public law 93-638, as amended subpart j - construction

Public Law 93-638, Public Law 93-638, as Amendedas Amended

Subpart J - Subpart J - ConstructionConstruction

33

ACRONYMS

A contract is a legally enforceable A contract is a legally enforceable agreement, in writing, between agreement, in writing, between two or more persons (individuals, two or more persons (individuals, businesses, organizations, or businesses, organizations, or government agencies) to do, or to government agencies) to do, or to refrain from doing, a particular refrain from doing, a particular thing in exchange for something thing in exchange for something of value. of value.

A written agreement between two A written agreement between two or more parties for the doing of or more parties for the doing of something in exchange for something in exchange for something else.something else.

77

What is a CONTRACTWhat is a CONTRACT??

What is a What is a ““Self‑Determination Self‑Determination ContractContract””

Pub. Law 93‑638, as Amended, Section 4(j)Pub. Law 93‑638, as Amended, Section 4(j)

““Self‑Determination ContractSelf‑Determination Contract”” means a contract means a contract (or grant or cooperative agreement utilized (or grant or cooperative agreement utilized under section 9 [450e-l] of this act) entered into under section 9 [450e-l] of this act) entered into under title I of this Act between a tribal under title I of this Act between a tribal organization and the appropriate Secretary for organization and the appropriate Secretary for the planning, conduct and administration of the planning, conduct and administration of programs or services which are otherwise programs or services which are otherwise provided to Indian tribes and their members provided to Indian tribes and their members pursuant to Federal law: pursuant to Federal law: Provided, TProvided, That hat except except as provided [in] the last proviso in section 105(a) as provided [in] the last proviso in section 105(a) of this Actof this Act, no contract (or grant or cooperative , no contract (or grant or cooperative agreement under section 9 [450e-l] of this act) agreement under section 9 [450e-l] of this act) entered into under title I of this Act shall be entered into under title I of this Act shall be construed to be a procurement contract.construed to be a procurement contract.

88

99

Section 900.113 - DefinitionsSection 900.113 - Definitions

Construction ContractConstruction ContractA fixed price or cost-reimbursement self-determination A fixed price or cost-reimbursement self-determination contract for a construction project, except that such term contract for a construction project, except that such term does not include any contract:does not include any contract:

1. That is limited to providing planning services and 1. That is limited to providing planning services and construction management services (or a combination of construction management services (or a combination of such services);such services);

2. For the HIP or Road Maintenance Program of the 2. For the HIP or Road Maintenance Program of the BIA; orBIA; or

3. For Health Facility Maintenance and 3. For Health Facility Maintenance and Improvement Program of the IHS.Improvement Program of the IHS.

1010

History of P.L. 93-638History of P.L. 93-638

1975:1975: No Construction without a waiverNo Construction without a waiver Non-construction procurement contractNon-construction procurement contract

1988:1988: Non-construction, non-procurementNon-construction, non-procurement Construction procurement contract, unless Construction procurement contract, unless

waivedwaived

1994:1994: Construction non-traditional procurement Construction non-traditional procurement

contractcontract

1996:1996: Regulations published - 25 CFR Part 900Regulations published - 25 CFR Part 900

1111

Section 900.112 - Phases of Section 900.112 - Phases of ConstructionConstruction

PREPLANNINGPREPLANNINGInitial assessment and determination of project need and Initial assessment and determination of project need and preparation of project applicationpreparation of project application

PLANNINGPLANNINGConducting and preparing detailed needs assessmentConducting and preparing detailed needs assessmentConducting pre-design site investigationConducting pre-design site investigationDevelop budget cost estimatesDevelop budget cost estimatesConduct feasibility studyConduct feasibility studyDevelop Program of Requirements (POR)Develop Program of Requirements (POR)

DESIGNDESIGNLicensed professionals using POR prepare project plans, Licensed professionals using POR prepare project plans, specification and other documentsspecification and other documents

CONSTRUCTIONCONSTRUCTIONProject is constructed in accordance with the construction Project is constructed in accordance with the construction documentsdocumentsIncludes labor, materials, equipment and services necessary to Includes labor, materials, equipment and services necessary to complete the workcomplete the work

1212


Construction Construction ProgramsPrograms

Programs for:Programs for:

PlanningPlanningDesignDesignConstructionConstructionRepairRepairImprovementImprovementExpansionExpansion

1313

Contractual AgreementsContractual Agreements

Section 108Agreement

ConstructionConstruction

Subpart JSubpart J

AgreementAgreement

Grant or CooperativeGrant or Cooperative

AgreementAgreement

1414

Contractual AgreementsContractual AgreementsSection 108 AgreementSection 108 Agreement

Pre-planning, planning, and Construction Pre-planning, planning, and Construction Management ServicesManagement Services

Proposal - 25 CFR 900.8Proposal - 25 CFR 900.8

Subpart J Construction AgreementSubpart J Construction AgreementAll phases of ConstructionAll phases of Construction

Proposal - 25 CFR 900.125Proposal - 25 CFR 900.125

Grant/Cooperative AgreementGrant/Cooperative Agreement

(in lieu of a contract)(in lieu of a contract)All phases of ConstructionAll phases of Construction

1515

Section 900.115 - Construction Section 900.115 - Construction ContractContract

A Self-Determination Construction A Self-Determination Construction Contract:Contract:

Government-to-Government AgreementGovernment-to-Government Agreement

Transfers control to the TribeTransfers control to the Tribe

Facilitates effective and meaningful participation Facilitates effective and meaningful participation by the Tribe in planning, conducting and by the Tribe in planning, conducting and administering the construction projectadministering the construction project

1616

Section 900.115 - Construction Section 900.115 - Construction ContractContract

A Self-Determination Construction Contract:A Self-Determination Construction Contract:

Is not a traditional procurement contract.Is not a traditional procurement contract.

Is subject to the provisions and regulations of the Is subject to the provisions and regulations of the Office of Federal Procurement Policy Act if PL 93-638 Office of Federal Procurement Policy Act if PL 93-638 requires it, if the Federal Procurement law or regulation requires it, if the Federal Procurement law or regulation mentions Indians, if they meet the test of three.mentions Indians, if they meet the test of three.

Is to contain a listing of Federal requirements that Is to contain a listing of Federal requirements that meet the test of three.meet the test of three.

1717

Section 900.115 -Section 900.115 - Construction Contract Construction Contract

TEST OF THREETEST OF THREE::

Use Office of Federal Procurement Policy Act Use Office of Federal Procurement Policy Act provisions and regulations only when they are:provisions and regulations only when they are:

1.1. Necessary to ensure that the contract may be Necessary to ensure that the contract may be carried carried out in a satisfactory manner;out in a satisfactory manner;

2.2. Directly related to the construction Directly related to the construction activity; andactivity; and

3.3. Not inconsistent with the Act.Not inconsistent with the Act.

1818

Section 900.115 -Section 900.115 - Construction Contract Construction Contract

Shall be Shall be LIBERALLY CONSTRUEDLIBERALLY CONSTRUED in in favor of the Tribefavor of the Tribe

1919

Section 900.6 - DaysSection 900.6 - Days

DaysDays mean mean Calendar DaysCalendar Days; except ; except where the last day of any time period where the last day of any time period specified in these regulations falls on a specified in these regulations falls on a Saturday, Sunday, or a Federal holiday, Saturday, Sunday, or a Federal holiday, the period shall carry over to the next the period shall carry over to the next business day unless otherwise prohibited business day unless otherwise prohibited by law.by law.

2020


Program of Requirements (POR)Program of Requirements (POR)::

Planning document developed during the planning Planning document developed during the planning phase of an individual project. It provides:phase of an individual project. It provides:

Background about the projectBackground about the project

Site informationSite information

Programmatic needsProgrammatic needs

Other information and design criteria on which Other information and design criteria on which to base to base the construction project documentsthe construction project documents

2121

Section 900.117 - Section 900.117 - SecretarySecretary’’s response tos response to

Program Of Requirements Program Of Requirements (POR)(POR)

Any failure of the Secretary to act on a Any failure of the Secretary to act on a PORPOR within within the required time frames will be deemed as a the required time frames will be deemed as a REJECTION OF THE PORREJECTION OF THE POR..

The Tribe can then file an appeal as provided in The Tribe can then file an appeal as provided in Section 110 of the Act, or the disputes provisions Section 110 of the Act, or the disputes provisions of the contract.of the contract.

The parties to the contract are encouraged to The parties to the contract are encouraged to CONSULT:CONSULT:

During the development of the POR;During the development of the POR;

After submission of the POR to the After submission of the POR to the Secretary.Secretary.

2222


Construction Management ServicesConstruction Management Services::

Activities limited to:Activities limited to:Administrative support servicesAdministrative support services

Coordination and Monitoring OversightCoordination and Monitoring Oversight

of the planning, design and construction process.of the planning, design and construction process.

These activities will be performed by an ITOTO These activities will be performed by an ITOTO employee or a CMS consultant.employee or a CMS consultant.

2323

Section 900.118 - Section 900.118 - Construction Management Construction Management

ServicesServices

Section 108 ContractSection 108 Contract

Subpart J - Construction ContractSubpart J - Construction Contract

Tribal Employee or ConsultantTribal Employee or Consultant

Employees or Consultant:Employees or Consultant:

Assist and advise ITOTOAssist and advise ITOTO

No authority over construction No authority over construction activitiesactivities

2424

Section 900.119 – 900.123Section 900.119 – 900.123Contract Phases for Contract Phases for

ConstructionConstructionPre-PlanningPre-Planning

PlanningPlanning

DesignDesign

ConstructionConstructionNOTIFICATIONNOTIFICATION

PRECONTRACT NEGOTIATIONPRECONTRACT NEGOTIATION

DECLINE/APPROVEDECLINE/APPROVE

AWARDAWARD

ADMINISTRATIONADMINISTRATION

2626

Section 900.22 -Section 900.22 -Reasons to DeclineReasons to Decline

a.a. The services to be rendered will not be The services to be rendered will not be satisfactory.satisfactory.

b.b. Adequate protection of trust resources is not Adequate protection of trust resources is not assured.assured.

c.c. The proposed project cannot be properly The proposed project cannot be properly completed completed or maintained.or maintained.

d.d. The amount of funds proposed is in excess of the The amount of funds proposed is in excess of the applicable funding level for the contract.applicable funding level for the contract.

e.e. The activity (or portion thereof) is beyond the The activity (or portion thereof) is beyond the scope scope of activities covered under Section 102(a)of activities covered under Section 102(a)(1) of the (1) of the Act.Act.

2727

Section 900.123 -Section 900.123 -DeclinationDeclination

ProceduresProcedures::

1.1. State any objections to the contract proposal in State any objections to the contract proposal in writing writing and provide all documents relied on in and provide all documents relied on in making the making the declination decision within 20 days.declination decision within 20 days.

2.2. Provide assistance to the ITOTO to Provide assistance to the ITOTO to overcome overcome stated stated objections.objections.

3.3. Provide the ITOTO with a hearing on the record Provide the ITOTO with a hearing on the record with with the right to engage in full discovery relevant to the right to engage in full discovery relevant to any any issue raised in the matter.issue raised in the matter.

4.4. The opportunity for an appeal on the objections The opportunity for an appeal on the objections raised raised following Subpart L or initiate an action in following Subpart L or initiate an action in a Federal a Federal District Court and proceed directly under District Court and proceed directly under Section Section 110(a) of the Act.110(a) of the Act.

2828

Section 900.153 -Section 900.153 -Actions in Response to Actions in Response to

DeclinationDeclination

1.1. Appeal to the Interior Board of Indian Appeal to the Interior Board of Indian Appeals (IBIA).Appeals (IBIA).

Civilian Board of Contract Appeals (CBCA)Civilian Board of Contract Appeals (CBCA)

Federal Register, Vol. 72, No. 128, July 5, Federal Register, Vol. 72, No. 128, July 5, 20072007

Effective January 6, 2007Effective January 6, 2007Sec. 847 of P.L. 109-163Sec. 847 of P.L. 109-163National Defense Authorization Act for F.Y. National Defense Authorization Act for F.Y.

20062006

2929

Section 900.153 -Section 900.153 -Actions in Response to Actions in Response to

DeclinationDeclination

2.2. Request an informal conference.Request an informal conference.

3.3. Sue in U.S. Federal District CourtSue in U.S. Federal District Court

3131

Section 9 of P.L. 93-638Section 9 of P.L. 93-638

The provisions of this Act shall not be The provisions of this Act shall not be subject to the requirements of Chapter subject to the requirements of Chapter 63 of Title 31, U.S.C.: Provided that, a 63 of Title 31, U.S.C.: Provided that, a grant agreement or a cooperative grant agreement or a cooperative agreement may be used in lieu of a agreement may be used in lieu of a contract under Section 102 and 103 of contract under Section 102 and 103 of this Act, when mutually agreed to by the this Act, when mutually agreed to by the appropriate Secretary and the tribal appropriate Secretary and the tribal government.government.

3232

Section 900.124Section 900.124

Contractor will:Contractor will:

Use FEDERAL CONSTRUCTION Use FEDERAL CONSTRUCTION GUIDELINES and MANUALS applicable for GUIDELINES and MANUALS applicable for the appropriate construction activity.the appropriate construction activity.

Government SHALL ACCEPT tribal Government SHALL ACCEPT tribal proposals for alternatives which are proposals for alternatives which are consistent with or exceedconsistent with or exceed Federal Federal guidelines or manuals.guidelines or manuals.

3333

Section 900.124Section 900.124

Contractor will:Contractor will:

Assume full responsibility and Assume full responsibility and accountability for design and accountability for design and construction performance.construction performance.

Manage and administer the work with Manage and administer the work with minimal involvement by the Government.minimal involvement by the Government.

Have acceptable Management Systems Have acceptable Management Systems (Finance, Property, and Procurement).(Finance, Property, and Procurement).

3434

CONTRACT PROPOSALCONTRACT PROPOSAL

STANDARDSSTANDARDS

STATEMENTSSTATEMENTS

ASSURANCESASSURANCES

3535

Section 102(a)(2)Section 102(a)(2)

Contractor shall include in the proposalContractor shall include in the proposal::

Non-ConstructionNon-ConstructionStandardsStandards

ConstructionConstructionProvisions regarding use of licensed and Provisions regarding use of licensed and

qualified qualified architectsarchitectsApplicable health and safety standardsApplicable health and safety standardsAdherence to applicable Federal, State, local or Adherence to applicable Federal, State, local or

tribal tribal building codes and engineering standards.building codes and engineering standards.

3636

Section 102(a)(2)Section 102(a)(2)

Standards shall ensure:Standards shall ensure:

Structural IntegrityStructural Integrity

Accountability of fundsAccountability of funds

Adequate competition for subcontractingAdequate competition for subcontracting

Commencement, performance and contract completionCommencement, performance and contract completion

Adherence to project plans and specifications (including Adherence to project plans and specifications (including Federal construction guidelines and manuals)Federal construction guidelines and manuals)

Proper materials and workmanshipProper materials and workmanship

Inspection and testingInspection and testing

Changes, modifications, stop work, and termination of work.Changes, modifications, stop work, and termination of work.

3737

Section 900.127Section 900.127Construction Contract BudgetConstruction Contract Budget

Reasonable Costs:Reasonable Costs:Preparing contract proposal and supporting dataPreparing contract proposal and supporting data

Auditing CostsAuditing Costs

Fixed Price:Fixed Price:General AdministrationGeneral Administration

ProfitProfit

Administrative CostsAdministrative CostsPersonnel - Administrative OversightPersonnel - Administrative Oversight

Travel Costs - Local and RemoteTravel Costs - Local and Remote

Community Meeting - Develop project DocumentsCommunity Meeting - Develop project Documents

Consultant FeesConsultant Fees

3838


Reasonable Costs:Reasonable Costs:Fees to Architects and EngineersFees to Architects and EngineersFees to develop surveysFees to develop surveysFees to provide part-time or full-time on-site Fees to provide part-time or full-time on-site

inspectorinspectorProject site development costProject site development costProject construction costProject construction costCost of securing and installing:Cost of securing and installing:

Moveable EquipmentMoveable EquipmentTelecommunicationsTelecommunicationsData processing equipmentData processing equipmentSpecial purpose equipmentSpecial purpose equipment

Other CostsOther Costs

3939


Contingency Funds:Contingency Funds:Unanticipated conditions of the construction phase of Unanticipated conditions of the construction phase of

cost-cost- reimbursable contracts.reimbursable contracts.

3% of activities being contracted; or3% of activities being contracted; or50% of available contingency funds, whichever is 50% of available contingency funds, whichever is

greater.greater.

If contingency funds will cause the project to exceed If contingency funds will cause the project to exceed available available project funds, the discrepancy shall be project funds, the discrepancy shall be reconciled in reconciled in accordance with Section 900.129(e).accordance with Section 900.129(e).

Additional contingency funds will be negotiated on an Additional contingency funds will be negotiated on an as-as- needed basis subject to availability of funds and needed basis subject to availability of funds and nature, scope, nature, scope, and complexity of the project.and complexity of the project.

4040


Contingency Funds:Contingency Funds:Contingency funds for other phases will be Contingency funds for other phases will be

negotiated on a negotiated on a contract-by-contract basis.contract-by-contract basis.

Unused contingency funds obligated to the contract Unused contingency funds obligated to the contract and and remaining at the end of the contract will be remaining at the end of the contract will be considered considered savings.savings.

4141

Section 900.129 - Fair and Reasonable Section 900.129 - Fair and Reasonable Price Price

Government Cost EstimateGovernment Cost Estimate

Fair and Reasonable PriceFair and Reasonable Price

Independent EstimateIndependent Estimate

Detail appropriate to Detail appropriate to nature and phase of work nature and phase of work to be performed.to be performed.

Reflect contract type.Reflect contract type.

Reflect contract pricing Reflect contract pricing arrangement.arrangement.

Should not reflect budget Should not reflect budget amount.amount.

Be accurate.Be accurate.

4242

Section 900.129 - Fair and Reasonable Section 900.129 - Fair and Reasonable PricePrice

Government Cost EstimateGovernment Cost Estimate

Will be basis for negotiation.Will be basis for negotiation.

Provide sufficient detail to Provide sufficient detail to allow comparison with the allow comparison with the ITOTO estimate.ITOTO estimate.

Format coordinated with Format coordinated with ITOTO.ITOTO.

Include cost elements in Include cost elements in Section 105(m)(4).Section 105(m)(4).

Changes will be made Changes will be made throughout negotiation throughout negotiation phase.phase.

4343


Government Cost EstimateGovernment Cost EstimatePrior costs for similar Prior costs for similar projects adjusted for projects adjusted for comparison to the target comparison to the target location.location.

Actual costs previously Actual costs previously incurred by ITOTO on incurred by ITOTO on similar projects.similar projects.

Published price lists, to Published price lists, to include regional adjustment include regional adjustment factors, for materials, factors, for materials, equipment, and labor.equipment, and labor.

Projections of inflation and Projections of inflation and cost trends, including cost trends, including projected changes such as projected changes such as labor, materials, and labor, materials, and transportation costs.transportation costs.

4444


Exceeds Amount AvailableExceeds Amount Available

1.1.ITOTO submits FINAL Proposal.ITOTO submits FINAL Proposal.(a)(a) Federal Government has 30 Days to act!Federal Government has 30 Days to act!(b)(b) Decline under Section 105(m)(4)(C)(v); orDecline under Section 105(m)(4)(C)(v); or(c)(c) Contract awarded, dispute matter under Contract Disputes Contract awarded, dispute matter under Contract Disputes

Act; orAct; or

2.2.If requested by ITOTO:If requested by ITOTO:(a)(a) ITOTO and Secretary may jointly explore methods of ITOTO and Secretary may jointly explore methods of expanding the available funds through use of:expanding the available funds through use of:

Contingency FundsContingency FundsAdvance PaymentsAdvance PaymentsRebudgetingRebudgetingSeek additional appropriationsSeek additional appropriations

(b)(b) ITOTO may propose reduction in project scope.ITOTO may propose reduction in project scope.

(c)(c) ITOTO and Secretary agree to do project in phases.ITOTO and Secretary agree to do project in phases.

4646

Section 900.131Section 900.131Secretary ResponsibilitySecretary Responsibility

Construction Management Services:Construction Management Services:

Limited to administrative support services.Limited to administrative support services.

When contracted alone - under Section 108.When contracted alone - under Section 108.

Responsible for successful completion of project.Responsible for successful completion of project.

Consult with ITOTO on regular basis - information Consult with ITOTO on regular basis - information exchange.exchange.

ITOTO reviews project documents at concept, schematic, ITOTO reviews project documents at concept, schematic, design and final construction phases or as negotiated.design and final construction phases or as negotiated.

ITOTO has 21 Days to make comments or objections.ITOTO has 21 Days to make comments or objections.

Disputes subject to CDA.Disputes subject to CDA.

ITOTO has right to monitor SecretaryITOTO has right to monitor Secretary’’s work monthly, s work monthly, critical milestone, or on-site visits, or as negotiated.critical milestone, or on-site visits, or as negotiated.

4747


Design and Construction Contracts:Design and Construction Contracts:

Full tribal participation.Full tribal participation.

Prompt tribal notification of concerns and issues.Prompt tribal notification of concerns and issues.

Environmental Determinations.Environmental Determinations.

Review and Approval of Planning Documents.Review and Approval of Planning Documents.

Review and Approval of Designs.Review and Approval of Designs.

4848


Design and Construction Contracts:Design and Construction Contracts:

Right to CopyrightsRight to Copyrights

Changes to the ContractChanges to the Contract

Review of Shop DrawingsReview of Shop Drawings

MonitoringMonitoring

SuspensionSuspension

Final InspectionFinal Inspection

4949


Suspension of Work:Suspension of Work:

30 Days, unless:30 Days, unless:

ITOTO fails to correct reason for suspension.ITOTO fails to correct reason for suspension.Cause for suspension cannot be resolved.Cause for suspension cannot be resolved.Reason for Suspension:Reason for Suspension:

Differing Site Condition that:Differing Site Condition that:Impacts Health safety concernsImpacts Health safety concernsRequires increase in negotiated budgetRequires increase in negotiated budget

Discovery of materially non-compliant work.Discovery of materially non-compliant work.Funds rescinded by Congressional action.Funds rescinded by Congressional action.Other Congressional action that materially Other Congressional action that materially

affects the affects the subject matter of the contract.subject matter of the contract.

5050


Suspension of Work:Suspension of Work:

To suspend the Secretary must:To suspend the Secretary must:

Provide written notice that describes the Provide written notice that describes the performance performance deficiencies or imminent safety, health or deficiencies or imminent safety, health or environmental environmental issues.issues.

Give ITOTO minimum of 5 Days working days Give ITOTO minimum of 5 Days working days advance notice.advance notice.

Give ITOTO an opportunity to correct the problem.Give ITOTO an opportunity to correct the problem.

Compensate ITOTO for reasonable costs during Compensate ITOTO for reasonable costs during suspension, if suspension, if it is determined the suspension it is determined the suspension occurred through no fault of occurred through no fault of ITOTO.ITOTO.

Disputes subject to CDA.Disputes subject to CDA.

5151


Terminate for Cause or Convenience:Terminate for Cause or Convenience:

Termination for cause:Termination for cause:

Non-compliant work not corrected during suspension.Non-compliant work not corrected during suspension.

Termination for Convenience:Termination for Convenience:

Requested by ITOTO.Requested by ITOTO.Requested by Secretary and ITOTO agrees.Requested by Secretary and ITOTO agrees.Funds are rescinded.Funds are rescinded.Other Congressional action occurs that materially Other Congressional action occurs that materially

affects affects contract.contract.

ITOTO must be given 21 days advance notice or ITOTO must ITOTO must be given 21 days advance notice or ITOTO must be compensated for reasonable costs incurred due to be compensated for reasonable costs incurred due to termination.termination.

5252

Section 900.215 -230Section 900.215 -230Contract Dispute Contract Dispute

ProceduresProceduresCivilian Board of Contract AppealsCivilian Board of Contract Appeals

Office of the Clerk of the BoardOffice of the Clerk of the Board

1800 F Street, NW1800 F Street, NW

Washington, DC 20405Washington, DC 20405

Telephone: (202) 606-8800Telephone: (202) 606-8800

Facsimile: (202) 606-0019Facsimile: (202) 606-0019

Website: www.cbca.gsa.govWebsite: www.cbca.gsa.gov

5454

Section 105(b)Section 105(b)Contract PaymentContract Payment

Payments of any grants or under any Payments of any grants or under any contracts pursuant to sections 102 and contracts pursuant to sections 102 and 103 of this Act may be made in advance or 103 of this Act may be made in advance or by way of reimbursement and in such by way of reimbursement and in such installments and on such conditions as the installments and on such conditions as the appropriate Secretary deems necessary to appropriate Secretary deems necessary to carry out the purposes of this title.carry out the purposes of this title.

5555


The transfer of funds shall be scheduled The transfer of funds shall be scheduled consistent with program requirements and consistent with program requirements and applicable Treasury regulations, so as to applicable Treasury regulations, so as to minimize the time elapsing between the minimize the time elapsing between the transfer of such funds from the United transfer of such funds from the United States Treasury and the disbursement States Treasury and the disbursement thereof by the tribal organization, whether thereof by the tribal organization, whether such disbursement occurs prior to or such disbursement occurs prior to or subsequent to such transfer of funds.subsequent to such transfer of funds.

5656


Tribal organizations shall not be held Tribal organizations shall not be held accountable for interest earned on accountable for interest earned on such funds, pending their such funds, pending their disbursement by such organization.disbursement by such organization.

5757

PAYMENTSPAYMENTS

Cost Reimbursement ContractsCost Reimbursement Contracts::

Upon presentation of an Invoice the Tribe Upon presentation of an Invoice the Tribe will be reimbursed for its allowable and will be reimbursed for its allowable and allocable direct and indirect costs not to allocable direct and indirect costs not to exceed the amount of the contract unless exceed the amount of the contract unless modified.modified.

5858

PAYMENTSPAYMENTS

Fixed Price ContractsFixed Price Contracts::

Upon presentation of an invoice the Tribe will Upon presentation of an invoice the Tribe will be paid based on the actual quantities of work be paid based on the actual quantities of work completed and accepted or materials completed and accepted or materials furnished in accordance with the contract.furnished in accordance with the contract.

The scheduled quantities of work to be done The scheduled quantities of work to be done and materials to be furnished may be and materials to be furnished may be increased, decreased or deleted as increased, decreased or deleted as determined necessary through contract determined necessary through contract modification.modification.

5959

Section 900.132Section 900.132Payment SchedulePayment Schedule

Advance Payment:Advance Payment:

(a)(a) Part of Contract proposal.Part of Contract proposal.

(b)(b) Based on need, progress and other Based on need, progress and other applicable law.applicable law.

(c)(c) Based on time or phase of project.Based on time or phase of project.

(d)(d) Becomes part of the Contract.Becomes part of the Contract.

(e)(e) May be adjusted during the course of the May be adjusted during the course of the project project based on a change in progress or need.based on a change in progress or need.

6060



(f)(f) Payments made per Payment Schedule.Payments made per Payment Schedule.

(g)(g) Payments made quarterly, if no allocation Payments made quarterly, if no allocation period period specified.specified.

(h)(h) First payment can include costs for First payment can include costs for mobilization and mobilization and contingency funds.contingency funds.

(i)(i) Any payment can include cost for materials Any payment can include cost for materials to be to be used during subsequent periods.used during subsequent periods.

6161



(j)(j) First payment within 21 Days of Contract First payment within 21 Days of Contract award.award.

(k)(k) Second payment not later than 7 Days Second payment not later than 7 Days before end of before end of first period.first period.

(l)(l) Payment for remaining periods shall be Payment for remaining periods shall be made not made not later than 7 days before the end of later than 7 days before the end of the previous the previous period, unless:period, unless:

(a)(a) Tribe delinquent in progress and financial Tribe delinquent in progress and financial reports.reports.

(b)(b) Contract terminated per sections 900.131(b)Contract terminated per sections 900.131(b)(12) or (12) or 900.131(b)(13).900.131(b)(13).

6262

Section 8Section 8Carryover of FundsCarryover of Funds

Notwithstanding any other provision of law, Notwithstanding any other provision of law, any funds appropriated pursuant to the Act any funds appropriated pursuant to the Act of November 2, 1921 (42 Stat. 208) of November 2, 1921 (42 Stat. 208) [[25 U.S.C. § 1325 U.S.C. § 13]], for any fiscal year which , for any fiscal year which are not obligated or expended prior to the are not obligated or expended prior to the beginning of the fiscal year succeeding the beginning of the fiscal year succeeding the fiscal year for which such funds were fiscal year for which such funds were appropriated shall remain available for appropriated shall remain available for obligation or expenditure during such obligation or expenditure during such succeeding fiscal year. succeeding fiscal year.

6363

Section 8Section 8Carryover of FundsCarryover of Funds

… … In the case of amounts made available to a In the case of amounts made available to a tribal organization under a self-determination tribal organization under a self-determination contract, if the funds are to be expended in the contract, if the funds are to be expended in the succeeding fiscal year for the purpose for which succeeding fiscal year for the purpose for which they were originally appropriated, contracted, or they were originally appropriated, contracted, or granted, or for which they are authorized to be granted, or for which they are authorized to be used pursuant to the provisions of section 106(a)used pursuant to the provisions of section 106(a)(3), no additional justification or documentation of (3), no additional justification or documentation of such purposes need be provided by the tribal such purposes need be provided by the tribal organization to the Secretary as a condition of organization to the Secretary as a condition of receiving and expending such funds.receiving and expending such funds.

6464

Section 106(a)(4)Section 106(a)(4)Excess Funds - SavingsExcess Funds - Savings

For each fiscal year during which a self-For each fiscal year during which a self-determination contract is in effect any savings determination contract is in effect any savings attributable to the operation of a Federal program, attributable to the operation of a Federal program, function, service, or activity under a self-function, service, or activity under a self-determination contract by a tribe or tribal determination contract by a tribe or tribal organization (including a cost-reimbursement organization (including a cost-reimbursement construction contract) shall:construction contract) shall:

(A)(A) Be used to provide additional services or benefits Be used to provide additional services or benefits under the under the contract; orcontract; or

(B)(B) Be expended by the tribe or tribal organization in the Be expended by the tribe or tribal organization in the succeeding fiscal year, as provided in section 8.succeeding fiscal year, as provided in section 8.

6565

Public Law 105-277Public Law 105-277Div. A, § 101(e), October 21, 1988Div. A, § 101(e), October 21, 1988

[H]ereafter funds made available to tribes and [H]ereafter funds made available to tribes and tribal organizations through contracts, compact tribal organizations through contracts, compact agreements, or grants, as authorized by the agreements, or grants, as authorized by the Indian Self-Determination Act of 1975 [Pub. L. 93-Indian Self-Determination Act of 1975 [Pub. L. 93-638, Title I, January 4, 1975, 88 Stat. 2206; 25 638, Title I, January 4, 1975, 88 Stat. 2206; 25 U.S.C.A. § 450f et seq.] or grants authorized by U.S.C.A. § 450f et seq.] or grants authorized by the Indian Education Amendments of 1988 (25 the Indian Education Amendments of 1988 (25 U.S.C. 2001 and 2008A) shall remain available U.S.C. 2001 and 2008A) shall remain available until expended by the contractor or grantee. until expended by the contractor or grantee.

NOTE: This language was included at the end of 25 NOTE: This language was included at the end of 25 U.S.C.A. 450j (Pub. L. 93-638, as amended, section 105).U.S.C.A. 450j (Pub. L. 93-638, as amended, section 105).

6666

Use of FundsUse of Funds[25 USC 450e-2][25 USC 450e-2]

Pub. Law 105‑83, Title III, Sec. 310, Nov. 14, Pub. Law 105‑83, Title III, Sec. 310, Nov. 14, 1997:1997:

Beginning in fiscal year 1998 and thereafter, where actual Beginning in fiscal year 1998 and thereafter, where actual costs of construction projects under self‑determination costs of construction projects under self‑determination contracts, compacts, or grants, pursuant to contracts, compacts, or grants, pursuant to Public Public Law 93‑638Law 93‑638, , 103‑413103‑413, or , or 100‑297100‑297, are less than the , are less than the estimated costs thereof, use of the resulting excess funds estimated costs thereof, use of the resulting excess funds shall be determined by the appropriate Secretary after shall be determined by the appropriate Secretary after consultation with the tribes.consultation with the tribes.

NOTE: This section (25 USC 450e-2) was enacted as part of the Department of the Interior NOTE: This section (25 USC 450e-2) was enacted as part of the Department of the Interior and related Agencies Appropriations Act, 1998 (Pub. L. 105-83, Title III, § 310), and not as and related Agencies Appropriations Act, 1998 (Pub. L. 105-83, Title III, § 310), and not as part of the Indian Self‑Determination and Education Assistance Act (Pub. L. 93-638, as part of the Indian Self‑Determination and Education Assistance Act (Pub. L. 93-638, as amended). It provides limitations on the use of excess construction project costs.amended). It provides limitations on the use of excess construction project costs.

6767

WAGE AND LABOR STANDARDSWAGE AND LABOR STANDARDS[25 USC 450e][25 USC 450e]

Sec. 7(a)Sec. 7(a) Similar construction in localitySimilar construction in locality::

All laborers and mechanics employed by contractors or All laborers and mechanics employed by contractors or subcontractors (excluding tribes and tribal organizations) in subcontractors (excluding tribes and tribal organizations) in the construction, alteration, or repair, including painting or the construction, alteration, or repair, including painting or decorating of buildings or other facilities in connection with decorating of buildings or other facilities in connection with contracts or grants entered into pursuant to this Act, shall contracts or grants entered into pursuant to this Act, shall be paid wages at not less than those prevailing on similar be paid wages at not less than those prevailing on similar construction in the locality, as determined by the Secretary construction in the locality, as determined by the Secretary of Labor in accordance with the Davis‑Bacon Act of of Labor in accordance with the Davis‑Bacon Act of March 3, 1931 (46 Stat. 1494), as amended [40 U.S.C. March 3, 1931 (46 Stat. 1494), as amended [40 U.S.C.

§§ 276a et seq.].§§ 276a et seq.].

6868


Section 7(b) Section 7(b) Preference requirements for wages and Preference requirements for wages and grantsgrants:: Any contract, subcontract, grant, or subgrant Any contract, subcontract, grant, or subgrant pursuant to this Act, the Act of April 16, 1934 (48 Stat. 596), pursuant to this Act, the Act of April 16, 1934 (48 Stat. 596), as amended [25 U.S.C. §§ 452 et seq.], or any other Act as amended [25 U.S.C. §§ 452 et seq.], or any other Act authorizing Federal contracts with or grants to Indian authorizing Federal contracts with or grants to Indian organizations or for the benefit of Indians, shall require that organizations or for the benefit of Indians, shall require that to the greatest extent feasible ‑to the greatest extent feasible ‑

(1) preferences and opportunities for training (1) preferences and opportunities for training and employment in connection with the administration of and employment in connection with the administration of such contracts or grants shall be given to Indians; andsuch contracts or grants shall be given to Indians; and

(2) preference in the award of subcontracts (2) preference in the award of subcontracts and subgrants in connection with the administration of such and subgrants in connection with the administration of such contracts or grants shall be given to Indian organizations and contracts or grants shall be given to Indian organizations and to Indian‑owned economic enterprises as defined in section 3 to Indian‑owned economic enterprises as defined in section 3 of the Indian Financing Act of 1974 (88 Stat. 77) [25 U.S.C. of the Indian Financing Act of 1974 (88 Stat. 77) [25 U.S.C. § 1452].§ 1452].

6969


Section 7(c) Section 7(c) Self-Determination Self-Determination contractcontract::

Notwithstanding subsections (a) and (b), Notwithstanding subsections (a) and (b), with respect to any self‑determination with respect to any self‑determination contract, or portion of a self‑determination contract, or portion of a self‑determination contract, that is intended to benefit one contract, that is intended to benefit one tribe, the tribal employment or contract tribe, the tribal employment or contract preference laws adopted by such tribe shall preference laws adopted by such tribe shall govern with respect to the administration of govern with respect to the administration of the contract or portion of the contract.the contract or portion of the contract.

7070

Section 900.137Section 900.137What Subparts Do Not Apply to Subpart What Subparts Do Not Apply to Subpart

JJ

Subpart C - Proposal ContentSubpart C - Proposal Content

Subpart D - Contract Review and ApprovalSubpart D - Contract Review and Approval

Subpart G - Programmatic Reports and Subpart G - Programmatic Reports and Data Data Requirements Requirements

Subpart P - ReassumptionSubpart P - Reassumption

Section 900.150(d) - RedesignSection 900.150(d) - Redesign

Section 900.150(e) - ReassumeSection 900.150(e) - Reassume

7171

Section 900.137Section 900.137What Subparts Do Not Apply to Subpart What Subparts Do Not Apply to Subpart

JJ

P.L. 93-638, section 105(m)(1) states:P.L. 93-638, section 105(m)(1) states:

Each construction contract requested, approved, Each construction contract requested, approved, or awarded under this Act shall be subject to:or awarded under this Act shall be subject to:

(A)(A) Except as otherwise provided in this Act, the Except as otherwise provided in this Act, the provisions of this provisions of this Act, other than sections Act, other than sections 102(a)(2), 102(a)(2), 106(l), 108 and 109;106(l), 108 and 109;

7272

Contract AdministrationContract Administration

Contract Performance InitiationContract Performance Initiation

Contract PerformanceContract Performance

Government AcceptanceGovernment Acceptance

Contract CloseoutContract Closeout

Post Construction ActivityPost Construction Activity

7373

Davis - Bacon ActDavis - Bacon Act

Coverage:Coverage:

Not applicable to Tribe or Tribal Organization as Not applicable to Tribe or Tribal Organization as Contractor or Subcontractor.Contractor or Subcontractor.Applicable to all other Subcontractors.Applicable to all other Subcontractors.Construction exceeding $2,000.00Construction exceeding $2,000.00

Obligation:Obligation:

Wages are to be paid to laborers and mechanics Wages are to be paid to laborers and mechanics on construction projects in accordance with wage on construction projects in accordance with wage rates determined by Secretary of Labor.rates determined by Secretary of Labor.

7474


Obligation:Obligation:

Applicable wage rate should be included in the contract.Applicable wage rate should be included in the contract.

Wages are to be paid weekly.Wages are to be paid weekly.

Workers must be given Fringe Benefits.Workers must be given Fringe Benefits.

Enforcement:Enforcement:

Wage rates to be included as part of Contract.Wage rates to be included as part of Contract.

Wage rates to be posted at the work site.Wage rates to be posted at the work site.

Submission of certified payrolls on a weekly basis.Submission of certified payrolls on a weekly basis.

7575


Violations:Violations:

Subject to contract termination and Subject to contract termination and reprocurement costs.reprocurement costs.

Subject to debarment for up to 3 years.Subject to debarment for up to 3 years.

Contract payments may be withheld.Contract payments may be withheld.

7676

Section 110Section 110CONTRACT DISPUTES AND CLAIMSCONTRACT DISPUTES AND CLAIMS

[25 USC 450m-1][25 USC 450m-1]

(a) (a) Civil actions; concurrent jurisdiction; reliefCivil actions; concurrent jurisdiction; relief::

The United States district courts shall have original jurisdiction The United States district courts shall have original jurisdiction over any civil action or claim against the appropriate Secretary over any civil action or claim against the appropriate Secretary arising under this Act and, subject to the provisions of arising under this Act and, subject to the provisions of subsection (d) of this section and concurrent with the United subsection (d) of this section and concurrent with the United States Court of Claims, over any civil action or claim against States Court of Claims, over any civil action or claim against the Secretary for money damages arising under contracts the Secretary for money damages arising under contracts authorized by this Act. In an action brought under this authorized by this Act. In an action brought under this paragraph, the district courts may order appropriate relief paragraph, the district courts may order appropriate relief including money damages, injunctive relief against any action including money damages, injunctive relief against any action by an officer of the United States or any agency thereof by an officer of the United States or any agency thereof contrary to this Act or regulations promulgated thereunder, or contrary to this Act or regulations promulgated thereunder, or mandamus to compel an officer or employee of the United mandamus to compel an officer or employee of the United States, or any agency thereof, to perform a duty provided States, or any agency thereof, to perform a duty provided under this Act or regulations promulgated hereunder (including under this Act or regulations promulgated hereunder (including immediate injunctive relief to reverse a declination finding immediate injunctive relief to reverse a declination finding under section 102(a)(2) [25 U.S.C.A. 450f(a)(2)] or to compel under section 102(a)(2) [25 U.S.C.A. 450f(a)(2)] or to compel the Secretary to award and fund an approved the Secretary to award and fund an approved self‑determination contract).self‑determination contract).

7777


[[25 USC 450m-125 USC 450m-1]]

(b)(b) Revision of contractsRevision of contracts::

The Secretary shall not revise or The Secretary shall not revise or amend a self‑determination contract amend a self‑determination contract with a tribal organization without with a tribal organization without the tribal organization's consent. the tribal organization's consent.

7878


[[25 USC 450m-125 USC 450m-1]]

(c)(c) Application of laws to administrative Application of laws to administrative appealsappeals::

The Equal Access to Justice Act (Pub. Law 96‑481, The Equal Access to Justice Act (Pub. Law 96‑481, Act of October 1, 1980; 92 Stat. 2325, as Act of October 1, 1980; 92 Stat. 2325, as amended), section 504 of title 5, United States amended), section 504 of title 5, United States Code, and section 2412 of title 28, United States Code, and section 2412 of title 28, United States Code shall apply to administrative appeals pending Code shall apply to administrative appeals pending on or filed after the date of enactment of the on or filed after the date of enactment of the Indian Self‑Determination and Education Indian Self‑Determination and Education Assistance Act Amendments of 1988 by tribal Assistance Act Amendments of 1988 by tribal organizations regarding self‑determination organizations regarding self‑determination contracts. contracts.

7979


[[25 USC 450m-125 USC 450m-1]]

(d)(d) Application of Contract Disputes Application of Contract Disputes ActAct::

The Contract Disputes Act (Pub. Law 95‑563, The Contract Disputes Act (Pub. Law 95‑563, Act of November 1, 1978; 92 Stat. 2383, as Act of November 1, 1978; 92 Stat. 2383, as amended) shall apply to self‑determination amended) shall apply to self‑determination contracts, except that all administrative contracts, except that all administrative appeals relating to such contracts shall be appeals relating to such contracts shall be heard by the Interior Board of Contract heard by the Interior Board of Contract Appeals established pursuant to section 8 of Appeals established pursuant to section 8 of such Act (41 U.S.C. 607). such Act (41 U.S.C. 607).

public law 93-638, as amended subpart j - construction

Documents

construction project

construction contract

phases of construction

construction documents

construction activity

documents construction

tribe slide

work slide