedures

    A. No internal agency procedure, policy, or other issuance which 
interprets the meaning or application of any provision of the Act or 
these regulations shall be binding upon an Indian tribe or tribal 
organization. Any such issuance shall instead:
    (1) Fall within the specific area of delegated rulemaking 
authority specified in section 107(a) of the Act; and
    (2) Be promulgated pursuant to the negotiated rulemaking and 
notice and comment procedures of the Act.
    B. No issuance which fails to meet these criteria shall have any 
force or effect, or be binding on any tribe or tribal organization.
    C. No internal agency procedure and no Departmental official or 
employee shall impose any requirements, limitation, or condition on 
any tribe or tribal organization relating to any matter arising 
under the Act. All such matters shall be governed exclusively by the 
Act and these regulations.

    The Federal position is that a comprehensive manual for the 
internal management of self-determination contracts should not be 
developed through the formal rulemaking process. Internal agency 
procedures are more appropriately developed outside the negotiated 
rulemaking process, to allow flexibility in addressing practical 
considerations which arise in the field, and to allow maximum 
participation from those agency officials who bear much of the 
responsibility for implementing the Act to its fullest capability. The 
Federal position supports a joint tribal and Federal commitment to work 
together to generate a procedural manual which will promote the 
purposes underlying the Act and facilitate contracting by Indian tribes 
and tribal organizations.
    One goal of the full committee is to have uniform procedures for 
the implementation and interpretation of the act and these regulations 
which apply to all Federal agencies which administer contracted 
programs. The Federal members of the committee propose that the parties 
formally agree to work together to develop a manual which guides all 
contracting agencies through the contracting process. This is 
consistent with the position taken by the work group charged with 
making recommendations regarding internal agency procedures.
    To that end, Federal committee members would commit to a firm time 
line within which to produce a manual. In addition, the Federal 
government would seek meaningful consultation throughout the 
development process from representatives of Indian tribes and tribal 
organizations.

Conflicts of Interest

    The Federal negotiators feel strongly that regulatory provisions 
concerning conflicts of interest are needed, especially for the 
protection of allottees. The Federal proposal would address two types 
of conflicts: Conflicts of the tribe or tribal organization itself (an 
``organizational conflict'') and conflicts of individual employees 
involved in trust resource management. The Secretary of the Interior 
owes a fiduciary duty to trust beneficiaries that cannot be compromised 
by contracting to rely on the recommendations and reports of persons 
with financial interests adverse to those of the trust beneficiary (the 
individual allotted Indian), whether the conflict be that of the tribe 
or that of an individual tribal employee.
    With respect to organizational conflicts that become known after 
contract negotiation, the proposal would require the tribe to disclose 
the conflict and negotiate a means of avoiding, mitigating, or 
neutralizing the conflict. The conflict would be one between the tribe 
and individual Indians, one between the tribe and the United States, or 
one between the tribe and others relying on the work to be performed 
under the contract. The only conflicts that would be regulated would be 
those arising from the tribe/tribal organization's interests associated 
with land, resources, trust property, or rights of use, that could 
impair the objectivity of the tribe/tribal organization in performing 
the contract. The proposal does not address organizational conflicts 
known to the Secretary at the time of contract approval. Those can and 
should be addressed in negotiation of the contract.
    With respect to contracts for trust resource management, the 
proposal would require the tribe/tribal organization to adopt and 
enforce standards of conduct to prohibit officers, employees or agents 
(including subcontractors) from participating in the review of trust 
transactions with those nontribal entities in which they have a 
financial interest, employment, or competitive relationship. The 
standards would also prohibit acceptance of gratuities.
    Contract provisions may be negotiated to take the place of the 
proposed regulation. The regulation is proposed to ensure that some 
provision will be made to avoid or mitigate conflicts, whether by rule 
or contract terms. Such provisions will permit the Secretary of the 
Interior to contract for work supportive of his trust management 
functions, and avoid the potential for breach of trust liability or the 
need to decline on grounds that ``adequate protection of trust 
resources is not assured.''
    The Federal proposal is as follows:

    A. What is an organizational conflict? An organizational 
conflict exists when your legal, financial, or resource use 
interests (arising from land, interests in land or resources, trust 
property, or rights of use) conflict with those of the United States 
or any person reliant on the work to be performed under the contract 
(including an Indian allottee). An organizational conflict only 
arises, however, when your interest is such that it may impair your 
objectivity in performing work under the contract.
    B. What must a tribe or tribal organization do if an 
organizational conflict arises under a contract? You must disclose 
the conflict to the Secretary and propose a means of avoiding, 
mitigating, or neutralizing the conflict, if the conflict had not 
been known to the Secretary when the contract was negotiated. You 
must proposed a means of avoiding, mitigating, or neutralizing the 
conflict (such as review of your work by a third party,) that is 
acceptable to the Secretary.
    C. What kinds of organizational conflicts must be addressed? You 
must address conflicts between the tribe and the United States, such 
as when the tribe has a contract for realty services and a 
contaminant survey must be undertaken in connection with its request 
that the United States take land into trust. A conflict would exist 
because it would be in the tribe's interest for the United States to 
take the land into trust, despite the presence of contaminants, 
because liability for cleanup would be transferred to the United 
States as holder of legal title.
    You must address conflicts between a tribe and individual trust 
beneficiaries. For 

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example, a tribe may hold a contract for real estate services, 
including appraisals. If the tribe seeks to buy or lease lands from 
an allottee, its performance of the appraisal of such allotted lands 
would present such a conflict. To fulfill its trust responsibility 
to the individual Indian landowner, the United States would expect 
the tribe to hire an independent appraiser to perform (or review) 
the appraisal.
    The tribe may have conflicting interests with other persons who 
rely on its performance under the contract. For example, a cadastral 
survey may determine the boundaries between tribal lands and those 
of individual Indians, State governments, or private landowners. In 
that case, the survey should be reviewed by an independent third 
party to assure its objectivity.
    D. When must the tribe or tribal organization regulate its 
employees or subcontractors to avoid a conflict of interest? You 
must maintain written standards of conduct to govern officers, 
employees, and agents (including subcontractors) engaged in 
functions related to the management of trust assets.
    E. What must the Standards of Conduct prohibit or mitigate? The 
Standards must prohibit an officer, employee, or agent (including a 
subcontractor) from participating in the review, analysis, or 
inspection of trust transactions with a party in which such persons 
have a financial interest or an employment relationship, or those in 
direct competition with such a party. It must also prohibit such 
officers, employees, or agents from accepting any gratuity, favor, 
or anything of more than nominal value, from a party (other than the 
tribe) with an interest in the trust transactions under review. Such 
standards must also provide for sanctions or remedies of the 
violation of the standards.
    F. What types of conflicts involving tribal employees or 
contractors would have to be regulated by the tribe? The tribe would 
need a tribally-adopted mechanism to ensure that no officer or 
employee reviews a trust transaction in which that person has a 
personal, financial, or employment interest that conflicts with that 
of the trust beneficiary, the tribe or allottee. For example, a 
tribal employee who works part-time for an oil company should not be 
assigned to inspect an oil and gas lease held by that oil company to 
assure absolute loyalty to the Indian beneficiary. For similar 
reasons, such an employee should not inspect the leases held by the 
oil company's competitors.
    Similarly, a tribe which intends to subcontract the performance 
of trust-related functions should avoid awarding a contract for oil 
and gas royalty audits to an accounting firm that also derives 
revenue from the oil and gas companies being audited.
    G. May a tribe elect to negotiate the contract provisions on 
conflict of interest to take the place of this regulation? Yes. A 
tribe and the Secretary may agree to contract provisions that 
address the conflict of interest issues specific to the program and 
activities contracted. Agreed-upon contract provisions shall be 
followed, rather than this regulation.

    The tribal representatives of the negotiated rulemaking committee 
oppose the regulatory provisions presented by the Federal officials in 
the area of ``conflict of interest,'' except those contained in 
Sec. 900.48(6) (Procurement Management).
    Throughout the meetings two other forms of ``conflict of interest'' 
regulations have been proposed: organizational conflicts of interest 
and personal conflicts of interest. The tribal position on each of 
these proposals is discussed below.

Organizational Conflicts of Interest

    Tribal members are of the view that, while this issue has been 
discussed throughout the meetings, a clear and concise federal proposal 
has not been set forth.
    The tribal representatives believe the effect of the Federal 
proposal is to shift Secretarial trust responsibilities to tribes 
through regulation without financial support for the undertaking. 
Further, for the nearly 20 years that self-determination contracting 
has occurred under the Act, no similar regulation has been needed.
    Another concern of tribal representatives is that the Interior 
Department has no such provisions controlling its own activities and 
that examples of similar conflicts frequently occur within Federal 
operation of programs.
    For these reasons, tribal representatives strongly believe that no 
regulation is necessary in this area of so-called organizational 
conflicts of interest.

Personal Conflicts of Interest

    In this area, the Federal representatives seek to require that 
tribes and tribal organizations adopt internal procedures as a 
regulatory scheme to address conflicts of interest by their employees, 
agents, and officials when conducting transactions related to trust 
resources.
    Tribal representatives are highly offended by the nature of the 
Federal proposal to dictate internal tribal operations through these 
regulations. Further, the Federal officials appear to presume that the 
procedures curently employed by tribes and tribal organizations are 
insufficient.
    To the extent some form of regulation is needed in the area of 
personal conflicts of interest involving trust resource transactions, a 
revised version of Sec. 900.48(b) might be explored and commented upon. 
Alternatively, tribal representatives propose that these conflicts of 
interest be subject to negotiation of the parties in each contract.

Confidentiality

    The Federal position is that a provision relating to the 
confidentiality of information obtained by Indian tribes and tribal 
organizations relating to trust resources needs to be included in this 
subpart, consistent with the Federal government's trust obligation to 
individual Indians to keep such information confidential. The following 
paragraph is proposed to address this issue:

    A contractor shall hold confidential all information obtained 
from any person relating to the financial affairs of individual 
Indians, lessees, or permittees, and shall not release this 
information without the individual's consent or as otherwise 
required by law.

    Tribal committee members note that tribes have long maintained 
their own confidentiality procedures. Tribal committee members believe 
the proposed Federal language is offensive, and an unnecessary issue to 
be regulated.

Secretarial Policy

    The committee has not reached a consensus in two Secretarial policy 
areas.
    First, the provision regarding Federal program guidelines, manuals, 
or policy directives is drawn largely from paragraph 1(b)(11) of the 
model contract in section 108(c)of the Act. Tribal committee members 
are of the view that the statutory provision is a non-exclusive list of 
the types of Federal documents or issuances that may not be imposed 
upon tribes, and point to the statement in the Senate and House reports 
that other ``unpublished requirements'' may not be imposed upon tribes. 
They therefore seek the addition of other similar documents such as 
``advisories, notices, letters, correspondence and reporting 
requirements.'' Federal representatives oppose adding any other items 
to the statutory list.
    The Regulation does not include a provision advanced by tribal 
committee members that would adopt, as a Secretarial policy, the policy 
that Federal laws and regulations will be interpreted in a manner that 
will facilitate the inclusion of programs in contracts authorized by 
the Act. Tribal committee members view such a policy as within the 
Secretary's legal authority and consistent with the strong policy of 
the Act promoting tribal contracting activities.
    Federal committee members are of the view such a policy may be 
contrary to 

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law and beyond the Secretary's authority, since the laws being 
interpreted may not necessarily be for the benefit of Indians, and 
since specific authority for such a provision is included in Titles III 
and IV (self-governance) of the Act, but not Title I.
    Other areas of disagreement are noted in the summary of regulations 
below.

Summary of Regulations

    The narrative below is keyed to specific subparts of the proposed 
rule.

Subpart A--Policy

    This subpart contains key congressional policies contained in the 
Act and adds several Secretarial policies that will guide the 
Secretaries' implementation of the Act.

Subpart B--Definitions

    Subpart B sets forth definitions for key terms used in the balance 
of the regulations. Terms unique to one subpart are generally defined 
in that subpart, rather than in subpart B.

Subpart C--Contract Proposal Contents

    Subpart C contains provisions relating to initial contract proposal 
contents. In this area, the committee opted to have minimal 
regulations. The proposed regulation governing initial contract 
proposal contents essentially consists of a checklist of 13 items that 
must be addressed in a proposal. In addition, the proposed regulation 
contains a provision relating to the availability of technical 
assistance to assist Indian tribes and tribal organizations in 
preparing a contract proposal, and a provision relating to the 
identification of Federal property that the tribe or tribal 
organization intends to use during contract performance.

Subpart D--Review and Approval of Contract Proposals

    Although this topic is part of the declination process, it has been 
pulled out for separate treatment to facilitate a clearer understanding 
of the entire contracting process. In this area, the committee opted to 
have minimal regulations. The proposed regulation governing review and 
approval of contract proposals details what the Secretary must do upon 
receiving a contract proposal, the time frames applicable to 
Secretarial review, how the 90-day review period can be extended, and 
what happens if a proposal is not declined within the 90-day period.

Subpart E--Declination Procedures

    The proposed regulation governing declination procedures implements 
Section 102 (a)(2), (a)(4), (b) and (d) of the Act. The proposed 
regulation restates the statutory grounds for declining a contract 
proposal, clarifies that a proposal cannot be declined based on any 
objection that will be overcome through the contract, and details 
procedures applicable for partial declinations. The proposed regulation 
also informs Indian tribes and tribal organizations of the requirements 
applicable to the Secretary when a declination finding is made, 
contains provisions for technical assistance to Indian tribes and 
tribal organizations to avoid a declination finding, and to overcome 
stated declination grounds after a declination finding is made.
    The advisory committee did not reach consensus on how to address 
contract renewal proposals. Tribal representatives on the advisory 
committee proposed to exempt an Indian tribe's or tribal organization's 
contract renewal proposal from being subjected to declination if the 
renewal proposal is substantially similar to the Indian tribe's or 
tribal organization's prior contract. Tribal representatives are of the 
view that if the Secretary wishes to take back control of a program, 
the Secretary should follow the Act's ``reassumption'' procedures set 
forth in section 109 of the Act.
    It is the Federal position that section 102(a)(2) of the Act was 
amended in 1994 to specifically subject contract renewal proposals to 
the declination criteria, and that nowhere in the Act, as amended, is 
there a specific declination exemption for contract renewal proposals 
that are substantially similar to an expiring contract.
    With respect to the declination document disclosure provisions of 
Sec. 900.27(c), tribal committee members are of the view the disclosure 
obligation should extend to documents that do not support the decision, 
in addition to documents that do. Federal committee members oppose such 
an expansion and note that, if an appeal is taken, such documents will 
eventually be produced in the discovery process.
    Nothing in this regulation is intended to change the IHS's current 
practice of not reviewing the renewal of a term contract for 
declination issues where no material or significant changes to the 
scope or funding of a program, service, activity, or function has been 
proposed by the tribe or tribal organization.

Subpart F--Standards for Tribal or Tribal Organization Management 
Systems

    Subpart F contains provisions relating to the following management 
standards: (1) Financial Management; (2) Procurement Management and (3) 
Property Management. In all of these areas the advisory committee 
designed minimal regulations that focus on the minimum standards for 
the performance of the three management systems used by Indian tribes 
and tribal organizations when carrying out self-determination 
contracts.
    In drafting subpart F, the committee reviewed OMB Circular A-102 
and the Uniform Administrative Requirements for Grants and Cooperative 
Agreements to State and Local Governments (the ``common rule''). 
Following this review and analysis, the attached regulations were 
developed to implement the Act and best meet the needs of Indian tribes 
and tribal organizations. Central to the proposed regulation is a 
distinction between the standards that are the subject of this 
regulatory process, and the management system operations that implement 
those standards. The standards contained in this subpart are designed 
to be the targets which the Indian tribe's and tribal organization's 
management systems should be designed and implemented to meet. The 
management systems themselves are to be designed by the Indian tribe or 
tribal organization.
    Section 900.36 contains general provisions which apply to all 
management system standards contained in this subpart. The proposed 
regulations include provisions that: (1) Identify the management 
systems that are addressed; (2) set forth the requirements imposed; (3) 
limit the applicability of OMB circulars; (4) provide that the Indian 
tribe or tribal organization has the option to impose these standards 
upon sub-contractors; (5) identify the difference between a standard 
and a system; and (6) specify when the management standards and 
management systems are evaluated.
    Section 900.41 contains the minimum standards for financial 
management systems. The proposed regulations establish the minimum 
requirements for seven elements including: (1) Financial reports; (2) 
accounting records; (3) internal control; (4) budget control; (5) 
allowable costs; (6) source documentation and (7) cash management.
    Section 900.47 contains the minimum standards for procurement 
management systems. The proposed regulations establish the minimum 
requirements for seven elements: (1) To ensure that vendors and sub-
contractors perform in accordance with the terms of purchase orders or 
contracts; (2) to require the Indian tribe or tribal organization to 
maintain standards of conduct for employees award contracts to avoid 
any 

[[Page 2043]]
conflict of interest; (3) to review proposed procurements to avoid 
buying unnecessary or duplicative items; (4) to provide full and open 
competition, to the extent feasible in the local area, subject to the 
Indian preference and tribal preference provisions of the Act; (5) to 
ensure that procurement awards are made only to entities that have the 
ability to perform consistent with the terms of the award; (6) to 
maintain records on significant history of all major procurements; and 
(7) to establish that the Indian tribe or tribal organization is solely 
responsible for processing and settling all contractual and 
administrative issues arising out of a procurement. In addition, the 
proposed regulation provides that each Indian tribe or tribal 
organization must establish its own small purchase threshold and 
definition of ``major procurement transactions''; establish minimum 
requirements for sub-contract terms, and include a provision in its 
subcontracts that addresses the application of Federal laws, 
regulations and Executive Orders to subcontractors.
    Section 900.52 contains the minimum requirements for property 
management systems. The proposed regulations address the standards for 
both Federally-titled property and property titled to an Indian tribe 
or tribal organization, with differences based upon who possesses title 
to the property. As a general rule the requirements for property where 
the Federal agency retains title are higher than requirements for 
property where the Indian tribe or tribal organization holds the title. 
The proposed regulation addresses elements including: (1) Property 
inventories; (2) maintenance of property; (3) differences in inventory 
and control requirements for property where the Federal agency retains 
tile to the property; and (4) the disposal requirements for Federal 
property.

Subpart G--Programmatic Reports and Data Requirements

    This brief subpart provides for the negotiation of all reporting 
and data requirements between the Indian tribe or tribal organization 
and the Secretary. Failure to reach an agreement on specific reporting 
and data requirements is subject to the declination process. Although 
the Indian Health Service proposes to develop a uniform data set, that 
data set will only be used as a guide for negotiation of specific 
requirements.

Subpart H--Lease of Tribally-Owned Buildings by the Secretary

    Section 105(l) of the Act authorizes the Secretary to lease 
tribally-owned or tribally-leased facilities and allows for the 
definition of ``other reasonable expenses'' to be determined by 
regulation. This subpart provides a non-exclusive list of cost elements 
that may be included as allowable costs under a lease between the 
Indian tribe or tribal organization and the Secretary. It further 
clarifies that except for ``fair market rental,'' the same types of 
costs may be recovered as direct or indirect charges under a self-
determination contract.

Subpart I--Property Donation Procedures

    This subpart establishes procedures to implement section 105(f) of 
the Act. Section 900.85 provides a statement of the purpose of the 
subpart and explains that while the Secretary has discretion in the 
donation of excess and surplus property, ``maximum'' consideration must 
be given to an Indian tribe's or tribal organization's request.
    This subpart also contains a provision for the Secretary to elect 
to reacquire property under specific conditions. It clarifies that 
certain property is eligible for operation and maintenance funding, as 
well as for replacement funding on the same basis as if title to the 
property were held by the United States.
    Section 900.87 provides for the transfer of property used in 
connection with a self-determination contract. It provides slightly 
different procedures for personal property versus real property 
furnished before the effective date of the 1994 amendments and another 
procedure for property furnished after the enactment of the 1994 
amendments.
    Sections 900.91 and 900.92 address section 105(f)(2)(A) of the Act 
which provides that a tribal contractor automatically takes title to 
property acquired with contract funds unless an election is made not to 
do so. It also addresses the process for requesting that real property 
be placed ``in trust.''
    Section 900.97 addresses BIA and IHS excess property donation while 
Sec. 900.103 addresses excess or surplus property from other Agencies.

Subpart J--Construction Contracts

    Subpart J addresses the process by which an Indian tribe or tribal 
organization may contract for construction activities or portions 
thereof. The subpart is intentionally written to inform readers of the 
breadth and scope of construction contracting activities conducted by 
the Departments, and provides opportunities for Indian tribes or tribal 
organizations to choose the degree to which they wish to participate in 
those activities. The subpart provides for extensive cooperation and 
sharing of information between the Departments and an Indian tribe or 
tribal organization throughout the construction process. The subpart 
provides for different construction contracting methods, such as award 
of contracts through subpart J, award of contracts through section 108 
of the Act, and award of grants in lieu of contracts depending on the 
degree of Federal involvement and the phase(s) of construction 
activities for which the Indian tribe or tribal organization seeks to 
contract.
    The construction process is described in phases, starting with a 
preplanning phase, followed by a planning phase, a design phase, and a 
construction phase. Provisions are included so an Indian tribe or 
tribal organization can seek a contract through section 108 of the Act 
for the planning phase and for construction management services. It is 
not required that these functions be pursued through a section 108 
contract, and if the Indian tribe or tribal organization so elects 
these activities can be part of a subpart J contract.
    Definitions are provided that are specific to this subpart. The 
provisions contained in the subpart regarding construction management 
services provide an important participative process in construction 
activities for Indian tribes or tribal organizations that seek a voice 
in securing projects but do not wish to take upon themselves full 
responsibility for the entire construction process.
    The subpart establishes new procedures to facilitate tribal 
contracting, through such measures as tribal notification, a tribal 
right of first refusal, and other provisions.
    The subpart promotes the exploration of alternative contracting 
methods, and eliminates the applicability of the Federal acquisition 
regulations except as may be mutually agreed to by the parties.
    The subpart describes the process for negotiating a construction 
contract, including the process for arriving at a fair and reasonable 
price, and details the process for resolving disagreements in the 
contracting process. The subpart also sets forth minimum requirements 
for contract proposals, and details the respective roles of tribes and 
the Secretary.
    The subpart promotes tribal flexibility in several areas, including 
through periodic payments at least than quarterly, and the payment of 
contingency funds to be administered by the tribal contractor.

[[Page 2044]]


Subpart K--Waiver Procedures

    The proposed regulation governing waiver procedures implements 
section 107(e) of the Act, which authorizes the Secretary to make 
exceptions in the regulations promulgated to implement the Act or to 
waive such regulations under certain circumstances. In addition section 
107(e) of the Act provides that in reviewing waiver requests, the 
Secretary shall follow the time line, findings, assistance, hearing, 
and appeal procedures set forth in section 102 of the Act. The proposed 
regulation explains how an Indian tribe or tribal organization applies 
for a waiver, how the waiver request is processed, the applicable 
timeframes for approval or declination of waiver requests, and whether 
technical assistance is available. In addition, the proposed regulation 
restates the declination criteria of section 102 of the Act, which 
apply to waiver requests, and specifies that a denial of a waiver 
request is appealable under subpart L of these proposed regulations. 
Finally, the proposed regulation implements section 107(b) of the Act 
by providing a process for a determination by the Secretary that a law 
or regulation has been superseded by the provisions of the Indian Self-
Determination Act, as amended.

Subpart L--Appeals (Other Than Emergency Reassumption and Suspension, 
Withholding or Delay in Payment)

    The advisory committee decided to develop substantive regulations 
governing appeals of pre-award decisions by Federal officials. The 
proposed regulation does not govern appeals of post-award decisions 
subject to the Contract Disputes Act, since the provisions governing 
disputes under a contract can be found in subpart N of these proposed 
regulations. The proposed regulation governing pre-award appeals 
implements sections 102(b), 102(e), and 109 of the Act, as well as 
various other provisions requiring the Secretary to provide an 
administrative appeals process when making certain decisions under the 
Act. It provides a roadmap to the appeals process for Indian tribes and 
tribal organizations.
    The proposed regulation is divided in two parts: Part I concerns 
appeals from decisions relating to declination of a proposal, an 
amendment of a proposal, or a program redesign; non-emergency 
reassumption decisions; decisions to refuse to waive regulations under 
section 107(e) of the Act; disagreements over reporting requirements; 
decisions relating to mature status conversions; and a catchall 
provision relating to any other pre-award decisions except Freedom of 
Information Act appeals, and decisions relating to the award of 
discretionary grants under section 103 of the Act. Part II concerns 
decisions relating to emergency reassumptions under section 109 of the 
Act and decisions relating to suspension, withholding, or delay of 
payments under section 106(l) of the Act.
    The proposed regulation allows for an informal conference to avoid 
more time-consuming and costly formal hearings, but delineates the 
appeal process available to Indian tribes and tribal organizations that 
are either unhappy with the results of the informal conference or who 
choose to bypass the informal process altogether. The proposed 
regulation also states that an Indian tribe or tribal organization may 
go directly to Federal district court rather than exhaust the 
administrative appeal process under this proposed regulation.
    Under the proposed regulation, all appeals must be filed with the 
Interior Board of Indian Appeals. Hearings on the record are conducted 
by an Administrative Law Judge of the Department of the Interior's 
Office of Hearings and Appeals, Hearings Division, who renders a 
recommended decision. Objections to this recommended decision may be 
filed either with the Interior Board of Indian Appeals, if the case 
relates to a Department of the Interior decision, or with the Secretary 
of Health and Human Services, if the case relates to the Department of 
Health and Human Services.
    Part II contains somewhat similar provisions concerning emergency 
reassumption and suspension decisions, but these decisions are treated 
separately because of the statutory requirement that a hearing on the 
record be held within ten days of the Secretary's notice to immediately 
rescind and reassume a program, or a notice of intent to suspend, 
withhold, or delay payment under a contract.

Subpart M--Federal Tort Claims Act Coverage

    Coverage of the Federal Tort Claims Act (FTCA) has been extended to 
Indian tribes, tribal organizations and Indian contractors carrying out 
contracts, grants, and cooperative agreements under the Act. This 
subpart explains which tort claims are covered by the FTCA and which 
tort claims are not covered by the FTCA for both medical and non-
medical related claims. It also provides for tribal assistance in 
giving notice of tort claims to the Federal agency involved, and in 
providing assistance during the administrative claim or litigation 
process.

Subpart N--Post-Award Contract Disputes

    Under section 110(d) of the Act, the Contract Disputes Act (CDA) 
applies to post-award contract claims. This subpart explains when a CDA 
claim can be filed; the contents of a claim; and where to file the 
claim. It also explains the difference in the handling of claims over 
$100,000 and those less than that amount.

Subpart O--Retrocession and Reassumption Procedures

    Section 107(a)(1) of the Act authorizes the Secretaries to 
promulgate certain regulations governing retrocession and reassumption 
procedures. Sections 900.230 through 900.234 define retrocession, what 
entities are entitled to retrocede, tribal rights for contracting and 
funding as a result of retrocession, and tribal obligations regarding 
the return of property to the Secretary after retrocession.
    Sections 900.235 through 900.245 explain what is meant by 
reassumption, the two types of reassumption authorized under the Act, 
necessary circumstances when using emergency and non-emergency 
reassumption authority, and Secretarial responsibilities including 
detailed written notice requirements when reassumption is invoked. The 
subpart describes a number of activities after reassumption has been 
completed, such as authorization for ``wind up'' costs, tribal 
obligations regarding the return of property to the Secretary, and a 
funding reduction protection.
    This rule is a significant regulatory action under Executive Order 
12866 and requires review by the Office of Management and Budget.
    The Departments certify that this rule will not have significant 
economic effects on a substantial number of small entities under the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
    In accordance with Executive Order 12630 the Department of the 
Interior and the Department of Health and Human Services have 
determined that this regulation does not have significant takings 
implications. The proposed rule does not pertain to the taking of 
private property interests, nor does it have an effect on private 
property.
    The Department of the Interior and the Department of Health and 
Human Services have determined that this proposed rule does not have 
significant Federalism effects under Executive Order 12612 and will not 
interfere with 

[[Page 2045]]
the roles, rights, and responsibilities of states.
    The Departments of the Interior and Health and Human Services have 
determined that this rule does not constitute a major Federal action 
significantly affecting the quality of the human environment and that 
no detailed statement is required under the National Environmental 
Policy Act of 1969.

Paperwork Reduction Act of 1995

    The information collection requirements contained in this proposed 
regulation have been negotiated between the Departments and tribal 
representatives through the negotiated rulemaking process. The sections 
of the regulations requiring the collection of information have been 
agreed to by the parties in the negotiation. The subparts summarized 
below contain information collection requirements. As required by the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3507 (d)), the Departments 
of the Interior and Health and Human Services have submitted a copy of 
these sections to the Office of Management and Budget (OMB) for its 
review:

Subpart C--Contract Proposal Contents

    Subpart C contains provisions relating to initial contract proposal 
contents. The proposed regulation governing initial contract proposal 
contents essentially consists of a checklist of 13 items that must be 
addressed in a proposal. These items include basic information about 
the respondent and program to be contracted, such as: name and address; 
authorizing resolution; date of submission of proposal; description of 
geographical service area; estimated number of Indian people to be 
served; brief statement of the program, functions, services or 
activities to be performed; description of the proposed program; 
financial, procurement, and property management standards; description 
of reports to be provided; staff qualifications, if any; budget 
information; and waiver information, if requested.
    In addition, the proposed regulation contains a provision relating 
to the availability of technical assistance for Indian tribes and 
tribal organizations in preparing contract proposals and a provision 
relating to the identification of Federal property that the tribe or 
tribal organization intends to use during contract performance. The 
parties that would have to comply with the information collection 
requirements in these proposed regulations are tribal governments or 
tribal organizations authorized by tribal governments. The Departments 
need and will use the information to determine eligibility of the 
applicant, evaluate applicant capabilities, protect the service 
population and safeguard Federal funds and other resources.
    All information is to be collected and reported at the time a tribe 
makes initial application to contract a program. Annual reporting and 
recordkeeping burden for this collection of information is estimated to 
average 34 hours for each response for 50 respondents, including the 
time for reviewing instructions, seaching existing data sources, 
gathering and maintaining the data needed, and completing and reviewing 
the collection of information. Thus, the total annual reporting and 
recordkeeping burden for this collection is estimated to be 1,700 
hours.

Subpart G--Programmatic Reports and Data Requirements

    Subpart G provides for the negotiation of all reporting and data 
requirements between the Indian tribe or tribal organization and the 
Secretary. The information collected is directly related to the 
operation of the program and will be negotiated on a contract by 
contract basis. The Departments need and will use the information to 
adequately monitor contract operations to determine if satisfactory 
services are being provided.
    All information is to be collected and reported during the 
operation of the contract based on the terms negotiated in the 
contract. Annual reporting and recordkeeping burden for this collection 
of information is estimated to average 10 hours for each response for 
500 respondents, including the time for reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed, and completing and reviewing the collection of information. 
Thus, the total annual reporting and recordkeeping burden for this 
collection is estimated to be 5,000 hours.

Subpart I--Property Donation Procedures

    Subpart I establishes procedures regarding donation of Federal 
excess and surplus property to tribes or tribal organizations and 
acquisition of property with funds provided under a self-determination 
contract. Two areas of this proposed subpart address the procedures to 
be followed when tribes or tribal organizations wish to acquire excess 
Bureau of Indian Affairs or Indian Health Service property, and excess 
or surplus government property from other agencies. The Departments 
need and use the information to determine what property the tribes want 
to acquire and how the property will be used.
    All information is to be collected and reported when a tribe 
applies for the identified property. Annual reporting and recordkeeping 
burden for this collection of information is estimated to average 8 
hours for 100 respondents, including the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information. Thus, the total annual reporting and 
recordkeeping burden for this collection is estimated to be 800 hours.

Subpart J--Construction Contracts

    Subpart J addresses the process by which an Indian tribe or tribal 
organization may contract for construction activities or portions 
thereof. The subpart requires the Indian tribe or tribal organization 
to submit descriptions of standards when proposing to contract a 
construction project. These standards include use of licensed and 
qualified architects and engineers; applicable health and safety 
standards; adherence to applicable Federal, state, local or tribal 
building codes and engineering standards; structural integrity; 
accountability of funds; adequate competition for sub-contracting under 
tribal or other applicable law; the commencement, performance and 
completion of the contract; adherence to project plans and 
specifications (including any applicable Federal construction 
guidelines and manuals); the use of proper materials and workmanship; 
necessary inspection and testing; and a process for changes, 
modifications, stop work and termination of the work when warranted. In 
addition to the above, additional information is required when the 
tribe or tribal organization is proposing to contract design activities 
and construction activities.
    The parties that would have to submit information under these 
proposed regulations are tribal governments or tribal organizations 
authorized by tribal governments. The Departments need and use the 
information to determine eligibility of the applicant, evaluate 
applicant capabilities, protect the service population and to safeguard 
Federal funds and other resources.
    All information is to be collected and reported when a tribe makes 
initial application to contract a construction activity. Annual 
reporting and recordkeeping burden for this collection of information 
is estimated to average 80 hours for each response for 30 respondents, 
including the time for reviewing instructions, searching 

[[Page 2046]]
existing data sources, gathering and maintaining the data needed, and 
completing and reviewing the collection of information. Thus, the total 
annual reporting and recordkeeping burden for this collection is 
estimated to be 2,400.
    Organizations and individuals who wish to submit comments on the 
information collection requirements should direct them to the Office of 
Information and Regulatory Affairs, OMB, Room 10235, New Executive 
Office Building, Washington, D.C. 20503; Attention: Interior Desk 
Officer.
    The Departments consider comments by the public on these proposed 
collections of information in:

--Evaluating whether the proposed collections of information are 
necessary for the proper performance of the functions of the 
Department, including whether the information will have practical 
utility;
--Evaluating the accuracy of the Department's estimate of the burden of 
the proposed collections of information, including the validity of the 
methodology and assumptions used;
--Enhancing the quality, usefulness, and clarity of the information to 
be collected; and
--Minimizing the burden or the collection of information on those who 
are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other forms of information technology, e.g., 
permitting electronic submission of responses.

    OMB is required to make a decision concerning the collections of 
information contained in these proposed regulations between 30 and 60 
days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication. This does not affect 
the deadline for the public to comment to the Departments on the 
proposed regulations.
    This rule was drafted by a negotiated rulemaking committee that 
included representatives of the Departments of the Interior and Health 
and Human Services and of many tribes and tribal organizations.

List of Subjects in 25 CFR Part 900

    Indians; Government contracts; Medical care; Construction; 
Government property management; financial management; Leasing; Tort 
claims; Appeals.
    For the reasons given in the preamble, the Departments of the 
Interior and Health and Human Services propose to establish a new 
chapter V in title 25 of the Code of Federal Regulations consisting of 
part 900 to read as set forth below.

    Dated: December 5, 1995.
Bruce Babbitt,
Secretary of the Interior.

    Dated: December 5, 1995.
Donna Shalala,
Secretary of Health and Human Services.

CHAPTER V--BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR, 
AND INDIAN HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICES

PART 900--CONTRACTS UNDER THE INDIAN SELF-DETERMINATION AND 
EDUCATION ASSISTANCE ACT

Sec.

Subpart A--General Provisions

900.1  Authority.
900.2  Purpose and scope.
900.3  Policy statements.
900.4  Effect on existing tribal rights.
900.5  Effect of these regulations on Federal program guidelines, 
manual, or policy directives.

Supart B--Definitions.

900.6  Definitions.

Subpart C--Contract Proposal Contents

900.7  What technical assistance is available to assist in preparing 
an initial contract proposal?
900.8  What must an initial contract proposal contain?
900.9  May the Secretary require an Indian tribe or tribal 
organization to submit any other information beyond that identified 
in Sec. 900.8(b)?
900.10  What should a tribe or tribal organization that is proposing 
a contract do about specifying the Federal property that the tribe 
or tribal organization may wish to use in carrying out the contract?
900.11  Are the proposal contents requirements the same for renewal 
of a contract that is expiring and for securing an annual funding 
agreement after the first year of the funding agreement?

Subpart D--Review and Approval of Contract Proposals

900.12  What does this subpart cover?
900.13  What shall the Secretary do upon receiving a proposal?
900.14  How long does the Secretary have to review and approve or 
decline a proposal?
900.15  Can the statutory 90-day period be extended?
900.16  What happens if a proposal is not declined within 90 days 
after it is received by the Secretary?

Subpart E--Declination Procedures

900.18  What does this subpart cover?
900.19  When can a proposal be declined?
900.20  For what reasons can the Secretary decline a proposal?
900.21  Can the Secretary decline a proposal where the Secretary's 
objection could be overcome through the contract?
900.22  Can a contract proposal for an Indian tribe's or tribal 
organization's share of administrative programs, functions, 
services, and activities be declined for any reason other than the 
five reasons specified above?
900.23  What if only a portion of a proposal raises one of the five 
declination criteria?
900.24  What happens if the Secretary declines a part of a proposal 
on the ground that the proposal proposes in part to plan, conduct, 
or administer a program, function, service or activity that is 
beyond the scope of programs covered under section 102(a) of the 
Act, or proposes a level of funding that is in excess of the 
applicable level determined under section 106(a) of the Act?
900.25  If an Indian tribe or tribal organization elects to contract 
for a severable portion of a proposal, does the Indian tribe or 
tribal organization lose its appeal rights to challenge the portion 
of the proposal that was declined?
900.26  Is technical assistance available to an Indian tribe or 
tribal organization to avoid declination of a proposal?
900.27  What is the Secretary required to do if the Secretary 
decides to decline all or a portion of a proposal?
900.28  When the Secretary declines all or a portion of a proposal, 
is the Secretary required to provide an Indian tribe or tribal 
organization with technical assistance?
900.29  When the Secretary declines all or a portion of a proposal, 
is an Indian tribe or tribal organization entitled to any appeal?
900.30  Can the Secretary decline an Indian tribe or tribal 
organization's proposed successor annual funding agreement?
Subpart F--Standards for Tribal or Tribal Organization Management 
Systems

General

900.35  What is the purpose of this subpart?
900.36  What requirements are imposed upon Indian tribes or tribal 
organizations by this subpart?
900.37  What provisions of Office of Management and Budget (OMB) 
circulars or the ``common rule'' apply to self-determination 
contracts?
900.38  Do these standards apply to the sub-contractors of an Indian 
tribe or tribal organization carrying out a self-determination 
contract?
900.39  What is the difference between a standard and a system?
900.40  When are Indian tribe or tribal organization management 
standards and management systems evaluated? 

[[Page 2047]]


Standards for Financial Management Systems

900.41  What are the general financial management system standards 
that apply to an Indian tribe or tribal organization carrying out a 
self determination contract?
900.42  What are the general financial management system standards 
that apply to a tribal organization carrying out a self-
determination contract?
900.43  What minimum general standards apply to all Indian tribe or 
tribal organization financial management systems when carrying out a 
self-determination contract?
900.44  What specific minimum requirements shall an Indian tribe or 
tribal organization financial management system contain to meet 
these standards?
900.45  What requirements are imposed upon the Secretary for 
financial management by these standards?

Procurement Management System Standards

900.46  When procuring property or services with self-determination 
contract funds, can an Indian tribe or tribal organization follow 
the same procurement policies and procedures applicable to other 
Indian tribe or tribal organization funds?
900.47  What procurement standards shall an Indian tribe or tribal 
organization have?
900.48  If the Indian tribe or tribal organization does not propose 
different standards, what are the basic standards that the Indian 
tribe or tribal organization shall follow?
900.49  What procurement standards apply to subcontracts?
900.50  What Federal laws, regulations, and Executive Orders apply 
to sub-contractors?

Property Management System Standards

900.51  What is an Indian tribe or tribal organization's property 
management system expected to do?
900.52  What type of property is the property management system 
required to track?
900.53  What kind of records shall the property management system 
maintain?
900.54  Should the property management system prescribe internal 
controls?
900.55  What are the standards for inventories?
900.56  What maintenance is required for property?
900.57  What if the Indian tribe or tribal organization chooses not 
to take title to property furnished or acquired under the contract?
900.58  Do the same accountability and control procedures described 
above apply to Federal property?
900.59  How are the inventory requirements for Federal property 
different than for tribal property?
900.60  How does an Indian tribe or tribal organization dispose of 
Federal property?
Subpart G--Programmatic Reports and Data Requirements
900.65  What programmatic reports and data shall the Indian tribe or 
tribal organization provide?
900.66  What if the Indian tribe or tribal organization and the 
Secretary cannot come to an agreement concerning the type and/or 
frequency of program narrative and/or program data report(s)?
900.67  Will there be a uniform data set for all IHS programs?
900.68  Will this uniform data set be required of all Indian tribe 
or tribal organizations contracting with the IHS under the Act?
Subpart H--Lease of Tribally-Owned Buildings by the Secretary
900.69  What is the purpose of this subpart?
900.70  What elements are included in the compensation for a lease 
entered into between the Secretary and an Indian tribe or tribal 
organization for a building owned or leased by the Indian tribe or 
tribal organization that is used for administration or delivery of 
services under the Act?
900.71  Is a lease with the Secretary the only method available to 
recover the types of cost described in Sec. 900.70?
900.72  How may a tribe or tribal organization propose a lease to be 
compensated for the use of facilities?
Subpart I--Property Donation Procedures

General

900.85  What is the purpose of this subpart?
900.86  How will the Secretary exercise discretion to acquire and 
donate BIA or IHS excess property and excess and surplus Federal 
property to an Indian tribe or tribal organization?

Government-Furnished Property

900.87  How does a tribe or tribal organization obtain title to 
property furnished by the Federal government for use in the 
performance of a contract or grant agreement pursuant to section 
105(f)(2)(A) of the Act?
900.88  What should the tribe or tribal organization do if it wants 
to obtain title to government-furnished real property that includes 
land not already held in trust?
900.89  When may the Secretary elect to reacquire government-
furnished property whose title has been transferred to a tribe or 
tribal organization?
900.90  Does government-furnished real property to which a tribe or 
tribal organization has taken title continue to be eligible for 
facilities operation and maintenance funding from the Secretary?

Contractor-Purchased Property

900.91  Who takes title to property purchased with funds under a 
self-determination contract or grant agreement pursuant to Sec. 105 
(f)(2)(A)?
900.92  What should the tribe or tribal organization do if it wants 
contractor-purchased real property to be taken into trust?
900.93  When may the Secretary elect to acquire title to contractor-
purchased property?
900.94  Is contractor-purchased real property to which a tribe or 
tribal organization holds title eligible for facilities operation 
and maintenance funding from the Secretary?

BIA and IHS Excess Property

900.95  What is BIA or IHS excess property?
900.96  How can tribes or tribal organizations learn about BIA and 
IHS excess property?
900.97  How can a tribe or tribal organization acquire excess BIA or 
IHS property?
900.98  Who takes title to excess BIA or IHS property donated to a 
tribe or tribal organization?
900.99  Who takes title to any land that is part of excess BIA or 
IHS real property donated to a tribe or tribal organization?
900.100  May the Secretary elect to reacquire excess BIA or IHS 
property whose title has been transferred to a tribe or tribal 
organization?
900.101  Is excess BIA or IHS real property to which a tribe or 
tribal organization has taken title eligible for facilities 
operation and maintenance funding from the Secretary?
Excess or Surplus Government Property of Other Agencies
900.102  What is excess or surplus government property of other 
agencies?
900.103  How can tribes or tribal organizations learn about property 
that has been designated as excess or surplus government property?
900.104  How may a tribe or tribal organization receive excess or 
surplus government property of other agencies?
900.105  Who takes title to excess or surplus Federal property 
donated to a tribe or tribal organization?
900.106  If a contract or grant agreement or portion thereof is 
retroceded, reassumed, terminated, or expires, may the Secretary 
reacquire title to excess or surplus Federal property of other 
agencies that was donated to a tribe or tribal organization?

Property Eligible for Replacement Funding

900.107  Is property that a tribe or tribal organization obtains 
title under this subpart eligible for replacement funding?

Subpart J--Construction Contracts

900.110  What does this subpart cover?
900.111  What activities of construction programs are contractible?
900.112  What are construction phases?
900.113  Definitions.
900.114  Why is there a separate subpart in these regulations for 
construction contracts and grants?
900.115  How do self-determination construction contracts relate to 
ordinary Federal procurement contracts?
900.116  Are fixed price contracts treated the same as cost 
reimbursable contracts?
900.117  Do these ``construction contract'' regulations apply to 
planning services?

[[Page 2048]]

900.118  Do these ``construction contract'' regulations apply to 
construction management services?
900.119  To what extent shall the Secretary consult with affected 
Indian tribes before spending funds for any construction project?
900.120  How does an Indian tribe or tribal organization find out 
about a construction project?
900.121  Does the Indian tribe or tribal organization have a right 
of first refusal?
900.122  What happens during the preplanning phase and can an Indian 
tribe or tribal organization perform any of the activities involved 
in this process?
900.123  What does an Indian tribe or tribal organization do if it 
wants to secure a construction contract?
900.124  What if the Indian tribe or tribal organization and the 
Secretary cannot develop a mutually agreeable contract proposal?
900.125  May the Indian tribe or tribal organization elect to use a 
grant in lieu of a contract?
900.126  What shall a construction contract proposal contain?
900.127  Shall a construction contract proposal incorporate 
provisions of Federal construction guidelines and manuals?
900.128  What can be included in the Indian tribe's or tribal 
organization's contract budget?
900.129  What funding shall the Secretary provide in a construction 
contract?
900.130  How do the Secretary and Indian tribe or tribal 
organization arrive at an overall fair and reasonable price for the 
performance of a construction contract?
900.131  What role does the Indian tribe or tribal organization play 
during the performance of a self-determination construction 
contract?
900.132  What role does the Secretary play during the performance of 
a self-determination construction contract?
900.133  Once a contract is awarded, how will the Indian tribe or 
tribal organization receive payments?
900.134  Does the declination process or the Contract Disputes Act 
apply to construction contract amendments proposed either by an 
Indian tribe or tribal organization or the Secretary?
900.135  At the end of a self determination construction contract, 
what happens to savings on a cost reimbursement contract?
900.136  Do all provisions of the other subparts apply to contracts 
awarded under this subpart?

Subpart K--Waiver Procedures

900.140  Can any provision of these regulations be waived?
900.141  How does an Indian tribe or tribal organization get a 
waiver?
900.142  Does an Indian tribe or tribal organization's waiver 
request have to be included in an initial contract proposal?
900.143  How is a waiver request processed?
900.144  What happens if the Secretary makes no decision within the 
90-day period?
900.145  On what basis may the Secretary deny a waiver request?
900.146  Is technical assistance available?
900.147  What appeal rights are available?
900.148  How can an Indian tribe or tribal organization secure a 
determination that a law or regulation has been superseded by the 
Indian Self-Determination Act, as specified in section 107(b) of the 
Act?
Subpart L--Appeals (Other Than Emergency Reassumption and Suspension, 
Withholding or Delay in Payment)
900.150  What decisions can an Indian tribe or tribal organization 
appeal under this subpart?
900.151  Are there any appeals this part does not cover?
900.152  How does an Indian tribe or tribal organization know where 
and when to file its appeal?
900.153  Does an Indian tribe or tribal organization have any 
options besides an appeal?
900.154  How does an Indian tribe or tribal organization request an 
informal conference?
900.155  How is an informal conference held?
900.156  What happens after the informal conference?
900.157  Is the recommended decision always final?
900.158  How does an Indian tribe or tribal organization appeal the 
initial decision, if it does not request an informal conference or 
if it does not agree with the recommended decision resulting from 
the informal conference?
900.159  May an Indian tribe or tribal organization get an extension 
of time to file a notice of appeal?
900.160  What happens after an Indian tribe or tribal organization 
files an appeal?
900.161  How is a hearing arranged?
900.163  What is the Secretary's burden of proof for appeals from 
decisions under Sec. 900.150(a) through Sec. 900.150(g)?
900.164  What rights do Indian tribes, tribal organizations, and the 
government have during the appeal process?
900.165  What happens after the hearing?
900.166  Is the recommended decision always final?
900.167  If an Indian tribe or tribal organization object to the 
recommended decision, what will the Secretary of Health and Human 
Services or the IBIA do?
900.168  Will an appeal hurt the Indian tribe or tribal 
organization's position in other contract negotiations?
900.169  Will the decisions on appeals be available for the public 
to review?
Appeals of Emergency Reassumption of Self-Determination Contracts or 
Suspension, Withholding or Delay of Payments Under a Self-
Determination Contract
900.170  What happens in the case of emergency reassumption or 
suspension or withholding or delay of payments?
900.171  Will there be a hearing?
900.172  What happens after the hearing?
900.173  Is the recommended decision always final?
900.174  If an Indian tribe or tribal organization object to the 
recommended decision, what will the Secretary of Health and Human 
Services or the IBIA do?
900.175  Will an appeal hurt an Indian tribe or tribal 
organization's position in other contract negotiations?
900.176  Will the decisions on appeals be available for the public 
to review?
Subpart M--Federal Tort Claims Act Coverage General Provisions
900.180  What does this subpart cover?
900.181  What definitions apply to this Subpart?
900.182  What other statutes and regulations apply to FTCA coverage?
900.183  Do Indian tribes and tribal organizations need to be aware 
of areas which FTCA does not cover?
900.184  Is there a deadline for filing FTCA claims?
900.185  How long does the Federal government have to process an 
FTCA claim after the claim is received by the Federal agency, before 
a lawsuit may be filed?
900.186  Is it necessary for a self-determination contract to 
include any clauses about Federal Tort Claims Act coverage?
900.187  Does FTCA apply to a self-determination contract if FTCA is 
not referenced in the contract?
900.188  To what extent shall the contractor cooperate with the 
Federal government in connection with tort claims arising out of the 
contractor's performance?
900.189  Does this coverage extend to subcontractors of self-
determination contracts?

Medical-Related Claims

900.190  Is FTCA the exclusive remedy for a tort claim for personal 
injury or death resulting from the performance of a self-
determination contract?
900.191  Are employees of self-determination contractors providing 
health services under the self-determination contract protected by 
FTCA?
900.192  What employees are covered by FTCA for medical-related 
claims?
900.193  Does FTCA coverage extend to individuals who provide health 
care services under a personal services contract providing services 
in a facility that is owned, operated, or constructed under the 
jurisdiction of the IHS?
900.194  Does FTCA coverage extend to services provided under a 
staff privileges agreement with a non-IHS facility where the 
agreement requires a health care practitioner to provide reciprocal 
services to the general population?
900.195  Does FTCA coverage extend to the contractor's health care 
practitioners providing services to private patients on a fee-for-
services basis when such personnel receive the fee, not the self-
determination contractor?

[[Page 2049]]

900.196  Do covered services include the conduct of clinical studies 
and investigations and the provision of emergency services, 
including the operation of emergency motor vehicles?
900.197  Does FTCA cover employees of the contractor who are paid by 
the contractor from funds other than those provided through the 
self-determination contract?
900.198  Are Federal employees assigned to a self-determination 
contractor under the Intergovernmental Personnel Act or detailed 
under Section 214 of the Public Health Service Act covered to the 
same extent that they would be if working directly for a Federal 
agency?
900.199  Does FTCA coverage extend to a contractor's health care 
practitioners to whom staff privileges have been extended in 
contractor health care facilities operated under a self-
determination contract on the condition that such practitioner 
provide health services to IHS beneficiaries covered by FTCA?
900.200  May persons who are not Indians or Alaska Natives assert 
claims under FTCA?

Procedure for Filing Medical-Related Claims

900.201  How should claims arising out of the performance of 
medical-related functions be filed?
900.202  What should a self-determination contractor or a 
contractor's employee do on receiving such a claim?
900.203  If the contractor or contractor's employee receives a 
summons and/or a complaint alleging a tort covered by FTCA, what 
should the contractor do?

Non-Medical Related Claims

900.204  Is FTCA the exclusive remedy for a non-medical related tort 
claim arising out of the performance of a self-determination 
contract?
900.205  To what non-medical-related claims against self-
determination contractors does FTCA apply?
900.206  Does FTCA cover employees of self-determination 
contractors?
900.207  How are non-medical related tort claims and lawsuits filed 
for IHS?
900.208  How are non-medical related tort claims and lawsuits filed 
for DOI?
900.209  What should a self-determination contractor or contractor's 
employee do on receiving a non-medical related tort claim?
900.210  If the contractor or contractor's employee receives a 
summons and/or complaint alleging a non-medical related tort covered 
by FTCA, what should a tribe or tribal organization do?

Subpart N--Post-Award Contract Disputes

900.215  What does this subpart cover?
900.216  What other statutes and regulations apply to contract 
disputes?
900.217  Is filing a claim under the CDA our only option for 
resolving post-award contract disputes?
900.218  What is a claim under the CDA?
900.219  How does an Indian tribe or tribal organization submit a 
claim?
900.220  Does it make a difference whether the claim is large or 
small?
900.221  What happens next?
900.222  What goes into a decision?
900.223  When does an Indian tribe or tribal organization get the 
Secretary's decision?
900.224  What happens if the decision does not come within that 
time?
900.225  Does an Indian tribe or tribal organization get paid 
immediately if the awarding official decides in its favor?
900.226  Can the awarding official change the decision after it has 
been made?
900.227  Is an Indian tribe or tribal organization entitled to 
interest if it wins its claim?
900.228  What role will the awarding official play during an appeal?
900.229  What is the effect of a pending appeal?
Subpart O--Retrocession and Reassumption Procedures
900.230  What does retrocession mean?
900.231  Who may retrocede a contract, in whole or in part?
900.232  What effect will an Indian tribe or tribal organization's 
retrocession have on its rights to contract?
900.233  Will an Indian tribe or tribal organization's retrocession 
adversely affect funding available for the retroceded program?
900.234  What obligation does the Indian tribe or tribal 
organization have with respect to returning property that was used 
in the operation of the retroceded program?
900.235  What does reassumption mean?
900.236  Under what circumstances is a reassumption considered an 
emergency instead of non-emergency reassumption?
900.237  In a non-emergency reassumption, what is the Secretary 
required to do?
900.238  What happens if the contractor fails to take corrective 
action to remedy the contract deficiencies identified in the notice?
900.239  What shall the second written notice include?
900.240  What is the earliest date on which the contract will be 
rescinded?
900.241  In an emergency reassumption, what is the Secretary 
required to do?
900.242  What shall the written notice include?
900.243  May the contractor be reimbursed for actual and reasonable 
``wind up costs'' incurred after the effective date of recision?
900.244  What obligation does the Indian tribe or tribal 
organization have with respect to returning property that was used 
in the operation of the rescinded contract?
900.245  Will a reassumption adversely affect funding available for 
the reassumed program?

    Authority: 25 U.S.C. 450f et seq. 

Subpart A--General Provisions


Sec. 900.1  Authority.

    These regulations are prepared, issued, and maintained jointly by 
the Secretary of Health and Human Services and the Secretary of the 
Interior, with the active participation and representation of Indian 
tribes, tribal organizations, and individual tribal members pursuant to 
the guidance of the Negotiated Rulemaking procedures required by 
section 107 of the Indian Self-Determination and Education Assistance 
Act.


Sec. 900.2  Purpose and scope.

    (a) General. These regulations codify uniform and consistent rules 
for contracts by the Department of Health and Human Services (DHHS) and 
the Department of the Interior (DOI) in implementing title I of the 
Indian Self-Determination and Education Assistance Act, Public Law 93-
638, 25 U.S.C. 450 et seq., as amended and sections 1 through 9 
preceding that title.
    (b) Programs funded by other Departments and agencies. Included 
under this part are programs administered (under current or future law 
or interagency agreement) by DHHS and the DOI for 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 
awarded under section 9 of the Act, 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 section 107(e) of the Act.
    (d) 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. Except for previously provided copies 
of tribal records that the Secretary demonstrates are clearly required 
to be maintained as part of the recording keeping systems of the DHHS 
or the DOI, or both, records of the Contractors shall not be considered 
Federal records for the purpose of the Freedom of Information Act. The 
Freedom of Information Act does not apply to records maintained solely 
by Indian tribes and tribal organizations.
    (e) Privacy Act. Section 108(b) of the Indian Self-Determination 
Act, states that records of the tribal government or tribal 
organizations shall not be considered Federal records for the purposes 
of the Privacy Act.
    (f) Information Collection. The information collection requirements 
contained in these rules have been approved by the Office of Management 
and Budget and assigned the following approval numbers: [Approval 
numbers 

[[Page 2050]]
will appear in this location in the final rule.]


Sec. 900.3  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, planning, conduct and administration of 
educational as well as other Federal programs and services to Indian 
communities so as to render such programs and 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 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.
    (4) Congress has declared that the programs, functions, services, 
or activities that are contracted under this Act shall include 
administrative functions of the Department of the Interior and the 
Department of Health and Human Services (whichever is applicable) that 
support the delivery of services to Indians, including those 
administrative activities supportive of, but not included as part of, 
the service delivery programs described in this paragraph that are 
otherwise contractible. The administrative functions referred to in the 
preceding sentence shall be contractible without regard to the 
organizational level within the department that carries out such 
functions. Contracting of the administrative functions described herein 
shall not be construed to limit or reduce in any way the funding for 
any program, function, service, or activity serving any other tribe 
under the Act or any other law. The Secretary is not required to reduce 
funding for programs, projects, or activities serving a tribe to make 
funds available to another tribe or tribal organization under this Act.
    (5) Congress has further declared that each provision of the Act 
and each provision of contracts entered into thereunder shall be 
liberally construed for the benefit of the tribes or tribal 
organizations to transfer the funding and the related functions, 
services, activities, and programs (or portions thereof), that are 
otherwise contractible under the Act, including all related 
administrative functions, from the Federal Government to the 
Contractor.
    (6) Congress has declared that one of the primary goals of the 1994 
amendments to the Act was to minimize the reporting requirements 
applicable to tribal contractors and to eliminate excessive and 
burdensome reporting requirements. Reporting requirements over and 
above the annual audit report are to be negotiated with disagreements 
subject to the declination procedures of section 102 of the Act.
    (7) Congress has declared that there not be any threshold issues 
which would avoid the declination, contract review, approval, and 
appeal process.
    (8) Congress has declared that all self-determination contract 
proposals must be supported by the resolution of an Indian tribe(s) as 
appropriate.
    (9) Congress has declared that to the extent that programs, 
functions, services, and activities carried out by tribes and tribal 
organizations pursuant to contracts entered into under this Act reduce 
the administrative or other responsibilities of the Secretary with 
respect to the operation of Indian programs and result in savings that 
have not otherwise been included in the amount of contract funds 
determined under section 106(a) of the Act, the Secretary shall make 
such savings available for the provision of additional services to 
program beneficiaries, either directly or through contractors, in a 
manner equitable to both direct and contracted programs.
    (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, functions, services and 
activities, 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. The Secretary 
shall make best efforts to remove any obstacles which might hinder 
Indian tribes and tribal organizations including obstacles that hinder 
tribal autonomy and flexibility in the administration of such programs.
    (2) It is the policy of the Secretary to encourage Indian tribes 
and tribal organizations to become increasingly knowledgeable about the 
Departments' programs administered for the benefit of Indians by 
providing information on such programs, functions and activities and 
the opportunities Indian tribes have regarding them.
    (3) It is the policy of the Secretary to provide a uniform and 
consistent set of rules for contracts 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. The Secretary 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, health, social, religious and 
institutional needs.
    (4) The Secretary recognizes 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 an Indian tribe 
contracts, there is a transfer of responsibility and accountability to 
the tribal contractor for managing the day-to-day operations of the 
contracted Federal programs, functions, services, and activities. The 
contracting tribe thereby accepts the responsibility and accountability 
to the beneficiaries under the contract with respect to use of the 
funds and the satisfactory performance of the programs, functions, 
services and activities funded under the contract. The Secretary will 
continue to discharge the trust responsibilities to protect and 
conserve the trust resources of Indian tribes and the trust resources 
of individual Indians.
    (5) The Secretary recognizes that tribal decisions to contract or 
not to contract are equal expressions of self-determination.
    (6) The Secretary shall maintain consultation with tribal 
governments and tribal organizations in the Secretary's budget process 
relating to programs, functions, services and activities subject to the 
Act. In addition, on an annual basis, the Secretary shall consult with, 
and solicit the participation of, Indian tribes and tribal 
organizations in the development of the budget for the Indian Health 
Service and 

[[Page 2051]]
the Bureau of Indian Affairs (including participation of Indian tribes 
and tribal organizations in formulating annual budget requests that the 
Secretary submits to the President for submission to Congress pursuant 
to section 1105 of title 31, United States Code).
    (7) 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.
    (8) The Secretary's commitment to Indian self-determination 
requires that these regulations be liberally construed for the benefit 
of Indian tribes and tribal organizations to effectuate the strong 
Federal policy of self-determination and, further, that any ambiguities 
herein be construed in favor of the tribe or tribal organization so as 
to facilitate and enable the transfer of services, programs, functions, 
and activities, or portions thereof, authorized by the Act.
    (9) It is the Secretary's policy that no later than upon receipt of 
a contract proposal under the Act (or written notice of an Indian 
tribe's or tribal organization's intention to contract), the Secretary 
shall plan to take such administrative actions, including but not 
limited to transfers or reductions in force, transfers of property, and 
transfers of contractible functions, as may be necessary to insure a 
timely transfer of responsibilities to Indian tribes and tribal 
organizations.
    (10) It is the policy of the Secretary to make available to Indian 
tribes and tribal organizations all administrative functions that may 
lawfully be contracted under the Act, employing methodologies 
consistent with the methodology employed with respect to such functions 
under titles III and IV of the Act.


Sec. 900.4  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) Terminating, waiving, modifying, or reducing the trust 
responsibility of the United States to the Indian tribe(s) or 
individual Indians. The Secretary shall act in good faith in upholding 
such trust responsibility;
    (c) Mandating an Indian tribe to apply for a contract(s) or 
grant(s) as described in the Act; or
    (d) Impeding awards by other Departments and agencies of the United 
States to Indian tribes to administer Indian programs under any other 
applicable law.


Sec. 900.5  Effect of these regulations on Federal program guidelines, 
manual, or policy directives.

    Except as specifically provided in the Act, or as specified in 
Subpart J, a Contractor is not required to abide by program guidelines, 
manuals, or policy directives of the Secretary, unless otherwise agreed 
to by the Contractor and the Secretary, or otherwise required by law.

Subpart B--Definitions


Sec. 900.6  Definitions.

    Unless otherwise provided in this Part:
    Act means Sec. 1 through 9, and Title I of the Indian Self-
Determination and Education Assistance Act of 1975, Public Law 93-638, 
as amended.
    Annual funding agreement means a document that represents the 
negotiated agreement of the Secretary to fund, on an annual basis, the 
programs, services, activities and functions transferred to a tribe or 
tribal organization under the Act.
    Appeal means a request by an Indian tribe or tribal organization 
for an administrative review of an adverse Agency decision.
    Awarding official 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.
    BIA means the Bureau of Indian Affairs of the Department of the 
Interior.
    Contract means a self-determination contract as defined in section 
4(j) of the Act.
    Contract appeals board means the Interior Board of Contract 
Appeals.
    Contractor means an Indian tribe or tribal organization to which a 
contract has been awarded.
    Days means calendar days; except where the last day of any time 
period specified in these regulations falls on a Saturday, Sunday, or a 
Federal holiday, the period shall carry over to the next business day 
unless otherwise prohibited by law.
    Department(s) means the Department of Health and Human Services 
(HHS) or the Department of the Interior (DOI), or both.
    IHS means the Indian Health Service of the Department of Health and 
Human Services.
    Indian means a person who is a member of an Indian Tribe.
    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, 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 
Federal Agency.
    Indirect costs means costs incurred for a common or joint purpose 
benefiting more that one contract objective or which are not readily 
assignable to the contract objectives specifically benefitted without 
effort disproportionate to the results achieved.
    Real property means any interest in land together with the 
improvements structures, and fixtures and appurtenances thereto.
    Reassumption means rescission, in whole or in part, of a contract 
and assuming or resuming control or operation of the contracted program 
by the Secretary without consent of the Indian tribe or tribal 
organization.
    Retrocession means the voluntary return to the Secretary of a 
contracted program, in whole or in part, for any reason, before the 
expiration of the term of the contract.
    Secretary means the Secretary of Health and Human Services (HHS) or 
the Secretary of the Interior (DOI), or both (and their respective 
delegates).
    Tribal organization means the recognized governing body of any 
Indian tribe; any legally established 

[[Page 2052]]
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: provided, that, in any case where a contract is let or 
a grant made to an organization to perform services benefiting more 
than one Indian tribe, the approval of each such Indian tribe shall be 
a prerequisite to the letting or making of such contract or grant.
    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 individual Indian or which is held by an 
Indian tribe or Indian subject to a restriction on alienation imposed 
by the United States.

Subpart C--Contract Proposal Contents


Sec. 900.7  What technical assistance is available to assist in 
preparing an initial contract proposal?

    The Secretary shall, upon request of a tribe or tribal organization 
and subject to the availability of appropriations, provide technical 
assistance on a non-reimbursable basis to such tribe or tribal 
organization to develop a new contract proposal or to provide for the 
assumption by the tribe or tribal organization of any program, service, 
function, or activity (or portion thereof) that is contractible under 
the Act.


Sec. 900.8  What must an initial contract proposal contain?

    An initial contract proposal must contain the following 
information:
    (a) the full name, address and telephone number of the Indian tribe 
or tribal organization proposing the contract.
    (b) If the tribal organization is not an Indian tribe, the proposal 
must also include:
    (1) a copy of the tribal organization's organizational documents 
(e.g., charter, articles of incorporation, bylaws, etc.).
    (2) the full name(s) of Indian tribe(s) with which the tribal 
organization is affiliated.
    (c) the full name(s) of the Indian tribe(s) proposed to be served.
    (d) a copy of the authorizing resolution from the Indian tribe(s) 
to be served.
    (1) If an Indian tribe or tribal organization proposes to serve a 
specified geographic area, it must provide authorizing resolution(s) 
from all Indian tribes located within the specific area it proposes to 
serve. However, no resolution is required from an Indian tribe located 
outside the area proposed to be served whose members reside within the 
proposed service area.
    (2) If a currently effective authorizing resolution covering the 
scope of an initial contract proposal has already been provided to the 
agency receiving the proposal, a reference to that resolution.
    (e) an identification and signature of the authorized 
representative of the tribe or tribal organization submitting the 
contract proposal.
    (f) the date of submission of the proposal.
    (g) a brief statement of the programs, functions, services, or 
activities that the tribal organization proposes to perform, including:
    (1) a description of the geographical service area, if applicable, 
to be served.
    (2) the estimated number of Indian people who will receive the 
benefits or services under the proposed contract.
    (3) a description of any local, Area, regional, or national level 
departmental programs, functions, services, or activities to be 
contracted, including administrative functions.
    (4) a description of the proposed program and financial, 
procurement, and property management standards.
    (5) an identification of the program reports, data and financial 
reports that the Indian tribe or tribal organization will provide, 
including their frequency.
    (6) a description of any proposed redesign of the programs, 
services, functions, or activities to be contracted.
    (7) minimum staff qualifications, if any.
    (h) a budget which includes at a minimum:
    (1) an identification of the funds requested under section 
106(a)(1) of the Act, including tribal shares, if any, from any 
departmental local, Area, regional, or national level, presented as 
follows:
    (i) for the IHS, by budget subactivity specified in the annual 
budget justification, as may be modified by Congressional action (e.g., 
hospitals and clinics, dental health, community health representatives, 
mental health, etc.);
    (ii) for the BIA, by programs specified in the annual budget 
justification, as may be modified by Congressional action (e.g., social 
services, forestry, roads, and law enforcement); and
    (iii) for non-BIA DOI bureaus and offices, by 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 of direct contract support costs, including one-time 
or preaward costs under section 106(a)(2) and related provisions of the 
Act, presented by major categories such as:
    (i) Personnel (differentiating between salary and fringe benefits);
    (ii) Equipment;
    (iii) Materials and Supplies;
    (iv) Travel;
    (v) Subcontracts; and
    (vi) Other appropriate items of cost.
    (3) where the Indian tribe or tribal organization proposes to 
recover indirect contract support costs, the budget must include 
either:
    (i) a copy of the most recent negotiated indirect cost rate 
agreement; or
    (ii) an estimated amount requested for indirect costs, pending 
timely establishment of a rate or negotiation of administrative 
overhead costs.
    (4) to the extent not stated elsewhere in the budget or previously 
reported to the Secretary, any preaward costs, including the amount and 
time period covered or to be covered; and
    (5) an identification of anticipated sources of other funding 
relied upon to carry out the programs, services, functions, or 
activities specified in the contract proposal.
    (i) the proposed starting date and term of the contract.
    (j) in the case of a cooperative agreement, the nature and degree 
of Federal programmatic involvement anticipated during the term of the 
agreement.
    (k) the extent of any planned use of Federal personnel and Federal 
resources.
    (l) any proposed waiver(s) of these regulations.


Sec. 900.9  May the Secretary require an Indian tribe or tribal 
organization to submit any other information beyond that identified in 
Sec. 900.8(b)?

    No.


Sec. 900.10  What should a tribe or tribal organization that is 
proposing a contract do about specifying the Federal property that the 
tribe or tribal organization may wish to use in carrying out the 
contract?

    The Indian tribe or tribal organization is encouraged to provide 
the Secretary, as early as possible, with:
    (a) a list of the following Federal property intended for use under 
the contract:
    (1) equipment;
    (2) furnishings;
    (3) facilities;
    (4) and other property.
    (b) a statement of how the Indian tribe or tribal organization will 
obtain each item by transfer of title under Sec. 105(f)(2) of the Act 
and section 1(b)(8) of the model agreement set forth in section 108(c) 
of the Act, through a temporary use permit, similar arrangement, or 
otherwise; and 

[[Page 2053]]

    (c) where equipment is to be shared by contracted and non-
contracted programs, services, functions, or activities, a proposal 
outlining proposed equipment sharing or other arrangements.


Sec. 900.11  Are the proposal contents requirements the same for 
renewal of a contract that is expiring and for securing an annual 
funding agreement after the first year of the funding agreement?

    No. In these situations, an Indian tribe or tribal organization 
should submit a renewal proposal (or notification of intent not to 
renew) or an annual funding agreement proposal at least 90 days in 
advance of the expiration date of the contract or existing annual 
funding agreement. The proposal shall provide budget information in the 
same detail and format as the original proposal and may also identify 
any significant proposed changes.

Subpart D--Review and Approval of Contract Proposals


Sec. 900.12  What does this subpart cover?

    This subpart covers any proposal to enter into a self-determination 
contract, to amend an existing self-determination contract, to renew an 
existing self-determination contract, or to redesign a program through 
a self-determination contract.


Sec. 900.13  What shall the Secretary do upon receiving a proposal?

    Upon receipt of a proposal, the Secretary shall:
    (a) within five days notify the applicant in writing that the 
proposal has been received;
    (b) within 15 days notify the applicant in writing of any missing 
items required by Sec. 900.8 and that the items be submitted within 15 
days of receipt of the notification; and
    (c) review the proposal to determine whether there are declination 
issues under section 102(a)(2) of the Act.


Sec. 900.14  How long does the Secretary have to review and approve or 
decline a proposal?

    The Secretary has 90 days after receipt of a proposal to review and 
approve or decline the proposal in compliance with section 102 of the 
Act and subpart E. At any time during the review period the Secretary 
may approve the proposal and award the requested contract.


Sec. 900.15  Can the statutory 90-day period be extended?

    Yes, with written consent of the Indian tribe or tribal 
organization. If consent is not given, the 90-day deadline applies.


Sec. 900.16  What happens if a proposal is not declined within 90 days 
after it is received by the Secretary?

    A proposal that is not declined within 90 days (or within any 
agreed extension under Sec. 900.15) is deemed approved and the 
Secretary shall award the contract or any amendment or renewal within 
that 90-day period.

Subpart E--Declination Procedures


Sec. 900.18  What does this subpart cover?

    This subpart explains how and under what circumstances the 
Secretary may decline a proposal to contract, to amend an existing 
contract, to renew an existing contract, to redesign a program, or to 
waive any provisions of these regulations. For annual funding 
agreements, see Sec. 900.30.


Sec. 900.19  When can a proposal be declined?

    As explained in Secs. 900.14 and 900.15, a proposal can only be 
declined within 90 days after the Secretary receives the proposal, 
unless that period is extended with the voluntary and express written 
consent of the Indian tribe or tribal organization.


Sec. 900.20  For what reasons can the Secretary decline a proposal?

    The Secretary may only decline to approve a proposal for one of 
five specific reasons:
    (a) the service to be rendered to the Indian beneficiaries of the 
particular program or function to be contracted will not be 
satisfactory;
    (b) adequate protection of trust resources is not assured;
    (c) the proposed project or function to be contracted for cannot be 
properly completed or maintained by the proposed contract;
    (d) the amount of funds proposed under the contract is in excess of 
the applicable funding level for the contract, as determined under 
section 106(a) of the Act; or
    (e) the program, function, service, or activity (or a portion 
thereof) that is the subject of the proposal is beyond the scope of 
programs, functions, services, or activities covered under section 
102(a)(1) of the Act because the proposal includes activities that 
cannot lawfully be carried out by the contractor.


Sec. 900.21  can the Secretary decline a proposal where the Secretary's 
objection could be overcome through the contract?

    No. The Secretary may not decline to enter into a contract with an 
Indian tribe or tribal organization based on any objection that will be 
overcome through the contract.


Sec. 900.22  Can a contract proposal for an Indian tribe's or tribal 
organization's share of administrative programs, functions, services, 
and activities be declined for any reason other than the five reasons 
specified above?

    No. The Secretary may only decline a proposal based upon one or 
more of the five reasons listed above. If a contract affects the 
preexisting level of services to any other tribe, the Secretary shall 
address that effect in the Secretary's annual report to Congress under 
section 106(c)(6) of the Act.


Sec. 900.23  What if only a portion of a proposal raises one of the 
five declination criteria?

    The Secretary must approve any severable portion of a proposal that 
does not support a declination finding described in Sec. 900.20, 
subject to any alteration in the scope of the proposal that the 
Secretary and the Indian tribe or tribal organization approve.


Sec. 900.24  What happens if the Secretary declines a part of a 
proposal on the ground that the proposal proposes in part to plan, 
conduct, or administer a program, function, service or activity that is 
beyond the scope of programs covered under section 102(a) of the Act, 
or proposes a level of funding that is in excess of the applicable 
level determined under section 106(a) of the Act?

    In those situations the Secretary is required, as appropriate, to 
approve the portion of the program, function, service, or activity that 
is authorized under section 106(a) of the Act, or approve a level of 
funding that is authorized under section 106(a) of the Act. As noted in 
Sec. 900.23, the approval is subject to any alteration in the scope of 
the proposal that the Secretary and the Indian tribe or tribal 
organization approve.


Sec. 900.25  If an Indian tribe or tribal organization elects to 
contract for a severable portion of a proposal, does the Indian tribe 
or tribal organization lose its appeal rights to challenge the portion 
of the proposal that was declined?

    No, but the hearing and appeal procedures contained in these 
regulations only apply to the portion of the proposal that was 
declined.


Sec. 900.26  Is technical assistance available to an Indian tribe or 
tribal organization to avoid declination of a proposal?

    Yes. In accordance with section 103(d) of the Act, upon receiving a 
proposal, the Secretary shall provide any necessary requested technical 
assistance to an Indian tribe or tribal organization, and shall share 
all relevant information with the Indian tribe or tribal organization, 
in order to avoid declination of the proposal. 

[[Page 2054]]



Sec. 900.27  What is the Secretary required to do if the Secretary 
decides to decline all or a portion of a proposal?

    If the Secretary decides to decline all or a severable portion of a 
proposal, the Secretary is required:
    (a) to advise the Indian tribe or tribal organization in writing of 
the Secretary's objections, including a specific finding that clearly 
demonstrates that (or that is supported by a controlling legal 
authority that) one of the conditions set forth in Sec. 900.20 exists, 
together with a detailed explanation of the reason for the decision to 
decline the proposal and, when appropriate, any documents relied on in 
making the decision; and
    (b) to advise the Indian tribe or tribal organization in writing of 
the rights described in Sec. 900.29.
    (c) to provide tribes and tribal organizations within 20 days of 
issuing a declination decision under Sec. 102(a), all documents that 
currently exist that support the declination decision. The provision of 
these documents does not preclude or limit the Secretary from providing 
or producing additional documents to be used in an appeal as evidence 
to support any findings identified in the declination decision (subject 
to any discovery time limitation or other evidentiary rules imposed by 
the Administrative law judge).


Sec. 900.28   When the Secretary declines all or a portion of a 
proposal, is the Secretary required to provide an Indian tribe or 
tribal organization with technical assistance?

    Yes. The Secretary shall provide additional technical assistance to 
overcome the stated objections, in accordance with section 102(b) of 
the Act, and shall provide any necessary requested technical assistance 
to develop any modifications to overcome the Secretary's stated 
objections.


Sec. 900.29   When the Secretary declines all or a portion of a 
proposal, is an Indian tribe or tribal organization entitled to any 
appeal?

    Yes. The Indian tribe or tribal organization is entitled to an 
appeal on the objections raised by the Secretary, with an agency 
hearing on the record, and the right to engage in full discovery 
relevant to any issue raised in the matter. The procedures for appeals 
are in subpart L of these regulations. Alternatively, at its option the 
Indian tribe or tribal organization has the right to sue in Federal 
district court to challenge the Secretary's decision.


Sec. 900.30   Can the Secretary decline an Indian tribe or tribal 
organization's proposed successor annual funding agreement?

    No. If it is substantively the same as the prior annual funding 
agreement (except for mandatory funding increases or budget reductions 
as provided in section 106(b) of the Act) the Secretary shall approve 
and fund, and may not decline, any portion of a successor annual 
funding agreement. Any portion of an annual funding agreement proposal 
which is not substantively the same as that which was funded previously 
(e.g., a redesign proposal; waiver proposal; different proposed funding 
amount; or different program, service, function, or activity) is 
subject to the declination criteria and procedures in Subpart E. If 
there is a disagreement over the availability of appropriations, the 
Secretary may decline the proposal in part under the procedure in 
subpart E.

Subpart F--Standards for Tribal or Tribal Organization Management 
Systems

General


Sec. 900.35   What is the purpose of this subpart?

    This subpart contains the minimum standards for the management 
systems used by Indian tribes or tribal organizations when carrying out 
self-determination contracts. It provides standards for an Indian 
tribe's or tribal organization's financial management system, 
procurement management system, and property management system.


Sec. 900.36   What requirements are imposed upon Indian tribes or 
tribal organizations by this subpart?

    When carrying out self-determination contracts, Indian tribes and 
tribal organizations shall develop, implement, and maintain systems 
that meet these minimum standards, unless one or more of the standards 
have been waived, in whole or in part, under section 107(e) of the Act 
and subpart K.


Sec. 900.37   What provisions of Office of Management and Budget (OMB) 
circulars or the ``common rule'' apply to self-determination contracts?

    The only provisions of OMB Circulars and the only provisions of the 
``common rule'' that apply to self-determination contracts are the 
provisions adopted in these regulations, those expressly required or 
modified by the Act, and those negotiated and agreed to in a self-
determination contract.


Sec. 900.38   Do these standards apply to the sub-contractors of an 
Indian tribe or tribal organization carrying out a self-determination 
contract?

    An Indian tribe or tribal organization may require that some or all 
of the standards in this subpart be imposed upon its sub-contractors 
when carrying out a self-determination contract.


Sec. 900.39   What is the difference between a standard and a system?

    (a) Standards are the minimum baseline requirements for the 
performance of an activity. Standards establish the ``what'' that an 
activity should accomplish.
    (b) Systems are the procedural mechanisms and processes for the 
day-to-day conduct of an activity. Systems are ``how'' the activity 
will be accomplished.


Sec. 900.40   When are Indian tribe or tribal organization management 
standards and management systems evaluated?

    (a) Management standards are evaluated by the Secretary when the 
Indian tribe or tribal organization submits an initial contract 
proposal.
    (b) Management systems are evaluated by an independent auditor 
through the annual single agency audit report that is required by the 
Act and OMB Circular A-128.

Standards for Financial Management Systems


Sec. 900.41   What are the general financial management system 
standards that apply to an Indian tribe or tribal organization carrying 
out a self-determination contract?

    An Indian tribe or tribal organization shall expend and account for 
contract funds in accordance with all applicable tribal laws, 
regulations, and procedures.


Sec. 900.42   What are the general financial management system 
standards that apply to a tribal organization carrying out a self-
determination contract?

    A tribal organization shall expend and account for contract funds 
in accordance with the procedures of the tribal organization.


Sec. 900.43   What minimum general standards apply to all Indian tribe 
or tribal organization financial management systems when carrying out a 
self-determination contract?

    The fiscal control and accounting procedures of an Indian tribe or 
tribal organization shall be sufficient to:
    (a) permit preparation of reports required by a self-determination 
contract and the Act; and
    (b) permit the tracing of contract funds to a level of expenditure 
adequate to establish that they have not been used in violation of any 
restrictions or 

[[Page 2055]]
prohibitions contained in any statute that applies to the self-
determination contract.


Sec. 900.44   What specific minimum requirements shall an Indian tribe 
or tribal organization financial management system contain to meet 
these standards?

    An Indian tribe or tribal organization financial management system 
shall include provisions for the following seven elements:
    (a) Financial reports. The financial management system shall 
provide for accurate, current, and complete disclosure of the financial 
results of self-determination contract activities, as required in the 
financial reporting requirements negotiated and agreed to in the self-
determination contract.
    (b) Accounting records. The financial management system shall 
maintain records sufficiently detailed to identify the source and 
application of self-determination contract funds received by the Indian 
tribe or tribal organization. The system shall contain sufficient 
information to identify contract awards, obligations and unobligated 
balances, assets, liabilities, outlays, or expenditures and income.
    (c) Internal controls. The financial management system shall 
maintain effective control and accountability for all self-
determination contract funds received and for all Federal real 
property, personal property, and other assets furnished for use by the 
Indian tribe or tribal organization under the self-determination 
contract.
    (d) Budget controls. The financial management system shall permit 
the comparison of actual expenditures or outlays with the amounts 
budgeted by the Indian tribe or tribal organization for each self-
determination contract.
    (e) Allowable costs. The financial management system shall be 
sufficient to determine the reasonableness, allowability, and 
allocability of self-determination contract costs based upon the terms 
of the self-determination contract and the tribe's or tribal 
organization's applicable OMB cost principles (see OMB Circulars A-87, 
A-122, or A-21, available from the Executive Office of the President, 
Publications Service, 725--17th Street NW., Washington, DC 20503), as 
amended by the Act and these regulations.
    (f) Source documentation. The financial management system shall 
contain accounting records that are supported by source documentation, 
e.g., cancelled checks, paid bills, payroll records, time and 
attendance records, contract award documents, purchase orders, and 
other primary records that support self-determination contract fund 
expenditures.
    (g) Cash management. The financial management system shall 
establish procedures to ensure the timely receipt of reports from sub-
contractors on their cash balances, expenditures, and disbursements, so 
that the Indian tribe or tribal organization may prepare complete and 
accurate cash transaction reports as required by the self-determination 
contract.


Sec. 900.45   What requirements are imposed upon the Secretary for 
financial management by these standards?

    In regard to paragraph (g) of Sec. 900.44, the Secretary shall 
establish procedures, consistent with Treasury regulations as modified 
by the Act, for the transfer of funds from the United States to the 
Indian tribe or tribal organization based upon the payment schedule 
provided for in the self-determination contract and the annual funding 
agreement.

Procurement Management System Standards


Sec. 900.46  When procuring property or services with self-
determination contract funds, can an Indian tribe or tribal 
organization follow the same procurement policies and procedures 
applicable to other Indian tribe or tribal organization funds?

    Yes.


Sec. 900.47  What procurement standards shall an Indian tribe or tribal 
organization have?

    Indian tribes and tribal organizations shall have standards that 
conform with the standards in this subpart. If the Indian tribe or 
tribal organization relies upon standards different than those 
described below, it shall identify the standards it will use as a 
proposed waiver in the initial contract proposal or as a waiver request 
to an existing contract.


Sec. 900.48  If the Indian tribe or tribal organization does not 
propose different standards, what are the basic standards that the 
Indian tribe or tribal organization shall follow?

    (a) The Indian tribe or tribal organization shall ensure that its 
vendors and/or sub-contractors perform in accordance with the terms, 
conditions, and specifications of their contracts or purchase orders.
    (b) The Indian tribe or tribal organization shall maintain written 
standards of conduct governing the performance of its employees who 
award and administer contracts.
    (1) No employee, officer, elected official, or agent of the Indian 
tribe or tribal organization shall participate in the selection, award, 
or administration of a procurement supported by Federal funds if a 
conflict of interest, real or apparent, would be involved.
    (2) An employee, officer, elected official, or agent of an Indian 
tribe or tribal organization, or of a sub-contractor of the Indian 
tribe or tribal organization, is not allowed to solicit or accept 
gratuities, favors, or anything of monetary value from contractors, 
potential contractors, or parties to sub-agreements, with the following 
exemptions. The Indian tribe or tribal organization may exempt a 
financial interest that is not substantial or a gift that is an 
unsolicited item of nominal value.
    (3) These standards shall also provide for penalties, sanctions, or 
other disciplinary actions for violations of the standards.
    (c) The Indian tribe or tribal organization shall review proposed 
procurements to avoid buying unnecessary or duplicative items. The 
Indian tribe or tribal organization should consider consolidating or 
breaking out procurements to obtain more economical purchases. Where 
appropriate, the Indian tribe or tribal organization shall compare 
leasing and purchasing alternatives to determine which is more 
economical.
    (d) The Indian tribe or tribal organization shall conduct all major 
procurement transactions by providing full and open competition, to the 
extent necessary to assure efficient expenditure of contract funds and 
to the extent feasible in the local area.
    (1) Indian tribes or tribal organizations shall develop their own 
definition for ``major procurement transactions.''
    (2) As provided for in sections 7 (b) and (c) of the Act, Indian 
preference and tribal preferences shall be applied in any procurement 
award.
    (e) The Indian tribe or tribal organization shall make procurement 
awards only to responsible entities who have the ability to perform 
successfully under the terms and conditions of the proposed 
procurement. In making this judgment, the Indian tribe or tribal 
organization will consider such matters as the contractor's integrity, 
its compliance with public policy, its record of past performance, and 
its financial and technical resources.
    (f) The Indian tribe or tribal organization shall maintain records 
on the significant history of all major procurement transactions. These 
records may include, but are not limited to, the rationale for the 
method of procurement, the selection of contract type, the contract 
selection or rejection, and the basis for the contract price.

[[Page 2056]]

    (g) The Indian tribe or tribal organization is solely responsible, 
using good administrative practice and sound business judgment, for 
processing and settling all contractual and administrative issues 
arising out of a procurement. These issues include, but are not limited 
to, source evaluation, protests, disputes, and claims.
    (1) The settlement of any protest, dispute, or claim shall not 
relieve the Indian tribe or tribal organization of any obligations 
under a self-determination contract.
    (2) Violations of law shall be referred to the tribal or Federal 
authority having proper jurisdiction.


Sec. 900.49  What procurement standards apply to subcontracts?

    Each subcontract entered into under the Act shall at a minimum:
    (a) be in writing;
    (b) identify the interested parties, their authorities, and the 
purposes of the contract;
    (c) state the work to be performed under the contract;
    (d) state the process for making any claim, the payments to be 
made, and the terms of the contract, which shall be fixed; and
    (e) be subject to sections 7 (b) and (c) of the Act.


Sec. 900.50  What Federal laws, regulations, and Executive Orders apply 
to sub-contractors?

    In addition to the Act, all applicable Federal laws, regulations, 
and Executive Orders apply to subcontractors. If an Indian tribe or 
tribal organization's contract requires subcontractor compliance with 
other Federal laws, regulations, and Executive Orders, then the Indian 
tribe or tribal organization should include appropriate provisions in 
the subcontracts. The subcontractor is responsible for identifying and 
ensuring compliance with applicable Federal laws, regulations, and 
Executive Orders not identified in the subcontract.

Property Management System Standards


Sec. 900.51  What is an Indian tribe or tribal organization's property 
management system expected to do?

    An Indian tribe or tribal organization's property management system 
shall account for all property furnished or transferred by the 
Secretary for use under a self-determination contract or acquired with 
contract funds. The property management system shall contain 
requirements for the use, care, maintenance, and disposition of 
Federally-owned and other property as follows:
    (a) where title vests in the Indian tribe, in accordance with 
tribal law and procedures; or
    (b) in the case of a tribal organization, according to the internal 
property procedures of the tribal organization.


Sec. 900.52  What type of property is the property management system 
required to track?

    The property management system of the Indian tribe or tribal 
organization shall track:
    (a) personal property with an acquisition value in excess of $5,000 
per item;
    (b) sensitive property; and
    (c) real property provided by the Secretary for use under the 
contract.


Sec. 900.53  What kind of records shall the property management system 
maintain?

    The property management system shall maintain records that 
accurately describe the property, including any serial number or other 
identification number. These records should contain information such as 
the source, titleholder, acquisition date, cost, share of Federal 
participation in the cost, location, use and condition of the property, 
and the date of disposal and sale price, if any.


Sec. 900.54  Should the property management system prescribe internal 
controls?

    Yes. Effective internal controls should include procedures:
    (a) for the conduct of periodic inventories;
    (b) to prevent loss or damage to property; and
    (c) to ensure that property is used for an Indian tribe or tribal 
organization's self-determination contract(s) until the property is 
declared excess to the needs of the contract consistent with the Indian 
tribe or tribal organization's property management system.


Sec. 900.55  What are the standards for inventories?

    A physical inventory should be conducted at least once every 2 
years. The results of the inventory shall be reconciled with the Indian 
tribe or tribal organization's internal property and accounting 
records.


Sec. 900.56  What maintenance is required for property?

    Required maintenance includes the performance of actions necessary 
to keep the property in good working condition, the procedures 
recommended by equipment manufacturers, and steps necessary to protect 
the interests of the contractor and the Secretary in any express 
warranties or guarantees covering the property.


Sec. 900.57  What if the Indian tribe or tribal organization chooses 
not to take title to property furnished or acquired under the contract?

    If the Indian tribe or tribal organization chooses not to take 
title to property furnished by the government or acquired with contract 
funds, title to the property remains vested in the Secretary. A list of 
Federally-owned property to be used under the contract shall be 
included in the contract.


Sec. 900.58  Do the same accountability and control procedures 
described above apply to Federal property?

    Yes, except that requirements for the inventory and disposal of 
Federal property are different.


Sec. 900.59  How are the inventory requirements for Federal property 
different than for tribal property?

    There are three additional requirements:
    (a) The Indian or tribal organization shall conduct a physical 
inventory of the Federally-owned property and reconcile the results 
with the Indian tribe or tribal organization's property records 
annually rather than every 2 years;
    (b) within 90 days following the end of an annual funding 
agreement, the Indian tribe or tribal organization shall certify and 
submit to the Secretary an annual inventory of all Federally-owned real 
and personal property used in the contracted program; and
    (c) the inventory shall report any increase or decrease of $5,000 
or more in the value of any item of real property.


Sec. 900.60  How does an Indian tribe or tribal organization dispose of 
Federal property?

    The Indian tribe or tribal organization shall report to the 
Secretary in writing any Federally-owned personal property that is worn 
out, lost, stolen, damaged beyond repair, or no longer needed for the 
performance of the contract.
    (a) The Indian tribe or tribal organization shall state whether the 
Indian tribe or tribal organization wants to dispose of or return the 
property.
    (b) If the Secretary does not respond within 60 days:
    (1) the Indian tribe or tribal organization may dispose of the 
property as it sees fit and inform the Secretary of the disposal; or
    (2) the Indian tribe or tribal organization may return the property 
to the Secretary, who shall accept transfer, custody, control, and 
responsibility for the property (together with all associated costs). 

[[Page 2057]]


Subpart G--Programmatic Reports and Data Requirements


Sec. 900.65  What programmatic reports and data shall the Indian tribe 
or tribal organization provide?

    Each Indian tribe or tribal organization shall negotiate with the 
Secretary the type and frequency of program narrative and program data 
report(s) required to meet the needs of the contracting parties. The 
extent of available resources will be a consideration in the 
negotiations.


Sec. 900.66  What if the Indian tribe or tribal organization and the 
Secretary cannot come to an agreement concerning the type and/or 
frequency of program narrative and/or program data report(s)?

    Any disagreements over reporting requirements are subject to the 
declination criteria and procedures in section 102 of the Act and 
subpart E.


Sec. 900.67  Will there be a uniform data set for all IHS programs?

    IHS will work with Indian tribe or tribal organization 
representatives to develop a mutually defined uniform subset of data 
that is consistent with Congressional intent, imposes a minimal 
reporting burden, and meets the needs of the contracting parties.


Sec. 900.68  Will this uniform data set be required of all Indian tribe 
or tribal organizations contracting with the IHS under the Act?

    No. The uniform data set for applicable to the services to be 
performed, will serve as the target for the Secretary and the Indian 
tribes or tribal organizations during individual negotiations on 
program data reporting requirements.

Subpart H--Lease of Tribally-Owned Buildings by the Secretary


Sec. 900.69  What is the purpose of this subpart?

    Section 105(l) of the Act requires the Secretary, at the request of 
an Indian tribe or tribal organization, to enter into a lease with the 
tribe or tribal organization for a building owned or leased by the 
tribe or tribal organization that is used for administration or 
delivery of services under the Act. The lease is to include 
compensation as provided in the statute as well as ``such other 
reasonable expenses that the Secretary determines, by regulation, to be 
allowable.'' This subpart contains requirements for these leases.


Sec. 900.70  What elements are included in the compensation for a lease 
entered into between the Secretary and an Indian tribe or tribal 
organization for a building owned or leased by the Indian tribe or 
tribal organization that is used for administration or delivery of 
services under the Act?

    To the extent that no element is duplicative, the following 
elements may be included in the lease compensation:
    (a) rent (sublease);
    (b) depreciation and use allowance based on the useful life of the 
facility based on acquisition costs not financed with Federal funds;
    (c) contributions to a reserve for replacement of facilities;
    (d) principal and interest paid or accrued;
    (e) operation and maintenance expenses, to the extent not otherwise 
included in rent or use allowances, including, but not limited to, the 
following:
    (1) water, sewage;
    (2) utilities;
    (3) fuel;
    (4) insurance;
    (5) building management supervision and custodial services;
    (6) custodial and maintenance supplies;
    (7) pest control;
    (8) site maintenance (including snow and mud removal);
    (9) trash and waste removal and disposal;
    (10) fire protection/fire fighting services and equipment;
    (11) monitoring and preventive maintenance of building structures 
and systems, including but not limited to:
    (i) heating/ventilation/air conditioning;
    (ii) plumbing;
    (iii) electrical;
    (iv) elevators;
    (v) boilers;
    (vi) fire safety system;
    (vii) security system; and
    (viii) roof, foundation, walls, floors.
    (12) unscheduled maintenance;
    (13) scheduled maintenance (including replacement of floor 
coverings, lighting fixtures, repainting);
    (14) security services;
    (15) management fees; and
    (16) other reasonable and necessary operation or maintenance costs 
justified by the contractor;
    (f) repairs to buildings and equipment;
    (g) alterations needed to meet contract requirements;
    (h) other reasonable expenses; and
    (i) the fair market rental for buildings or portions of buildings 
and land, exclusive of the Federal share of building construction or 
acquisition costs, or the fair market rental for buildings constructed 
with Federal funds exclusive of fee or profit, and for land.


Sec. 900.71  Is a lease with the Secretary the only method available to 
recover the types of cost described in Sec. 900.70?

    No. With the exception of paragraph (h) in Sec. 900.70 the same 
types of costs may be recovered in whole or in part under section 
106(a) of the Act as direct or indirect charges to a self-determination 
contract.


Sec. 900.72  How may a tribe or tribal organization propose a lease to 
be compensated for the use of facilities?

    There are three options available:
    (a) The lease may be based on fair market rental.
    (b) The lease may be based on a combination of fair market rental 
and paragraphs (a) through (h) of Sec. 900.70, provided that no element 
of expense is duplicated in fair market rental.
    (c) The lease may be based on paragraphs (a) through (h) of 
Sec. 900.70 only.

Subpart I--Property Donation Procedures

General


Sec. 900.85  What is the purpose of this subpart?

    This subpart implements section 105(f) of the Act regarding 
donation of Federal excess and surplus property to tribes or tribal 
organizations and acquisition of property with funds provided under a 
self-determination contract or grant.


Sec. 900.86  How will the Secretary exercise discretion to acquire and 
donate BIA or IHS excess property and excess and surplus Federal 
property to an Indian tribe or tribal organization?

    The Secretary will give maximum weight to the requests of tribes or 
tribal organizations for donation of BIA or IHS excess property and 
excess or surplus Federal property, provided that the requesting tribe 
or tribal organization shall certify and justify that requested 
property is appropriate for use for any purpose for which a self-
determination contract or grant is authorized.

Government-Furnished Property


Sec. 900.87  How does a tribe or tribal organization obtain title to 
property furnished by the Federal government for use in the performance 
of a contract or grant agreement pursuant to section 105(f)(2)(A) of 
the Act?

    (a) For government-furnished personal property made available to a 

[[Page 2058]]
    tribe or tribal organization before October 25, 1994:
    (1) The Secretary, in consultation with each tribe or tribal 
organization, shall develop a list of the property used in a self-
determination contract.
    (2) The tribe or tribal organization shall indicate any items on 
the list to which the tribe or tribal organization wants the Secretary 
to retain title.
    (3) The Secretary shall provide the tribe or tribal organization 
with any documentation needed to transfer title to the remaining listed 
property to the tribe or tribal organization.
    (b) For government-furnished real property made available to a 
tribe or tribal organization before October 25, 1994:
    (1) The Secretary, in consultation with the tribe or tribal 
organization, shall develop a list of the property furnished for use in 
a self-determination contract.
    (2) The Secretary shall inspect any real property on the list to 
determine the presence of any hazardous substance activity, as defined 
in 41 CFR 101-47.202(b)(10). If the tribe or tribal organization 
desires to take title to any real property on the list, the tribe or 
tribal organization shall inform the Secretary, who shall take such 
steps as necessary to transfer title to the tribe or tribal 
organization.
    (c) For government-furnished real and personal property made 
available to a tribe or tribal organization on or after October 25, 
1994:
    (1) The tribe or tribal organization shall take title to all 
property unless the tribe or tribal organization requests that the 
United States retain the title.
    (2) The Secretary shall determine the presence of any hazardous 
substance activity, as defined in 41 CFR 101-47.202(b)(10).


Sec. 900.88  What should the tribe or tribal organization do if it 
wants to obtain title to government-furnished real property that 
includes land not already held in trust?

    If the land is owned by the United States but not held in trust for 
a tribe or individual Indian, the tribe or tribal organization shall 
specify whether it wants to acquire fee title to the land or whether it 
wants the land to be held in trust for the benefit of a tribe.
    (a) If the tribe or tribal organization requests fee title, the 
Secretary shall take the necessary action under Federal law and 
regulations to transfer fee title.
    (b) If the tribe or tribal organization requests beneficial 
ownership with fee title to be held by the United States in trust for a 
tribe:
    (1) The tribe or tribal organization shall submit with its request 
a resolution of support from the governing body of the tribe in which 
the beneficial ownership is to be registered.
    (2) If the request is submitted to the Secretary of Health and 
Human Services for land under the jurisdiction of that Secretary, the 
Secretary shall take all necessary steps to effect a transfer the land 
to the Secretary of the Interior and shall also forward the tribe or 
tribal organization's request and the tribe's resolution.
    (3) The Secretary of the Interior shall expeditiously process all 
requests in accordance with applicable Federal law and regulations.
    (4) The Secretary shall not require the tribe or tribal 
organization to furnish any information in support of a request other 
than that required by law or regulation.


Sec. 900.89  When may the Secretary elect to reacquire government-
furnished property whose title has been transferred to a tribe or 
tribal organization?

    When a self-determination contract or grant agreement, or portion 
thereof, is retroceded, reassumed, terminated, or expires, the 
Secretary shall have the option to take title to any item of 
government-furnished property:
    (a) whose title has been transferred to a tribe or tribal 
organization;
    (b) that is still in use in the program; and
    (c) that has a value in excess of $5,000.


Sec. 900.90  Does government-furnished real property to which a tribe 
or tribal organization has taken title continue to be eligible for 
facilities operation and maintenance funding from the Secretary?

    Yes.

Contractor-Purchased Property


Sec. 900.91  Who takes title to property purchased with funds under a 
self-determination contract or grant agreement pursuant to section 
105(f)(2)(A)?

    The contractor takes title to such property, unless the contractor 
chooses to have the United States take title. In that event, the 
contractor must inform the Secretary of the purchase and identify the 
property and its location in such manner as the contractor and the 
Secretary deem necessary. A request for the United States to take title 
to any item of contractor-purchased property may be made at any time. A 
request for the Secretary to take fee title to real property shall be 
expeditiously processed in accordance with applicable Federal law and 
regulation.


Sec. 900.92  What should the tribe or tribal organization do if it 
wants contractor-purchased real property to be taken into trust?

    The contractor shall submit a resolution of support from the 
governing body of the tribe in which the beneficial ownership is to be 
registered. If the request to take contractor-purchased real property 
into trust is submitted to the Secretary of Health and Human Services, 
that Secretary shall transfer the request to the Secretary of the 
Interior. The Secretary of the Interior shall expeditiously process all 
requests in accord with applicable Federal law and regulation.


Sec. 900.93  When may the Secretary elect to acquire title to 
contractor-purchased property?

    When a self-determination contract or grant agreement, or portion 
thereof, is retroceded, reassumed, terminated, or expires, the 
Secretary shall have the option to take title to any item of 
contractor-purchased property:
    (a) whose title has been transferred to a tribe or tribal 
organization;
    (b) that is still in use in the program; and
    (c) that has a value in excess of $5,000.


Sec. 900.94  Is contractor-purchased real property to which a tribe or 
tribal organization holds title eligible for facilities operation and 
maintenance funding from the Secretary?

    Yes.

Bia and IHS Excess Property


Sec. 900.95  What is BIA or IHS excess property?

    BIA or IHS excess property means property under the jurisdiction of 
the BIA or IHS that is excess to the agency's needs and the discharge 
of its responsibilities.


Sec. 900.96  How can tribes or tribal organizations learn about BIA and 
IHS excess property?

    The Secretary shall periodically furnish to tribes or tribal 
organizations a listing of all excess BIA or IHS personal property 
before reporting the property to GSA or to any other Federal agency as 
excess. The listing shall identify the agency official to whom a 
request for donation shall be submitted.


Sec. 900.97  How can a tribe or tribal organization acquire excess BIA 
or IHS property?

    (a) The tribe or tribal organization shall submit to the 
appropriate Secretary a request for specific property that includes a 
certification and justification that the property is 

[[Page 2059]]
intended for use in connection with a self-determination contract or 
grant. The Secretary shall expeditiously process the request and shall 
exercise discretion to donate the property in the manner described in 
this subpart I.
    (b) If more than one request for the same item of personal property 
is submitted, the Secretary shall award the item to the first 
requester. if there is a tie, the Secretary shall award the item to the 
requestor with the lowest transportation costs. The Secretary shall 
make the donation as expeditiously as possible.
    (c) If more than one request for the same piece of real property is 
submitted, the Secretary shall award the property to the tribe or 
tribal organization whose reservation or trust land is closest to the 
real property requested.


Sec. 900.98  Who takes title to excess BIA or IHS property donated to a 
tribe or tribal organization?

    The tribe or tribal organization takes title to donated excess BIA 
or IHS property. The Secretary shall provide the tribe or tribal 
organization with all documentation needed to vest title in the tribe 
or tribal organization.


Sec. 900.99  Who takes title to any land that is part of excess BIA or 
IHS real property donated to a tribe or tribal organization?

    (a) If a tribe or tribal organization requests donation of fee 
title to excess real property that includes land not held in trust for 
a tribe, the tribe or tribal organization shall so specify in its 
request for donation. The Secretary shall take the necessary action 
under Federal law and regulations to transfer the title to the tribe or 
tribal organization.
    (b) If a tribe or tribal organization asks the Secretary to donate 
excess real property that includes land and requests that fee title to 
the land be held by the United States in trust for a tribe, the 
requestor shall submit a resolution of support from the governing body 
of the tribe in which the beneficial ownership is to be registered.
    (1) If the donation request is submitted to the Secretary of Health 
and Human Services, that Secretary shall take all steps necessary to 
transfer the land to the Secretary of the Interior with the tribe or 
tribal organization's request and the tribe's resolution. The Secretary 
of the Interior shall expeditiously process all requests in accord with 
applicable Federal law and regulations.
    (2) The Secretary shall not require the tribe or tribal 
organization to furnish any information in support of a request other 
than that required by law or regulation.


Sec. 900.100  May the Secretary elect to reacquire excess BIA or IHS 
property whose title has been transferred to a tribe or tribal 
organization?

    Yes. When a self-determination contract or grant agreement, or 
portion thereof, is retroceded, reassumed, terminated, or expires, the 
Secretary shall have the option to take title any item of the property:
    (a) whose title has been transferred to a tribe or tribal 
organization;
    (b) that is still in use in the program; and
    (c) that has a value in excess of $5,000.


Sec. 900.101  Is excess BIA or IHS real property to which a tribe or 
tribal organization has taken title eligible for facilities operation 
and maintenance funding from the Secretary?

    Yes.

Excess or Surplus Government Property of Other Agencies


Sec. 900.102  What is excess or surplus government property of other 
agencies?

    (a) ``Excess government property'' is real or personal property 
under the control of a Federal agency, other than BIA and IHS, which is 
not required for the agency's needs and the discharge of its 
responsibilities.
    (b) ``Surplus government property'' means excess real or personal 
property that is not required for the needs of and the discharge of the 
responsibilities of all Federal agencies that has been declared surplus 
by the General Services Administration.


Sec. 900.103  How can tribes or tribal organizations learn about 
property that has been designated as excess or surplus government 
property?

    The Secretary shall periodically furnish to tribes or tribal 
organizations listings of such property as may be made available from 
time to time by GSA or other Federal agencies, and shall obtain 
listings upon the request of a tribe or tribal organization.


Sec. 900.104  How may a tribe or tribal organization receive excess or 
surplus government property of other agencies?

    (a) The tribe or tribal organization shall file a request for 
specific property with the Secretary, and shall certify and justify 
that the property is appropriate for use for a purpose for which a 
self-determination contract or grant is authorized under the Act.
    (b) The Secretary shall expeditiously process such request and 
shall exercise discretion to acquire the property in the manner 
described in the Federal Property Management Regulation, 41 CFR Chapter 
101.
    (c) Upon approval, the Secretary shall immediately request 
acquisition of the property from the GSA or the holding agency, as 
appropriate. If the tribe or tribal organization informs the Secretary 
that a ``freeze'' has been placed on the requested property, the 
Secretary shall make every good faith effort to process the request in 
order to obtain the property within the ``freeze'' period.
    (d) The Secretary shall specify that the property is requested for 
donation to a tribe or tribal organization pursuant to authority 
provided in section 105(f)(3) of the Act.
    (e) The Secretary shall request a waiver of any fees for transfer 
of the property in accordance with applicable Federal regulations.


Sec. 900.105  Who takes title to excess or surplus Federal property 
donated to a tribe or tribal organization?

    (a) Title to any donated excess or surplus Federal personal 
property shall vest in the tribe or tribal organization upon taking 
possession.
    (b) Legal title to donated excess or surplus Federal real property 
shall vest in the tribe or tribal organization upon acceptance by the 
tribe or tribal organization of a proper deed of conveyance.
    (c) If the donation of excess or surplus Federal real property 
includes land owned by the United States but not held in trust for a 
tribe, the tribe or tribal organization shall specify whether it wants 
to acquire fee title to the land or whether it wants the land to be 
held in trust for the benefit of a tribe.
    (1) If the tribe or tribal organization requests fee title, the 
Secretary shall take the necessary action under Federal law and 
regulations to transfer fee title to the tribe or tribal organization.
    (2) If the tribe or tribal organization requests beneficial 
ownership with fee title to be held by the United States in trust for a 
tribe:
    (i) The tribe or tribal organization shall submit with its request 
a resolution of support from the governing body of the tribe in which 
the beneficial ownership is to be registered.
    (ii) If the donation request of the tribe or tribal organization is 
submitted to the Secretary of Health and Human Services, that Secretary 
shall take all necessary steps to acquire the land and transfer it to 
the Secretary of the Interior and shall also forward the tribe or 
tribal organization's request and the tribe's resolution.
    (iii) The Secretary of the Interior shall expeditiously process all 
requests in accord with applicable Federal law and regulations.
    (iv) The Secretary shall not require submission of any information 
other 

[[Page 2060]]
than that required by Federal law and regulation.


Sec. 900.106  If a contract or grant agreement or portion thereof is 
retroceded, reassumed, terminated, or expires, may the Secretary 
reacquire title to excess or surplus Federal property of other agencies 
that was donated to a tribe or tribal organization?

    No. Section 105(f)(3) of the Act does not give the Secretary the 
authority to reacquire title to excess or surplus government property 
acquired from other agencies for donation to a tribe or tribal 
organization.

Property Eligible for Replacement Funding


Sec. 900.107  Is property that a tribe or tribal organization obtains 
title under this subpart eligible for replacement funding?

    Yes. Government-furnished property, contractor-purchased property 
and excess BIA and IHS property donated to a tribe or tribal 
organization to which a tribe or tribal organization holds title shall 
remain eligible for replacement funding to the same extent as if title 
to that property were held by the United States.

Subpart J--Construction Contracts


Sec. 900.110  What does this Subpart cover?

    (a) This subpart establishes requirements for issuing fixed-price 
or cost-reimbursable contracts to provide: design, construction, 
repair, improvement, expansion, replacement, erection of new space, or 
demolition of one or more Federal facilities. It applies to tribal 
facilities where the Secretary is authorized by law to design, 
construct and/or renovate, or make improvements to such tribal 
facilities.
    (b) Activities covered by construction contracts under this subpart 
are: design and architectural/engineering services, construction 
project management, and the actual construction of the building or 
facility in accordance with the construction documents, including all 
labor, materials, equipment, and services necessary to complete the 
work defined in the construction documents.
    (1) Such contracts may include the provision of movable equipment, 
telecommunications and data processing equipment, furnishings 
(including works of art), and special purpose equipment, when part of a 
construction contract let under this subpart.
    (2) While planning services and construction management services as 
defined in Sec. 900.113 may be included in a construction contract 
under this subpart, they may also be contracted separately using the 
model agreement in section 108 of the Act.


Sec. 900.111  What activities of construction programs are 
contractible?

    The Secretary shall, upon the request of any Indian tribe by tribal 
resolution, enter into a self-determination contract to plan, conduct, 
and administer construction programs or portions thereof.


Sec. 900.112  What are construction phases?

    (a) Construction programs generally include the following 
activities in phases which can vary by funding source (contact your 
funding source for more information regarding the conduct of their 
program):
    (1) The preplanning phase. The phase during which an initial 
determination of project need is made and supporting information 
collected for presentation in a project application. This project 
application process is explained in more detail in Sec. 900.122;
    (2) The planning phase. The phase during which planning services 
are provided. This phase can include conducting and preparing a 
detailed needs assessment, developing justification documents, 
completing and/or verifying master plans, conducting pre-design site 
investigations, developing budget cost estimates, conducting 
feasibility studies, and developing a project Program of Requirements 
(POR);
    (3) The design phase. The phase during which licensed design 
professional(s) using the POR as the basis for design of the project, 
prepare project plans, specifications, and other documents that are a 
part of the construction documents used to build the project.
    (4) The construction phase. The phase during which the project is 
constructed. The construction phase includes providing the labor, 
materials, equipment, and services necessary to complete the work in 
accordance with the construction documents prepared as part of the 
design phase.
    (b) The following activities may be part of phases described in 
paragraphs (a)(2), (a)(3), and (a)(4) of this section:
    (1) Management; and
    (2) Environmental, archeological, cultural resource, historic 
preservation, and similar assessments.


Sec. 900.113  Definitions.

    (a) Construction contract means a fixed-price or cost-reimbursement 
self-determination contract for a construction project, except that 
such term does not include any contract:
    (1) that is limited to providing planning services and construction 
management services (or a combination of such services);
    (2) for the Housing Improvement Program or roads maintenance 
program of the Bureau of Indian Affairs administered by the Secretary 
of the Interior; or
    (3) for the health facility maintenance and improvement program 
administered by the Secretary of Health and Human Services.
    (b) Construction management services (CMS) means activities limited 
to administrative support services; coordination; and monitoring 
oversight of the planning, design, and construction process. The 
construction management services consultant (typically an engineer or 
architect) assists and advises the Indian tribe or tribal organizations 
in such activities as:
    (1) coordination and information exchange between the Indian tribe 
or tribal organization and the Federal government;
    (2) preparation of tribal or tribal organization construction 
contract proposals;
    (3) tribal or tribal organization subcontract scope of work 
identification and subcontract preparation, and competitive selection 
of tribal or tribal organization construction contract subcontractors 
(see Sec. 900.110);
    (4) review of work to ensure compliance with the POR and/or the 
construction contract. This does not involve construction project 
management as defined in paragraph (d) of this section.
    (c) Construction programs include programs for the planning, 
design, construction, repair, improvement, and expansion of buildings 
or facilities, including but not limited to, housing, law enforcement 
and detention facilities, sanitation and water systems, roads, schools, 
administration and health facilities, irrigation and agricultural work, 
water conservation, flood control, and port facilities, and 
environmental, archeological, cultural resource, historic preservation, 
and similar assessments.
    (d) Construction project management means direct responsibility for 
the construction project through day-to-day on-site management and 
administration of the project. Activities may include cost management, 
project budgeting, project scheduling, procurement services.
    (e) Design means services performed by licensed design 
professionals related to preparing drawings, specifications, and other 
design submissions specified in the contract, as well as services 
provided by or for licensed design professionals during the bidding/

[[Page 2061]]
negotiating, construction, and operational phases of the project.
    (f) Planning services means activities undertaken to support agency 
and/or congressional funding of a construction project. Planning 
services may include performing a needs assessment, completing and/or 
verifying master plans, developing justification documents, conducting 
pre-design site investigations, developing budget cost estimates, 
conducting feasibility studies as needed and completion of approved 
justification documents and a program of requirements (POR) for the 
project.
    (g) Program of Requirements (POR) is a planning document developed 
during the planning phase for an individual project. It provides 
background about the project; site information; programmatic needs; 
and, for facilities projects, a detailed room-by-room listing of 
spaces, including net and gross sizes, finish materials to be used, 
furnishings and equipment, and other information and design criteria on 
which to base the construction project documents.
    (h) Scope of Work means the description of the work to be provided 
through a contract issued under this subpart and the methods and 
processes to be used to accomplish that work. A scope of work is 
typically developed based on criteria provided in a POR during the 
design phase, and project construction documents (plans and 
specifications) during the construction phase.


Sec. 900.114  Why is there a separate Subpart in these regulations for 
construction contracts and grants?

    Because the Act differentiates between construction contracts and 
the model agreement in section 108 of the Act which is required for 
contracting other activities. Construction contracts are separately 
defined in the Act and are subject to a separate proposal and review 
process.


Sec. 900.115  How do self-determination construction contracts relate 
to ordinary Federal procurement contracts?

    (a) A self-determination construction contract is a government-to-
government agreement that transfers control of the construction 
project, including administrative functions, to the contracting Indian 
tribe or tribal organization to facilitate effective and meaningful 
participation by the Indian tribe or tribal organization in planning, 
conducting, and administrating the construction project, and so that 
the construction project is responsive to the true needs of the Indian 
community. The Secretary's role in the conduct of a contracted 
construction project is limited to the Secretary's responsibilities set 
out in Sec. 900.132.
    (b) Self-determination construction contracts are not traditional 
``procurement'' contracts.
    (1) With respect to a construction contract (or a subcontract of 
such a construction contract), the provisions of the Office of Federal 
Procurement Policy Act (41 U.S.C. 401 et seq.) and the regulations 
promulgated under such Act, shall apply to a construction contract or 
subcontract only to the extent that application of the provision is:
    (i) Necessary to ensure that the contract may be carried out in a 
satisfactory manner;
    (ii) Directly related to the construction activity; and
    (iii) not inconsistent with the Act.
    (2) A list of the Federal requirements that meet the requirements 
of this paragraph shall be included in an attachment to the contract 
under negotiations between the Secretary and the tribal organization.
    (3) Except as provided in paragraph (b)(2) of this section, no 
Federal law listed in section 105(3)(C)(ii) of the Act or any other 
provision of Federal law (including an Executive order) relating to 
acquisition by the Federal government shall apply to a construction 
contract that an Indian tribe or tribal organization enters into under 
this Act, unless expressly provided in the law.
    (c) Provisions of a construction contract under this subpart shall 
be liberally construed in favor of the contracting Indian tribe or 
tribal organization.


Sec. 900.116  Are fixed-price contracts treated the same as cost-
reimbursable contracts?

    Yes, except that in fixed-price construction contracts, appropriate 
clauses shall be negotiated to properly allocate the contract risks 
between the government and the contractor.


Sec. 900.117  Do these ``construction contract'' regulations apply to 
planning services?

    (a) These regulations apply to planning services contracts only as 
provided in this section.
    (1) The Indian tribe or tribal organization shall submit to the 
Secretary for review and approval the POR documents produced as a part 
of a model contract under section 108 of the Act or under a 
construction contract under this subpart.
    (i) Within 60 days after receipt of the POR from the Indian tribe 
or tribal organization for a project that has achieved priority ranking 
or that is funded, the Secretary shall:
    (A) approve the POR; or
    (B) notify the Indian tribe or tribal organization of and make 
available any objections to the POR that the Secretary may have; or
    (C) notify the Indian tribe or tribal organization of the reasons 
why the Secretary will be unable either to approve the POR or to notify 
the Indian tribe or tribal organization of any objections within 60 
days, and state the time within which the notification will be made, 
provided that the extended time shall not exceed 60 additional days.
    (ii) Within a maximum of 180 days after receipt of a POR from an 
Indian tribe or tribal organization for a project that is not funded 
and is not described in paragraph (a)(1)(i) of this section, the 
Secretary shall:
    (A) approve the POR; or
    (B) notify the Indian tribe or tribal organization of and make 
available any objections to the POR; or
    (C) notify the Indian tribe or tribal organization of the reasons 
why the Secretary will be unable either to approve the POR or to notify 
the Indian tribe or tribal organization of any objections within 180 
days, and state the time within which the notification will be made, 
provided that the extended time shall not exceed 60 additional days.
    (2) Any failure of the Secretary to act on a POR within the 
applicable period required in paragraph (a)(1) of this section will be 
deemed to be a rejection of the POR and will authorize the commencement 
of any appeal as provided in section 110 of the Act, or, if a model 
agreement under section 108 of the Act is used, the disputes provision 
of that agreement.
    (3) if an Indian tribe or tribal organization elects to provide 
planning services as part of a construction contract rather than under 
a model agreement as set out in section 108 of the Act, the regulations 
in this subpart shall apply.
    (b) The parties to the contract are encouraged to consult during 
the development of the POR and following submission of the POR to the 
Secretary.


Sec. 900.118  Do these ``construction contract'' regulations apply to 
construction management services?

    No. Construction management services may be contracted separately 
under section 108 of the Act. Construction management services 
consultants assist and advise the Indian tribe or tribal organization 
to implement construction contracts, but have no contractual 
relationship with or 

[[Page 2062]]
authority to direct construction contract subcontractors.
    (a) If the Indian tribe or tribal organization chooses to contract 
solely for construction management services, these services shall be 
limited to:
    (1) Coordination and exchange of information between the Indian 
tribe or tribal organization and Secretary;
    (2) Review of work produced by the Secretary to determine 
compliance with:
    (i) the POR and design contract during the design stage; or
    (ii) the project construction documents during the construction 
stage;
    (3) Disputes shall be resolved in accordance with the disputes 
clause of the CMS contract.
    (b) If the Indian tribe or tribal organization conducts CMS under 
section 108 of the Act and the Indian tribe or tribal organization 
contracts separately under this subpart for all or some of the 
activities in Sec. 900.110, the contracted activities shall be limited 
to:
    (1) Coordination and exchange of information between the Indian 
tribe or tribal organization and Secretary;
    (2) Preparation of tribal or tribal organization construction 
subcontract scope of work identification and subcontract preparation, 
and competitive selection of tribal or tribal organization construction 
contract subcontractors;
    (3) Review of work produced by tribal or tribal organization 
construction subcontractors to determine compliance with:
    (i) the POR and the design contract during the design stage; or
    (ii) the project construction documents during the construction 
stage.


Sec. 900.119  To what extent shall the Secretary consult with affected 
Indian tribes before spending funds for any construction project?

    Before spending any funds for a planning, design, construction, or 
renovation project, whether subject to a competitive application and 
ranking process or not, the Secretary shall consult with any Indian 
tribe or tribal organization(s) that would be significantly affected by 
the expenditure to determine and to follow tribal preferences to the 
greatest extent feasible concerning: size, location, type, and other 
characteristics of the project.


Sec. 900.120  How does an Indian tribe or tribal organization find out 
about a construction project?

    Within 30 days after the Secretary's allocation of funds for 
planning phase, design phase, or construction phase activities for a 
specific project, the Secretary will notify the Indian tribe or tribal 
organization(s) to be benefitted of the availability of the funds for 
the project. The Secretarial notice of fund allocation shall offer 
technical assistance in the preparation of a contract proposal.
    (a) The Secretary shall, within 30 days after receiving a request 
from an Indian tribe or tribal organization, furnish the Indian tribe 
or tribal organization with all information available to the Secretary 
about the project including, but not limited to: construction drawings, 
maps, engineering reports, design reports, plans of requirements, cost 
estimates, environmental assessments, or environmental impact reports 
and archeological reports.
    (b) An Indian tribe or tribal organization is not required to 
request this information prior to submitting a notification of intent 
to contract or a contract proposal.
    (c) The secretary shall have a continuing responsibility to furnish 
information.


Sec. 900.121  Does the Indian tribe or tribal organization have a right 
of first refusal?

    (a) Yes. An Indian tribe or tribal organization shall notify the 
Secretary within 45 days after receiving the Secretarial notice 
described in Sec. 900.120 if it wishes to contract one or more phases 
of the project. The Indian tribe or tribal organization will notify the 
Secretary by registered mail, return receipt requested. Notice by the 
Indian tribe or tribal organization does not require submission of a 
full contract proposal. After notifying the Secretary and unless 
already submitted as part of the Indian tribe or tribal organization's 
notification or intent to contract, the Indian tribe or tribal 
organization shall prepare a self-determination construction contract 
proposal in accordance with this subpart.
    (b) Before the start of the contracting process for any phase 
during the construction process and unless previously notified by the 
Indian tribe or tribal organization of intent to contract for 
subsequent stages, the Secretary shall repeat the requirements of 
paragraph Sec. 900.120(a).
    (c) The Indian tribe's or tribal organization's decision not to 
contract under the Act or a prior attempt to contract under the Act 
will not bar an Indian tribe or tribal organization from bidding on or 
contracting for the construction project under any other act or 
process.


Sec. 900.122  What happens during the preplanning phase and can an 
Indian tribe or tribal organization perform any of the activities 
involved in this process?

    (a) The application and ranking process for developing a priority 
listing of projects varies between agencies. There are, however, steps 
in the selection process that are common to most selection processes. 
An Indian tribe or tribal organization that wishes to secure a 
construction project should contact the appropriate agency to determine 
the specific steps involved in the application and selection process 
used to fund specific types of projects. When a priority process is 
used in the selection of construction projects, the steps involved in 
the application and ranking process are as follows:
    (1) Application. The agency solicits applications from Indian 
tribes or tribal organizations. In the request for applications, the 
Secretary provides specific information regarding the type of project 
to be funded, the objective criteria that will be used to evaluate 
applications, the points or weight that each criterion will be 
assigned, and the time when applications are due. An Indian tribe or 
tribal organization may prepare the application (technical assistance 
from the agency, within resources available, shall be provided upon 
request from an Indian tribe or tribal organization) or may rely upon 
the agency to prepare the application.
    (2) Ranking/Prioritization. The Secretary evaluates the 
applications based on the criteria provided as part of the application 
preparation process. The Secretary applies only criteria and weights 
assigned to each criteria that were disclosed to the Indian tribe or 
tribal organization during the application stage. The applications are 
then ranked in order from the application that best meets application 
criteria to the application that least meet the application criteria.
    (3) Validation. Before final acceptance of a ranked application, 
the information, such as demographic information, deficiency levels 
reported in application, the condition of existing facilities, and 
program housing needs, is validated. During this process, additional 
information may be developed by the Indian tribe or tribal organization 
in support of the original information or the Secretary may designate a 
representative of the Department to conduct an on-site review of the 
information contained in the application. 

[[Page 2063]]



Sec. 900.123  What does an Indian tribe or tribal organization do if it 
wants to secure a construction contract?

    (a) The Act establishes a special process for review and 
negotiation of proposals for construction contracts which is different 
than that for other self-determination contract proposals. The Indian 
tribe or tribal organization should notify the Secretary of its intent 
to contract in accordance with Sec. 900.121(a). After notification, the 
Indian tribe or tribal organization should prepare its contract 
proposal in accordance with the sections of this subpart. While 
developing its construction contract proposal, the Indian tribe or 
tribal organization can request technical assistance from the 
Secretary. Not later than 30 days after receiving a request from an 
Indian tribe or tribal organization, the Secretary will provide to the 
Indian tribe or tribal organization all information available about the 
construction project, including construction drawings, maps, 
engineering reports, design reports, plans of requirements, cost 
estimates, environmental assessments, or environmental impact reports, 
and archaeological reports. The responsibility of the Secretary to 
furnish this information shall be a continuing one.
    (b) At the request of the Indian tribe or tribal organization and 
before finalizing its construction contract proposal, the Secretary 
shall provide for a precontract negotiation phase during the 
development of a contract proposal. Within 30 days the Secretary shall 
acknowledge receipt of the proposal and, if requested by the Indian 
tribe or tribal organization, shall confer with the Indian tribe or 
tribal organization to develop a negotiation schedule. The negotiation 
phase shall include, at a minimum:
    (1) The provision of technical assistance under section 103 of the 
Act and paragraph (a) of this section;
    (2) A joint scoping session between the Secretary and the Indian 
tribe or tribal organization to review all plans, specifications, 
engineering reports, cost estimates, and other information available to 
the parties, for the purpose of identifying all areas of agreement and 
disagreement;
    (3) An opportunity for the Secretary to revise plans, designs, or 
cost estimates of the Secretary in response to concerns raised, or 
information provided by, the Indian tribe or tribal organization;
    (4) A negotiation session during which the Secretary and the Indian 
tribe or tribal organization shall seek to develop a mutually agreeable 
contract proposal; and
    (5) Upon the request of the Indian tribe or tribal organization, 
the use of alternative dispute resolution to resolve remaining areas of 
disagreement under the dispute resolution provisions under subchapter 
IV of chapter 5 of the United States Code.


Sec. 900.124  What if the Indian tribe or tribal organization and the 
Secretary cannot develop a mutually agreeable contract proposal?

    (a) If the Secretary and the Indian tribe or tribal organization 
are unable to develop a mutually agreeable construction contract 
proposal under the procedures in Sec. 900.123, the Indian tribe or 
tribal organization may submit a final contract proposal to the 
Secretary. Not later than 30 days after receiving the final contract 
proposal, the Secretary shall approve the contract proposal and award 
the contract, unless, during the period the Secretary declines the 
proposal under sections 102(a)(2) and 102(b) of the Act (including 
providing opportunity for an appeal under section 102(b)).
    (b) Whenever the Secretary declines to enter into a self-
determination contract or contracts under section 102(a)(2) of the Act, 
the Secretary shall:
    (1) State any objections to the contract proposal (as submitted by 
the Indian tribe or tribal organization) in writing to the tribal 
organization;
    (2) Provide assistance to the tribal organization to overcome the 
stated objections;
    (3) Provide the tribal organization with a hearing on the record 
with the right to engage in full discovery relevant to any issue raised 
in the matter and the opportunity for appeal on the objections raised, 
under the regulations set forth in subpart L, except that the Indian 
tribe or tribal organization may, in lieu of filing the appeal, 
initiate an action in a Federal district court and proceed directly to 
the court under section 110(a) of the Act.


Sec. 900.125  May the Indian tribe or tribal organization elect to use 
a grant in lieu of a contract?

    Yes. A grant agreement or a cooperative agreement may be used in 
lieu of a contract under sections 102 and 103 of the Act when mutually 
agreed to by the Secretary and the Indian tribe or tribal organization. 
Under the grant concept, the grantee will assume full responsibility 
and accountability for design and construction performance within the 
funding limitations. The grantee will manage and administer the work 
with minimal involvement by the government. The grantee will be 
expected to have acceptable management systems for finance, 
procurement, and property. The Secretary may issue Federal construction 
guidelines and manuals applicable to its construction programs, and the 
government shall accept tribal proposals for alternatives which are 
consistent with or exceed Federal guidelines or manuals applicable to 
construction programs.


Sec. 900.126  What shall a construction contract proposal contain?

    (a) In addition to the full name, address, and telephone number of 
the Indian tribe or tribal organization submitting the construction 
proposal, a construction contract proposal shall contain descriptions 
of the following standards under which they propose to operate the 
contract:
    (1) The use of licensed and qualified architects and engineers;
    (2) Applicable health and safety standards;
    (3) Adherence to applicable Federal, State, local, or tribal 
building codes and engineering standards;
    (4) Structural integrity;
    (5) Accountability of funds;
    (6) Adequate competition for sub-contracting under tribal or other 
applicable law;
    (7) The commencement, performance, and completion of the contract;
    (8) Adherence to project plans and specifications (including any 
applicable Federal construction guidelines and manuals);
    (9) The use of proper materials and workmanship;
    (10) Necessary inspection and testing;
    (11) With respect to the self-determination contract between the 
Indian tribe or tribal organization and Federal government, a process 
for changes, modifications, stop work, and termination of the work when 
warranted;
    (b) In addition to provisions regarding the program standards 
listed in paragraph (a) of this section or the assurances listed in 
paragraph (c) of this section, the Indian tribe or tribal organization 
shall also include in its construction contract proposal the following:
    (1) In the case of a contract for design activities, this 
statement, ``Construction documents produced as part of this contract 
will be produced in accordance with the Program of Requirements and/or 
Scope of Work,'' and the POR and/or Scope of Work shall be attached to 
the contract proposal. If tribal construction procedures, standards and 
methods (including national, regional, state, or tribal building codes 
or construction industry standards) are consistent with or exceed 
applicable 

[[Page 2064]]
Federal standards then the Secretary shall accept the tribally proposed 
standards; and
    (2) In the case of a contract for construction activities, this 
statement, ``The facility will be built in accordance with the 
construction documents produced as a part of design activities. The 
project documents, including plans and specifications, are hereby 
incorporated into this contract through this reference.'' If tribal 
construction procedures, standards and methods (including national, 
regional, state, or tribal building codes or construction industry 
standards) are consistent with or exceed applicable Federal standards 
then the Secretary shall accept the tribally proposed standards; and
    (3) Proposed methods to accommodate the responsibilities of the 
Secretary provided in Sec. 900.132; and
    (4) Proposed methods to accommodate the responsibilities of the 
Indian tribe or tribal organization provided in Sec. 900.131 unless 
otherwise addressed in paragraph (a) of this section;
    (5) A contract budget as described in Sec. 900.128; and
    (6) A period of performance for the conduct of all activities to be 
contracted.
    (7) A payment schedule as described in Sec. 900.133;
    (8) If the Indian tribe or tribal organization is conducting CMS 
under this subpart, the Indian tribe or tribal organization will 
provide a job description and qualification statement for key 
positions.
    (9) Current (unrevoked) authorizing resolutions in accordance with 
Sec. 900.5(d) from all Indian tribes benefitting from the contract 
proposal;
    (10) Any responsibilities, in addition to the Federal 
responsibilities listed in Sec. 900.132, which the Indian tribe or 
tribal organization proposes the Federal government to perform to 
assist with the completion of the scope of work;
    (c) The Indian tribe or tribal organization will provide the 
following assurances in its contract proposal:
    (1) If the Indian tribe or tribal organization proposes to use 
Federal property in carrying out the contract, ``The Indian tribe or 
tribal organization will not dispose of, modify the use of, or change 
the terms of the real property title, or other interest in the site and 
facilities without permission and instructions from the awarding 
agency. The Indian tribe or tribal organization will record the Federal 
interest in the title of real property in accordance with awarding 
agency directives and will include a covenant in the title of real 
property acquired in whole or in part with Federal assistance funds to 
assure nondiscrimination during the useful life of the project''; and
    (2) The Indian tribe or tribal organization will comply with the 
Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 4801 et seq.) 
which prohibits the use of lead based paint in construction or 
rehabilitation of residential structures; and
    (3) The Indian tribe or tribal organization will comply, or has 
already complied, with the requirements of Titles II and III of the 
Uniform Relocation Assistance and Real Property Acquisition Policies 
Act of 1970 (Pub. L. 91-646) which provides for fair and equitable 
treatment of persons displaced or whose property is acquired as a 
result of Federal participation in purchases; and
    (4) Except for work performed by tribal or tribal organization 
employees, the Indian tribe or tribal organization will comply, as 
applicable, with the provisions of the Davis-Bacon Act (40 U.S.C. 276c 
and 18 U.S.C. 874), the Contract Work Hours and Safety Standards Act 
(40 U.S.C. 327-333) regarding labor standards for Federally assisted 
construction subagreements; and
    (5) The Indian tribe or tribal organization will comply with the 
flood insurance purchase requirements of section 102(a) of the Flood 
Disaster Protection Act of 1973 (Pub. L. 93-234) which requires 
recipients in a special flood hazard area to participate in the program 
and to purchase flood insurance if the total cost of insurable 
construction and acquisition is $10,000 or more; and
    (6) The Indian tribe or tribal organization will comply with all 
applicable Federal environmental laws, regulations, and Executive 
Orders; and
    (7) The Indian tribe or tribal organization will comply with the 
Wild and Scenic Rivers Act of 1968 (16 U.S.C. 1271 et seq.) related to 
protecting the components or potential components of the national wild 
and scenic rivers system; and
    (8) The Indian tribe or tribal organization will assist the 
awarding agency in assuring compliance with section 106 of the National 
Historic Preservation Act of 1966, as amended (16 U.S.C. 470), EO 11593 
(identification and preservation of historic properties), and the 
Archaeological and Historic Preservation Act of 1974 (16 U.S.C. 469a-1 
et seq.) ''.
    (d) The Indian tribe or tribal organization and the Secretary will 
both make a good faith effort to identify any other applicable Federal 
laws, Executive Orders, or regulations applicable to the contract, and 
share identified laws, Executive Orders, or regulations with the other 
party, and include reference to such laws in the construction contract.


Sec. 900.127  Shall a construction contract proposal incorporate 
provisions of Federal construction guidelines and manuals?

    Each agency may provide or the Indian tribe or tribal organization 
may request Federal construction guidelines and manuals for 
consideration by the Indian tribe or tribal organization in the 
preparation of its contract proposal. If tribal construction 
procedures, standards and methods (including national, regional, state, 
or tribal building codes or construction industry standards) are 
consistent with or exceed applicable Federal standards then the 
Secretary shall accept the tribally proposed standards.


Sec. 900.128  What can be included in the Indian tribe's or tribal 
organization's contract budget?

    (a) The costs incurred will vary depending on which phase (see 
Sec. 900.112) of the construction process the Indian tribe or tribal 
organization is conducting and the type of contract that will be used. 
The total amount awarded under a construction contract shall reflect an 
overall fair and reasonable price to the parties.
    (b) Costs for activities under this subpart that have not been 
billed, allocated, or recovered under a contract issued under section 
108 of the Act should be included.
    (c) The Indian tribe or tribal organization's budget should include 
the cost elements that reflect an overall fair and reasonable price. 
These costs include:
    (1) the reasonable costs to the tribal organization of performing 
the contract, taking into consideration the terms of the contract and 
the requirements of the Act and any other applicable law;
    (2) the costs of preparing the contract proposal and supporting 
cost data;
    (3) the costs associated with auditing the general and 
administrative costs of the tribal organization associated with the 
management of the construction contract; and
    (4) In cases where the Indian tribe or tribal organization is 
submitting a fixed-price construction contract:
    (i) the reasonable costs to the Indian tribe or tribal organization 
for general administration incurred in connection with the project that 
is the subject of the contract;
    (ii) the ability of the contractor that carries out the 
construction contract to make a reasonable profit, taking into 
consideration the risks associated with 

[[Page 2065]]
carrying out the contract, local market conditions, and other relevant 
considerations.
    (d) In establishing a contract budget for a construction project, 
the Secretary shall not be required to separately identify the 
components described in paragraphs (c)(4)(i) and (c)(4)(ii) above.
    (e) The Indian tribe's or tribal organization's budget proposal 
includes a detailed budget breakdown for performing the scope of work 
including a total ``not to exceed'' dollar amount with which to perform 
the scope of work. Specific budget line items, if requested by the 
Indian tribe or tribal organization, can include the following:
    (1) the administrative costs the Indian tribe or tribal 
organization may incur including:
    (i) personnel needed to provide administrative oversight of the 
contract,
    (ii) travel costs incurred, both local travel incurred as a direct 
result of conducting the contract and remote travel necessary to review 
project status with the Secretary,
    (iii) meeting costs incurred while meeting with community residents 
to develop project documents,
    (iv) fees to be paid to consultants, such as demographic 
consultants, planning consultants, attorneys, accountants, and 
personnel who will provide construction management services;
    (2) the fees to be paid to architects and engineers to assist in 
preparing project documents and to assist in oversight of the 
construction process;
    (3) the fees to be paid to develop project surveys including 
topographical surveys, site boundary descriptions, geotechnical 
surveys, archeological surveys, and NEPA compliance, and;
    (4) In the case of a contract to conduct project construction 
activities, the fees to provide a part-time or full-time on-site 
inspector, depending on the terms of the contract, to monitor 
construction activities;
    (5) In the case of a contract to conduct project construction 
activities, project site development costs;
    (6) In the case of a contract to conduct project construction 
activities, project construction costs including those costs described 
in paragraph (c)(4), above
    (7) the cost of securing and installing moveable equipment, 
telecommunications and data processing equipment, furnishings, 
including works of art, and special purpose equipment when part of a 
construction contract;
    (8) A contingency amount for unanticipated conditions of the 
construction phase of cost-reimbursable contracts. The amount of the 
contingency provided shall be 3 per cent of activities being contracted 
or 50 per cent of the available contingency funds, whichever is less. 
Any additional contingency funds for the construction phase will be 
negotiated on an as needed basis subject to the availability of funds 
and the nature, scope, and complexity of the project. Any contingency 
for other phases will be negotiated on a contract by contract basis. 
Unused contingency funds obligated to the contract and remaining at the 
end of the contract will be considered savings.
    (9) Other costs incurred that are directly related to the conduct 
of contract activities.


Sec. 900.129  What funding shall the Secretary provide in a 
construction contract?

    The Secretary shall provide an amount under a construction contract 
that reflects an overall fair and reasonable price to the parties. 
These costs include:
    (a) the reasonable costs to the tribal organization of performing 
the contract, taking into consideration the terms of the contract and 
the requirements of the Act and any other applicable law;
    (b) the costs of preparing the contract proposal and supporting 
cost data; and
    (c) the costs associated with auditing the general and 
administrative costs of the tribal organization associated with the 
management of the construction contract; and
    (d) If Indian tribe or tribal organization is submitting a fixed-
price construction contract:
    (1) the reasonable costs to the Indian tribe or tribal organization 
for general administration incurred in connection with the project that 
is the subject of the contract;
    (2) the ability of the contractor that carries out the construction 
contract to make a reasonable profit, taking into consideration the 
risks associated with carrying out the contract, local market 
conditions, and other relevant considerations.
    (3) In establishing a contract budget for a construction project, 
the Secretary is not required to separately identify the components 
described in clauses (1) and (2) above.


Sec. 900.130  How do the Secretary and Indian tribe or tribal 
organization arrive at an overall fair and reasonable price for the 
performance of a construction contract?

    (a) Throughout the contract award process, the Secretary and Indian 
tribe or tribal organization shall share all construction project cost 
information available to them in order to facilitate reaching agreement 
on an overall fair and reasonable price for the project or part 
thereof. In order to enhance this communication, the government's 
estimate of an overall fair and reasonable price shall:
    (1) Contain a level of detail appropriate to the nature and phase 
of the work and sufficient to allow comparisons to the tribe or tribal 
organization estimate;
    (2) Be prepared in a format coordinated with the Indian tribe or 
tribal organization; and
    (3) Include the cost elements contained in section 105(m)(4) of the 
Act.
    (b) The government's cost estimate shall be an independent cost 
estimate based on such information as the following:
    (1) Prior costs to the government for similar projects adjusted for 
comparison to the target location, typically in unit costs, such as 
dollars per pound, square meter cost of building, or other unit cost 
that can be used to make a comparison;
    (2) Actual costs previously incurred by the Indian tribe or tribal 
organization for similar projects;
    (3) Published price lists, to include regional adjustment factors, 
for materials, equipment, and labor; and
    (4) Projections of inflation and cost trends, including projected 
changes such as labor, material, and transportation costs.
    (c) The Secretary shall provide the initial government cost 
estimate to the Indian tribe or tribal organization and make 
appropriate revisions based on concerns raised or information provided 
by the Indian tribe or tribal organization. The Secretary and the 
Indian tribe or tribal organization shall continue to revise, as 
appropriate, their respective cost estimates based on changed or 
additional information such as the following:
    (1) Actual subcontract bids;
    (2) Changes in inflation rates and market conditions, including 
local market conditions;
    (3) Cost and price analyses conducted by the Secretary and the 
tribe or tribal organization during negotiations;
    (4) Agreed upon changes in the size, scope and schedule of the 
construction project; and
    (5) Agreed upon changes in project plans and specifications.
    (d) Considering all of the information available, the Secretary and 
the tribe or tribal organization shall negotiate the amount of the 
construction contract. The objective of the negotiations is to arrive 
at an amount that is fair under current market conditions and 
reasonable to both the government and the tribe or tribal organization. 
As a 

[[Page 2066]]
result, the agreement does not necessarily have to be in strict 
conformance with either party's cost estimate nor does agreement have 
to be reached on every element of cost, but only on the overall fair 
and reasonable price of each phase of the work included in the 
contract.
    (e) If the fair and reasonable price arrived at under paragraph (d) 
above would exceed the amount available to the Secretary, then:
    (1) If the Indian tribe or tribal organization elects to submit a 
final proposal, the Secretary may decline the proposal under section 
105(m)(4)(C)(v) of the Act; or
    (2) If requested by the Indian tribe or tribal organization:
    (i) the Indian tribe or tribal organization and the Secretary may 
jointly explore methods of expanding the available funds through the 
use of contingency funds, rebudgeting, or seeking additional 
appropriations; or
    (ii) the Indian tribe or tribal organization may elect to propose a 
reduction in project scope to bring the project price within available 
funds; or
    (ii) the Secretary and Indian tribe or tribal organization may 
agree that the project be executed in phases.


Sec. 900.131  What role does the Indian tribe or tribal organization 
play during the performance of a self-determination construction 
contract?

    (a) The Indian tribe or tribal organization is responsible for the 
successful completion of the project in accordance with the approved 
contract documents.
    (b) If the Indian tribe or tribal organization is contracting to 
perform design phase activities, the Indian tribe or tribal 
organization shall have the following responsibilities:
    (1) the Indian tribe or tribal organization shall subcontract with 
or provide the services of licensed and qualified architects and 
engineers and other consultants needed to accomplish the self-
determination construction contract.
    (2) the Indian tribe or tribal organization shall administer and 
disburse funds provided through the contract in accordance with subpart 
F, Sec. 900.41 through Sec. 900.44 and a management system in 
accordance with subpart F, Sec. 900.51 through Sec. 900.60.
    (3) the Indian tribe or tribal organization shall direct the 
activities of project architects, engineers, and other project 
consultants, facilitate the flow of information between the Indian 
tribe or tribal organization and its subcontractors, resolve disputes 
between the Indian tribe or tribal organization and its subcontractors 
or between its subcontractors, and monitor the work produced by its 
subcontractors to assure compliance with the POR.
    (4) the Indian tribe or tribal organization shall direct the work 
of its subcontractors so that work produced is provided in accordance 
with the contract budget and contract performance period as negotiated 
between and agreed to by the parties.
    (5) the Indian tribe or tribal organization shall provide the 
Secretary with an opportunity to review and approve for general 
compliance with contract requirements and project plans and 
specifications only at the concept phase, the schematic phase, the 
design development phase, and the final construction documents phase or 
as otherwise negotiated.
    (6) the Indian tribe or tribal organization shall provide the 
Secretary with the plans and specifications after their final review 
so, if needed, the Secretary may obtain an independent government cost 
estimate for the construction of the project.
    (7) the Indian tribe or tribal organization shall retain project 
records and design documents for a minimum of 3 years following 
completion of the contract.
    (8) the Indian tribe or tribal organization shall provide progress 
reports and financial status reports quarterly or as negotiated that 
contain a narrative of the work accomplished, the percentage of the 
work completed, a report of funds expended during the reporting period, 
and total funds expended for the project. The Indian tribe or tribal 
organization shall also provide copies, for the information of the 
Secretary, of contracts and major subcontracts and modifications, an 
initial work and payment schedule and updates as they may occur, and A/
E services deliverables.
    (c) If the Indian tribe or tribal organization is contracting to 
perform project construction phase activities, the Indian tribe or 
tribal organization shall have the following responsibilities:
    (1) the Indian tribe or tribal organization shall subcontract with 
or provide the services of licensed and qualified architects and 
engineers and other consultants needed to accomplish the self-
determination construction contract.
    (2) the Indian tribe or tribal organization shall administer and 
dispense funds provided through the contract in accordance with subpart 
F, Sec. 900.41 through Sec. 900.44 and a management system in 
accordance with subpart F, Sec. 900.51 through Sec. 900.60.
    (3) the Indian tribe or tribal organization shall subcontract with 
or provide the services of construction contractors or provide its own 
forces to conduct construction activities in accordance with the 
project construction documents or as otherwise negotiated between and 
agreed to by the parties.
    (4) the Indian tribe or tribal organization shall direct the 
activities of project architects, engineers, construction contractors, 
and other project consultants, facilitate the flow of information 
between the Indian tribe or tribal organization and its subcontractors, 
resolve disputes between itself and its subcontractors or between its 
subcontractors, and monitor the work produced by its subcontractors to 
assure compliance with the project plans and specifications.
    (5) the Indian tribe or tribal organization shall manage or provide 
for the management of day-to-day activities of the contract including 
the issuance of construction change orders to subcontractors except 
that, unless the Secretary agrees:
    (i) the Indian tribe or tribal organization may not issue a change 
order to a construction subcontractor that will cause the Indian tribe 
or tribal organization to exceed its self-determination contract 
budget;
    (ii) the Indian tribe or tribal organization may not issue a change 
order to a construction subcontractor that will cause the Indian tribe 
or tribal organization to exceed the performance period in its self-
determination contract budget;
    (iii) the Indian tribe or tribal organization may not issue to a 
construction subcontractor a change order that is a significant 
departure from the scope or objective of the project.
    (6) the Indian tribe or tribal organization shall direct the work 
of its subcontractors so that work produced is provided in accordance 
with the contract budget and performance period as negotiated between 
and agreed to by the parties.
    (7) the Indian tribe or tribal organization shall provide to the 
Secretary progress and financial status reports.
    (i) the reports shall be provided quarterly or as negotiated, and 
shall contain a narrative of the work accomplished, the percentage of 
the work completed, a report of funds expended during the reporting 
period, and total funds expended for the project.
    (ii) the Indian tribe or tribal organization shall also provide 
copies, for the information of the Secretary, of 

[[Page 2067]]
change orders, contracts and major subcontracts, an initial schedule of 
values and updates as they may occur, and an initial construction 
schedule and updates as they occur.
    (8) the Indian tribe or tribal organization shall maintain on the 
job-site or project office, and make available to the Secretary during 
monitoring visits: construction documents, change orders, shop 
drawings, equipment cut sheets, inspection reports, testing reports, 
and current redline drawings.
    (d) Upon completion of the project, the Indian tribe or tribal 
organization shall provide to the Secretary a reproducible copy of the 
record plans and a contract closeout report.
    (e) For cost-reimbursable projects, the Indian tribe or tribal 
organization shall not be obligated to continue performance that 
requires an expenditure of more funds than were awarded under the 
contract. If the Indian tribe or tribal organization has a reason to 
believe that the total amount required for performance of the contract 
will be greater than the amount of funds awarded, it shall provide 
reasonable notice to the Secretary. If the Secretary does not take the 
action necessary to increase the amount of funds awarded under the 
contract, the Indian tribe or tribal organization may suspend 
performance of the contract until additional funds are awarded.


Sec. 900.132  What role does the Secretary play during the performance 
of a self-determination construction contract?

    (a) If the Indian tribe or tribal organization is contracting 
solely to perform construction management services either under this 
subpart or section 108 of the Act, the Secretary has the following 
responsibilities:
    (1) the Secretary is responsible for the successful completion of 
the project in accordance with the approved contract documents. In 
fulfilling those responsibilities, the Secretary shall consult with the 
Indian tribe or tribal organization on a regular basis as agreed to by 
the parties to facilitate the exchange of information between the 
Indian tribe or tribal organization and Secretary;
    (2) the Secretary shall provide the Indian tribe or tribal 
organization with regular opportunities to review work produced to 
determine compliance with:
    (i) the POR, during the conduct of design phase activities. The 
Secretary shall provide the Indian tribe or tribal organization with an 
opportunity to review the project construction documents at the concept 
phase, the schematic phase, the design development phase, and the final 
construction documents phase or as otherwise negotiated. Upon receipt 
of project construction documents for review, the Indian tribe or 
tribal organization shall not take more than 21 days to make available 
to the Secretary any comments or objections to the construction 
documents as submitted by the Secretary. Resolution of any comments or 
objections shall be in accordance with dispute resolution procedures as 
agreed to by the parties and contained in the contract; or
    (ii) the project construction documents, during conduct of the 
construction phase activities. The Indian tribe or tribal organization 
shall have the right to conduct monthly or critical milestone on-site 
monitoring visits or as negotiated with the Secretary;
    (b) If the Indian tribe or tribal organization is contracting to 
perform design and/or construction phase activities, the Secretary 
shall have the following responsibilities:
    (1) In carrying out the responsibilities of this section, and 
specifically in carrying out review and approval functions under this 
section, the Secretary shall provide for tribal participation in the 
decisionmaking process and shall honor tribal preferences and 
recommendations to the greatest extent feasible. This includes promptly 
notifying the Indian tribe or tribal organization of any concerns or 
issues that may lead to disapproval, meeting with the Indian tribe or 
tribal organization to discuss these concerns and issues and to share 
relevant information, and making a good faith effort to accommodate 
tribal recommendations. The time allowed for Secretarial review and 
approval shall be no more than 21 days per review unless a different 
time period is negotiated and specified in individual contracts. The 
21-day time period may be extended if the Indian tribe or tribal 
organization agrees to the extension in writing. Disagreements over the 
Secretary's decisions in carrying out these responsibilities shall be 
handled under subpart N governing contract disputes under the Contract 
Disputes Act.
    (2) To the extent the construction project is subject to NEPA or 
other environmental laws, the Secretary shall make the final 
determination under such laws. All other environmentally related 
functions are contractible.
    (3) If the Indian tribe or tribal organization conducts planning 
activities under this subpart, the Secretary shall review and approve 
final planning documents for the project to ensure compliance with 
applicable planning standards.
    (4) When a contract or portion of a contract is for project 
construction activities, the Secretary shall obtain an independent 
government cost estimate that is derived from the final project plans 
and specifications or the Secretary may rely on Indian tribe or tribal 
organizations cost estimate. The Secretary shall obtain, if any, the 
cost estimate within 90 days or less of receipt of the final plans and 
specifications from the Indian tribe or tribal organization.
    (5) If the contracted project involves design activities, the 
Secretary shall have the authority to review and approve for general 
compliance with contract requirements the project plans and 
specifications only at the concept phase, the schematic phase, the 
design development phase, and the final construction documents phase or 
as otherwise negotiated.
    (6) If the contracted project involves design activities, the 
Secretary reserves a royalty-free, nonexclusive, and irrevocable 
license to reproduce, publish or otherwise use, for Federal government 
purposes:
    (i) the copyright in any work developed under a contract or 
subcontract of this subpart; and
    (ii) Any rights of copyright to which an Indian tribe or tribal 
organization or a tribal subcontractor purchases ownership through this 
contract.
    (7) Changes that require an increase to the negotiated contract 
budget or an increase in the negotiated performance period or are a 
significant departure from the scope or objective of the project shall 
require approval of the Secretary.
    (8) Review and comment on specific shop drawings as negotiated and 
specified in individual contracts.
    (9) The Secretary retains the right to conduct monthly on-site 
monitoring visits, or alternatively if negotiated with the Indian tribe 
or tribal organization, critical milestone on-site monitoring visits.
    (10) The Secretary retains the right to conduct final project 
inspections jointly with the Indian tribe or tribal organization and to 
accept the building or facility. Objections of the Secretary to the 
facility identified during final project inspections shall be provided 
to the Indian tribe or tribal organization and shall be limited to 
items that are materially noncompliant.
    (11) The Secretary can require an Indian tribe or tribal 
organization to suspend work under a contract in accordance with this 
paragraph. The Secretary may suspend a contract for no 

[[Page 2068]]
more than 30 days unless the Indian tribe or tribal organization has 
failed to correct the reason(s) for the suspension or unless the cause 
of the suspension cannot be resolved through either the efforts of the 
Secretary or the Indian tribe or tribal organization.
    (i) The following are reasons the Secretary may suspend work under 
a self-determination contract for construction:
    (A) differing site conditions encountered upon commencement of 
construction activities that impact health or safety concerns or shall 
require an increase in the negotiated project budget;
    (B) the Secretary discovers materially non-compliant work;
    (C) funds allocated for the project that is the subject of this 
contract are rescinded by Congressional action; or
    (D) other Congressional actions occur that materially affect the 
subject matter of the contract.
    (ii) If the Secretary wishes to suspend the work, the Secretary 
shall first provide written notice and an opportunity for the Indian 
tribe or tribal organization to correct the problem. The Secretary may 
direct the Indian tribe or tribal organization to temporarily suspend 
work under a contract only after providing a minimum of 5 working days 
advance written notice to the Indian tribe or tribal organization 
describing the nature of the performance deficiencies or imminent 
safety, health or environmental issues which are the cause for 
suspending the work.
    (iii) The Indian tribe or tribal organization shall be compensated 
for reasonable costs incurred due to any suspension of work that 
occurred through no fault of the Indian tribe or tribal organization.
    (iv) Disputes arising as a result of a suspension of the work by 
the Secretary shall be subject to the Contract Disputes Act or any 
other alternative dispute resolution mechanism as negotiated between 
and agreed to by the parties and contained in the contract.
    (12) The Secretary can terminate the project for cause in the event 
non-compliant work is not corrected through the suspension process 
specified in paragraph (11) above.
    (13) The Secretary retains authority to terminate the project for 
convenience for the following reasons:
    (i) termination for convenience is requested by the Indian tribe or 
tribal organization;
    (ii) termination for convenience is requested by the Secretary and 
agreed to by the Indian tribe or tribal organization;
    (iii) funds allocated for the project that is the subject of the 
contract are rescinded by Congressional action;
    (iv) other Congressional actions take place that affect the subject 
matter of the contract;
    (v) if the Secretary terminates a self-determination construction 
contract for convenience, the Secretary shall provide the Indian tribe 
or tribal organization 21 days advance written notice of intent to 
terminate a contract for convenience.


Sec. 900.133  Once a contract is awarded, how will the Indian tribe or 
tribal organization receive payments?

    (a) A schedule for advance payments shall be developed based on 
progress, need, and other considerations in accordance with applicable 
law. The payment schedule shall be negotiated by the parties and 
included in the contract. The payment schedule may be adjusted as 
negotiated by the parties during the course of the project based on 
progress and need.
    (b) Payments shall be made to the Indian tribe or tribal 
organization according to the payment schedule contained in the 
contract. If the contract does not provide for the length of each 
allocation period, the Secretary shall make payments to the Indian 
tribe or tribal organization at least quarterly. Each allocation shall 
be adequate to provide funds for the contract activities anticipated to 
be conducted during the allocation period, except that:
    (1) the first allocation may be greater than subsequent allocations 
and include mobilization costs, and contingency funds described in 
Sec. 900.128(e)(8); and
    (2) any allocation may include funds for payment for materials that 
will be used during subsequent allocation periods.
    (c) The Indian tribe or tribal organization may propose a schedule 
of payment amounts measured by time or measured by phase of the project 
(e.g. planning, design, construction).
    (d) The amount of each payment allocation shall be stated in the 
Indian tribe or tribal organizations contract proposal. Upon award of 
the contract, the Secretary shall transfer the amount of the first 
allocation to the Indian tribe or tribal organization within 21 days 
after the date of contract award. The second allocation shall be made 
not later than 7 days before the end of the first allocation period.
    (e) Not later than 7 days before the end of each subsequent 
allocation period after the second allocation, the Secretary shall 
transfer to the Indian tribe or tribal organization the amount for the 
next allocation period, unless the Indian tribe or tribal organization 
is delinquent in submission of allocation period progress reports and 
financial reports or the Secretary takes action to suspend or terminate 
the contract in accordance with Sec. 900.132(b)(11), 
Sec. 900.132(b)(12), or Sec. 900.132(b)(13).


Sec. 900.134  Does the declination process or the Contract Dispute Act 
apply to construction contract amendments proposed either by an Indian 
tribe or tribal organization or the Secretary?

    The Contract Disputes Act generally applies to such amendments. 
However, the declination process and the procedures in Sec. 900.123 and 
Sec. 900.124 apply to the proposal by an Indian tribe or tribal 
organization when the proposal is for a new project, a new phase or 
discreet stage of a phase of a project, or an expansion of a project 
resulting from an additional allocation of funds by the Secretary under 
Sec. 900.120.


Sec. 900.135  At the end of a self-determination construction contract, 
what happens to savings on a cost-reimbursement contract?

    The savings shall be used by the Indian tribe or tribal 
organization to provide additional services or benefits under the 
contract. Unexpended contingency funds obligated to the contract, and 
remaining at the end of the contract, are savings.


Sec. 900.136  Do all provisions of the other subparts apply to 
contracts awarded under this subpart?

    Yes, except as otherwise provided in this subpart and unless 
excluded as follows: programmatic reports and data requirements, 
reassumption, contract review and approval process, contract proposal 
contents, and Sec. 900.150 (d) and (e) of these regulations.

Subpart K--Waiver Procedures


Sec. 900.140  Can any provision of these regulations be waived?

    Yes. Upon the request of an Indian tribe or tribal organization, 
the Secretary shall waive any provision of these regulations, including 
any cost principles adopted by these regulations, if the Secretary 
finds that granting the waiver either is in the best interest of the 
Indians served by the contract, or is consistent with the policies of 
the Act and is not contrary to statutory law.


Sec. 900.141  How does an Indian tribe or tribal organization get a 
waiver?

    To obtain a waiver an Indian tribe or tribal organization shall 
submit a written request to the Secretary identifying the regulation to 
be waived and the basis for the request. The Indian tribe or tribal 
organization shall explain the intended effect of the waiver, the 

[[Page 2069]]
impact upon the Indian tribe or tribal organization if the waiver is 
not granted, and the specific contract(s) to which the waiver will 
apply.


Sec. 900.142  Does an Indian tribe or tribal organization's waiver 
request have to be included in an initial contract proposal?

    No. Although a waiver request may be included in a contract 
proposal, it can also be submitted separately.


Sec. 900.143  How is a waiver request processed?

    The Secretary shall approve or deny a waiver within 90 days after 
the Secretary receives a written waiver request. The Secretary's 
decision shall be in writing. If the requested waiver is denied the 
Secretary shall include in the decision a full explanation of the basis 
for the decision.


Sec. 900.144  What happens if the Secretary makes no decision within 
the 90-day period?

    The waiver request is deemed approved.


Sec. 900.145  On what basis may the Secretary deny a waiver request?

    Consistent with section 107(e) of the Act, the Secretary may only 
deny a waiver request based on a specific written finding. The finding 
must clearly demonstrate (or be supported by controlling legal 
authority) that if the waiver is granted:
    (a) the service to be rendered to the Indian beneficiaries of the 
particular program or function to be contracted will not be 
satisfactory;
    (b) adequate protection of trust resources is not assured;
    (c) the proposed project or function to be contracted for cannot be 
properly completed or maintained by the proposed contract;
    (d) the amount of funds proposed under the contract is in excess of 
the applicable funding level for the contract, as determined under 
section 106(a) of the Act; or
    (e) the program, function, service, or activity (or portion of it) 
that is the subject of the proposal is beyond the scope of programs, 
functions, services, or activities that are contractible under the Act 
because the proposal includes activities that cannot lawfully be 
carried out by the contractor.


Sec. 900.146  Is technical assistance available?

    Yes. In accordance with section 102(b) of the Act (and in 
accordance with section 103(d), to the extent a waiver request is 
included in a proposal for a new self-determination contract), the 
Secretary shall provide the Indian tribe or tribal organization with 
any necessary requested technical assistance to prepare a waiver 
request or to overcome any stated objection which the Secretary might 
have to the request.


Sec. 900.147  What appeal rights are available?

    If the Secretary denies a waiver request, the Indian tribe or 
tribal organization has the right to appeal the decision and request a 
hearing on the record under the procedures for hearings and appeals 
contained in subpart L of these regulations. Alternatively, the Indian 
tribe or tribal organization may sue in Federal district court to 
challenge the Secretary's action.


Sec. 900.148  How can an Indian tribe or tribal organization secure a 
determination that a law or regulation has been superseded by the 
indian self-determination act, as specified in section 107(b) of the 
Act?

    Any Indian tribe or tribal organization may at any time submit a 
request to the Secretary for a determination that any law or regulation 
has been superseded by the Act and that the law has no applicability to 
any contract or proposed contract under the Act. The Secretary is 
required to provide an initial decision on such a request within 90 
days after receipt. If such a request is denied, the Indian tribe or 
tribal organization may appeal under subpart L of these regulations. 
The Secretary shall provide notice of each determination made under 
this subpart to all Indian tribes and tribal organizations.

Subpart L--Appeals (Other Than Emergency Reassumption and 
Suspension, Withholding Or Delay In Payment)


Sec. 900.150  What decisions can an Indian tribe or tribal organization 
appeal under this subpart?

    (a) a decision to decline to award a self-determination contract, 
or a portion thereof, under section 102 of the Act;
    (b) a decision to decline to award a construction contract, or a 
portion thereof, under sections 105(m) and 102 of the Act.
    (c) a decision to decline a proposed amendment to a self-
determination contract, or a portion thereof, under section 102 of the 
Act;
    (d) a decision not to approve a proposal, in whole or in part, to 
redesign a program;
    (e) a decision to rescind and reassume a self-determination 
contract, in whole or in part, under section 109 of the Act except for 
emergency reassumptions;
    (f) a decision to refuse to waive a regulation under section 107(e) 
of the Act;
    (g) a disagreement between an Indian tribe or tribal organization 
and the Federal government over proposed reporting requirements; or
    (h) a decision to refuse to allow you to convert a contract to 
mature status, under section 4(h) of the Act.
    (i) all other appealable pre-award decisions by a Federal official 
as specified in these regulations, whether an official of the 
Department of the Interior or the Department of Health and Human 
Services.


Sec. 900.151  Are there any appeals this part does not cover?

    Yes. This subpart does not cover:
    (a) disputes which arise after a self-determination contract has 
been awarded, or emergency reassumption of self-determination contracts 
or suspension of payments under self-determination contracts, which are 
covered under Sec. 900.170 through Sec. 900.176 of these regulations.
    (b) other post-award contract disputes, which are covered under 
subpart N.
    (c) denials under the Freedom of Information Act, 5 U.S.C. 552, 
which may be appealed under 43 CFR 2 for the Department of the Interior 
and 45 CFR 5 for the Department of Health and Human Services; and
    (d) decisions relating to the award of discretionary grants under 
section 103 of the Act, which may be appealed under 25 CFR 2 for the 
Department of the Interior, and under 45 CFR 5 for the Department of 
Health and Human Services.


Sec. 900.152   How does an Indian tribe or tribal organization know 
where and when to file its appeal?

    Every decision in any of the nine areas listed above shall contain 
information which shall tell you where and when to file your appeal. 
Each decision shall include the following statement:

    Within 30 days of the receipt of this decision, you may request 
an informal conference under 25 CFR ____, or appeal this decision 
under 25 CFR ____. Should you decide to appeal this decision to the 
Interior Board of Indian Appeals (IBIA) under 25 CFR ____, you may 
request a hearing on the record. The IBIA will determine whether you 
are entitled to such a hearing under 25 CFR ____. An appeal to the 
IBIA under 25 CFR ____ shall be filed with the IBIA by certified 
mail or by hand delivery at the following address: Board of Indian 
Appeals, U.S. Department of the Interior, 4015 Wilson Boulevard, 
Arlington, VA 22203. You shall serve copies of your Notice of Appeal 
on the Secretary and on the official whose decision 

[[Page 2070]]
is being appealed. You shall certify to the IBIA that you have served 
these copies.


Sec. 900.153   Does an Indian tribe or tribal organization have any 
options besides an appeal?

    Yes. You may request an informal conference. An informal conference 
is a way to resolve issues as quickly as possible, without the need for 
a formal hearing. You may also choose to sue in U.S. District Court 
under section 102(b)(3) and section 110(a) of the Act.


Sec. 900.154   How does an Indian tribe or tribal organization request 
an informal conference?

    You shall file your request for an informal conference with the 
office of the person whose decision you are appealing, within 30 days 
of the day you receive the decision. You may either hand-deliver the 
request for an informal conference to that person's office, or mail it 
by certified mail, return receipt requested. If you mail the request, 
it will be considered filed on the date you mailed it by certified 
mail.


Sec. 900.155   How is an informal conference held?

    (a) The informal conference shall be held within 30 days of the 
date the request was received, unless the Indian tribe or tribal 
organization and the authorized representative of the Secretary agree 
on another date.
    (b) If possible, the informal conference will be held at the Indian 
tribe or tribal organization's office. If the meeting cannot be held at 
your office, and is held more than fifty miles from your office, the 
Secretary shall arrange to pay transportation costs and per diem for 
incidental expenses to allow for adequate representation of the Indian 
tribe or tribal organization.
    (c) The informal conference shall be conducted by a designated 
representative of the Secretary.
    (d) Only people who are your designated representatives, or 
authorized by the Secretary of Health and Human Services or by the 
appropriate agency of the Department of the Interior, are allowed to 
make presentations at the informal conference.


Sec. 900.156   What happens after the informal conference?

    (a) Within 10 days of the informal conference, the person who 
conducted the informal conference shall prepare and mail you a written 
report which summarizes what happened at the informal conference and a 
recommended decision.
    (b) Every report of an informal conference shall contain the 
following language:

    Within 30 days of the receipt of this recommended decision, you 
may file an appeal of the initial decision with the Interior Board 
of Indian Appeals (IBIA) under 25 CFR ____. You may request a 
hearing on the record. The IBIA will determine whether you are 
entitled to such a hearing under 25 CFR ____. An appeal to the IBIA 
under 25 CFR ____ shall be filed with the IBIA by certified mail or 
hand delivery at the following address: Board of Indian Appeals, 
U.S. Department of the Interior, 4015 Wilson Boulevard, Arlington, 
VA 22203. You shall serve copies of your Notice of Appeal on the 
Secretary and on the official whose decision is being appealed. You 
shall certify to the IBIA that you have served these copies.


Sec. 900.157   Is the recommended decision always final?

    No. If you are dissatisfied with the recommended decision, you may 
still appeal the initial decision within 30 days of receiving the 
recommended decision and the report of the informal conference. If you 
do not file a notice of appeal within 30 days or the extension you have 
been granted under Sec. 900.159, the recommended decision becomes 
final.


Sec. 900.158   How does an Indian tribe or tribal organization appeal 
the initial decision, if it does not request an informal conference or 
if it does not agree with the recommended decision resulting from the 
informal conference?

    (a) If you decide to appeal, you shall file a notice of appeal with 
the IBIA within 30 days of receiving either the initial decision or the 
recommended decision.
    (b) You may either hand-deliver the notice of appeal to the IBIA, 
or mail it by certified mail, return receipt requested. If you mail the 
Notice of Appeal, it will be considered filed on the date you mailed it 
by certified mail. You should mail the notice of appeal to: Board of 
Indian Appeals, U.S. Department of the Interior, 4015 Wilson Boulevard, 
Arlington, VA 22203.
    (c) The notice of appeal shall:
    (1) Briefly state why you think the initial decision is wrong;
    (2) Briefly identify the issues involved in the appeal; and
    (3) State whether you want a hearing on the record, or whether you 
want to waive your right to a hearing.
    (d) You shall serve a copy of the notice of appeal upon the 
official whose decision you are appealing. You shall certify to the 
IBIA that you have done so.
    (e) The authorized representative of the Secretary of Health and 
Human Services or the authorized representative of the Secretary of the 
Interior will be considered a party to all appeals filed with the IBIA 
under the Act.


Sec. 900.159   May an Indian tribe or tribal organization get an 
extension of time to file a notice of appeal?

    Yes. If you need more time, you can request an extension of time to 
file your Notice of Appeal within 60 days of receiving either the 
initial decision or the recommended decision resulting from the 
informal conference. Your request shall be in writing, and shall give a 
good reason for not filing your notice of appeal within the 30-day time 
period. If you have a good reason for not filing your notice of appeal 
on time, you may receive an extension from the IBIA.


Sec. 900.160   What happens after an Indian tribe or tribal 
organization files an appeal?

    (a) Within five days of receiving your notice of appeal, the IBIA 
will decide whether your appeal falls under Sec. 900.150(a) through 
Sec. 900.150(g) and you are entitled to a hearing.
    (1) If the IBIA determines that your appeal falls under Sec. 900(h) 
or Sec. 900.150(i) and you have requested a hearing, the IBIA will 
grant your request for a hearing unless it determines that there are no 
genuine issues of material fact to be resolved.
    (2) If the IBIA cannot make that decision based on the information 
included in the notice of appeal, the IBIA may ask for additional 
statements from the Indian tribe or tribal organization, or from the 
appropriate Federal agency. If the IBIA asks for more statements, it 
will make its decision within five days of receiving those statements.
    (b) If the IBIA decides that you are not entitled to a hearing or 
if you have waived your right to a hearing on the record, the IBIA will 
ask for the administrative record under 43 CFR 4.335. The IBIA shall 
tell the parties that the appeal will be considered under the 
regulations at 43 CFR 4, subpart D, except the case shall be docketed 
immediately, without waiting for the 20-day period described in 43 CFR 
4.336.


Sec. 900.161   How is a hearing arranged?

    (a) If a hearing is to be held, the IBIA will refer your case to 
the Hearings Division of the Office of Hearings and Appeals of the U.S. 
Department of the Interior. The case will then be assigned to an 
Administrative Law Judge (ALJ), appointed under 5 U.S.C. 3105.
    (b) Within 15 days of the date of the referral, the ALJ will hold a 
pre-hearing conference, by telephone or in person, to decide whether an 
evidentiary hearing is necessary, or whether it is possible to decide 
the appeal based on the written record. At the pre-hearing conference 
the ALJ will provide for:
    (1) a briefing and discovery schedule;
    
[[Page 2071]]

    (2) a schedule for the exchange of information, including, but not 
limited to witness and exhibit lists, if an evidentiary hearing is to 
be held;
    (3) the simplification or clarification of issues;
    (4) the limitation of the number of expert witnesses, or avoidance 
of similar cumulative evidence, if an evidentiary hearing is to be 
held;
    (5) the possibility of agreement disposing of all or any of the 
issues in dispute; and
    (6) such other matters as may aid in the disposition of the appeal.
    (c) The ALJ shall order a written record to be made of any 
conference results that are not reflected in a transcript.


Sec. 900.162   What happens when a hearing is necessary?

    (a) The ALJ shall hold a hearing within 60 days of the date of the 
order referring the appeal to the ALJ, unless the parties agree to have 
the hearing on a later date.
    (b) At least 30 days before the hearing, the government agency 
shall file and serve you with a response to the notice of appeal.
    (c) If the hearing is held more than 50 miles from the Indian tribe 
or tribal organization's office, the Secretary shall arrange to pay 
transportation costs and per diem for incidental expenses to allow for 
adequate representation of the Indian tribe or tribal organization.
    (d) The hearing shall be conducted in accordance with the 
Administrative Procedure Act, 5 U.S.C. 556.


Sec. 900.163   What is the Secretary's burden of proof for appeals from 
decisions under Sec. 900.150(a) through Sec. 900.150(g)?

    For those appeals, the Secretary has the burden of proof (as 
required by section 102(e)(1) of the Act) to establish by clearly 
demonstrating the validity of the grounds for declining the contract 
proposal.


Sec. 900.164  What rights do Indian tribes, tribal organizations, and 
the government have during the appeal process?

    Both the Indian tribe or tribal organization and the government 
agency have the same rights during the appeal process. These rights 
include the right to:
    (a) be represented by legal counsel;
    (b) have the parties provide witnesses who have knowledge of the 
relevant issues, including specific witnesses with that knowledge, who 
are requested by either party;
    (c) cross-examine witnesses;
    (d) introduce oral or documentary evidence, or both;
    (e) require that oral testimony be under oath;
    (f) receive a copy of the transcript of the hearing, and copies of 
all documentary evidence which is introduced at the hearing;
    (g) compel the presence of witnesses, or the production of 
documents, or both, by subpoena at hearings or at depositions;
    (h) take depositions, to request the production of documents, to 
serve interrogatories on other parties, and to request admissions; and
    (i) any other procedural rights under the Administrative Procedure 
Act, 5 U.S.C. 556.


Sec. 900.165  What happens after the hearing?

    (a) Within 30 days of the end of the formal hearing or any post-
hearing briefing schedule established by the ALJ, the ALJ shall send 
all the parties a recommended decision, by certified mail, return 
receipt requested. The recommended decision shall contain the ALJ's 
findings of fact and conclusions of law on all the issues. The 
recommended decision shall also state that you have the right to object 
to the recommended decision.
    (b) If the appeal involves the Department of Health and Human 
Services, the recommended decision shall contain the following 
statement:

    Within 30 days of the receipt of this recommended decision, you 
may file an objection to the recommended decision with the Secretary 
of Health and Human Services under 25 CFR ____. An appeal to the 
Secretary under 25 CFR ____ shall be filed at the following address: 
Department of Health and Human Services, 200 Independence Ave. S.W., 
Washington, DC, 20201. You shall serve copies of your notice of 
appeal on the official whose decision is being appealed. You shall 
certify to the Secretary that you have served this copy. If neither 
party files an objection to the recommended decision within 30 days, 
the recommended decision will become final.

    (c) If the appeal involves the Department of the Interior, the 
recommended decision shall contain the following statement:

    Within 30 days of the receipt of this recommended decision, you 
may file an objection to the recommended decision with the Interior 
Board of Indian Appeals (IBIA) under 25 CFR ____. An appeal to the 
IBIA under 25 CFR ____ shall be filed at the following address: 
Board of Indian Appeals, 4015 Wilson Boulevard, Arlington, VA 22203. 
You shall serve copies of your notice of appeal on the Secretary of 
the Interior, and on the official whose decision is being appealed. 
You shall certify to the IBIA that you have served these copies. If 
neither party files an objection to the recommended decision within 
30 days, the recommended decision will become final.


Sec. 900.166  Is the recommended decision always final?

    No. Any party to the appeal may file precise and specific written 
objections to the recommended decision, or any other comments, within 
30 days of receiving the recommended decision. Objections shall be 
served on all other parties. The recommended decision shall become 
final 30 days after the Indian tribe or tribal organization receives 
the ALJ's recommended decision, unless a written statement of 
objections is filed with the Secretary of Health and Human Services or 
the IBIA during the 30-day period. If no party files a written 
statement of objections within 30 days, the recommended decision shall 
become final.


Sec. 900.167  If an Indian tribe or tribal organization object to the 
recommended decision, what will the Secretary of Health and Human 
Services or the IBIA do?

    (a) The Secretary of Health and Human Services or the IBIA has 20 
days from the date it receives any timely written objections to modify, 
adopt, or reverse the recommended decision. If the Secretary of Health 
and Human Services or the IBIA does not modify or reverse the 
recommended decision during that time, the recommended decision 
automatically becomes final.
    (b) When reviewing the recommended decision, the IBIA or the 
Secretary may consider and decide all issues properly raised by any 
party to the appeal, based on the record.
    (c) The decision of the Secretary or the IBIA shall:
    (1) be in writing;
    (2) specify the findings of fact or conclusions of law which are 
modified or reversed;
    (3) give reasons for the decision, based on the record; and
    (4) state that the decision is final for the Department.


Sec. 900.168  Will an appeal hurt the Indian tribe or tribal 
organization's position in other contract negotiations?

    No. A pending appeal will not affect or prevent the negotiation or 
award of another contract.


Sec. 900.169  Will the decisions on appeals be available for the public 
to review?

    Yes. The Secretary shall publish all final decisions from the ALJs, 
the IBIA, and the Secretary of Health and Human Services. 

[[Page 2072]]


Appeals of Emergency Reassumption of Self-Determination Contracts or 
Suspension, Withholding or Delay of Payments Under a Self-Determination 
Contract


Sec. 900.170  What happens in the case of emergency reassumption or 
suspension or withholding or delay of payments?

    (a) This subpart applies when the Secretary gives notice to an 
Indian tribe or tribal organization that the Secretary intends to:
    (1) immediately rescind a contract or grant and reassume a program; 
or
    (2) suspend, withhold, or delay payment under a contract.
    (b) When the Secretary advises an Indian tribe or tribal 
organization that the Secretary intends to take an action referred to 
in paragraph (1) above, the Secretary shall also notify the Deputy 
Director of the Office of Hearings and Appeals, Department of the 
Interior, 4015 Wilson Boulevard, Arlington, VA 22203.


Sec. 900.171  Will there be a hearing?

    Yes. The Deputy Director of the Office of Hearings and Appeals 
shall appoint an Administrative Law Judge (ALJ) to hold a hearing.
    (a) The hearing shall be held within 10 days of the date of the 
notice referred to in Sec. 900.170 unless the Indian tribe or tribal 
organization agrees to a later date.
    (b) If possible, the hearing will be held at the office of the 
Indian tribe or tribal organization. If the hearing is held more than 
50 miles from the Indian tribe's or tribal organization's office, the 
Secretary shall arrange to pay transportation costs and per diem for 
incidental expenses. This will allow for adequate representation of the 
Indian tribe or tribal organization.


Sec. 900.172  What happens after the hearing?

    (a) Within 30 days after the end of the hearing or any post hearing 
briefing schedule established by the ALJ, the ALJ shall send all 
parties a recommended decision by certified mail, return receipt 
requested. The recommended decision shall contain the ALJ's findings of 
fact and conclusions of law on all the issues. The recommended decision 
shall also state that you have the right to object to the recommended 
decision.
    (b) If the appeal involves the Department of Health and Human 
Services, the recommended decision shall contain the following 
statement:

    Within 15 days of the receipt of this recommended decision, you 
may file an objection to the recommended decision with the Secretary 
of Health and Human Services under 25 CFR ____. An appeal to the 
Secretary under 25 CFR ____ shall be filed at the following address: 
Department of Health and Human Services, 200 Independence Ave. S.W., 
Washington, DC 20201. You shall serve copies of your notice of 
appeal on the official whose decision is being appealed. You shall 
certify to the Secretary that you have served this copy. If neither 
party files an objection to the recommended decision within 15 days, 
the recommended decision will become final.

    (c) If the appeal involves the Department of the Interior, the 
recommended decision shall contain the following statement:

    Within 15 days of the receipt of this recommended decision, you 
may file an objection to the recommended decision with the Interior 
Board of Indian Appeals (IBIA) under 25 CFR ____. An appeal to the 
IBIA under 25 CFR ____ shall be filed at the following address: 
Board of Indian Appeals, 4015 Wilson Boulevard, Arlington, VA 22203. 
You shall serve copies of your notice of appeal on the Secretary of 
the Interior, and on the official whose decision is being appealed. 
You shall certify to the IBIA that you have served these copies. If 
neither party files an objection to the recommended decision within 
15 days, the recommended decision will become final.


Sec. 900.173  Is the recommended decision always final?

    No. Any party to the appeal may file precise and specific written 
objections to the recommended decision, or any other comments, within 
15 days of receiving the recommended decision. You shall serve a copy 
of your objections on the other party. The recommended decision will 
become final 15 days after the Indian tribe or tribal organization 
receives the ALJ's recommended decision, unless a written statement of 
objections is filed with the Secretary of Health and Human Services or 
the IBIA during the 15-day period. If no party files a written 
statement of objections within 15 days, the recommended decision will 
become final.


Sec. 900.174  If an Indian tribe or tribal organization object to the 
recommended decision, what will the Secretary of Health and Human 
Services or the IBIA do?

    (a) The Secretary or the IBIA has 15 days from the date he/she 
receives timely written objections to modify, adopt, or reverse the 
recommended decision. If the Secretary or the IBIA does not modify or 
reverse the recommended decision during that time, the recommended 
decision automatically becomes final.
    (b) When reviewing the recommended decision, the IBIA or the 
Secretary may consider and decide all issues properly raised by any 
party to the appeal, based on the record.
    (c) the decision of the Secretary or of the IBIA shall:
    (1) be in writing;
    (2) specify the findings of fact or conclusions of law which are 
modified or reversed;
    (3) give reasons for the decision, based on the record; and
    (4) state that the decision is final for the Department.


Sec. 900.175  Will an appeal hurt an Indian tribe or tribal 
organization's position in other contract negotiations?

    No. A pending appeal will not affect or prevent the negotiation or 
award of another contract.


Sec. 900.176  Will the decisions on appeals be available for the public 
to review?

    Yes. The Secretary shall publish all final decisions from the ALJs, 
the IBIA, and the Secretary of Health and Human Services.

Subpart M--Federal Tort Claims Act Coverage

General Provisions


Sec. 900.180  What does this subpart cover?

    This subpart explains the applicability of the Federal Tort Claims 
Act (FTCA). This section covers:
    (a) coverage of claims arising out of the performance of medical-
related functions under self-determination contracts;
    (b) coverage of claims arising out of the performance of non-
medical-related functions under self-determination contracts; and
    (c) procedures for filing claims under FTCA.


Sec. 900.181  What definitions apply to this subpart?

    (a) Indian contractor means:
    (1) in California subcontractors of the California Rural Indian 
Health Board, Inc., or, subject to approval of the IHS Director after 
consultation with the DHHS Office of General Counsel, subcontractors of 
an Indian tribe or tribal organization which are:
    (i) governed by Indians eligible to receive services from the 
Indian Health Service;
    (ii) which carry out comprehensive IHS service programs within 
geographically defined service areas; and
    (iii) which are selected and identified through tribal resolution 
as the local provider of Indian health care services; or
    (2) subject to the approval of the IHS Director after consultation 
with the DHHS Office of General Counsel, tribes and tribal 
organizations which meet in all respects the requirements of the Indian 
Self-Determination Act to contract directly with the Federal 

[[Page 2073]]
Government but which choose through tribal resolution to sub-contract 
to carry out IHS service programs within geographically defined service 
areas with another Indian tribe or tribal organization which contracts 
directly with IHS.
    (b) Self-determination contract or contract means contracts, annual 
funding agreements, grants and cooperative agreements under Title I of 
the Act.


Sec. 900.182  What other statutes and regulations apply to FTCA 
coverage?

    A number of other statutes and regulations, including the Federal 
Tort Claims Act (28 U.S.C. 1346(b), 2401, 2671-2680) and related 
Department of Justice regulations in 28 CFR part 14.


Sec. 900.183  Do Indian tribes and tribal organizations need to be 
aware of areas which FTCA does not cover?

    Yes. There are claims against self-determination contractors which 
are not covered by FTCA, claims which may not be pursued under FTCA, 
and remedies that are excluded by FTCA. General guidance is provided 
below as to these matters but is not intended as a definitive 
description of coverage which is subject to review by the Department of 
Justice and the courts on a case-by-case basis.
    (a) What claims are barred by FTCA and therefore may not be made 
against the United States, an Indian tribe or tribal organization? Any 
claim arising out of assault, battery, false imprisonment, false 
arrest, malicious prosecution, abuse of process, libel, slander, 
misrepresentation, deceit, or interference with contract rights, unless 
otherwise authorized by 28 U.S.C. 2680(h).
    (b) What claims may not be pursued under FTCA but may be pursued 
under other provisions of law?
    (1) Except as provided in Sec. 900.181(a)(1) and Sec. 900.189, 
claims against sub-contractors arising out of the performance of 
subcontracts with a self-determination contractor;
    (2) claims for on-the-job injuries which are covered by workmen's 
compensation;
    (3) claims for breach of contract rather than tort claims;
    (4) a claim which is brought for violation of the Constitution of 
the United States; or
    (5) a claim which is brought for a violation of a statute of the 
United States under which an action against an individual is otherwise 
authorized.
    (c) What remedies are excluded by FTCA and therefore are barred?
    (1) Punitive damages, unless otherwise authorized by 28 U.S.C. 
2674; and
    (2) other remedies not permitted under applicable State law.


Sec. 900.184  Is there a deadline for filing FTCA claims?

    Yes. Claims shall be filed within 2 years of the date of accrual. 
(28 U.S.C. 2401).


Sec. 900.185  How long does the Federal government have to process an 
FTCA claim after the claim is received by the Federal agency, before a 
lawsuit may be filed?

    Six months.


Sec. 900.186  Is it necessary for a self-determination contract to 
include any clauses about Federal Tort Claims Act coverage?

    No, it is optional. At the request of Indian tribes and tribal 
organizations, self-determination contracts shall include the following 
clauses to clarify the scope of FTCA coverage:
    (a) For purposes of Federal Tort Claims Act coverage, the 
contractor and its employees (including individuals performing personal 
services contracts with the contractor to provide health care services) 
are deemed to be employees of the Federal government while performing 
work under this contract. This status is not changed by the source of 
the funds used by the contractor to pay the employee's salary and 
benefits unless the employee receives additional compensation for 
performing covered services from anyone other than the contractor.
    (b) The following clause is for IHS contracts only: Under this 
contract, the contractor's employee may be required as a condition of 
employment to provide health services to non-IHS beneficiaries in order 
to meet contractual obligations. These services may be provided in 
either contractor or non-contractor facilities. The employee's status 
for Federal Tort Claims Act purposes is not affected.


Sec. 900.187  Does FTCA apply to a self-determination contract if FTCA 
is not referenced in the contract?

    Yes.


Sec. 900.188  To what extent shall the contractor cooperate with the 
Federal government in connection with tort claims arising out of the 
contractor's performance?

    (a) The contractor shall designate an individual to serve as tort 
claims liaison with the Federal government.
    (b) The contractor shall notify the Secretary immediately in 
writing of any tort claim (including any proceeding before an 
administrative agency or court) filed against the contractor or any of 
its employees that relates to performance of a self-determination 
contract. This includes, but is not limited to, the performance of any 
subcontract.
    (c) The contractor, through its designated tort claims liaison, 
shall assist the appropriate Federal agency in preparing a 
comprehensive, accurate, and unbiased report of the incident so that 
the claim may be properly evaluated. This report should be completed 
within 60 days of notification of the filing of the tort claim. The 
report should be complete in every significant detail and include as 
appropriate:
    (1) the date, time and exact place of the accident or incident;
    (2) a concise and complete statement of the circumstances of the 
accident or incident;
    (3) the names and addresses of tribal and/or Federal employees 
involved as participants or witnesses;
    (4) the names and addresses of all other eye witnesses;
    (5) an accurate description of all government and other privately-
owned property involved and the nature and amount of damage, if any;
    (6) a statement whether any person involved was cited for violating 
a Federal, State or tribal law, ordinance, or regulation;
    (7) the contractor's determination whether any of its employees 
involved in the incident giving rise to the tort claim were acting 
within the scope of their employment in carrying out the contract at 
the time the incident occurred; and
    (8) copies of all relevant documentation, including available 
police reports, statements of witnesses, newspaper accounts, weather 
reports, plats and photographs of the site or damaged property, such as 
may be necessary or useful for purposes of claim determination by the 
Federal agency.
    (d) The contractor shall cooperate with and provide assistance to 
the U.S. Department of Justice attorneys assigned to defend the tort 
claim, including, but not limited to, case preparation, discovery, and 
trial.
    (e) If requested by the Secretary, the contractor shall make an 
assignment and subrogation of all the contractor's riconstrucghts and 
claims (except those against the Federal government) arising out of a 
tort claim against the contractor.
    (f) If requested by the Secretary, the contractor shall authorize 
representatives of the Secretary to settle or defend any tort claim and 
to represent the contractor in or take 

[[Page 2074]]
charge of any action. If the Federal government undertakes the 
settlement or defense of any claim or action the contractor shall 
provide all reasonable additional assistance in reaching a settlement 
or asserting a defense.


Sec. 900.189  Does this coverage extend to subcontractors of self-
determination contracts?

    No. Subcontractors or subgrantees providing services to the Public 
Law 93-638 contractor or grantee are generally not covered. The only 
exceptions are Indian contractors such as those under subcontract with 
the California Rural Indian Health Board to carry out IHS programs in 
geographically defined service areas in California and personal 
services contracts under Sec. 900.193 (for Sec. 900.183(b)(1)) or 
Sec. 900.183(b) (for Sec. 900.190).
Medical-Related Claims


Sec. 900.190  Is FTCA the exclusive remedy for a tort claim for 
personal injury or death resulting from the performance of a self-
determination contract?

    Yes, except as explained in Sec. 900.183(b). No claim may be filed 
against a self-determination contractor or employee for personal injury 
or death arising from the performance of medical, surgical, dental, or 
related functions by the contractor in carrying out self-determination 
contracts under the Act. All such claims shall be filed against the 
United States and are subject to the limitations and restrictions of 
that Act.


Sec. 900.191  Are employees of self-determination contractors providing 
health services under the self-determination contract protected by 
FTCA?

    Yes. For the purpose of Federal Tort Claims Act coverage, an Indian 
tribe or tribal organization and its employees performing medical-
related functions under a self-determination contract are deemed a part 
of the Public Health Service if the employees are acting within the 
scope of their employment in carrying out the contract.


Sec. 900.192  What employees are covered by FTCA for medical-related 
claims?

    (a) Permanent employees;
    (b) temporary employees;
    (c) persons providing services without compensation in carrying out 
a contract; and
    (d) persons required because of their employment by a self-
determination contractor to serve non-IHS beneficiaries (even if the 
services are provided in facilities not owned by the contractor).


Sec. 900.193  Does FTCA coverage extend to individuals who provide 
health care services under a personal services contract providing 
services in a facility that is owned, operated, or constructed under 
the jurisdiction of the IHS?

    Yes. The coverage extends to individual personal services 
contractors providing health services in such a facility, including a 
facility owned by a tribe or tribal organization but operated under a 
self-determination contract with IHS.


Sec. 900.194  Does FTCA coverage extend to services provided under a 
staff privileges agreement with a non-IHS facility where the agreement 
requires a health care practitioner to provide reciprocal services to 
the general population?

    Yes, as long as the contractor's health care practitioners do not 
receive additional compensation for the performance of these services 
and they are acting within the scope of their employment under a self-
determination contract. Reciprocal services include:
    (a) Cross-covering other medical personnel who temporarily cannot 
attend their patients;
    (b) assisting other personnel with surgeries or other medical 
procedures;
    (c) assisting with unstable patients or at deliveries; or
    (d) assisting in any patient care situation where additional 
assistance by health care personnel is needed.


Sec. 900.195  Does FTCA coverage extend to the contractor's health care 
practitioners providing services to private patients on a fee-for-
services basis when such personnel receive the fee, not the self-
determination contractor?

    No.


Sec. 900.196  Do covered services include the conduct of clinical 
studies and investigations and the provision of emergency services, 
including the operation of emergency motor vehicles?

    Yes, if the services are provided in carrying out a self-
determination contract.


Sec. 900.197  Does FTCA cover employees of the contractor who are paid 
by the contractor from funds other than those provided through the 
self-determination contract?

    Yes, as long as the services out of which the claim arose were 
performed in carrying out the self-determination contract.


Sec. 900.198  Are Federal employees assigned to a self-determination 
contractor under the Intergovernmental Personnel Act or detailed under 
section 214 of the Public Health Service Act covered to the same extent 
that they would be if working directly for a Federal agency?

    Yes.


Sec. 900.199  Does FTCA coverage extend to a contractor's health care 
practitioners to whom staff privileges have been extended in contractor 
health care facilities operated under a self-determination contract on 
the condition that such practitioner provide health services to IHS 
beneficiaries covered by FTCA?

    Yes, health care practitioners with staff privileges in a facility 
operated by a contractor are covered when they perform services to IHS 
beneficiaries. Such personnel are not covered when providing services 
to non-IHS beneficiaries.


Sec. 900.200  May persons who are not Indians or Alaska Natives assert 
claims under FTCA?

    Yes. Non-Indian individuals who otherwise are eligible for services 
from IHS in accordance with Federal law and regulations, whether or not 
on a fee-for-service basis, may assert claims under this subpart.

Procedure for Filing Medical-Related Claims


Sec. 900.201  How should claims arising out of the performance of 
medical-related functions be filed?

    Claims should be filed on Standard Form 95 (Claim for Damage, 
Injury or Death) or by submitting comparable written information 
(including a definite amount of monetary damage claimed) with the 
Chief, PHS Claims Branch, Room 18-20, Parklawn Building, 5600 Fishers 
Lane, Rockville, MD 20857, or such other address as shall have been 
provided to the contractor in writing.


Sec. 900.202  What should a self-determination contractor or a 
contractor's employee do on receiving such a claim?

    You should immediately forward the claim to the PHS Claims Branch 
at the address indicated in Sec. 900.201 and notify the contractor's 
tort claims liaison.


Sec. 900.203  If the contractor or contractor's employee receives a 
summons and/or a complaint alleging a tort covered by FTCA, what should 
the contractor do?

    You should immediately inform the Chief, Litigation Branch, 
Business and Administrative Law Division, Office of General Counsel, 
Department of Health and Human Services, 330 Independence Avenue SW., 
Room 5362, Washington, DC 20201, and the contractor's tort claims 
liaison, and forward the following materials:
    (a) four copies of the claimant's medical records of treatment, 
inpatient and outpatient, and any related correspondence, as well as 
reports of consultants; 

[[Page 2075]]

    (b) a narrative summary of the care and treatment involved;
    (c) the names and addresses of all personnel who were involved in 
the care and treatment of the claimant; and
    (d) any comments or opinions that the employees who treated the 
claimant believe to be pertinent to the allegations contained in the 
claim.

Non-Medical Related Claims


Sec. 900.204  Is FTCA the exclusive remedy for a non-medical related 
tort claim arising out of the performance of a self-determination 
contract?

    Except as explained in Sec. 900.183(b), no claim may be filed 
against a self-determination contractor or employee based upon 
performance of non-medical-related functions under a self-determination 
contract. Claims of this type shall be filed against the United States 
under FTCA.


Sec. 900.205  To what non-medical-related claims against self-
determination contractors does FTCA apply?

    It applies to:
    (a) all tort claims arising from the performance of self-
determination contracts under the authority of the Act on or after 
October 1, 1989; and
    (b) any tort claims first filed on or after October 24, 1989, 
regardless of when the incident which is the basis of the claim 
occurred.


Sec. 900.206  Does FTCA cover employees of self-determination 
contractors?

    Yes. A contractor and its employees carrying out a self-
determination contract are considered part of the Public Health Service 
or the Department of the Interior, as the case may be, for FTCA 
purposes.


Sec. 900.207  How are non-medical related tort claims and lawsuits 
filed for IHS?

    Non-medical-related tort claims and lawsuits arising out of the 
performance of self-determination contracts with the Indian Health 
Service should be filed in the manner described in Sec. 900.201 (for 
both Sec. 900.207 and Sec. 900.208).


Sec. 900.208  How are non-medical related tort claims and lawsuits 
filed for DOI?

    Non-medical-related claims arising out of the performance of self-
determination contracts with the Secretary of the Interior should be 
filed in the manner described with the Assistant Solicitor, Procurement 
and Patents, Office of the Solicitor, Department of the Interior, Room 
6511, 1849 C Street NW., Washington, DC 20240.


Sec. 900.209  What should a self-determination contractor or 
contractor's employee do on receiving a non-medical related tort claim?

    (a) If the contract is with DHHS, you should immediately forward 
the claim to the PHS Claims Branch at the address indicated in 
Sec. 900.201 and notify the contractor's tort claims liaison.
    (b) If the contract is with DOI, you should immediately notify the 
Assistant Solicitor, Procurement and Patents, Office of the Solicitor, 
Department of the Interior, Room 6511, 1849 C Street NW., Washington, 
DC 20240.


Sec. 900.210  If the contractor or contractor's employee receives a 
summons and/or complaint alleging a non-medical related tort covered by 
FTCA, what should a tribe or tribal organization do?

    (a) If the contract is with the DHHS, you should immediately inform 
the Chief, Litigation Branch, Business and Administrative Law Division, 
Office of General Counsel, Department of Health and Human Services, 330 
Independence Avenue SW., Room 5362, Washington, DC 20201 and the 
contractor's tort claims liaison.
    (b) If the contract is with the Department of the Interior, you 
should immediately notify the Assistant Solicitor, Procurement and 
Patents, Office of the Solicitor, Department of the Interior, Room 
6511, 1849 C Street NW., Washington, DC 20240, and the contractor's 
tort claims liaison.

Subpart N--Post-Award Contract Disputes


Sec. 900.215  What does this subpart cover?

    (a) This subpart covers:
    (1) all HHS and DOI self-determination contracts, including 
construction contracts; and
    (2) all disputes regarding an awarding official's decision relating 
to a self-determination contract.
    (b) This subpart does not cover the decisions of an awarding 
official that are covered under subpart L.


Sec. 900.216  What other statutes and regulations apply to contract 
disputes?

    (a) The Contract Disputes Act of 1978 (CDA), Public Law 95-563 (41 
U.S.C. 601); and
    (b) If the matter is submitted to the Interior Board of Contract 
Appeals, 43 CFR 4, subpart C, Secs. 4.110-126.


Sec. 900.217  Is filing a claim under the CDA our only option for 
resolving post-award contract disputes?

    No. The Federal government attempts to resolve all contract 
disputes by agreement at the awarding official's level. These are 
alternatives to filing a claim under the CDA:
    (a) Before issuing a decision on a claim, the awarding official 
should consider using informal discussions between the parties, 
assisted by individuals who have not substantially participated in the 
matter, to aid in resolving differences.
    (b) In addition to filing a CDA claim, or instead of filing a CDA 
claim, the parties may choose to use an alternative dispute resolution 
mechanism, pursuant to the provisions of the Administrative Dispute 
Resolution Act, Public Law 101-552, 5 U.S.C. 581 et seq., and section 
108(1)(b)(12) of the Act, as applicable.


Sec. 900.218  What is a claim under the CDA?

    (a) A claim is a written demand by one of the contracting parties, 
asking for one or more of the following:
    (1) payment of a specific sum of money under the contract;
    (2) adjustment or interpretation of contract terms; or
    (3) any other claim relating to the contract.
    (b) However, an undisputed voucher, invoice, or other routing 
request for payment is not a claim under the CDA. A voucher, invoice, 
or routing request for payment may be converted into a CDA claim if:
    (1) It is disputed as to liability or amount; or
    (2) It is not acted upon in a reasonable time; and
    (c) Written notice of the claim is given to the awarding official 
by the senior official designated in the contract.


Sec. 900.219  How does an Indian tribe or tribal organization submit a 
claim?

    (a) If you are an Indian tribe or tribal organization, you shall 
submit your claim in writing to the awarding official. The awarding 
official shall document the contract file with evidence of the date the 
claim was received.
    (b) If you are a Federal agency, you shall submit your claim in 
writing to the contractor's senior official, as designated in the 
contract.


Sec. 900.220  Does it make a difference whether the claim is large or 
small?

    Yes. An Indian tribe or tribal organization making a claim for more 
than $100,000, shall certify that:
    (a) the claim is made in good faith,
    (b) supporting documents or data are accurate and complete;
    (c) the amount claimed accurately reflects the amount believed to 
be owed by the Federal government; and
    (d) the person making the certification is authorized to do so on 
behalf of the Indian tribe or tribal organization. 

[[Page 2076]]



Sec. 900.221  What happens next?

    (a) If the parties do not agree on a settlement, the awarding 
official will issue a written decision on the claim.
    (b) The awarding official shall always give a copy of the decision 
to the Indian tribe or tribal organization by certified mail, return 
receipt requested, or by any other method which provides a receipt.


Sec. 900.222  What goes into a decision?

    A decision shall:
    (a) describe the claim or dispute;
    (b) refer to the relevant terms of the contract;
    (c) set out the factual areas of agreement and disagreement;
    (d) set out the actual decision, based on the facts, and outline 
the reasoning which supports the decision; and
    (e) contain the following language:

    This is a final decision. You may appeal this decision to the 
Interior Board of Contract Appeals (IBCA), U.S. Department of the 
Interior, 4015 Wilson Boulevard, Arlington, VA 22203. If you decide 
to appeal, you shall, within 90 days from the date you receive this 
decision, mail or otherwise furnish written notice to the IBCA and 
provide a copy to the individual from whose decision the appeal is 
taken. The notice shall indicate that an appeal is intended, and 
refer to the decision and contract number. Instead of appealing to 
the IBCA, you may bring an action in the U.S. Court of Federal 
Claims or in the United States District Court within 12 months of 
the date you receive this notice.


Sec. 900.223  When does an Indian tribe or tribal organization get the 
Secretary's decision?

    (a) If the claim is for more than $100,000, the awarding official 
shall issue the decision within sixty days of the day he or she 
receives the claim. If the awarding official cannot issue a decision 
that quickly, he or she shall tell you when the decision will be 
issued.
    (b) If the claim is for $100,000 or less, and you want a decision 
within 60 days, you shall advise the awarding official in writing that 
you want a decision within that period. If you advise the awarding 
official in writing that you do want a decision within 60 days, the 
awarding official shall issue the decision within 60 days of the day he 
or she receives your written notice.
    (c) If your claim is for $100,000 or less and you do not advise the 
awarding official that you want a decision within 60 days, or if your 
claim exceeds $100,000 and the awarding official has notified you of 
the time within which a decision will be issued, the awarding official 
shall issue a decision within a reasonable time. What is ``reasonable'' 
depends upon the size and complexity of your claim, and upon the 
adequacy of the information you have given to the awarding official in 
support of your claim.


Sec. 900.224  What happens if the decision does not come within that 
time?

    If the awarding official does not issue a decision within the 
required time, the Indian tribe or tribal organization may treat the 
delay as though the awarding official has denied the claim, and proceed 
according to Sec. 900.222(e), above.


Sec. 900.225  Does an Indian tribe or tribal organization get paid 
immediately if the awarding official decides in its favor?

    Yes. Once the awarding official decides that money should be paid 
under the contract, the amount due, minus any portion already paid, 
should be paid as promptly as possible, without waiting for either 
party to file an appeal. Any payment which is made under this 
subsection will not affect any other rights either party might have. In 
addition, it will not create a binding legal precedent as to any future 
payments.


Sec. 900.226  Can the awarding official change the decision after it 
has been made?

    (a) The decision of the awarding official is final and conclusive, 
and not subject to review by any forum, tribunal or government agency, 
unless an appeal or suit is timely commenced as authorized by the 
Contract Disputes Act. Once the decision has been made, the awarding 
official may not change it, except by agreement of the parties, or 
under the following limited circumstances:
    (1) if evidence is discovered which could not have been discovered 
through due diligence before the awarding official issued the decision;
    (2) if the awarding official learns that there has been fraud, 
misrepresentation, or other misconduct by a party;
    (3) if the decision is beyond the scope of the awarding official's 
authority;
    (4) if the claim has been satisfied, released or discharged; or
    (5) for any other reason justifying relief from the decision.
    (b) Nothing in this subpart shall be interpreted to discourage 
settlement discussions or prevent settlement of the dispute at any 
time.
    (c) If an appeal or suit is filed, the awarding official may modify 
or withdraw his or her final decision.


Sec. 900.227  Is an Indian tribe or tribal organization entitled to 
interest if it wins its claim?

    Yes. If you win the claim, you will be entitled to interest on the 
amount of the award. The interest will be calculated from the date the 
awarding official receives the claim until the day you are paid. The 
interest rate will be the rate which the Secretary of the Treasury sets 
for the Renegotiation Board under the Renegotiation Act of 1951, Public 
Law 92-41, 26 U.S.C. 1212 and 26 U.S.C. 7447.


Sec. 900.228  What role will the awarding official play during an 
appeal?

    (a) The awarding official shall provide any data, documentation, 
information or support required by the IBCA for use in deciding a 
pending appeal.
    (b) Within 30 days of receiving an appeal or learning that an 
appeal has been filed, the awarding official shall assemble a file 
which contains all the documents which are pertinent to the appeal, 
including:
    (1) the decision and findings of fact from which the appeal is 
taken;
    (2) the contract, including specifications and pertinent 
modifications, plans and drawings;
    (3) all correspondence between the parties which relates to the 
appeal, including the letter or letters of claims in response to which 
the decision was issued;
    (4) transcripts of any testimony taken during the course of the 
proceedings, and affidavits or statements of any witnesses on the 
matter in dispute, which were made before the filing of the notice of 
appeal with the IBCA; and
    (5) any additional information which may be relevant.


Sec. 900.229  What is the effect of a pending appeal?

    (a) Indian tribes and tribal organizations shall continue 
performance of a contract during the appeal of any claims to the same 
extent they would had there been no dispute.
    (b) A pending dispute will not affect or bar the negotiation or 
award of any subsequent contract or negotiation between the parties.

Subpart 0--Retrocession and Reassumption Procedures


Sec. 900.230  What does retrocession mean?

    A retrocession means the return to the Secretary of a contracted 
program, in whole or in part, for any reason, before the expiration of 
the term of the contract.


Sec. 900.231  Who may retrocede a contract, in whole or in part?

    An Indian tribe or tribal organization authorized by an Indian 
tribe. 

[[Page 2077]]



Sec. 900.232  What effect will an Indian tribe or tribal organization's 
retrocession have on its rights to contract?

    An Indian tribe or tribal organization's retrocession shall not 
negatively affect:
    (a) any other contract to which it is a party;
    (b) any other contracts it may request; and
    (c) any future request by the Indian tribe or tribal organization 
to contract for the same program.


Sec. 900.233  Will an Indian tribe or tribal organization's 
retrocession adversely affect funding available for the retroceded 
program?

    No. The Secretary shall provide not less than the same level of 
funding that would have been available if there had been no 
retrocession.


Sec. 900.234  What obligation does the Indian tribe or tribal 
organization have with respect to returning property that was used in 
the operation of the retroceded program?

    On the effective date of any retrocession, the Indian tribe or 
tribal organization shall, at the request of the Secretary deliver to 
the Secretary all property and equipment provided under the contract 
which have a per item value in excess of $5,000 at the time of the 
retrocession.


Sec. 900.235  What does reassumption mean?

    Reassumption means recision, in whole or in part, of a contract and 
assuming or resuming control or operation of the contracted program by 
the Secretary without consent of the Indian tribe or tribal 
organization. There are two types of reassumption: emergency and non-
emergency.


Sec. 900.236  Under what circumstances is a reassumption considered an 
emergency instead of non-emergency reassumption?

    (a) A reassumption is considered a non-emergency reassumption if 
there has been:
    (1) a violation of the rights or endangerment of the health, 
safety, or welfare of any person; or
    (2) gross negligence or mismanagement in the handling or use of: 
(i) Contract funds; (ii) trust funds; (iii) trust lands; or (iv) 
interests in trust lands under the contract.
    (b) A reassumption is considered an emergency reassumption if an 
Indian tribe or tribal organization fails to fulfill the requirements 
of the contract and this failure poses:
    (1) an immediate threat of imminent harm to the safety of any 
person; or
    (2) imminent substantial and irreparable harm to trust funds, trust 
lands, or interest in such lands.


Sec. 900.237  In a non-emergency reassumption, what is the Secretary 
required to do?

    (a) notify the Indian tribes or tribal organizations served by the 
contract and the contractor in writing by certified mail of the details 
of the deficiencies in contract performance; and
    (b) request specified corrective action to be taken within a 
reasonable period of time, which in no case may be less than 45 days; 
and
    (c) offer and provide, if requested, the necessary technical 
assistance and advice to assist the contractor to overcome the 
deficiencies in contract performance.


Sec. 900.238  What happens if the contractor fails to take corrective 
action to remedy the contract deficiencies identified in the notice?

    The Secretary shall provide a second written notice by certified 
mail to the Indian tribes or tribal organizations served by the 
contract and the contractor that the contract will be rescinded, in 
whole or in part.


Sec. 900.239  What shall the second written notice include?

    The second written notice shall include:
    (a) the intended effective date of the reassumption;
    (b) the details and facts supporting the intended reassumption; and
    (c) instructions that explain the Indian tribe or tribal 
organization's right to a formal hearing within 30 days of receipt of 
the notice.


Sec. 900.240  What is the earliest date on which the contract will be 
rescinded?

    The contract will not be rescinded by the Secretary before the 
completion of any administrative hearing or appeal.


Sec. 900.241  In an emergency reassumption, what is the Secretary 
required to do?

    (a) immediately rescind, in whole or in part, the contract;
    (b) assume control or operation of all or part of the program; and
    (c) give written notice to the Contractor and the Indian tribes or 
tribal organizations served.


Sec. 900.242  What shall the written notice include?

    (a) A detailed statement of the findings which support the 
Secretary's determination;
    (b) a statement explaining the contractor's right to a hearing on 
the record under Sec. 900.160 and Sec. 900.161 within 10 days of the 
emergency reassumption or such later date as the contractor may 
approve;
    (c) an explanation that the contractor may be reimbursed for actual 
and reasonable ``wind up costs'' incurred after the effective date of 
the recision; and
    (d) a request for the return of property, if any.


Sec. 900.243  May the contractor be reimbursed for actual and 
reasonable ``wind up costs'' incurred after the effective date of 
recision?

    Yes.


Sec. 900.244  What obligation does the Indian tribe or tribal 
organization have with respect to returning property that was used in 
the operation of the rescinded contract?

    On the effective date of any recision, the Indian tribe or tribal 
organization shall, at the request of the Secretary, deliver to the 
Secretary all property and equipment provided under the contract which 
have a per item value in excess of $5,000 at the time of the recision.


Sec. 900.245  Will a reassumption adversely affect funding available 
for the reassumed program?

    No. The Secretary shall provide not less than the same level of 
funding that would have been provided if there had been no 
reassumption.

[FR Doc. 96-497 Filed 1-23-96; 8:45 am]
BILLING CODE 4310-02-P; 4160-16-P