H.R. 4842 (103rd): Indian Self-Determination Act Amendments of 1994
HR 4842 IH
H. R. 4842
To specify the terms of contracts entered into by the United States and Indian tribal organizations under the Indian Self-Determination and Education Assistance Act, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
July 27, 1994
July 27, 1994
Mr. RICHARDSON (for himself and Mr. THOMAS of Wyoming) introduced the following bill; which was referred to the Committee on Natural Resources
To specify the terms of contracts entered into by the United States and Indian tribal organizations under the Indian Self-Determination and Education Assistance Act, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
- This Act may be cited as the ‘Indian Self-Determination Act Amendments of 1994’.
SEC. 2. AMENDMENTS.
- The Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.) is amended as follows:
- (1) At the beginning of section 4, insert the following new paragraph and redesignate all other paragraphs accordingly:
‘(1) ‘construction contract’ means a fixed-price or cost-reimbursement self-determination contract for a construction project. Contracts (i) limited to providing architectural and engineering services, planning services, and/or construction management services; (ii) for the Housing Improvement Program or roads maintenance program administered by the Secretary of the Interior; and (iii) for the health facility maintenance and improvement program administered by the Secretary of Health and Human Services, shall not be deemed to be construction contracts within the meaning of this Act;’.
- (2) Amend section 5(f) to read as follows:
‘(f) For each fiscal year during which an Indian tribal organization receives or expends funds pursuant to a contract or grant under this title, the tribal organization which requested such contract or grant shall submit to the appropriate Secretary a single agency audit report as required by chapter 75 of title 31, United States Code. Such tribal organization shall also submit such additional information on the conduct of the program or service involved as the tribal organization may negotiate with the Secretary. Any disagreement over reporting requirements shall be subject to the declination standards and procedures set forth in section 102 of this Act.’.
- (3) In section 7(a) strike ‘of subcontractors’ and insert in lieu thereof ‘or subcontractors (excluding tribes and tribal organization)’.
- (4) At the end of section 7, insert the following new subsection:
‘(c) Notwithstanding subsections (a) and (b), where a self-determination contract, or portion thereof, is intended to benefit one tribe, tribal employment or contract preference laws adopted by such tribe shall govern with respect to the administration of such contract or portion thereof.’.
- (5) At the end of paragraph (1) of section 102(a), insert the following new sentence: ‘Such programs shall include administrative functions of the Department of the Interior or the Department of Health and Human Services which support the delivery of services to Indians, including those administrative activities related to, but not part of, the service delivery program, which are otherwise contractible, without regard to the organization level within the Department where such functions are carried out.’.
- (6) Amend paragraph (2) of section 102(a) as follows--
- (A) insert ‘, or to amend or renew a self-determination contract,’ before ‘to the Secretary for review’;
- (B) in the second sentence strike ‘The’ and insert ‘Subject to the provisions of subsection 4 hereof, the’;
- (C) insert ‘and award the contract’ before ‘unless’;
- (D) in subparagraph (A), insert ‘by the tribal organization’ after ‘rendered’;
- (E) in subparagraph (B), insert ‘by the tribal organization’ after ‘resources’;
- (F) at the end of subparagraph (C) add the following: ‘, either because (i) the amount of funds proposed in the contract is in excess of the funding levels specified in section 106(a) of this Act, or (ii) the program (or portion thereof) to be contracted is beyond the scope of paragraph (1) thereof because the proposal includes activities which cannot be lawfully carried out by the contractor;’; and
- (G) insert the following new paragraph:
‘(4) The Secretary shall approve any severable portion of a contract proposal which does not support a declination finding as provided in paragraph (3) of this subsection. Whenever the Secretary determines under paragraph (3) that a contract proposal (A) proposes in part to plan, conduct, or administer a program that is beyond the scope of paragraph (1), or (B) proposes a funding level in excess of the funding levels specified in section 106(a) of this Act, the Secretary shall approve the proposal to the extent authorized to paragraph (1) of section 106(a) of this Act, as appropriate (subject to any agreed-upon alteration in the proposed scope of work). In the event the tribal organization elects to operate the severable portion of a contract proposal, subsection (b) thereof shall apply only with respect to the declined portion of the contract.’.
- (7) In section 102(b)(3), insert before the period ‘, subject to the tribe’s or tribal organization’s option to proceed directly to Federal district court as provided in section 110(a)’.
- (8) At the end of section 102, insert the following new subsections:
‘(e) In any hearing or appeal provided under subsection (b)(3), the Secretary shall carry the burden of proof to establish by clear and convincing evidence that the contract proposal should be declined. Final departmental decisions in all such appeals shall be made at a level higher than the level of the agency whose decision under subsection (b) is appealed.
‘(f) A tribal organization in Alaska authorized by tribal resolution or resolutions to contract under this Act the operation of one or more programs may redelegate that authority, by formal action of the tribal organization’s governing body, to another tribal organization provided advance notice of such redelegation and a copy of the contracting proposal, prior to its submission to the Secretary, are provided to all tribes served by the tribal organization. Nothing herein is to be construed as a limitation on the authority of a tribe to limit, restrict or rescind its resolution at any time or in any manner whatsoever. A tribe receiving such notice shall have 60 days from receipt of the notice to notify the tribal organization in writing of its intent to adopt a limiting resolution prohibiting or conditioning the proposed redelegation, and thereafter shall have 60 days to adopt and transmit such resolution to the tribal organization. A tribal organization so notified of a tribe’s intent shall not proceed with any redelegation proposal until the expiration of the 60-day period.’.
- (9) Amend section 105(a) to read as follows:
‘(a) Contracts, grants, and cooperative agreements with tribal organizations pursuant to sections 102 and 103 of this title shall not be subject to general Federal contracting, discretionary grant or cooperative agreement laws and regulations, except to the extent such laws expressly apply to Indian tribes: Provided, That with respect to construction contracts as defined in section 4 of this Act (or subcontracts of such a construction contract), the Office of Federal Procurement Policy Act (88 Stat. 796; 41 U.S.C. 401 et seq.) and Federal acquisition regulations promulgated thereunder shall apply to the limited extent such statute or regulations are necessary to assure proper completion of the contract, are directly relevant to the construction activity, and are not inconsistent with the provisions or policy of this Act: Provided further, That all such requirements shall be negotiated between the Secretary and the tribal organization and set forth as an attachment to the contract: Provided further, That no other laws or executive orders shall be applicable to construction contracts subject to this Act unless expressly so stated in such other laws or orders, including chapter 10 of title 40, United States Code; section 9(a) and (c) of the Act of August 2, 1946, as amended, 60 Stat. 809; sections 301-310 of the Act of June 30, 1949, as amended, 63 Stat. 393-397; section 13 of the Act of October 3, 1944, as amended, 58 Stat. 770; chapters 21, 25, 27, 29, and 31 of title 44, United States Code; chapter 5 of title 40, United States Code, section 2 of the Act of June 13, 1934, as amended, 48 Stat. 948; sections 1-12 of the Act of June 30, 1936, as amended, 49 Stat. 2036-39; chapter 6 of title 41, United States Code; chapter 14A of title 15, United States Code; and Executive Orders 12138, 11246, 11701, and 11758.’.
- (10) Amend section 105(e) to read as follows:
‘(e) Whenever an Indian tribe or tribal organization requests retrocession of the appropriate Secretary for any contract, or portion thereof, entered into pursuant to this Act, such retrocession shall, unless the request for retrocession is rescinded by such tribe or tribal organization, become effective one year from the date of the request by the Indian tribe or tribal organization, or the date of contract expiration, whichever is earlier, or at such date as may be mutually agreed by the Secretary and the Indian tribe.’.
- (11) Amend paragraph (2) of section 105(f) to read as follows:
‘(2) donate to an Indian tribe or tribal organization the title to any personal or real property found to be excess to the needs of the Bureau of Indian Affairs, the Indian Health Service, or the General Services Administration, except that title to property and equipment furnished by the Federal Government for use in the performance of the contract or purchased with funds under any self-determination contract or grant agreement shall, unless otherwise requested by the tribe or tribal organization, vest in the appropriate tribe or tribal organization, and upon retrocession, rescission, or termination of such self-determination contract or grant, title to such property having a present value in excess of $5,000 and remaining in use in support of the contracted program shall, at the Secretary’s option, revert to the Secretary; and’.
- (12) At the end of section 105, insert the following new subsections:
‘(i) Where a self-determination contract requires the Secretary to administratively divide a program which has previously been administered for the benefit of a greater number of tribes than are represented by the tribal organization that is a party to the contract, the Secretary shall--
‘(1) endeavor to minimize any adverse effect on the level of services to be provided to all affected tribes;
‘(2) notify all affected tribes not party to the contract of the receipt of the contract proposal at the earliest possible date, and of the right of such tribes to comment on how the Secretary’s program should be divided to best meet the needs of all affected tribes;
‘(3) explore the feasibility of instituting cooperative agreements amongst the affected tribes not a party to the contract, the tribal organization operating the contract, and the Secretary; and
‘(4) identify and report to Congress the nature of any diminution in quality, level or quantity of services to any affected tribe resulting from the division of the Secretary’s program, together with an estimate of the funds which would be required to correct such diminution. In determining whether to decline a contract under section 102(a)(2), the Secretary shall not consider the effect which a contract proposal will have on tribes not represented by the tribal organization submitting such proposal, nor on Indians not served by the portion of the program to be contracted. The Secretary shall make such special provisions as may be necessary to assure that services are provided to the tribes not served by a self-determination contract.
‘(j) Upon notice to the Secretary, tribal organizations carrying out self-determination contracts are authorized to redesign programs, activities, functions and services under contract, including program standards, to best meet the local geographic, demographic, economic, cultural, health and institutional needs of the Indian people and tribes served under the contract. The Secretary shall evaluate any redesign proposal against the declination criteria set forth in section 102 of this Act.
‘(k) For purposes of section 201(a) of the Act of June 30, 1949 (40 U.S.C. 481(a)) (involving Federal sources of supply, including lodging providers, airlines, and other transportation providers), an Indian tribe or tribal organization carrying out a contract, grant, or cooperative agreement under this Act shall be deemed an executive agency when carrying out such contract, grant, or agreement.
‘(l) Upon the request of an Indian tribe or tribal organization, the Secretary shall enter into leases with Indian tribes and tribal organizations which hold title to, a leasehold interest in, or a beneficial interest in, facilities used by Indian tribes or tribal organizations for the administration and delivery of contract services under the Act. The Secretary shall compensate such Indian tribes or tribal organizations for the use of leased facilities for contract purposes. Lease compensation may include: rent, depreciation based on the useful life of the building, principal and interest paid or accrued, operation and maintenance expenses, and such other reasonable expenses determined by regulation to be allowable.
‘(m) Construction contracts:
‘(1) Construction contracts requested, approved, or awarded under this Act shall be subject to all of the provisions of this Act, including without intending any limitation, sections 7, 102(a), 102(b), 103(d) and (e), 105(f), 106(a), 106(f), 110, and 111, and section 314 of Public Law No. 101-512, as amended.
‘(2) In providing technical assistance to tribes and tribal organizations in the development of construction contract proposals, the Secretary shall provide a requesting tribe or tribal organization, within 30 days of receipt of a request, with all available information regarding the construction project, including without intending any limitation, construction drawings, maps, engineering reports, design reports, plans of requirements, cost estimates, environmental assessments or impact reports, and archaeological reports.
‘(3) Prior to finalization of a construction contract proposal pursuant to section 102(a), and upon request of the contracting tribe or tribal organization, there shall be a precontract negotiation phase which shall, at a minimum, include--
‘(A) the provision of technical assistance pursuant to section 103 and paragraph (2) hereof;
‘(B) a joint scoping session to review all plans, specifications, engineering reports, cost estimates, and other information available to the parties, for the purpose of identifying all areas of agreement and disagreement;
‘(C) an opportunity for the Secretary to revise his or her plans, designs, or cost estimates in response to concerns raised or information provided by the tribe or tribal organization;
‘(D) a negotiation session during which the Secretary and the tribe or tribal organization shall seek to develop a mutually agreeable contract proposal;
‘(E) upon the request of the tribe or tribal organization, use of an alternative dispute resolution mechanism to seek resolution of all remaining areas of disagreement pursuant to the Administrative Dispute Resolution Act (5 U.S.C. 571); and
‘(F) submission of a final contract proposal pursuant to section 102(a).
‘(4) In funding a fixed-price construction contract pursuant to section 106(a), the Secretary shall include funds for (A) the reasonable costs of the tribe or tribal organization for general administration to be incurred in connection with the contracted project, and (B) a reasonable profit in light of the risk and other relevant considerations: Provided, That the Secretary shall not be required to separately identify such components in the contract budget: and Provided further, That the total amount awarded under the contract shall reflect an overall fair and reasonable price to the parties, including but not limited to (i) the reasonable costs to the tribal organization of performing the contract given the terms of the contract and the requirements of this Act and any other applicable law, (ii) the costs of preparing the contract proposal and supporting cost data, (iii) the costs associated with the tribal organization’s audited general and administrative costs, and (iv) in the case of a fixed-price contract, a fair profit determined in light of the relevant risks and local market conditions.’.
- (13) Amend section 106(a) as follows--
- (A) at the end of paragraph (1), insert the following ‘, without regard to the organizational level or levels within the Department at which the program (or portion thereof), including supportive administrative functions which are otherwise contractible is operated’;
- (B) in paragraph (2), after ‘consist of’, insert ‘an amount for’, and add the following at the end thereof: ‘Contract support costs shall include, without distinction, funds to reimburse tribal contractors for reasonable and allowable costs of contracting attributable to direct program expenses, and reasonable additional administrative or other overhead expenses in connection with tribal operation of Federal programs. The amount of funds to which a tribe or tribal organization is entitled pursuant to this subparagraph shall be negotiated annually with the Secretary.’; and
- (C) strike paragraph (3) and insert the following new paragraphs (3) and (4):
‘(3) Any savings in operation under a self-determination contract (including a cost reimbursement construction contract) shall be utilized to provide additional services or benefits under the contract or be expended in the succeeding fiscal year as provided in section 8 of this Act.
‘(4) During the initial year of a self-determination contract there shall be included, in the amount required to be paid under paragraph (2), start-up costs consisting of the reasonable costs, either previously incurred or to be incurred under the contract on a one-time basis, necessary to plan, prepare for and take over operation of the contracted program and to also ensure compliance with the terms of the contract and prudent management: Provided, That previously incurred costs shall not be included to the extent the Secretary was not notified in advance and in writing of the nature and extent of the costs to be incurred.’.
- (14) Amend section 106(c) as follows:
- (A) In each of paragraphs (1) and (2), strike ‘indirect costs’ and insert in lieu thereof ‘indirect costs and other negotiated contract support costs’.
- (B) Strike ‘and’ at the end of paragraph (4).
- (C) Strike the period at the end of paragraph (5) and insert in lieu thereof ‘; and’.
- (D) Insert the following new paragraph:
‘(6) a reporting of any deficiency of funds needed to maintain the preexisting level of services to any tribes affected by contracting activities under this Act, and the amount of funds needed for transitional purposes to enable contractors to convert from Federal fiscal year accounting to a different accounting cycle, as authorized under section 105(d) of this Act.’.
- (15) At the end of paragraph (2) of section 106(d), insert the following new sentence: ‘Notwithstanding any other provision of law, and subject to the availability of appropriations, every Federal agency and every State shall pay its full proportionate share of the indirect costs associated with federally funded contracts or grants awarded to tribes or tribal organizations under any other law. In the event that appropriations are not sufficient for agencies other than the Department of the Interior and the Department of Health and Human Services, or for State governments or State agencies, to pay their full proportionate share as provided herein, the Secretary shall, subject to the availability of appropriations for this purpose, fund and pay such shortfalls and report all unfunded shortfalls to the Congress, as provided in section 106(c)(2).’.
- (16) Amend section 106(f) by inserting immediately after the second sentence thereof the following: ‘For the purpose of the 365-day period, an audit report shall be deemed received on the date of actual receipt by the Secretary, absent a notice by the Secretary within 60 days of receipt that the report will be rejected as insufficient due to noncompliance with chapter 75 of title 31, United States Code, or other applicable law.’.
- (17) Amend section 106(g) to read as follows:
‘(g) Upon approval of a self-determination contract, the Secretary shall allocate to the contract the full amount to which the contractor is entitled under section 106(a), subject to adjustments for each subsequent year that Federal programs are administered by such tribe or tribal organization.’.
- (18) Amend section 106(i) to read as follows:
‘(i) The Secretary shall consult annually with, and solicit the participation of, Indian tribes and tribal organizations in the development of the budget for the Indian Health Service and the Bureau of Indian Affairs, including participation in the formulation of annual budget requests to Congress.’.
- (19) Amend section 106 by adding at the end thereof the following new subsections:
‘(j) A tribal organization may use funds provided under a self-determination contract to meet matching or cost participation requirements under other Federal and non-Federal programs.
‘(k) Without intending any limitation, a tribal organization may, without approval, expend funds provided under a self-determination contract for the following purposes to the extent supportive of a contracted program--
‘(1) depreciation and use allowances not otherwise specifically prohibited by law, including depreciation of facilities owned by the tribe or tribal organization and constructed with Federal financial assistance;
‘(2) publication and printing costs;
‘(3) building, realty and facilities costs, including rental costs or mortgage expenses;
‘(4) automated data processing and similar equipment or services;
‘(5) cost of capital assets and repairs;
‘(6) management studies;
‘(7) professional services other than services provided in connection with judicial proceedings by or against the United States;
‘(8) insurance and indemnification, including insurance covering the risk of loss of or damage to property used in connection with the contract without regard to the ownership of such property;
‘(9) costs incurred to raise funds or contributions from non-Federal sources for the purpose of furthering the goals and objectives of a self-determination contract;
‘(10) interest expenses paid on capital expenditures such as buildings, building renovation, or acquisition or fabrication of capital equipment, and interest expenses on loans necessitated due to secretarial delays in providing funds under a contract;
‘(11) expenses of a tribal organization’s governing body to the extent attributable to the management or operation of programs under this Act; and
‘(12) costs associated with the management of pension, self-insurance and other funds which include Federal participation.
‘(l) Within 12 months following the date of enactment of this subsection, the Office of Management and Budget, with the active participation of Indian tribes and tribal organizations, the Department of the Interior, Office of the Inspector General, and the Health and Human Services Department, Cost Determination Branch, shall develop a separate set of cost principles applicable to Indian tribes and tribal organizations consistent with the government-to-government Federal-tribal relationship embodied in this Act.
‘(m) Except in connection with rescission and reassumption of a contract under section 109 of this Act, the Secretary shall in no circumstance suspend, withhold or delay the payment of funds to a tribal organization under a self-determination contract.
‘(n) Program income earned by a tribal organization in the course of carrying out a self-determination contract shall be used by the tribal organization to further the general purposes of the contract and shall not be a basis for reducing the amount of funds otherwise obligated to the contract.
‘(o) To the extent contracting activities under this Act reduce the Secretary’s administrative or other responsibilities in connection with the operation of Indian programs, resulting in savings which have not otherwise been included in the contract amount specified in subsection (a) of this section, and to the extent that doing so will not adversely affect the Secretary’s ability to carry out his responsibilities to other tribes and tribal organizations, the Secretary shall make such savings available to tribal organizations contracting under this Act.
‘(p) Notwithstanding any laws or regulations to the contrary, a tribal organization may rebudget within the approved budget of its contract to meet contract requirements, if such rebudgeting does not have a significant and adverse effect upon the level or nature of services.’.
SEC. 3. CONTRACT SPECIFICATIONS.
- Section 108 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450j), currently reserved, is amended to read as follows:
‘SEC. 108. CONTRACT OR GRANT SPECIFICATIONS.
‘Each Self-Determination Contract or grant entered into under this Act shall contain, or incorporate by reference, the following provisions, with modifications where indicated and the blanks appropriately filled together with such other provisions as the parties may agree upon:
‘(1) AUTHORITY AND PURPOSE-
‘(A) AUTHORITY- This agreement, denoted a Self-Determination Contract (hereinafter referred to as the ‘Contract’), is entered into by the Secretary of the Interior or the Secretary of Health and Human Services (hereinafter referred to as the ‘Secretary’), for and on behalf of the United States pursuant to titles I and II of the Indian Self-Determination and Education Assistance Act and by the authority of the XXXXXXX tribal government or tribal organization (hereinafter referred to as the ‘Contractor’). Unless otherwise provided in this agreement, all of the provisions of title I of the Indian Self-Determination and Education Assistance Act are incorporated herein.
‘(B) PURPOSE- Each and every provision of the Indian Self-Determination Act and of this Contract shall be liberally construed for the benefit of the Contractor to transfer the funding and the following related functions, services, activities, and programs (or portion thereof), including all related administrative functions from the Federal Government to the Contractor: (List functions, services, activities, and programs.)
‘(C) TRIBAL LAW AND FORUMS- The laws and/or policies and procedures of the Contractor shall be applied in the performance of this Contract and the powers and decisions of the Contractor’s Tribal Court or other dispute resolution mechanism shall be binding to the extent that Federal law, construed in accordance with the applicable canons of construction and the Indian Self-Determination and Education Assistance Act, is not inconsistent.
‘(2) TERMS, PROVISIONS AND CONDITIONS-
‘(A) TERM- The term of this Contract shall not exceed 3 years, unless the Secretary and the Contractor agree on a longer period pursuant to section 105(c)(1)(B) of the Indian Self-Determination and Education Assistance Act. Pursuant to section 105(d)(1) of the Act, upon the Contractor’s election, the calendar year shall be the basis for contracts under this Act, unless the Secretary and the Contractor agree on a different period in the annual funding agreement.
‘(B) EFFECTIVE DATE- This Contract shall become effective upon approval and execution by the Contractor and the Secretary, unless otherwise agreed to by the Secretary and the Contractor.
‘(C) FUNDING AMOUNT-
‘(i) AMOUNT OF ANNUAL FUNDING AGREEMENT- Subject to the appropriation of funds by Congress, the Secretary shall make available to the Contractor the total amount specified in the annual funding agreement incorporated by reference in paragraph (6)(B), which amount shall not be less than the amounts specified in section 106(a) of the Act.
‘(ii) LIMITATION OF COSTS- The Contractor shall not be obligated to continue performance beyond the amount of funds awarded, and if at any time the Contractor has reason to believe that the total amount for performance of this contract or a specific activity of this Contract will be greater than the amount awarded, the Contractor shall notify the appropriate Secretary. If the amount awarded is not increased, the Contractor may cease performance. In such event all duties and responsibilities previously assumed by the Contractor shall become the duties and responsibilities of the Secretary.
‘(i) IN GENERAL- Payments shall be made as expeditiously as possible and shall include financial arrangements to cover funding during periods under continuing resolutions to the extent permitted by such resolutions.
‘(ii) QUARTERLY SEMIANNUAL, LUMP SUM, AND OTHER METHODS OF PAYMENT- Notwithstanding the provisions of any other law, for each fiscal year covered by this Contract, the Secretary is authorized to and shall make available the funds specified for the fiscal year under the annual funding agreement by paying to the Contractor on a quarterly basis one-quarter of the total amount provided for in the annual funding agreement for that fiscal year, by making a lump-sum payment or semiannual payments, or by using any other method authorized by law, as may be requested by the Contractor and specified in the annual funding agreement. Each quarterly payment shall be made on the first day of each quarter of the fiscal year except that in instances where the contract year coincides with the Federal fiscal year, payment for the first quarter shall be made not later than the date that is 10 calendar days after the date on which the Office of Management and Budget apportions the appropriations for the fiscal year for the programs, servicers, functions, and activities subject to the Contract. Chapter 39 of title 31, United States Code, shall apply to the payment of funds due under the contract and the annual funding agreement.
‘(E) RECORDS AND MONITORING- (i) Except for previously provided copies of tribal records that the Secretary demonstrates are clearly required to be maintained as part of the recordkeeping system of the Department of the Interior and/or the Department of Health and Human Services, Contractor records shall not be considered Federal records for purposes of chapter 5 of title 5, United States Code.
‘(ii) The Contractor shall maintain a recordkeeping system, and upon reasonable advance request provide reasonable access to such records to the Secretary.
‘(iii) Contractors are responsible for managing the day-to-day operations of the Contract and for monitoring activities to assure compliance with the Contract and applicable Federal requirements. Monitoring visits shall be limited to not more than one performance monitoring visit per contract by each operating division, departmental bureau or departmental agency or duly authorized representatives thereof unless (I) the Contractor has agreed to such additional visits, or (II) there is reasonable cause to believe that grounds for reassumption of the contract or other serious contract performance deficiency exists: Provided, however, That such additional visits shall not be made until after reasonable advance notice has been given to the Contractor, including the nature of the problem which requires the additional visits.
‘(F) PROPERTY- (i) As provided in section 105(f) of the Act, as amended, at the request of the Contractor the Secretary shall make available or transfer to the Contractor all reasonably divisible real property, facilities, equipment, and personal property that the Secretary had previously utilized to provide or administer the programs, services, functions, and activities covered by this Contract. A mutually agreed upon list specifying the property, facilities, and equipment so furnished shall also be prepared and periodically revised. The Secretary shall maintain a record of all such property for purposes of replacement and shall replace such property on the same basis as property remaining under the Secretary’s control. Upon the request of the Contractor, the Secretary and the Contractor shall enter into a separate joint use agreement to address the parties’ shared use of real or personal property that is not reasonably divisible.
‘(ii) The Secretary shall delegate to the Contractor the authority to acquire such ‘excess’ property as may be appropriate in the judgment of the Contractor to support the programs, services, functions, and activities operated pursuant to this Contract. The Secretary shall assist the Contractor in obtaining such confiscated or excess property as may become available to tribes, tribal organizations, or local governments. A screener identification card (General Services Administration form 2946) shall be issued to the Contractor not later than the effective date of this Contract. The designated official shall, upon request, assist the Contractor in securing the use of the card.
‘(iii) The Contractor shall determine what capital equipment, leases, rentals, property, or services it shall require to perform its obligations under this subsection, and shall acquire and maintain records of such capital equipment, property rentals, leases, property, or services through tribal procurement procedures.
‘(G) SAVINGS- Notwithstanding any other provision of law, any funds provided under this Contract shall remain available until expended and shall require no further approval by the Secretary nor further justifying documentation from the Contractor prior to expenditure.
‘(H) TRANSPORTATION- Upon the effective date of this contract, the Secretary shall authorize the Contractor to obtain interagency motor pool vehicles and related services for performance of any activities under this Contract.
‘(I) REGULATORY AUTHORITY- The Contractor is not required to abide by Federal program guidelines, manuals, or policy directives unless otherwise agreed to by the Contractor and the Secretary.
‘(J) DISPUTES- (i) In addition or as an alternative to remedies and procedures prescribed by section 110 of the Indian Self-Determination and Education Assistance Act, the parties may jointly--
‘(I) submit disputes under this Contract to third-party mediation, which for purposes of this section means that the Secretary and the Contractor nominate a third party who together choose a third party mediator (‘third-party’ means a person not employed by or significantly involved with either the Contractor, the Secretary, or the Department of the Interior or the Department of Health and Human Services);
‘(II) submit the dispute to the court of the Contractor’s adjudicatory body, including but not limited to the Contractor’s tribal court;
‘(III) submit the dispute to mediation processes provided for under the Contractor’s laws, policies, or procedures; or
‘(IV) use the processes authorized in the Administrative Dispute Resolution Act (5 U.S.C. 571).
‘(ii) The Secretary shall be bound by decisions reached by the processes set forth in clause (i) of this subparagraph of this Contract, except that the Secretary shall not be bound by any decision that significantly conflicts with the interests of the Indians or the United States.
‘(K) CONTRACTOR’S ADMINISTRATIVE PROCEDURES- Pursuant to the Indian Civil Rights Act of 1968 (25 U.S.C. 1301 et seq.), the Contractor’s laws, policies, and procedures shall provide for administrative due process (or its equivalent) with respect to programs, services, functions, and activities that are provided by the Contractor pursuant to this Contract.
‘(L) SUCCESSOR ANNUAL FUNDING AGREEMENT- Negotiations for a successor annual funding agreement, as provided for in paragraph (6)(B), shall begin not later than 120 days prior to the conclusion of the preceding annual funding agreement. Funding of successor annual funding agreements shall only be reduced pursuant to section 106(b) of the Indian Self-Determination and Education Assistance Act. The Secretary shall prepare and supply relevant information, and promptly comply with any request by the Contractor for information reasonably needed to determine the funds that may be available for a successor annual funding agreement as provided for in paragraph (6)(B) of this Contract.
‘(M) SECRETARIAL APPROVAL- (i) Except as provided in clause (ii), for the term of the Contract, section 2103 of the Revised Statutes (25 U.S.C. 81) and section 16 of the Act of June 18, 1934 (25 U.S.C. 476), shall not apply to any contract entered into in connection with this Contract.
‘(ii) Each contract entered into by the Contractor with third parties in connection with performing its obligations under this Contract shall--
‘(I) be in writing;
‘(II) identify the interested parties, their authorities, and purposes;
‘(III) state the work to be performed; and
‘(IV) state the process for making any claim, the payments to be made, and the terms of the contract, which shall be fixed.
‘(3) OBLIGATION OF THE CONTRACTOR-
‘(A) CONTRACT PERFORMANCE- Except as provided in paragraph (4)(B), the Contractor shall perform the programs, services, functions, and activities as provided in the annual funding agreement under paragraph (6)(B) of this Contract.
‘(B) AMOUNT OF FUNDS- The total amount of funds to be paid under this Contract shall be determined in an annual funding agreement entered into between the Secretary and the Contractor, which shall be incorporated in its entirety into this Contract.
‘(C) CONTRACTED PROGRAMS- Subject to the availability of appropriated funds, the Contractor shall administer the programs, services, functions, and activities identified herein and funded through the annual funding agreement.
‘(D) TRUST SERVICES FOR INDIVIDUAL INDIANS- To the extent that the annual funding agreement provides funding for the delivery of trust services to individual Indians that were formerly provided by the Secretary, the Contractor shall maintain at least the same level of service as was previously provided by the Secretary, subject to the availability of appropriated funds for such services. Strictly for the purposes of this subsection only, ‘trust services for individual Indians’ means only those services that pertain to land or financial management connected to individually held allotments.
‘(E) FAIR AND UNIFORM SERVICES- The Contractor shall provide services under this contract in a fair and uniform manner and shall provide access to an administrative or judicial body empowered to adjudicate or otherwise resolve complaints, claims, and grievances brought by program beneficiaries against the Contractor arising out of the performance of the Contract.
‘(4) OBLIGATION OF THE UNITED STATES-
‘(A) TRUST RESPONSIBILITY- The United States reaffirms its trust responsibility to the XXXXXXX Indian tribes to protect and conserve the trust resources of the Indian tribes and of individual Indians. Nothing in this Contract is intended to, nor shall be construed, to terminate, waive, modify, or reduce the trust responsibility of the United States to the tribes or individual Indians. The Secretary shall act in good faith in upholding said trust responsibility. To the extent that health programs are included in this Contract, the Secretary shall act in good faith in cooperating with the Contractor to achieve the goals set forth in chapter 18 of title 25, United States Code.
‘(B) PROGRAMS RETAINED- As specified in the annual funding agreement, the United States hereby retains the programs, services, functions, and activities with respect to the tribes that are not specially assumed by the Contractor in the annual funding agreement.
‘(5) OTHER PROVISIONS-
‘(A) DESIGNATED OFFICIALS- On or before the effective date of this Contract, both the United States and the Contractor shall provide each other with a written designation of a senior official as its representative for notices, proposed amendments to the Contract and other purposes for this Contract.
‘(B) CONTRACT MODIFICATIONS OR AMENDMENT- To be effective any modifications of this Contract shall be in the form of a written amendment to the Contract, and shall require the written consent of the Contractor and the Secretary, except for the addition of supplemental funds for programs, functions, and activities (or portions thereof) already included in the annual funding agreement.
‘(C) OFFICIALS NOT TO BENEFIT- No Member of Congress, or resident commissioner, shall be admitted to any share or part of any contract executed pursuant to this Contract, or to any benefit that may arise therefrom; but this provision shall not be construed to extend to any contract under this Contract if made with a corporation for its general benefit.
‘(D) COVENANT AGAINST CONTINGENT FEES- The parties warrant that no person or selling agency has been employed or retained to solicit or secure any contract executed pursuant to this Contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the contractor for the purpose of securing business.
‘(A) APPROVAL OF CONTRACT- Unless previously furnished to the Secretary, the resolution of the XX Indian tribe(s) authorizing the contracting of the programs, services, functions, and activities identified herein is (are) attached hereto as attachment 1.
‘(B) ANNUAL FUNDING AGREEMENT- The negotiated and duly approved annual funding agreement shall only contain terms that identify the programs, services, functions, and activities to be performed or administered, the general budget category assigned, the funds to be provided, the time and method of payment, and such other provisions, including but not limited to, a brief description of the programs, services, functions, and activities to be performed (including those supported by financial resources other than those provided by the Secretary), as the Contractor may request and to which the parties agree. The annual funding agreement is hereby incorporated in its entirety in this Contract and attached hereto as attachment 2.’.
SEC. 4. ADDITIONAL AMENDMENTS.
- The Indian Self-Determination and Education Assistance Act is further amended as follows:
- (1) In section 109--
- (A) strike ‘as prescribed by him’ and all that follows through ‘in such cases’ and insert ‘prescribed by him to remedy the contract deficiency. The appropriate Secretary may, upon written notice to a tribal organization, and the tribes served thereby, immediately rescind a contract or grant and resume control or operation of a program, activity, or service if he finds that there is an immediate threat of imminent harm to the safety of any person and that such threat arises from the Contractor’s failure to fulfill the requirements of the contract. In such cases’; and
- (B) insert the following immediately before the last sentence: ‘In any hearing or appeal provided for under this section, the Secretary shall carry the burden of proof to establish by clear and convincing evidence that the contract should be rescinded, assumed, or reassumed.’.
- (2) In section 110(a), insert before the period at the end thereof the following: ‘(including immediate injunctive relief to reverse a declination finding under section 102(a)(2) or to compel the Secretary to award and fund an approved self-determination contractor)’.
- (3) In section 110(d), insert before the period at the end thereof the following: ‘except that all such administrative appeals shall be heard by the Interior Board of Contract Appeals’.
SEC. 5. REGULATIONS.
- Section 107 of the Indian Self-Determination and Education Assistance Act is amended--
- (1) by amending subsections (a) and (b) to read as follows:
‘(a) GENERAL- Except as may be specifically authorized herein and elsewhere in this Act, the Secretary of the Interior and the Secretary of Health and Human Services shall not promulgate any regulation, nor impose any nonregulatory requirement, relating to self-determination contracts: Provided, however, That the Secretary may promulgate regulations relating to the Federal Tort Claims Act, the Contract Disputes Act, declination appeal procedures, reassumption procedures, and retrocession procedures. All regulations including those referred to in this section shall be promulgated in conformity with sections 552 and 553 of title 5 of the United States Code and with subsections (c), (d), and (e) hereof, and shall be promulgated as a single set of regulations in title 25 of the Code of Federal Regulations. Any authorization to promulgate regulations set forth in this Act shall expire if such regulations are not finally promulgated within 12 months from the date of enactment of these amendments.
‘(b) EXISTING REGULATIONS- The provisions of this Act shall supersede any conflicting provisions of law or regulation in existence on the date of enactment of this Act.’.
- (2) Add the following new subsections:
‘(d) In drafting and promulgating regulations as provided in section 107(a) of this Act (including any revisions or amendments thereto), the Secretaries shall confer with and allow for active participation by representatives of Indian tribes, tribal organizations, individual tribal members, and representatives of other parties interested in the implementation of this Act, as amended. The rulemaking process shall follow the guidance of the Negotiated Rulemaking Act of 1990 and of the Administrative Conference of the United States in Recommendations 82-094 and 85-095, ‘Procedures for Negotiating Proposed Regulations’ (1 CFR 305.82-094 and 305.85-095), and any successor recommendation, regulation, or law. Tribal participants in the negotiation shall be chosen by the tribes and tribal organizations participating in regional and national meetings to be convened by the Secretary, representing the groups described herein and shall include tribal representatives from all geographic regions. The negotiations shall be conducted in a timely manner and the proposed rule implementing these amendments shall be published in the Federal Register by the Secretaries no later than 6 months from the date of enactment of these amendments. Notwithstanding any other law or regulation to the contrary, the Secretary of the Interior and the Secretary of Health and Human Services shall be authorized to jointly establish and jointly fund such interagency committees or other interagency bodies, including advisory bodies comprised of tribal representatives, as may be necessary or appropriate to carry out the provisions of this Act.
‘(e) Notwithstanding any laws or regulations to the contrary, the Secretary shall waive or make exceptions to his regulations where the Secretary finds that such waiver or exceptions is in the best interest of the Indians served by the contract. The Secretary shall review a waiver request under the declination criteria and procedures contained in section 102(a)(2) of this Act.’.
SEC. 6. CONFORMING AMENDMENT.
- Section 105(h) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450j(h)) is amended by striking ‘and the rules and regulations adopted by the Secretaries of the Interior and Health and Human Services pursuant to section 107 of this Act’.