Federal Contracting Laws and Regulations: Provisions and Administration
This section outlines the applicability of Federal contracting laws and regulations to Indian tribes, including waivers and program standards. It explains the Test of Three criteria for construction contracts and the inclusion of FAR requirements in negotiations. Payments and terms of self-determination contracts are also detailed, covering fund transfers and contract duration.
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Contract and Grant Provisions and Administration Section 105 (Page 30) Title I The Act
(a) Applicability of Federal contracting laws and regulations; waiver of requirements; (1) except to the extent that such laws expressly apply to Indian tribes Federal contracting or cooperative agreement laws and regulations are waived. (2) Program standards applicable to a non- construction self-determination contract shall be set forth in the contract proposal and the final contract of the tribe Section 105 The Act
(3) (A) Test of Three to the extent that the application of such provision the construction contract (or subcontract) is (i) necessary to ensure that the contract may be carried out in a satisfactory manner; (ii) directly related to the construction activity; and (iii) not inconsistent with the Act. Section 105
(3)(B) The FAR requirements and those clauses that meet the requirements of clauses (i) through (iii) of subparagraph (A) shall be included in an attachment to the contract pursuant to NEGOTIATIONS between the Secretary and the tribal organization. Those requirements indicating Indian Tribe will be attached to the contract. Section 105
(C) Except as provided in subparagraph (B), no Federal law listed in (ii) relating to acquisition shall apply to a construction contract that a tribe enters into under this Act, UNLESS expressly provided in such law. Section 105
(b) Payments; transfer of funds by Treasury; may be made in advance or by way of reimbursement and in such installments as the Secretary deems necessary to carry out the purpose. The transfer of funds shall be scheduled consistent with program requirements. Tribal organizations shall not be held accountable for interest earned on such funds. Section 105
(c) Term of self-determination contracts; annual negotiation: (1) A contract shall be (A) for a term not to exceed three years in the case of other than a mature contract, unless mutually agreed upon by both parties for a longer term. (B) for a definite or indefinite term, as requested by the tribe, in the case of a mature contract. Section 105
(2) The amounts of contracts may be renegotiated annually to reflect changes including cost increases beyond the control of the tribal organization. Section 105
(d) (1) the Secretary shall use the calendar year as the basis for any contracts or agreements, unless the Secretary and Indian tribe or tribal organization agree on a different period. (2) the Secretary shall, on or before April 1 of each year submit a report to the Congress on any additional obligation authority needed to implement Section 105. Section 105
(e) Retrocession Returning the program to the Secretary. No reason needed. Section 105
(f) Property Use of existing property (personal and real) (1) permit an Indian tribe to utilize existing property and equipment owned by the government may be agreed upon for their use and maintenance; (2) donate to an Indian tribe title to any property found to be excess to the needs of the Bureau, IHS, or GSA, EXCEPT - Section 105
Taking Property Back by the government. (A) title to property and equipment furnished by the Federal Government shall, be vest in the appropriate tribe or tribal organization; (B) if property described in (A) has a value in excess of $5000 at the time of contract completion, title to such property shall revert to the DOI, or DHHS, as appropriate; and (C) all property referred to in (A) shall remain eligible for replacement on the same basis as if title to such property were vested in the United States; Section 105
(3) [Tribal Contractor] Acquire excess or surplus Government personal or real property for donation to an tribe or tribal organization if the Secretary determines the property is appropriate for use by the tribe for a purpose for which a self-determination contract under this Act. See Section 108 Section 105
(g) Performance of Personal Services: this Act includes provisions for performance of personal services which would be performed (or required) by Federal employees including functions such as assistance, benefits, or services. (h) Fair and uniform provisions shall include provision to assure the fair and uniform provision by such tribal organizations of the services and assistance they provide to Indians under such contracts and grants. Read Section 107/Section 108 pg 61 Section 105
(i) Division of administration of program: (1) Secretary shall take such action as necessary to ensure that services are provide to tribes not served by a self-determination contract, but at one time had been administered by the Secretary to multiple tribes. (2) Nothing in this title (I) shall be construed to limit or reduce in any way the funding for any program. Section 110 applies to this provision. Section 110 Contract Disputes Section 105
(j)providing notice to the Secretary, a tribe that carries out a non-construction self-determination contract may propose a redesign of a program, activity, function, or service carried out by the tribal organization under the contract, including any non statutory program standard as best meets the local geography demographics economic culture health institutional needs Section 105
(K) Access to Federal Supply a tribal organization carrying out a contract under this Act shall be eligible to have access to such sources of supply on the same basis as employees of an executive agency have access Section 105
(l) Lease of facility used for Administration and delivery of services (1) Upon the request of a tribe, the Secretary shall enter into a lease that holds title to, a leasehold interest in, or trust interest in, a facility for the administration and delivery of services under the Act. (2) The Secretary shall compensate each tribe that enters into a lease under paragraph (1). Section 105
Construction Provisions (4) (A) the Secretary shall provide for the following: (i) reasonable costs for general administration incurred in connection of the project. (ii) The ability of the contractor carrying out a construction contract to make a reasonable profit, considering the risks in carrying out the contract and other relevant considerations, (B) In establishing a contract budget for construction, the Secretary shall not be required to identify in the above clauses. Section 105
(C) The total amount awarded to a construction contract shall reflect an overall fair and reasonable price including: (i) considering the terms of the contract and requirements of the Act, and other applicable law. (II) the costs of preparing the contract proposal and supporting cost data. Section 105 Construction Provisions
(iii) The costs associated with auditing general and admininistrative costs of the T/O in association to the construction contract. (iv) in fixed-price construction, a fair profit taking into consideration the relevant risks and market conditions For cost-reimbursement construction contracts for projects whose actual cost is less than the estimated cost, the Secretary shall determine how to use the excess funds after consulting with the tribes. Section 105 Construction Provisions
(m) Statutory Requirements: Technical Assistance Precontract negotiation phase Fixed Price Construction Providing T/A in the development of a proposal not later than 30-days after receiving a request: All information available to the Secretary regarding the project including: Construction drawings Maps Engineering Reports Design Reports Plans of Requirements Cost Estimates Environmental Assessments, or Environmental impact Statement Archaeological Reports Section 105 Construction Provisions
Statutory Requirements (2) Prior to finalizing a construction contract proposal: The Secretary shall provide for a pre-contract negotiation phase regarding the development of the proposal including at a minimum, the following elements: (A)Technical Assistance (B) A Joint scoping session to review all aspects and other information to identifying all areas of agreement and disagreement. (C) An opportunity for the Secretary to revise tribally submitted plans (D) A negotiation session seeking to develop a mutually agreeable contract proposal. Section 105 Construction Provisions
(E) If requested by the contracting tribe, the use of an alternative dispute resolution (ADR) mechanism will be made available to seek resolution of all remaining areas of disagreement. Section 105 Construction Provisions
(v) If the tribe and the Secretary are unable to develop a mutually agreeable construction contract proposal, pursuant to this subsection, the tribe may submit a final contract proposal to the Secretary (Regional Approving Official). The Secretary shall approve or decline the proposal within 30 days of receipt of the final proposal. If declination is the Secretary s outcome, the tribe must also be provided an opportunity to appeal pursuant to Section 102b/110 within the 30-day time frame. Section 105 Construction Provisions
