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

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Public Law 93-638, as Amended Subpart J - Construction Slide 2 2 Slide 3 3 ACRONYMS Slide 4 4 Slide 5 5 Slide 6 6 Slide 7 A contract is a legally enforceable agreement, in writing, between two or more persons (individuals, businesses, organizations, or government agencies) to do, or to refrain from doing, a particular thing in exchange for something of value. A written agreement between two or more parties for the doing of something in exchange for something else. 7 What is a CONTRACT? Slide 8 What is a Self Determination Contract Pub. Law 93 638, as Amended, Section 4(j) Self Determination Contract means a contract (or grant or cooperative agreement utilized under section 9 [450e-l] of this act) entered into under title I of this Act between a tribal organization and the appropriate Secretary for the planning, conduct and administration of programs or services which are otherwise provided to Indian tribes and their members pursuant to Federal law: Provided, That except as provided [in] the last proviso in section 105(a) of this Act, no contract (or grant or cooperative agreement under section 9 [450e-l] of this act) entered into under title I of this Act shall be construed to be a procurement contract. 8 Slide 9 9 Section 900.113 - Definitions Construction Contract A fixed price or cost-reimbursement self-determination contract for a construction project, except that such term does not include any contract: 1. That is limited to providing planning services and construction management services (or a combination of such services); 2. For the HIP or Road Maintenance Program of the BIA; or 3. For Health Facility Maintenance and Improvement Program of the IHS. Slide 10 10 History of P.L. 93-638 1975: No Construction without a waiver No Construction without a waiver Non-construction procurement contract Non-construction procurement contract1988: Non-construction, non-procurement Non-construction, non-procurement Construction procurement contract, unless waived Construction procurement contract, unless waived1994: Construction non-traditional procurement contract Construction non-traditional procurement contract1996: Regulations published - 25 CFR Part 900 Regulations published - 25 CFR Part 900 Slide 11 11 Section 900.112 - Phases of Construction PREPLANNING Initial assessment and determination of project need and preparation of project application PLANNING Conducting and preparing detailed needs assessment Conducting pre-design site investigation Develop budget cost estimates Conduct feasibility study Develop Program of Requirements (POR) DESIGN Licensed professionals using POR prepare project plans, specification and other documents CONSTRUCTION Project is constructed in accordance with the construction documents Includes labor, materials, equipment and services necessary to complete the work Slide 12 12 Section 900.113 - Definitions Construction Programs Programs for: PlanningDesignConstructionRepairImprovementExpansion Slide 13 13 Contractual Agreements Section 108 AgreementConstruction Subpart J Agreement Grant or Cooperative Agreement Slide 14 14 Contractual Agreements Section 108 Agreement Pre-planning, planning, and Construction Management Services Proposal - 25 CFR 900.8 Subpart J Construction Agreement All phases of Construction Proposal - 25 CFR 900.125 Grant/Cooperative Agreement (in lieu of a contract) All phases of Construction Slide 15 15 Section 900.115 - Construction Contract A Self-Determination Construction Contract: Government-to-Government Agreement Transfers control to the Tribe Facilitates effective and meaningful participation by the Tribe in planning, conducting and administering the construction project Slide 16 16 Section 900.115 - Construction Contract A Self-Determination Construction Contract: Is not a traditional procurement contract. Is subject to the provisions and regulations of the Office of Federal Procurement Policy Act if PL 93-638 requires it, if the Federal Procurement law or regulation mentions Indians, if they meet the test of three. Is to contain a listing of Federal requirements that meet the test of three. Slide 17 17 Section 900.115 - Construction Contract TEST OF THREE: Use Office of Federal Procurement Policy Act provisions and regulations only when they are: 1.Necessary to ensure that the contract may be carried out in a satisfactory manner; 2.Directly related to the construction activity; and 3.Not inconsistent with the Act. Slide 18 18 Section 900.115 - Construction Contract Shall be LIBERALLY CONSTRUED in favor of the Tribe Slide 19 19 Section 900.6 - Days Days mean Calendar Days ; except where the last day of any time period specified in these regulations falls on a Saturday, Sunday, or a Federal holiday, the period shall carry over to the next business day unless otherwise prohibited by law. Slide 20 20 Section 900.113 - Definitions Program of Requirements (POR): Planning document developed during the planning phase of an individual project. It provides: Background about the project Site information Programmatic needs Other information and design criteria on which to base the construction project documents Slide 21 21 Section 900.117 - Secretarys response to Program Of Requirements (POR) Any failure of the Secretary to act on a POR within the required time frames will be deemed as a REJECTION OF THE POR. The Tribe can then file an appeal as provided in Section 110 of the Act, or the disputes provisions of the contract. The parties to the contract are encouraged to CONSULT: During the development of the POR; After submission of the POR to the Secretary. Slide 22 22 Section 900.113 - Definitions Construction Management Services: Activities limited to: Administrative support services Coordination and Monitoring Oversight of the planning, design and construction process. These activities will be performed by an ITOTO employee or a CMS consultant. Slide 23 23 Section 900.118 - Construction Management Services Section 108 Contract Subpart J - Construction Contract Tribal Employee or Consultant Employees or Consultant: Assist and advise ITOTO No authority over construction activities Slide 24 24 Section 900.119 900.123 Contract Phases for Construction Pre-PlanningPlanningDesignConstructionNOTIFICATION PRECONTRACT NEGOTIATION DECLINE/APPROVEAWARDADMINISTRATION Slide 25 25 Slide 26 26 Section 900.22 - Reasons to Decline a.The services to be rendered will not be satisfactory. b.Adequate protection of trust resources is not assured. c.The proposed project cannot be properly completed or maintained. d.The amount of funds proposed is in excess of the applicable funding level for the contract. e.The activity (or portion thereof) is beyond the scope of activities covered under Section 102(a)(1) of the Act. Slide 27 27 Section 900.123 - Declination Procedures: 1.State any objections to the contract proposal in writing and provide all documents relied on in making the declination decision within 20 days. 2.Provide assistance to the ITOTO to overcome stated objections. 3.Provide the ITOTO with a hearing on the record with the right to engage in full discovery relevant to any issue raised in the matter. 4.The opportunity for an appeal on the objections raised following Subpart L or initiate an action in a Federal District Court and proceed directly under Section 110(a) of the Act. Slide 28 28 Section 900.153 - Actions in Response to Declination 1.Appeal to the Interior Board of Indian Appeals (IBIA). Civilian Board of Contract Appeals (CBCA) Federal Register, Vol. 72, No. 128, July 5, 2007 Effective January 6, 2007 Sec. 847 of P.L. 109-163 National Defense Authorization Act for F.Y. 2006 Slide 29 29 Section 900.153 - Actions in Response to Declination 2.Request an informal conference. 3.Sue in U.S. Federal District Court Slide 30 30 Slide 31 31 Section 9 of P.L. 93-638 The provisions of this Act shall not be subject to the requirements of Chapter 63 of Title 31, U.S.C.: Provided that, a grant agreement or a cooperative agreement may be used in lieu of a contract under Section 102 and 103 of this Act, when mutually agreed to by the appropriate Secretary and the tribal government. Slide 32 32 Section 900.124 Contractor will: Use FEDERAL CONSTRUCTION GUIDELINES and MANUALS applicable for the appropriate construction activity. Government SHALL ACCEPT tribal proposals for alternatives which are consistent with or exceed Federal guidelines or manuals. Slide 33 33 Section 900.124 Contractor will: Assume full responsibility and accountability for design and construction performance. Manage and administer the work with minimal involvement by the Government. Have acceptable Management Systems (Finance, Property, and Procurement). Slide 34 34 CONTRACT PROPOSAL STANDARDSSTATEMENTSASSURANCES Slide 35 35 Section 102(a)(2) Contractor shall include in the proposal: Non-ConstructionStandardsConstruction Provisions regarding use of licensed and qualified architects Applicable health and safety standards Adherence to applicable Federal, State, local or tribal building codes and engineering standards. Slide 36 36 Section 102(a)(2) Standards shall ensure: Structural Integrity Accountability of funds Adequate competition for subcontracting Commencement, performance and contract completion Adherence to project plans and specifications (including Federal construction guidelines and manuals) Proper materials and workmanship Inspection and testing Changes, modifications, stop work, and termination of work. Slide 37 37 Section 900.127 Construction Contract Budget Reasonable Costs: Preparing contract proposal and supporting data Auditing Costs Fixed Price: General Administration Profit Administrative Costs Personnel - Administrative Oversight Travel Costs - Local and Remote Community Meeting - Develop project Documents Consultant Fees Slide 38 38 Section 900.127 Construction Contract Budget Reasonable Costs: Fees to Architects and Engine