§ 5324.
Contract or grant provisions and administration
(a)
Applicability of Federal contracting laws and regulations; waiver of requirements
(1)
Notwithstanding any other provision of law, subject to paragraph (3), the contracts and cooperative agreements entered into with tribal organizations pursuant to
section 5321 of this title shall not be subject to Federal contracting or cooperative agreement laws (including any regulations), except to the extent that such laws expressly apply to Indian tribes.
(2)
Program standards applicable to a nonconstruction self-determination contract shall be set forth in the contract proposal and the final contract of the tribe or tribal organization.
(3)
(A)
With respect to a construction contract (or a subcontract of such a construction contract), the provisions of division B (except sections 1123, 2303, 2304, and 2313) of subtitle I of title 41 and the regulations relating to acquisitions promulgated under division B (except sections 1123, 2303, 2304, and 2313) of subtitle I of title 41 shall apply only to the extent that the application of such provision
1
So in original. Probably should be “provisions”.
to the construction contract (or subcontract) is—
(i)
necessary to ensure that the contract may be carried out in a satisfactory manner;
(ii)
directly related to the construction activity; and
(iii)
not inconsistent with this chapter.
(B)
A list of the Federal requirements that meet the requirements of clauses (i) through (iii) of subparagraph (A) shall be included in an attachment to the contract pursuant to negotiations between the Secretary and the tribal organization.
(C)
(i)
Except as provided in subparagraph (B), no Federal law listed in clause (ii) or any other provision of Federal law (including an Executive order) relating to acquisition by the Federal Government shall apply to a construction contract that a tribe or tribal organization enters into under this chapter, unless expressly provided in such law.
(ii)
The laws listed in this paragraph are as follows:
(I)
Chapters 1 to 11 of title 40 and division C (except sections 3302, 3307(e), 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41.
(II)
(III)
Section 9(c)
2
See References in Text note below.
of the Act of
Aug. 2, 1946 (
[60 Stat. 809], chapter 744).
(IV)
Division C (except sections 3302, 3307(e), 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41.
(V)
[Section 13 of the Act of Oct. 3, 1944] ([58 Stat. 770]; chapter 479).
(VI)
Chapters 21, 25, 27, 29, and 31 of title 44.
(VII)
(VIII)
Chapter 65 of title 41.
(IX)
Chapter 67 of title 41.
(X)
The Small Business Act (
15 U.S.C. 631 et seq.).
(XI)
Executive Order Nos. 12138, 11246, 11701 and 11758.
(b)
Payments; transfer of funds by Treasury for disbursement by tribal organization; accountability for interest accrued prior to disbursement
Payments of any grants or under any contracts pursuant to sections 5321 and 5322 of this title may be made in advance or by way of reimbursement and in such installments and on such conditions as the appropriate Secretary deems necessary to carry out the purposes of this subchapter. The transfer of funds shall be scheduled consistent with program requirements and applicable Treasury regulations, so as to minimize the time elapsing between the transfer of such funds from the United States Treasury and the disbursement thereof by the tribal organization, whether such disbursement occurs prior to or subsequent to such transfer of funds. Tribal organizations shall not be held accountable for interest earned on such funds, pending their disbursement by such organization.
(c)
Term of self-determination contracts; annual renegotiation
(1)
A self-determination contract shall be—
(A)
for a term not to exceed three years in the case of other than a mature contract, unless the appropriate Secretary and the tribe agree that a longer term would be advisable, and
(B)
for a definite or an indefinite term, as requested by the tribe (or, to the extent not limited by tribal resolution, by the tribal organization), in the case of a mature contract.
The amounts of such contracts shall be subject to the availability of appropriations.
(2)
The amounts of such contracts may be renegotiated annually to reflect changed circumstances and factors, including, but not limited to, cost increases beyond the control of the tribal organization.
(d)
Calendar year basis for contracts
(1)
Beginning in fiscal year 1990, upon the election of a tribal organization, the Secretary shall use the calendar year as the basis for any contracts or agreements under this chapter, unless the Secretary and the Indian tribe or tribal organization agree on a different period.
(2)
The Secretary shall, on or before April 1 of each year beginning in 1992, submit a report to the Congress on the amounts of any additional obligation authority needed to implement this subsection in the next following fiscal year.
(e)
Effective date for retrocession of contract
If an Indian tribe, or a tribal organization authorized by a tribe, requests retrocession of the appropriate Secretary for any contract or portion of a contract entered into pursuant to this chapter, unless the tribe or tribal organization rescinds the request for retrocession, such retrocession shall become effective on—
(1)
the earlier of—
(A)
the date that is 1 year after the date the Indian tribe or tribal organization submits such request; or
(B)
the date on which the contract expires; or
(2)
such date as may be mutually agreed by the Secretary and the Indian tribe.
(f)
Use of existing school buildings, hospitals, and other facilities and equipment therein; acquisition and donation of excess or surplus Government personal property
In connection with any self-determination contract or grant made pursuant to section 5321 or 5322 of this title, the appropriate Secretary may—
(1)
permit an Indian tribe or tribal organization in carrying out such contract or grant, to utilize existing school buildings, hospitals, and other facilities and all equipment therein or appertaining thereto and other personal property owned by the Government within the Secretary’s jurisdiction under such terms and conditions as may be agreed upon for their use and maintenance;
(2)
donate to an Indian tribe or tribal organization title to any personal or real property found to be excess to the needs of the Bureau of Indian Affairs, the Indian Health Service, or the General Services Administration, except that—
(A)
subject to the provisions of subparagraph (B), 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;
(B)
if property described in subparagraph (A) has a value in excess of $5,000 at the time of the retrocession, rescission, or termination of the self-determination contract or grant agreement, at the option of the Secretary, upon the retrocession, rescission, or termination, title to such property and equipment shall revert to the Department of the Interior or the Department of Health and Human Services, as appropriate; and
(C)
all property referred to in subparagraph (A) shall remain eligible for replacement on the same basis as if title to such property were vested in the United States; and
(3)
acquire excess or surplus Government personal or real property for donation to an Indian tribe or tribal organization if the Secretary determines the property is appropriate for use by the tribe or tribal organization for a purpose for which a self-determination contract or grant agreement is authorized under this chapter.
(g)
Performance of personal services
The contracts authorized under section 5321 of this title and grants pursuant to section 5322 of this title may include provisions for the performance of personal services which would otherwise be performed by Federal employees including, but in no way limited to, functions such as determination of eligibility of applicants for assistance, benefits, or services, and the extent or amount of such assistance, benefits, or services to be provided and the provisions of such assistance, benefits, or services, all in accordance with the terms of the contract or grant and applicable rules and regulations of the appropriate Secretary: Provided, That the Secretary shall not make any contract which would impair his ability to discharge his trust responsibilities to any Indian tribe or individuals.
(h)
Fair and uniform provision by tribal organization of services and assistance to covered Indians
Contracts and grants with tribal organizations pursuant to sections 5321 and 5322 of this title shall include provisions 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.
(i)
Division of administration of program
(1)
If a self-determination contract requires the Secretary to divide the administration of a program that has previously been administered for the benefit of a greater number of tribes than are represented by the tribal organization that is a party to the contract, the Secretary shall take such action as may be necessary to ensure that services are provided to the tribes not served by a self-determination contract, including program redesign in consultation with the tribal organization and all affected tribes.
(2)
Nothing in this subchapter shall be construed to limit or reduce in any way the funding for any program, project, or activity serving a tribe under this or other applicable Federal law. Any tribe or tribal organization that alleges that a self-determination contract is in violation of this section may apply the provisions of
section 5331 of this title.
(j)
Proposal to redesign program, activity, function, or service
Upon providing notice to the Secretary, a tribal organization that carries out a nonconstruction 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 nonstatutory program standard, in such manner as to best meet the local geographic, demographic, economic, cultural, health, and institutional needs of the Indian people and tribes served under the contract. The Secretary shall evaluate any proposal to redesign any program, activity, function, or service provided under the contract. With respect to declining to approve a redesigned program, activity, function, or service under this subsection, the Secretary shall apply the criteria and procedures set forth in section 5321 of this title.
(k)
Access to Federal sources of supply
For purposes of section 501 of title 40 (relating to Federal sources of supply, including lodging providers, airlines and other transportation providers), a tribal organization carrying out a contract, grant, or cooperative agreement under this chapter shall be deemed an executive agency and part of the Indian Health Service when carrying out such contract, grant, or agreement and the employees of the tribal organization shall be eligible to have access to such sources of supply on the same basis as employees of an executive agency have such access. For purposes of carrying out such contract, grant, or agreement, the Secretary shall, at the request of an Indian tribe, enter into an agreement for the acquisition, on behalf of the Indian tribe, of any goods, services, or supplies available to the Secretary from the General Services Administration or other Federal agencies that are not directly available to the Indian tribe under this section or under any other Federal law, including acquisitions from prime vendors. All such acquisitions shall be undertaken through the most efficient and speedy means practicable, including electronic ordering arrangements.
(l)
Lease of facility used for administration and delivery of services
(1)
Upon the request of an Indian tribe or tribal organization, the Secretary shall enter into a lease with the Indian tribe or tribal organization that holds title to, a leasehold interest in, or a trust interest in, a facility used by the Indian tribe or tribal organization for the administration and delivery of services under this chapter.
(2)
The Secretary shall compensate each Indian tribe or tribal organization that enters into a lease under paragraph (1) for the use of the facility leased for the purposes specified in such paragraph. Such compensation may include rent, depreciation based on the useful life of the facility, principal and interest paid or accrued, operation and maintenance expenses, and such other reasonable expenses that the Secretary determines, by regulation, to be allowable.
(m)
Statutory requirements; technical assistance; precontract negotiation phase; fixed price construction contract
(1)
Each construction contract requested, approved, or awarded under this chapter, shall be subject to—
(A)
except as otherwise provided in this chapter, the provisions of this chapter, other than sections 5321(a)(2), 5325(l), 5329 and 5330 of this title; and
(B)
section 314 of the Department of the Interior and Related Agencies Appropriations Act, 1991 ([104 Stat. 1959]).
(2)
In providing technical assistance to tribes and tribal organizations in the development of construction contract proposals, the Secretary shall provide, not later than 30 days after receiving a request from a tribe or tribal organization, all information available to the Secretary regarding the construction project, including construction drawings, maps, engineering reports, design reports, plans of requirements, cost estimates, environmental assessments or environmental impact reports, and archaeological reports.
(3)
Prior to finalizing a construction contract proposal pursuant to
section 5321(a) of this title, and upon request of the tribe or tribal organization that submits the proposal, the Secretary shall provide for a precontract negotiation phase in the development of a contract proposal. Such phase shall include, at a minimum, the following elements:
(B)
A joint scoping session between the Secretary and the tribe or tribal organization to review all plans, specifications, engineering reports, cost estimates, and other information available to the parties, for the purpose of identifying all areas of agreement and disagreement.
(C)
An opportunity for the Secretary to revise the plans, designs, or cost estimates of the Secretary in response to concerns raised, or information provided by, the tribe or tribal organization.
(D)
A negotiation session during which the Secretary and the tribe or tribal organization shall seek to develop a mutually agreeable contract proposal.
(E)
Upon the request of the tribe or tribal organization, the use of an alternative dispute resolution mechanism to seek resolution of all remaining areas of disagreement pursuant to the dispute resolution provisions under subchapter IV of chapter 5 of title 5.
(4)
(A)
Subject to subparagraph (B), in funding a fixed-price construction contract pursuant to
section 5325(a) of this title, the Secretary shall provide for the following:
(i)
The reasonable costs to the tribe or tribal organization for general administration incurred in connection with the project that is the subject of the contract.
(ii)
The ability of the contractor that carries out the construction contract to make a reasonable profit, taking into consideration the risks associated with carrying out the contract and other relevant considerations.
(B)
In establishing a contract budget for a construction project, the Secretary shall not be required to separately identify the components described in clauses (i) and (ii) of subparagraph (A).
(C)
The total amount awarded under a construction contract shall reflect an overall fair and reasonable price to the parties, including the following costs:
(i)
The reasonable costs to the tribal organization of performing the contract, taking into consideration the terms of the contract and the requirements of this chapter and any other applicable law.
(ii)
The costs of preparing the contract proposal and supporting cost data.
(iii)
The costs associated with auditing the general and administrative costs of the tribal organization associated with the management of the construction contract.
(iv)
In the case of a fixed-price contract, a fair profit determined by taking into consideration the relevant risks and local market conditions.
(v)
If the Secretary and the tribe or tribal organization are unable to develop a mutually agreeable construction contract proposal pursuant to the procedures set forth in this subsection, the tribe or tribal organization may submit a final contract proposal to the Secretary. Not later than 30 days after receiving such final contract proposal, the Secretary shall approve the contract proposal and award the contract, unless, during such period the Secretary declines the proposal pursuant to subsections (a)(2) and (b)
2 of
section 5321 of this title (including providing opportunity for an appeal pursuant to
section 5321(b) of this title).
(n)
Rental rates for housing for Government employees in Alaska
Notwithstanding any other provision of law, the rental rates for housing provided to an employee by the Federal Government in Alaska pursuant to a self-determination contract shall be determined on the basis of—
(1)
the reasonable value of the quarters and facilities (as such terms are defined under
section 5911 of title 5) to such employee, and
(2)
the circumstances under which such quarters and facilities are provided to such employee,
as based on the cost of comparable private rental housing in the nearest established community with a year-round population of 1,500 or more individuals.
(o)
Patient records
(1)
In general
At the option of an Indian tribe or tribal organization, patient records may be deemed to be Federal records under those provisions of title 44 that are commonly referred to as the “Federal Records Act of 1950” for the limited purposes of making such records eligible for storage by Federal Records Centers to the same extent and in the same manner as other Department of Health and Human Services patient records.
(2)
Treatment of records
Patient records that are deemed to be Federal records under those provisions of title 44 that are commonly referred to as the “Federal Records Act of 1950” pursuant to this subsection shall not be considered Federal records for the purposes of chapter 5 of title 5.
(p)
Interpretation by Secretary
Except as otherwise provided by law, the Secretary shall interpret all Federal laws (including regulations) and Executive orders in a manner that facilitates, to the maximum extent practicable—
(1)
the inclusion in self-determination contracts and funding agreements of—
(A)
applicable programs, services, functions, and activities (or portions thereof); and
(B)
funds associated with those programs, services, functions, and activities;
(2)
the implementation of self-determination contracts and funding agreements; and
(3)
the achievement of Tribal health objectives.
(q)
Technical assistance for internal controls
(1)
Technical Assistance for Internal Controls.—
3
So in original. The heading of par. (1) was probably meant for subsec. (q), the heading of which was editorially supplied.
In considering proposals for, amendments to, or in the course of, a contract under this subchapter and compacts under subchapters IV and V of this chapter, if the Secretary determines that the Indian Tribe lacks adequate internal controls necessary to manage the contracted program or programs, the Secretary shall, as soon as practicable, provide the necessary technical assistance to assist the Indian Tribe in developing adequate internal controls. As part of that technical assistance, the Secretary and the Tribe shall develop a plan for assessing the subsequent effectiveness of such technical assistance. The inability of the Secretary to provide technical assistance or lack of a plan under this subsection shall not result in the reassumption of an existing agreement, contract, or compact, or declination or rejection of a new agreement, contract, or compact.
(2)
The Secretary shall prepare a report to be included in the information required for the reports under sections 5372(b)(2)(A) and 5394(b)(2)(A) of this title. The Secretary shall include in this report, in the aggregate, a description of the internal controls that were inadequate, the technical assistance provided, and a description of Secretarial actions taken to address any remaining inadequate internal controls after the provision of technical assistance and implementation of the plan required by paragraph (1).
([Pub. L. 93–638, title I, § 105], formerly § 106, Jan. 4, 1975, [88 Stat. 2210]; renumbered § 105 and amended [Pub. L. 100–472, title II, § 204], Oct. 5, 1988, [102 Stat. 2291]; [Pub. L. 101–301, § 2(a)(7)], May 24, 1990, [104 Stat. 207]; [Pub. L. 101–644, title II, § 203(c)]–(e), Nov. 29, 1990, [104 Stat. 4666]; [Pub. L. 103–413, title I], §§ 102(10)–(13), 106, Oct. 25, 1994, [108 Stat. 4253–4255], 4270; [Pub. L. 104–109, § 7], Feb. 12, 1996, [110 Stat. 764]; [Pub. L. 106–260], §§ 7, 8, Aug. 18, 2000, [114 Stat. 732], 733; [Pub. L. 116–180, title II, § 203], Oct. 21, 2020, [134 Stat. 880].)