25 Cfr 900

PART 900—CONTRACTS UNDER THE
INDIAN
SELF-DETERMINATION
AND EDUCATION ASSISTANCE
ACT

900.18 What happens if a proposal is not declined within 90 days after it is received
by the Secretary?
900.19 What happens when a proposal is approved?

Subpart A—General Provisions

Subpart E—Declination Procedures

Sec.
900.1 Authority.
900.2 Purpose and scope.
900.3 Policy statements.
900.4 Effect on existing tribal rights.
900.5 Effect of these regulations on Federal
program guidelines, manual, or policy directives.

Subpart B—Definitions
900.6

Definitions.

Subpart C—Contract Proposal Contents
900.7 What technical assistance is available
to assist in preparing an initial contract
proposal?
900.8 What must an initial contract proposal contain?
900.9 May the Secretary require an Indian
tribe or tribal organization to submit
any other information beyond that identified in § 900.8?
900.10 How does an Indian tribe or tribal organization secure a list of all Federal
property currently in use in carrying out
the programs, functions, services, or activities that benefit the Indian tribe or
tribal organization to assist in negotiating a contract?
900.11 What should an Indian tribe or tribal
organization that is proposing a contract
do about specifying the Federal property
that the Indian tribe or tribal organization may wish to use in carrying out the
contract?
900.12 Are the proposal contents requirements the same for renewal of a contract
that is expiring and for securing an annual funding agreement after the first
year of the funding agreement?
900.13 Does the contract proposal become
part of the final contract?

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Subpart D—Review and Approval of
Contract Proposals
900.14 What does this subpart cover?
900.15 What shall the Secretary do upon receiving a proposal?
900.16 How long does the Secretary have to
review and approve the proposal and
award the contract, or decline a proposal?
900.17 Can the statutory 90-day period be extended?

900.20 What does this subpart cover?
900.21 When can a proposal be declined?
900.22 For what reasons can the Secretary
decline a proposal?
900.23 Can the Secretary decline a proposal
where the Secretary’s objection can be
overcome through the contract?
900.24 Can a contract proposal for an Indian
tribe or tribal organization’s share of administrative programs, functions, services, and activities be declined for any
reason other than the five reasons specified in § 900.22?
900.25 What if only a portion of a proposal
raises one of the five declination criteria?
900.26 What happens if the Secretary declines a part of a proposal on the ground
that the proposal proposes in part to
plan, conduct, or administer a program,
function, service or activity that is beyond the scope of programs covered
under section 102(a) of the Act, or proposes a level of funding that is in excess
of the applicable level determined under
section 106(a) of the Act?
900.27 If an Indian tribe or tribal organization elects to contract for a severable
portion of a proposal, does the Indian
tribe or tribal organization lose its appeal rights to challenge the portion of
the proposal that was declined?
900.28 Is technical assistance available to an
Indian tribe or tribal organization to
avoid declination of a proposal?
900.29 What is the Secretary required to do
if the Secretary decides to decline all or
a portion of a proposal?
900.30 When the Secretary declines all or a
portion of a proposal, is the Secretary required to provide an Indian tribe or tribal organization with technical assistance?
900.31 When the Secretary declines all or a
portion of a proposal, is an Indian tribe
or tribal organization entitled to any appeal?
900.32 Can the Secretary decline an Indian
tribe or tribal organization’s proposed
successor annual funding agreement?
900.33 Are all proposals to renew term contracts subject to the declination criteria?

Subpart F—Standards for Tribal or Tribal
Organization Management Systems
GENERAL
900.35

What is the purpose of this subpart?

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Pt. 900

25 CFR Ch. V (4–1–15 Edition)

900.36 What requirements are imposed upon
Indian tribes or tribal organizations by
this subpart?
900.37 What provisions of Office of Management and Budget (OMB) circulars or the
‘‘common rule’’ apply to self-determination contracts?
900.38 Do these standards apply to the subcontractors of an Indian tribe or tribal
organization carrying out a self-determination contract?
900.39 What is the difference between a
standard and a system?
900.40 When are Indian tribe or tribal organization management standards and
management systems evaluated?
900.41 How long must an Indian tribe or
tribal organization keep management
system records?
STANDARDS FOR FINANCIAL MANAGEMENT
SYSTEMS
900.42 What are the general financial management system standards that apply to
an Indian tribe carrying out a self-determination contract?
900.43 What are the general financial management system standards that apply to
a tribal organization carrying out a selfdetermination contract?
900.44 What minimum general standards
apply to all Indian tribe or tribal organization financial management systems
when carrying out a self-determination
contract?
900.45 What specific minimum requirements
shall an Indian tribe or tribal organization’s financial management system contain to meet these standards?
900.46 What requirements are imposed upon
the Secretary for financial management
by these standards?
PROCUREMENT MANAGEMENT SYSTEM
STANDARDS

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900.47 When procuring property or services
with self-determination contract funds,
can an Indian tribe or tribal organization
follow the same procurement policies
and procedures applicable to other Indian
tribe or tribal organization funds?
900.48 If the Indian tribe or tribal organization does not propose different standards,
what basic standards shall the Indian
tribe or tribal organization follow?
900.49 What procurement standards apply to
subcontracts?
900.50 What Federal laws, regulations, and
Executive Orders apply to subcontractors?
PROPERTY MANAGEMENT SYSTEM STANDARDS
900.51 What is an Indian tribe or tribal organization’s property management system
expected to do?

900.52 What type of property is the property
management system required to track?
900.53 What kind of records shall the property management system maintain?
900.54 Should the property management
system prescribe internal controls?
900.55 What are the standards for inventories?
900.56 What maintenance is required for
property?
900.57 What if the Indian tribe or tribal organization chooses not to take title to
property furnished or acquired under the
contract?
900.58 Do the same accountability and control procedures described above apply to
Federal property?
900.59 How are the inventory requirements
for Federal property different than for
tribal property?
900.60 How does an Indian tribe or tribal organization dispose of Federal personal
property?

Subpart G—Programmatic Reports and
Data Requirements
900.65 What programmatic reports and data
shall the Indian tribe or tribal organization provide?
900.66 What happens if the Indian tribe or
tribal organization and the Secretary
cannot come to an agreement concerning
the type and/or frequency of program
narrative and/or program data report(s)?
900.67 Will there be a uniform data set for
all IHS programs?
900.68 Will this uniform data set be required
of all Indian tribe or tribal organizations
contracting with the IHS under the Act?

Subpart H—Lease of Tribally-Owned
Buildings by the Secretary
900.69 What is the purpose of this subpart?
900.70 What elements are included in the
compensation for a lease entered into between the Secretary and an Indian tribe
or tribal organization for a building
owned or leased by the Indian tribe or
tribal organization that is used for administration or delivery of services
under the Act?
900.71 What type of reserve fund is anticipated for funds deposited into a reserve
for replacement of facilities as specified
in § 900.70(c)?
900.72 Who is the guardian of the fund and
may the funds be invested?
900.73 Is a lease with the Secretary the only
method available to recover the types of
cost described in § 900.70?
900.74 How may an Indian tribe or tribal organization propose a lease to be compensated for the use of facilities?

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BIA, DOI, and IHS, HHS

Pt. 900

Subpart I—Property Donation Procedures
GENERAL
900.85 What is the purpose of this subpart?
900.86 How will the Secretary exercise discretion to acquire and donate BIA or IHS
excess property and excess and surplus
Federal property to an Indian tribe or
tribal organization?
GOVERNMENT-FURNISHED PROPERTY

EXCESS OR SURPLUS GOVERNMENT PROPERTY
OF OTHER AGENCIES

900.87 How does an Indian tribe or tribal organization obtain title to property furnished by the Federal government for use
in the performance of a contract or grant
agreement
pursuant
to
section
105(f)(2)(A) of the Act?
900.88 What should the Indian tribe or tribal
organization do if it wants to obtain title
to government-furnished real property
that includes land not already held in
trust?
900.89 When may the Secretary elect to reacquire government-furnished property
whose title has been transferred to an Indian tribe or tribal organization?
900.90 Does government-furnished real property to which an Indian tribe or tribal organization has taken title continue to be
eligible for facilities operation and maintenance funding from the Secretary?

900.102 What is excess or surplus government property of other agencies?
900.103 How can Indian tribes or tribal organizations learn about property that has
been designated as excess or surplus government property?
900.104 How may an Indian tribe or tribal
organization receive excess or surplus
government property of other agencies?
900.105 Who takes title to excess or surplus
Federal property donated to an Indian
tribe or tribal organization?
900.106 If a contract or grant agreement or
portion thereof is retroceded, reassumed,
terminated, or expires, may the Secretary reacquire title to excess or surplus Federal property of other agencies
that was donated to an Indian tribe or
tribal organization?

CONTRACTOR-PURCHASED PROPERTY

PROPERTY ELIGIBLE FOR REPLACEMENT
FUNDING

900.91 Who takes title to property purchased with funds under a self-determination contract or grant agreement
pursuant to section 105(f)(2)(A) of the
Act?
900.92 What should the Indian tribe or tribal
organization do if it wants contractorpurchased real property to be taken into
trust?
900.93 When may the Secretary elect to acquire title to contractor-purchased property?
900.94 Is contractor-purchased real property
to which an Indian tribe or tribal organization holds title eligible for facilities
operation and maintenance funding from
the Secretary?
BIA AND IHS EXCESS PROPERTY

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900.100 May the Secretary elect to reacquire
excess BIA or IHS property whose title
has been transferred to an Indian tribe or
tribal organization?
900.101 Is excess BIA or IHS real property to
which an Indian tribe or tribal organization has taken title eligible for facilities
operation and maintenance funding from
the Secretary?

900.95 What is BIA or IHS excess property?
900.96 How can Indian tribes or tribal organizations learn about BIA and IHS excess
property?
900.97 How can an Indian tribe or tribal organization acquire excess BIA or IHS
property?
900.98 Who takes title to excess BIA or IHS
property donated to an Indian tribe or
tribal organization?
900.99 Who takes title to any land that is
part of excess BIA or IHS real property
donated to an Indian tribe or tribal organization?

900.107 What property to which an Indian
tribe or tribal organization obtains title
under this subpart is eligible for replacement funding?

Subpart J—Construction
900.110 What does this subpart cover?
900.111 What activities of construction programs are contractible?
900.112 What are construction phases?
900.113 Definitions.
900.114 Why is there a separate subpart in
these regulations for construction contracts and grants?
900.115 How do self-determination construction contracts relate to ordinary Federal
procurement contracts?
900.116 Are negotiated fixed-price contracts
treated the same as cost-reimbursable
contracts?
900.117 Do these ‘‘construction contract’’
regulations apply to planning services?
900.118 Do these ‘‘construction contract’’
regulations apply to construction management services?
900.119 To what extent shall the Secretary
consult with affected Indian tribes before
spending funds for any construction
project?
900.120 How does an Indian tribe or tribal
organization find out about a construction project?

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Pt. 900

25 CFR Ch. V (4–1–15 Edition)

900.121 What
happens
during
the
preplanning phase and can an Indian
tribe or tribal organization perform any
of the activities involved in this process?
900.122 What does an Indian tribe or tribal
organization do if it wants to secure a
construction contract?
900.123 What happens if the Indian tribe or
tribal organization and the Secretary
cannot develop a mutually agreeable
contract proposal?
900.124 May the Indian tribe or tribal organization elect to use a grant in lieu of a
contract?
900.125 What shall a construction contract
proposal contain?
900.126 Shall a construction contract proposal incorporate provisions of Federal
construction guidelines and manuals?
900.127 What can be included in the Indian
tribe or tribal organization’s contract
budget?
900.128 What funding shall the Secretary
provide in a construction contract?
900.129 How do the Secretary and Indian
tribe or tribal organization arrive at an
overall fair and reasonable price for the
performance of a construction contract?
900.130 What role does the Indian tribe or
tribal organization play during the performance of a self-determination construction contract?
900.131 What role does the Secretary play
during the performance of a self-determination construction contract?
900.132 Once a contract and/or grant is
awarded, how will the Indian tribe or
tribal organization receive payments?
900.133 Does the declination process or the
Contract Dispute Act apply to construction contract amendments proposed either by an Indian tribe or tribal organization or the Secretary?
900.134 At the end of a self-determination
construction contract, what happens to
savings on a cost-reimbursement contract?
900.135 May the time frames for action set
out in this subpart be reduced?
900.136 Do tribal employment rights ordinances apply to construction contracts
and subcontracts?
900.137 Do all provisions of the other subparts apply to contracts awarded under
this subpart?

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Subpart K—Waiver Procedures
900.140 Can any provision of the regulations
under this part be waived?
900.141 How does an Indian tribe or tribal
organization get a waiver?
900.142 Does an Indian tribe or tribal organization’s waiver request have to be included in an initial contract proposal?
900.143 How is a waiver request processed?

900.144 What happens if the Secretary
makes no decision within the 90-day period?
900.145 On what basis may the Secretary
deny a waiver request?
900.146 Is technical assistance available for
waiver requests?
900.147 What appeal rights are available?
900.148 How can an Indian tribe or tribal organization secure a determination that a
law or regulation has been superseded by
the Indian Self-Determination Act, as
specified in section 107(b) of the Act?

Subpart L—Appeals
APPEALS OTHER THAN EMERGENCY REASSUMPTION AND SUSPENSION, WITHHOLDING OR
DELAY IN PAYMENT
900.150 What decisions can an Indian tribe
or tribal organization appeal under this
subpart?
900.151 Are there any appeals this subpart
does not cover?
900.152 How does an Indian tribe or tribal
organization know where and when to
file its appeal from decisions made by
agencies of DOI or DHHS?
900.153 Does an Indian tribe or tribal organization have any options besides an appeal?
900.154 How does an Indian tribe or tribal
organization request an informal conference?
900.155 How is an informal conference held?
900.156 What happens after the informal
conference?
900.157 Is the recommended decision always
final?
900.158 How does an Indian tribe or tribal
organization appeal the initial decision,
if it does not request an informal conference or if it does not agree with the
recommended decision resulting from the
informal conference?
900.159 May an Indian tribe or tribal organization get an extension of time to file a
notice of appeal?
900.160 What happens after an Indian tribe
or tribal organization files an appeal?
900.161 How is a hearing arranged?
900.162 What happens when a hearing is necessary?
900.163 What is the Secretary’s burden of
proof for appeals from decisions under
§ 900.150(a) through § 900.150(g)?
900.164 What rights do Indian tribes, tribal
organizations, and the government have
during the appeal process?
900.165 What happens after the hearing?
900.166 Is the recommended decision always
final?
900.167 If an Indian tribe or tribal organization objects to the recommended decision, what will the Secretary of Health
and Human Services or the IBIA do?

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BIA, DOI, and IHS, HHS

Pt. 900

900.168 Will an appeal hurt the Indian tribe
or tribal organization’s position in other
contract negotiations?
900.169 Will the decisions on appeals be
available for the public to review?
APPEALS OF EMERGENCY REASSUMPTION OF
SELF-DETERMINATION CONTRACTS OR SUSPENSIONS, WITHHOLDING OR DELAY OF PAYMENTS UNDER A SELF-DETERMINATION CONTRACT

900.170 What happens in the case of emergency reassumption or suspension or
withholding or delay of payments?
900.171 Will there be a hearing?
900.172 What happens after the hearing?
900.173 Is the recommended decision always
final?
900.174 If an Indian tribe or tribal organization objects to the recommended decision, what will the Secretary of Health
and Human Services or the IBIA do?
900.175 Will an appeal hurt an Indian tribe
or tribal organization’s position in other
contract negotiations?
900.176 Will the decisions on appeals be
available for the public to review?
APPLICABILITY OF THE EQUAL ACCESS TO
JUSTICE ACT
900.177 Does the Equal Access to Justice Act
(EAJA) apply to appeals under this subpart?

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Subpart M—Federal Tort Claims Act
Coverage General Provisions
900.180 What does this subpart cover?
900.181 What definitions apply to this subpart?
900.182 What other statutes and regulations
apply to FTCA coverage?
900.183 Do Indian tribes and tribal organizations need to be aware of areas which
FTCA does not cover?
900.184 Is there a deadline for filing FTCA
claims?
900.185 How long does the Federal government have to process an FTCA claim
after the claim is received by the Federal
agency, before a lawsuit may be filed?
900.186 Is it necessary for a self-determination contract to include any clauses
about Federal Tort Claims Act coverage?
900.187 Does FTCA apply to a self-determination contract if FTCA is not referenced in the contract?
900.188 To what extent shall the contractor
cooperate with the Federal government
in connection with tort claims arising
out of the contractor’s performance?
900.189 Does this coverage extend to subcontractors of self-determination contracts?

MEDICAL-RELATED CLAIMS
900.190 Is FTCA the exclusive remedy for a
tort claim for personal injury or death
resulting from the performance of a selfdetermination contract?
900.191 Are employees of self-determination
contractors providing health services
under the self-determination contract
protected by FTCA?
900.192 What employees are covered by
FTCA for medical-related claims?
900.193 Does FTCA coverage extend to individuals who provide health care services
under a personal services contract providing services in a facility that is
owned, operated, or constructed under
the jurisdiction of the IHS?
900.194 Does FTCA coverage extend to services provided under a staff privileges
agreement with a non-IHS facility where
the agreement requires a health care
practitioner to provide reciprocal services to the general population?
900.195 Does FTCA coverage extend to the
contractor’s health care practitioners
providing services to private patients on
a fee-for-services basis when such personnel (not the self-determination contractor) receive the fee?
900.196 Do covered services include the conduct of clinical studies and investigations and the provision of emergency
services, including the operation of
emergency motor vehicles?
900.197 Does FTCA cover employees of the
contractor who are paid by the contractor from funds other than those provided through the self-determination
contract?
900.198 Are Federal employees assigned to a
self-determination contractor under the
Intergovernmental Personnel Act or detailed under section 214 of the Public
Health Service Act covered to the same
extent that they would be if working directly for a Federal agency?
900.199 Does FTCA coverage extend to
health care practitioners to whom staff
privileges have been extended in contractor health care facilities operated
under a self-determination contract on
the condition that such practitioner provide health services to IHS beneficiaries
covered by FTCA?
900.200 May persons who are not Indians or
Alaska Natives assert claims under
FTCA?
PROCEDURE FOR FILING MEDICAL-RELATED
CLAIMS
900.201 How should claims arising out of the
performance of medical-related functions
be filed?
900.202 What should a self-determination
contractor or a contractor’s employee do
on receiving such a claim?

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Pt. 900

25 CFR Ch. V (4–1–15 Edition)

900.203 If the contractor or contractor’s employee receives a summons and/or a complaint alleging a tort covered by FTCA,
what should the contractor do?
NON-MEDICAL RELATED CLAIMS
900.204 Is FTCA the exclusive remedy for a
non-medical related tort claim arising
out of the performance of a self-determination contract?
900.205 To what non-medical-related claims
against self-determination contractors
does FTCA apply?
900.206 What employees are covered by
FTCA for non-medical-related claims?
900.207 How are non-medical related tort
claims and lawsuits filed for IHS?
900.208 How are non-medical related tort
claims and lawsuits filed for DOI?
900.209 What should a self-determination
contractor or contractor’s employee do
on receiving a non-medical related tort
claim?
900.210 If the contractor or contractor’s employee receives a summons and/or complaint alleging a non-medical related
tort covered by FTCA, what should an
Indian tribe or tribal organization do?

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Subpart N—Post-Award Contract Disputes
900.215 What does this subpart cover?
900.216 What other statutes and regulations
apply to contract disputes?
900.217 Is filing a claim under the CDA our
only option for resolving post-award contract disputes?
900.218 What is a claim under the CDA?
900.219 How does an Indian tribe, tribal organization, or Federal agency submit a
claim?
900.220 Does it make a difference whether
the claim is large or small?
900.221 What happens next?
900.222 What goes into a decision?
900.223 When does an Indian tribe or tribal
organization get the decision?
900.224 What happens if the decision does
not come within that time?
900.225 Does an Indian tribe or tribal organization get paid immediately if the
awarding official decides in its favor?
900.226 What rules govern appeals of cost
disallowances?
900.227 Can the awarding official change the
decision after it has been made?
900.228 Is an Indian tribe or tribal organization entitled to interest if it wins its
claim?
900.229 What role will the awarding official
play during an appeal?
900.230 What is the effect of a pending appeal?

Subpart O—Conflicts of Interest
900.231 What is an organizational conflict of
interest?
900.232 What must an Indian tribe or tribal
organization do if an organizational conflict of interest arises under a contract?
900.233 When must an Indian tribe or tribal
organization regulate its employees or
subcontractors to avoid a personal conflict of interest?
900.234 What types of personal conflicts of
interest involving tribal officers, employees or subcontractors would have to
be regulated by an Indian tribe?
900.235 What personal conflicts of interest
must the standards of conduct regulate?
900.236 May an Indian tribe elect to negotiate contract provisions on conflict of
interest to take the place of this regulation?

Subpart P—Retrocession and
Reassumption Procedures
900.240 What does retrocession mean?
900.241 Who may retrocede a contract, in
whole or in part?
900.242 What is the effective date of retrocession?
900.243 What effect will an Indian tribe or
tribal organization’s retrocession have
on its rights to contract?
900.244 Will an Indian tribe or tribal organization’s retrocession adversely affect
funding available for the retroceded program?
900.245 What obligation does the Indian
tribe or tribal organization have with respect to returning property that was
used in the operation of the retroceded
program?
900.246 What does reassumption mean?
900.247 Under what circumstances is a reassumption considered an emergency instead of non-emergency reassumption?
900.248 In a non-emergency reassumption,
what is the Secretary required to do?
900.249 What happens if the contractor fails
to take corrective action to remedy the
contract deficiencies identified in the notice?
900.250 What shall the second written notice
include?
900.251 What is the earliest date on which
the contract will be rescinded in a nonemergency reassumption?
900.252 In an emergency reassumption, what
is the Secretary required to do?
900.253 What shall the written notice include?
900.254 May the contractor be reimbursed
for actual and reasonable ‘‘wind up
costs’’ incurred after the effective date of
rescission?

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BIA, DOI, and IHS, HHS

§ 900.3

900.255 What obligation does the Indian
tribe or tribal organization have with respect to returning property that was
used in the operation of the rescinded
contract?
900.256 Will a reassumption adversely affect
funding available for the reassumed program?
AUTHORITY: 25 U.S.C. 450f et seq.
SOURCE: 61 FR 32501, June 24, 1996, unless
otherwise noted.
EDITORIAL NOTE: Nomenclature changes to
part 900 appear at 67 FR 34602, May 15, 2002.

Subpart A—General Provisions
§ 900.1

Authority.

These regulations are prepared,
issued, and maintained jointly by the
Secretary of Health and Human Services and the Secretary of the Interior,
with the active participation and representation of Indian tribes, tribal organizations, and individual tribal
members pursuant to the guidance of
the Negotiated Rulemaking procedures
required by section 107 of the Indian
Self-Determination and Education Assistance Act.

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§ 900.2

Purpose and scope.

(a) General. These regulations codify
uniform and consistent rules for contracts by the Department of Health
and Human Services (DHHS) and the
Department of the Interior (DOI) in implementing title I of the Indian SelfDetermination and Education Assistance Act, Public Law 93–638, 25 U.S.C.
450 et seq., as amended and sections 1
through 9 preceding that title.
(b) Programs funded by other Departments and agencies. Included under this
part are programs administered (under
current or future law or interagency
agreement) by the DHHS and the DOI
for the benefit of Indians for which appropriations are made to other Federal
agencies.
(c) This part included in contracts by
reference. Each contract, including
grants and cooperative agreements in
lieu of contracts awarded under section
9 of the Act, shall include by reference
the provisions of this part, and any
amendment thereto, and they are binding on the Secretary and the contractor except as otherwise specifically

authorized by a waiver under section
107(e) of the Act.
(d) Freedom of Information. Access to
records maintained by the Secretary is
governed by the Freedom of Information Act (5 U.S.C. 552) and other applicable Federal law. Except for previously provided copies of tribal
records that the Secretary demonstrates are clearly required to be
maintained as part of the record keeping systems of the DHHS or the DOI, or
both, records of the contractors (including archived records) shall not be
considered Federal records for the purpose of the Freedom of Information
Act. The Freedom of Information Act
does not apply to records maintained
solely by Indian tribes and tribal organizations.
(e) Privacy Act. Section 108(b) of the
Indian Self-Determination Act states
that records of the tribal government
or tribal organizations shall not be
considered Federal records for the purposes of the Privacy Act.
(f) Information collection. The Office of
Management and Budget has approved,
under 44 U.S.C. chapter 35, the information collection requirements in part 900
under assigned control number 1076–
0136. The information for part 900 is
being collected and used by the Departments to determine applicant eligibility, evaluate applicant capabilities,
protect the service population, safeguard Federal funds and other resources, and permit the Departments
to administer and evaluate contract
programs.
§ 900.3

Policy statements.

(a) Congressional policy. (1) Congress
has recognized the obligation of the
United States to respond to the strong
expression of the Indian people for selfdetermination by assuring maximum
Indian participation in the direction,
planning, conduct and administration
of educational as well as other Federal
programs and services to Indian communities so as to render such programs
and services more responsive to the
needs and desires of those communities.

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§ 900.3

25 CFR Ch. V (4–1–15 Edition)

(2) Congress has declared its commitment to the maintenance of the Federal Government’s unique and continuing relationship with, and responsibility to, individual Indian tribes and
to the Indian people as a whole through
the establishment of a meaningful Indian self-determination policy which
will permit an orderly transition from
the Federal domination of programs
for, and services to, Indians to effective
and meaningful participation by the
Indian people in the planning, conduct,
and administration of those programs
and services. In accordance with this
policy, the United States is committed
to supporting and assisting Indian
tribes in the development of strong and
stable tribal governments, capable of
administering quality programs and
developing the economies of their respective communities.
(3) Congress has declared that a
major national goal of the United
States is to provide the quantity and
quality of educational services and opportunities which will permit Indian
children to compete and excel in the
life areas of their choice, and to
achieve the measure of self-determination essential to their social and economic well-being.
(4) Congress has declared that the
programs, functions, services, or activities that are contracted and funded
under this Act shall include administrative functions of the Department of
the Interior and the Department of
Health and Human Services (whichever
is applicable) that support the delivery
of services to Indians, including those
administrative activities supportive of,
but not included as part of, the service
delivery programs described in this
paragraph
that
are
otherwise
contractible. The administrative functions referred to in the preceding sentence shall be contractible without regard to the organizational level within
the Department that carries out such
functions. Contracting of the administrative functions described herein shall
not be construed to limit or reduce in
any way the funding for any program,
function, service, or activity serving
any other tribe under the Act or any
other law. The Secretary is not required to reduce funding for programs,
projects, or activities serving a tribe to

make funds available to another Indian
tribe or tribal organization under this
Act.
(5) Congress has further declared that
each provision of the Act and each provision of contracts entered into thereunder shall be liberally construed for
the benefit of the tribes or tribal organizations to transfer the funding and
the related functions, services, activities, and programs (or portions thereof), that are otherwise contractible
under the Act, including all related administrative functions, from the Federal government to the contractor.
(6) Congress has declared that one of
the primary goals of the 1994 amendments to the Act was to minimize the
reporting requirements applicable to
tribal contractors and to eliminate excessive and burdensome reporting requirements. Reporting requirements
over and above the annual audit report
are to be negotiated with disagreements subject to the declination procedures of section 102 of the Act.
(7) Congress has declared that there
not be any threshold issues which
would avoid the declination, contract
review, approval, and appeal process.
(8) Congress has declared that all
self-determination contract proposals
must be supported by the resolution of
an Indian tribe(s).
(9) Congress has declared that to the
extent that programs, functions, services, and activities carried out by
tribes and tribal organizations pursuant to contracts entered into under
this Act reduce the administrative or
other responsibilities of the Secretary
with respect to the operation of Indian
programs and result in savings that
have not otherwise been included in
the amount of contract funds determined under section 106(a) of the Act,
the Secretary shall make such savings
available for the provision of additional services to program beneficiaries, either directly or through
contractors, in a manner equitable to
both direct and contracted programs.
(b) Secretarial policy. (1) It is the policy of the Secretary to facilitate the
efforts of Indian tribes and tribal organizations to plan, conduct and administer programs, functions, services and
activities, or portions thereof, which

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BIA, DOI, and IHS, HHS

§ 900.3

the Departments are authorized to administer for the benefit of Indians because of their status as Indians. The
Secretary shall make best efforts to remove any obstacles which might hinder
Indian tribes and tribal organizations
including obstacles that hinder tribal
autonomy and flexibility in the administration of such programs.
(2) It is the policy of the Secretary to
encourage Indian tribes and tribal organizations to become increasingly
knowledgeable about the Departments’
programs administered for the benefit
of Indians by providing information on
such programs, functions and activities
and the opportunities Indian tribes
have regarding them.
(3) It is the policy of the Secretary to
provide a uniform and consistent set of
rules for contracts under the Act. The
rules contained herein are designed to
facilitate and encourage Indian tribes
to participate in the planning, conduct,
and administration of those Federal
programs serving Indian people. The
Secretary shall afford Indian tribes and
tribal organizations the flexibility, information, and discretion necessary to
design contractible programs to meet
the needs of their communities consistent with their diverse demographic,
geographic, economic, cultural, health,
social, religious and institutional
needs.
(4) The Secretary recognizes that
contracting under the Act is an exercise by Indian tribes of the government-to-government relationship between the United States and the Indian
tribes. When an Indian tribe contracts,
there is a transfer of the responsibility
with the associated funding. The tribal
contractor is accountable for managing
the day-to-day operations of the contracted Federal programs, functions,
services, and activities. The contracting tribe thereby accepts the responsibility and accountability to the
beneficiaries under the contract with
respect to use of the funds and the satisfactory performance of the programs,
functions, services and activities funded under the contract. The Secretary
will continue to discharge the trust responsibilities to protect and conserve
the trust resources of Indian tribes and
the trust resources of individual Indians.

(5) The Secretary recognizes that
tribal decisions to contract or not to
contract are equal expressions of selfdetermination.
(6) The Secretary shall maintain consultation with tribal governments and
tribal organizations in the Secretary’s
budget process relating to programs,
functions, services and activities subject to the Act. In addition, on an annual basis, the Secretary shall consult
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 of Indian tribes and tribal
organizations in formulating annual
budget requests that the Secretary
submits to the President for submission to Congress pursuant to section
1105 of title 31, United States Code).
(7) The Secretary is committed to
implementing and fully supporting the
policy of Indian self-determination by
recognizing and supporting the many
positive and successful efforts and directions of tribal governments and extending the applicability of this policy
to all operational components within
the Department. By fully extending Indian self-determination contracting to
all operational components within the
Department having programs or portions of programs for the benefit of Indians under section 102(a)(1) (A)
through (D) and for the benefit of Indians because of their status as Indians
under section 102(a)(1)(E), it is the Secretary’s intent to support and assist Indian tribes in the development of
strong and stable tribal governments
capable of administering quality programs that meet the tribally determined needs and directions of their respective communities. It is also the
policy of the Secretary to have all
other operational components within
the Department work cooperatively
with tribal governments on a government-to-government basis so as to expedite the transition away from Federal domination of Indian programs
and make the ideals of Indian self-government and self-determination a reality.
(8) It is the policy of the Secretary
that the contractibility of programs
under this Act should be encouraged.

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§ 900.4

25 CFR Ch. V (4–1–15 Edition)

In this regard, Federal laws and regulations should be interpreted in a manner
that will facilitate the inclusion of
those programs or portions of those
programs that are for the benefit of Indians under section 102(a)(1) (A)
through (D) of the Act, and that are for
the benefit of Indians because of their
status of Indians under section
102(a)(1)(E) of the Act.
(9) It is the Secretary’s policy that
no later than upon receipt of a contract proposal under the Act (or written notice of an Indian tribe or tribal
organization’s intention to contract),
the Secretary shall commence planning such administrative actions, including but not limited to transfers or
reductions in force, transfers of property, and transfers of contractible
functions, as may be necessary to ensure a timely transfer of responsibilities and funding to Indian tribes and
tribal organizations.
(10) It is the policy of the Secretary
to make available to Indian tribes and
tribal organizations all administrative
functions that may lawfully be contracted under the Act, employing
methodologies consistent with the
methodology employed with respect to
such functions under titles III and IV
of the Act.
(11) The Secretary’s commitment to
Indian self-determination requires that
these regulations be liberally construed for the benefit of Indian tribes
and tribal organizations to effectuate
the strong Federal policy of self-determination and, further, that any ambiguities herein be construed in favor of
the Indian tribe or tribal organization
so as to facilitate and enable the transfer of services, programs, functions,
and activities, or portions thereof, authorized by the Act.

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§ 900.4

Effect on existing tribal rights.

Nothing in these regulations shall be
construed as:
(a) Affecting, modifying, diminishing, or otherwise impairing the sovereign immunity from suit enjoyed by
Indian tribes;
(b) Terminating, waiving, modifying,
or reducing the trust responsibility of
the United States to the Indian tribe(s)
or individual Indians. The Secretary

shall act in good faith in upholding
this trust responsibility;
(c) Mandating an Indian tribe to
apply for a contract(s) or grant(s) as
described in the Act; or
(d) Impeding awards by other Departments and agencies of the United
States to Indian tribes to administer
Indian programs under any other applicable law.
§ 900.5 Effect of these regulations on
Federal program guidelines, manual, or policy directives.
Except as specifically provided in the
Act, or as specified in subpart J, an Indian tribe or tribal organization is not
required to abide by any unpublished
requirements such as program guidelines, manuals, or policy directives of
the Secretary, unless otherwise agreed
to by the Indian tribe or tribal organization and the Secretary, or otherwise
required by law.

Subpart B—Definitions
§ 900.6

Definitions.

Unless otherwise provided in this
part:
Act means secs. 1 through 9, and title
I of the Indian Self-Determination and
Education Assistance Act of 1975, Public Law 93–638, as amended.
Annual funding agreement means a
document that represents the negotiated agreement of the Secretary to
fund, on an annual basis, the programs,
services, activities and functions transferred to an Indian tribe or tribal organization under the Act.
Appeal means a request by an Indian
tribe or tribal organization for an administrative review of an adverse
Agency decision.
Awarding official means any person
who by appointment or delegation in
accordance with applicable regulations
has the authority to enter into and administer contracts on behalf of the
United States of America and make determinations and findings with respect
thereto. Pursuant to the Act, this person can be any Federal official, including but not limited to, contracting officers.
BIA means the Bureau of Indian Affairs of the Department of the Interior.

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§ 900.7

Contract means a self-determination
contract as defined in section 4(j) of
the Act.
Contract appeals board means the Civilian Board of Contract Appeals
(CBCA).
Contractor means an Indian tribe or
tribal organization to which a contract
has been awarded.
Days means 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.
Department(s) means the Department
of Health and Human Services (HHS) or
the Department of the Interior (DOI),
or both.
IHS means the Indian Health Service
of the Department of Health and
Human Services.
Indian means a person who is a member of an Indian Tribe.
Indian tribe means any Indian tribe,
band, nation, or other organized group,
or community, including pueblos,
rancherias, colonies and any Alaska
Native Village, or regional or village
corporation as defined in or established
pursuant to the Alaska Native Claims
Settlement Act, which is recognized as
eligible for the special programs and
services provided by the United States
to Indians because of their status as Indians.
Indirect cost rate means the rate(s) arrived at through negotiation between
an Indian tribe or tribal organization
and the appropriate Federal Agency.
Indirect costs means costs incurred for
a common or joint purpose benefiting
more than one contract objective or
which are not readily assignable to the
contract objectives specifically benefitted without effort disproportionate
to the results achieved.
Initial contract proposal means a proposal for programs, functions, services,
or activities that the Secretary is authorized to perform but which the Indian tribe or tribal organization is not
now carrying out.
Real property means any interest in
land together with the improvements,
structures, and fixtures and appurtenances thereto.

Reassumption means rescission, in
whole or in part, of a contract and assuming or resuming control or operation of the contracted program by the
Secretary without consent of the Indian tribe or tribal organization pursuant to the notice and other procedures
set forth in subpart P.
Retrocession means the voluntary return to the Secretary of a contracted
program, in whole or in part, for any
reason, before the expiration of the
term of the contract.
Secretary means the Secretary of
Health and Human Services (HHS) or
the Secretary of the Interior (DOI), or
both (and their respective delegates).
Tribal organization means the recognized governing body of any Indian
tribe; any legally established organization of Indians which is controlled,
sanctioned, or chartered by such governing body or which is democratically
elected by the adult members of the Indian community to be served by such
organization and which includes the
maximum participation of Indians in
all phases of its activities: provided,
that, in any case where a contract is
let or a grant made to an organization
to perform services benefiting more
than one Indian tribe, the approval of
each such Indian tribe shall be a prerequisite to the letting or making of
such contract or grant.
Trust resources means an interest in
land, water, minerals, funds, or other
assets or property which is held by the
United States in trust for an Indian
tribe or an individual Indian or which
is held by an Indian tribe or Indian
subject to a restriction on alienation
imposed by the United States.
[61 FR 32501, June 24, 1996, as amended at 75
FR 31701, June 4, 2010]

Subpart C—Contract Proposal
Contents
§ 900.7 What technical assistance is
available to assist in preparing an
initial contract proposal?
The Secretary shall, upon request of
an Indian tribe or tribal organization
and subject to the availability of appropriations, provide technical assistance on a non-reimbursable basis to
such Indian tribe or tribal organization
to develop a new contract proposal or

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§ 900.8

25 CFR Ch. V (4–1–15 Edition)

to provide for the assumption by the
Indian tribe or tribal organization of
any program, service, function, or activity (or portion thereof) that is
contractible under the Act. The Secretary may also make a grant to an Indian tribe or tribal organization for the
purpose of obtaining technical assistance, as provided in section 103 of the
Act. An Indian tribe or tribal organization may also request reimbursement
for pre-award costs for obtaining technical assistance under sections 106(a)
(2) and (5) of the Act.

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§ 900.8 What must an initial contract
proposal contain?
An initial contract proposal must
contain the following information:
(a) The full name, address and telephone number of the Indian tribe or
tribal organization proposing the contract.
(b) If the tribal organization is not an
Indian tribe, the proposal must also include:
(1) A copy of the tribal organization’s
organizational documents (e.g., charter, articles of incorporation, bylaws,
etc.).
(2) The full name(s) of the Indian
tribe(s) with which the tribal organization is affiliated.
(c) The full name(s) of the Indian
tribe(s) proposed to be served.
(d) A copy of the authorizing resolution from the Indian tribe(s) to be
served.
(1) If an Indian tribe or tribal organization proposes to serve a specified geographic area, it must provide authorizing resolution(s) from all Indian
tribes located within the specific area
it proposes to serve. However, no resolution is required from an Indian tribe
located outside the area proposed to be
served whose members reside within
the proposed service area.
(2) If a currently effective authorizing resolution covering the scope of
an initial contract proposal has already been provided to the agency receiving the proposal, a reference to
that resolution.
(e) The name, title, and signature of
the authorized representative of the Indian tribe or tribal organization submitting the contract proposal.

(f) The date of submission of the proposal.
(g) A brief statement of the programs, functions, services, or activities
that the tribal organization proposes
to perform, including:
(1) A description of the geographical
service area, if applicable, to be served.
(2) The estimated number of Indian
people who will receive the benefits or
services under the proposed contract.
(3) An identification of any local,
Area, regional, or national level departmental programs, functions, services, or activities to be contracted, including administrative functions.
(4) A description of the proposed program standards;
(5) An identification of the program
reports, data and financial reports that
the Indian tribe or tribal organization
will provide, including their frequency.
(6) A description of any proposed redesign of the programs, services, functions, or activities to be contracted,
(7) Minimum staff qualifications proposed by the Indian tribe and tribal organization, if any; and
(8) A statement that the Indian tribe
or tribal organization will meet the
minimum procurement, property and
financial management standards set
forth in subpart F, subject to any waiver that may have been granted under
subpart K.
(h) The amount of funds requested,
including:
(1) An identification of the funds requested by programs, functions, services, or activities, under section
106(a)(1) of the Act, including the Indian tribe or tribal organization’s
share of funds related to such programs, functions, services, or activities, if any, from any Departmental
local, area, regional, or national level.
(2) An identification of the amount of
direct contract support costs, including
one-time start-up or preaward costs
under section 106(a)(2) and related provisions of the Act, presented by major
categories such as:
(i) Personnel (differentiating between
salary and fringe benefits);
(ii) Equipment;
(iii) Materials and supplies;
(iv) Travel;
(v) Subcontracts; and
(vi) Other appropriate items of cost.

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§ 900.13

(3) An identification of funds the Indian tribe or tribal organization requests to recover for indirect contract
support costs. This funding request
must include either:
(i) A copy of the most recent negotiated indirect cost rate agreement; or
(ii) An estimated amount requested
for indirect costs, pending timely establishment of a rate or negotiation of
administrative overhead costs.
(4) To the extent not stated elsewhere in the budget or previously reported to the Secretary, any preaward
costs, including the amount and time
period covered or to be covered; and
(5) At the option of the Indian tribe
or tribal organization, an identification of programs, functions, services,
or activities specified in the contract
proposal which will be funded from
sources other than the Secretary.
(i) The proposed starting date and
term of the contract.
(j) In the case of a cooperative agreement, the nature and degree of Federal
programmatic involvement anticipated
during the term of the agreement.
(k) The extent of any planned use of
Federal personnel and Federal resources.
(l) Any proposed waiver(s) of the regulations in this part; and
(m) A statement that the Indian
tribe or tribal organization will implement procedures appropriate to the
programs, functions, services or activities proposed to be contracted, assuring the confidentiality of medical
records and of information relating to
the financial affairs of individual Indians obtained under the proposal contract, or as otherwise required by law.

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§ 900.9 May the Secretary require an
Indian tribe or tribal organization
to submit any other information beyond that identified in § 900.8?
No.
§ 900.10 How does an Indian tribe or
tribal organization secure a list of
all Federal property currently in
use in carrying out the programs,
functions, services, or activities
that benefit the Indian tribe or tribal organization to assist in negotiating a contract?
The Indian tribe or tribal organization submits a written request to the

Secretary. The Secretary shall provide
the requested information, including
the condition of the property, within 60
days.
§ 900.11 What should an Indian tribe
or tribal organization that is proposing a contract do about specifying the Federal property that the
Indian tribe or tribal organization
may wish to use in carrying out the
contract?
The Indian tribe or tribal organization is encouraged to provide the Secretary, as early as possible, with:
(a) A list of the following Federal
property intended for use under the
contract:
(1) Equipment;
(2) Furnishings;
(3) Facilities; and
(4) Other real and personal property.
(b) A statement of how the Indian
tribe or tribal organization will obtain
each item by transfer of title under
section 105(f)(2) of the Act and section
1(b)(8) of the model agreement set forth
in section 108(c) of the Act, through a
temporary use permit, similar arrangement, or otherwise; and
(c) Where equipment is to be shared
by contracted and non-contracted programs, services, functions, or activities, a proposal outlining proposed
equipment sharing or other arrangements.
§ 900.12 Are the proposal contents requirements the same for renewal of
a contract that is expiring and for
securing an annual funding agreement after the first year of the
funding agreement?
No. In these situations, an Indian
tribe or tribal organization should submit a renewal proposal (or notification
of intent not to renew) or an annual
funding agreement proposal at least 90
days before the expiration date of the
contract or existing annual funding
agreement. The proposal shall provide
funding information in the same detail
and format as the original proposal and
may also identify any significant proposed changes.
§ 900.13 Does the contract proposal become part of the final contract?
No, unless the parties agree.

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§ 900.14

25 CFR Ch. V (4–1–15 Edition)
the contract the full amount of funds
pursuant to section 106(a) of the Act.

Subpart D—Review and Approval
of Contract Proposals
§ 900.14

§ 900.19 What happens when a proposal is approved?

What does this subpart cover?

This subpart covers any proposal to
enter into a self-determination contract, to amend an existing self-determination contract, to renew an existing self-determination contract, or to
redesign a program through a self-determination contract.

Upon approval the Secretary shall
award the contract and add to the contract the full amount of funds to which
the contractor is entitled under section
106(a) of the Act.

Subpart E—Declination
Procedures

§ 900.15 What shall the Secretary do
upon receiving a proposal?
Upon receipt of a proposal, the Secretary shall:
(a) Within two days notify the applicant in writing that the proposal has
been received;
(b) Within 15 days notify the applicant in writing of any missing items
required by § 900.8 and request that the
items be submitted within 15 days of
receipt of the notification; and
(c) Review the proposal to determine
whether there are declination issues
under section 102(a)(2) of the Act.
§ 900.16 How long does the Secretary
have to review and approve the
proposal and award the contract, or
decline a proposal?
The Secretary has 90 days after receipt of a proposal to review and approve the proposal and award the contract or decline the proposal in compliance with section 102 of the Act and
subpart E. At any time during the review period the Secretary may approve
the proposal and award the requested
contract.
§ 900.17 Can the statutory 90-day period be extended?
Yes, with written consent of the Indian tribe or tribal organization. If
consent is not given, the 90-day deadline applies.

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§ 900.18 What happens if a proposal is
not declined within 90 days after it
is received by the Secretary?
A proposal that is not declined within 90 days (or within any agreed extension under § 900.17) is deemed approved
and the Secretary shall award the contract or any amendment or renewal
within that 90-day period and add to

§ 900.20

What does this subpart cover?

This subpart explains how and under
what circumstances the Secretary may
decline a proposal to contract, to
amend an existing contract, to renew
an existing contract, to redesign a program, or to waive any provisions of
these regulations. For annual funding
agreements, see § 900.32.
§ 900.21 When can a proposal be declined?
As explained in §§ 900.16 and 900.17, a
proposal can only be declined within 90
days after the Secretary receives the
proposal, unless that period is extended
with the voluntary and express written
consent of the Indian tribe or tribal organization.
§ 900.22 For what reasons can the Secretary decline a proposal?
The Secretary may only decline to
approve a proposal for one of five specific reasons:
(a) The service to be rendered to the
Indian beneficiaries of the particular
program or function to be contracted
will not be satisfactory;
(b) Adequate protection of trust resources is not assured;
(c) The proposed project or function
to be contracted for cannot be properly
completed or maintained by the proposed contract;
(d) The amount of funds proposed
under the contract is in excess of the
applicable funding level for the contract, as determined under section
106(a) of the Act; or
(e) The program, function, service, or
activity (or a portion thereof) that is
the subject of the proposal is beyond

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BIA, DOI, and IHS, HHS

§ 900.29

the scope of programs, functions, services, or activities covered under section 102(a)(1) of the Act because the
proposal includes activities that cannot lawfully be carried out by the contractor.

ized under section 106(a) of the Act. As
noted in § 900.25, the approval is subject
to any alteration in the scope of the
proposal that the Secretary and the Indian tribe or tribal organization approve.

§ 900.23 Can the Secretary decline a
proposal where the Secretary’s objection can be overcome through
the contract?
No. The Secretary may not decline to
enter into a contract with an Indian
tribe or tribal organization based on
any objection that will be overcome
through the contract.

§ 900.27 If an Indian tribe or tribal organization elects to contract for a
severable portion of a proposal,
does the Indian tribe or tribal organization lose its appeal rights to
challenge the portion of the proposal that was declined?

§ 900.24 Can a contract proposal for an
Indian tribe or tribal organization’s
share of administrative programs,
functions, services, and activities be
declined for any reason other than
the five reasons specified in
§ 900.22?
No. The Secretary may only decline a
proposal based upon one or more of the
five reasons listed above. If a contract
affects the preexisting level of services
to any other tribe, the Secretary shall
address that effect in the Secretary’s
annual report to Congress under section 106(c)(6) of the Act.

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§ 900.25 What if only a portion of a
proposal raises one of the five declination criteria?
The Secretary must approve any severable portion of a proposal that does
not support a declination finding described in § 900.20, subject to any alteration in the scope of the proposal that
the Secretary and the Indian tribe or
tribal organization approve.
§ 900.26 What happens if the Secretary
declines a part of a proposal on the
ground that the proposal proposes
in part to plan, conduct, or administer a program, function, service or
activity that is beyond the scope of
programs covered under section
102(a) of the Act, or proposes a level
of funding that is in excess of the
applicable level determined under
section 106(a) of the Act?
In those situations the Secretary is
required, as appropriate, to approve the
portion of the program, function, service, or activity that is authorized
under section 102(a) of the Act, or approve a level of funding that is author-

No, but the hearing and appeal procedures contained in these regulations
only apply to the portion of the proposal that was declined.
§ 900.28 Is technical assistance available to an Indian tribe or tribal organization to avoid declination of a
proposal?
Yes. In accordance with section 103(d)
of the Act, upon receiving a proposal,
the Secretary shall provide any necessary requested technical assistance
to an Indian tribe or tribal organization, and shall share all relevant information with the Indian tribe or tribal
organization, in order to avoid declination of the proposal.
§ 900.29 What is the Secretary required to do if the Secretary decides to decline all or a portion of a
proposal?
If the Secretary decides to decline all
or a severable portion of a proposal,
the Secretary is required:
(a) To advise the Indian tribe or tribal organization in writing of the Secretary’s objections, including a specific
finding that clearly demonstrates that
(or that is supported by a controlling
legal authority that) one of the conditions set forth in § 900.22 exists, together with a detailed explanation of
the reason for the decision to decline
the proposal and, within 20 days, any
documents relied on in making the decision; and
(b) To advise the Indian tribe or tribal organization in writing of the rights
described in § 900.31.

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§ 900.30

25 CFR Ch. V (4–1–15 Edition)

§ 900.30 When the Secretary declines
all or a portion of a proposal, is the
Secretary required to provide an
Indian tribe or tribal organization
with technical assistance?
Yes. The Secretary shall provide additional technical assistance to overcome the stated objections, in accordance with section 102(b) of the Act, and
shall provide any necessary requested
technical assistance to develop any
modifications to overcome the Secretary’s stated objections.

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§ 900.31 When the Secretary declines
all or a portion of a proposal, is an
Indian tribe or tribal organization
entitled to any appeal?
Yes. The Indian tribe or tribal organization is entitled to an appeal on the
objections raised by the Secretary,
with an agency hearing on the record,
and the right to engage in full discovery relevant to any issue raised in
the matter. The procedures for appeals
are in subpart L of these regulations.
Alternatively, at its option the Indian
tribe or tribal organization has the
right to sue in Federal district court to
challenge the Secretary’s decision.
§ 900.32 Can the Secretary decline an
Indian tribe or tribal organization’s
proposed successor annual funding
agreement?
No. If it is substantially the same as
the prior annual funding agreement
(except for funding increases included
in appropriations acts or funding reductions as provided in section 106(b) of
the Act) and the contract is with DHHS
or the BIA, the Secretary shall approve
and add to the contract the full
amount of funds to which the contractor is entitled, and may not decline, any portion of a successor annual
funding agreement. Any portion of an
annual funding agreement proposal
which is not substantially the same as
that which was funded previously (e.g.,
a redesign proposal; waiver proposal;
different proposed funding amount; or
different program, service, function, or
activity), or any annual funding agreement proposal which pertains to a contract with an agency of DOI other than
the BIA, is subject to the declination
criteria and procedures in subpart E. If
there is a disagreement over the availability of appropriations, the Secretary

may decline the proposal in part under
the procedure in subpart E.
§ 900.33 Are all proposals to renew
term contracts subject to the declination criteria?
Department of Health and Human
Services and the Bureau of Indian Affairs will not review the renewal of a
term contract for declination issues
where no material and substantial
change to the scope or funding of a program, functions, services, or activities
has been proposed by the Indian tribe
or tribal organization. Proposals to
renew term contracts with DOI agencies other than the Bureau of Indian
Affairs may be reviewed under the declination criteria.

Subpart F—Standards for Tribal or
Tribal Organization Management Systems
GENERAL
§ 900.35 What is the purpose of this
subpart?
This subpart contains the minimum
standards for the management systems
used by Indian tribes or tribal organizations when carrying out self-determination contracts. It provides standards for an Indian tribe or tribal organization’s financial management system, procurement management system, and property management system.
§ 900.36 What requirements are imposed upon Indian tribes or tribal
organizations by this subpart?
When carrying out self-determination contracts, Indian tribes and tribal
organizations shall develop, implement, and maintain systems that meet
these minimum standards, unless one
or more of the standards have been
waived, in whole or in part, under section 107(e) of the Act and subpart K.
§ 900.37 What provisions of Office of
Management and Budget (OMB) circulars or the ‘‘common rule’’ apply
to self-determination contracts?
The only provisions of OMB Circulars
and the only provisions of the ‘‘common rule’’ that apply to self-determination contracts are the provisions

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BIA, DOI, and IHS, HHS

§ 900.44

adopted in these regulations, those expressly required or modified by the
Act, and those negotiated and agreed
to in a self-determination contract.
§ 900.38 Do these standards apply to
the subcontractors of an Indian
tribe or tribal organization carrying out a self-determination contract?
An Indian tribe or tribal organization
may require that some or all of the
standards in this subpart be imposed
upon its subcontractors when carrying
out a self-determination contract.
§ 900.39 What is the difference between a standard and a system?
(a) Standards are the minimum baseline requirements for the performance
of an activity. Standards establish the
‘‘what’’ that an activity should accomplish.
(b) Systems are the procedural mechanisms and processes for the day-today conduct of an activity. Systems
are ‘‘how’’ the activity will be accomplished.

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§ 900.40 When are Indian tribe or tribal organization management standards and management systems evaluated?
(a) Management standards are evaluated by the Secretary when the Indian
tribe or tribal organization submits an
initial contract proposal.
(b) Management systems are evaluated by an independent auditor
through the annual single agency audit
report that is required by the Act and
OMB Circular A–128.
§ 900.41 How long must an Indian tribe
or tribal organization keep management system records?
The Indian tribe or tribal organization must retain financial, procurement and property records for the minimum periods described below. Electronic, magnetic or photographic
records may be substituted for hard
copies.
(a)
Financial
records.
Financial
records include documentation of supporting costs incurred under the contract. These records must be retained
for three years from the date of submission of the single audit report to
the Secretary.

(b) Procurement records. Procurement
records include solicitations, purchase
orders, contracts, payment histories
and records applicable of significant
decisions. These records must be retained for three years after the Indian
tribe or tribal organization or subcontractors make final payment and
all other pending matters are closed.
(c) Property management records. Property management records of real and
personal property transactions must be
retained for three years from the date
of disposition, replacement, or transfer.
(d) Litigation, audit exceptions and
claims. Records pertaining to any litigation, audit exceptions or claims requiring management systems data
must be retained until the action has
been completed.
STANDARDS FOR FINANCIAL
MANAGEMENT SYSTEMS
§ 900.42 What are the general financial
management system standards that
apply to an Indian tribe carrying
out a self-determination contract?
An Indian tribe shall expend and account for contract funds in accordance
with all applicable tribal laws, regulations, and procedures.
§ 900.43 What are the general financial
management system standards that
apply to a tribal organization carrying out a self-determination contract?
A tribal organization shall expend
and account for contract funds in accordance with the procedures of the
tribal organization.
§ 900.44 What minimum general standards apply to all Indian tribe or
tribal organization financial management systems when carrying out
a self-determination contract?
The fiscal control and accounting
procedures of an Indian tribe or tribal
organization shall be sufficient to:
(a) Permit preparation of reports required by a self-determination contract
and the Act; and
(b) Permit the tracing of contract
funds to a level of expenditure adequate to establish that they have not
been used in violation of any restrictions or prohibitions contained in any

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§ 900.45

25 CFR Ch. V (4–1–15 Edition)

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statute that applies to the self-determination contract.
§ 900.45 What specific minimum requirements shall an Indian tribe or
tribal organization’s financial management system contain to meet
these standards?
An Indian tribe or tribal organization’s financial management system
shall include provisions for the following seven elements.
(a) Financial reports. The financial
management system shall provide for
accurate, current, and complete disclosure of the financial results of self-determination contract activities. This
includes providing the Secretary a
completed Financial Status Report, SF
269A, as negotiated and agreed to in
the self-determination contract.
(b) Accounting records. The financial
management system shall maintain
records sufficiently detailed to identify
the source and application of self-determination contract funds received by
the Indian tribe or tribal organization.
The system shall contain sufficient information to identify contract awards,
obligations and unobligated balances,
assets, liabilities, outlays, or expenditures and income.
(c) Internal controls. The financial
management system shall maintain effective control and accountability for
all self-determination contract funds
received and for all Federal real property, personal property, and other assets furnished for use by the Indian
tribe or tribal organization under the
self-determination contract.
(d) Budget controls. The financial
management system shall permit the
comparison of actual expenditures or
outlays with the amounts budgeted by
the Indian tribe or tribal organization
for each self-determination contract.
(e) Allowable costs. The financial management system shall be sufficient to
determine the reasonableness, allowability, and allocability of self-determination contract costs based upon the
terms of the self-determination contract and the Indian tribe or tribal organization’s applicable OMB cost principles, as amended by the Act and
these regulations. (The following chart
lists certain OMB Circulars and suggests the entities that may use each,
but the final selection of the applicable

circular may differ from those shown,
as agreed to by the Indian tribe or tribal organization and the Secretary.
Agreements between an Indian tribe or
tribal organization and the Secretary
currently in place do not require renegotiation.) Copies of these circulars
are available from the Executive Office
of the President, Publications Service,
725 17th Street N. W., Washington, D. C.
20503.
Type of tribal organization
Tribal Government .................

Tribal private non-profit other
than: (1) an institution of
higher education, (2) a hospital, or (3) an organization
named in OMB Circular A–
122 as not subject to that
circular.
Tribal educational institution ..

Applicable OMB cost circular
A–87, ‘‘Cost Principles for
State, Local and Indian
Tribal Governments.’’
A–122, ‘‘Cost Principles for
Non-Profit Organizations.’’

A–21, ‘‘Cost Principles for
Educational Institutions.’’

(f) Source documentation. The financial management system shall contain
accounting records that are supported
by source documentation, e.g., canceled checks, paid bills, payroll
records, time and attendance records,
contract award documents, purchase
orders, and other primary records that
support self-determination contract
fund expenditures.
(g) Cash management. The financial
management system shall provide for
accurate, current, and complete disclosure of cash revenues disbursements,
cash-on-hand balances, and obligations
by source and application for each Indian tribe or tribal organization, and
subcontractor if applicable, so that
complete and accurate cash transactions may be prepared as required by
the self-determination contract.
§ 900.46 What requirements are imposed upon the Secretary for financial management by these standards?
The Secretary shall establish procedures, consistent with Treasury regulations as modified by the Act, for the
transfer of funds from the United
States to the Indian tribe or tribal organization in strict compliance with
the self-determination contract and
the annual funding agreement.

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BIA, DOI, and IHS, HHS

§ 900.48

PROCUREMENT MANAGEMENT SYSTEM
STANDARDS
§ 900.47 When procuring property or
services with self-determination
contract funds, can an Indian tribe
or tribal organization follow the
same procurement policies and procedures applicable to other Indian
tribe or tribal organization funds?
Indian tribes and tribal organizations
shall have standards that conform to
the standards in this subpart. If the Indian tribe or tribal organization relies
upon standards different than those described below, it shall identify the
standards it will use as a proposed
waiver in the initial contract proposal
or as a waiver request to an existing
contract.

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§ 900.48 If the Indian tribe or tribal organization does not propose different standards, what basic standards shall the Indian tribe or tribal
organization follow?
(a) The Indian tribe or tribal organization shall ensure that its vendors
and/or subcontractors perform in accordance with the terms, conditions,
and specifications of their contracts or
purchase orders.
(b) The Indian tribe or tribal organization shall maintain written standards of conduct governing the performance of its employees who award and
administer contracts.
(1) No employee, officer, elected official, or agent of the Indian tribe or
tribal organization shall participate in
the selection, award, or administration
of a procurement supported by Federal
funds if a conflict of interest, real or
apparent, would be involved.
(2) An employee, officer, elected official, or agent of an Indian tribe or tribal organization, or of a subcontractor
of the Indian tribe or tribal organization, is not allowed to solicit or accept
gratuities, favors, or anything of monetary value from contractors, potential
contractors, or parties to sub-agreements, with the following exemptions.
The Indian tribe or tribal organization
may exempt a financial interest that is
not substantial or a gift that is an unsolicited item of nominal value.
(3) These standards shall also provide
for penalties, sanctions, or other dis-

ciplinary actions for violations of the
standards.
(c) The Indian tribe or tribal organization shall review proposed procurements to avoid buying unnecessary or
duplicative items and ensure the reasonableness of the price. The Indian
tribe or tribal organization should consider consolidating or breaking out
procurement to obtain more economical purchases. Where appropriate, the
Indian tribe or tribal organization
shall compare leasing and purchasing
alternatives to determine which is
more economical.
(d) The Indian tribe or tribal organization shall conduct all major procurement transactions by providing full
and open competition, to the extent
necessary to assure efficient expenditure of contract funds and to the extent feasible in the local area.
(1) Indian tribes or tribal organizations shall develop their own definition
for ‘‘major procurement transactions.’’
(2) As provided in sections 7 (b) and
(c) of the Act, Indian preference and
tribal preferences shall be applied in
any procurement award.
(e) The Indian tribe or tribal organization shall make procurement awards
only to responsible entities who have
the ability to perform successfully
under the terms and conditions of the
proposed procurement. In making this
judgment, the Indian tribe or tribal organization will consider such matters
as the contractor’s integrity, its compliance with public policy, its record of
past performance, and its financial and
technical resources.
(f) The Indian tribe or tribal organization shall maintain records on the
significant history of all major procurement transactions. These records
may include, but are not limited to,
the rationale for the method of procurement, the selection of contract
type, the contract selection or rejection, and the basis for the contract
price.
(g) The Indian tribe or tribal organization is solely responsible, using good
administrative practice and sound
business judgment, for processing and
settling all contractual and administrative issues arising out of a procurement. These issues include, but are not

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§ 900.49

25 CFR Ch. V (4–1–15 Edition)

limited to, source evaluation, protests,
disputes, and claims.
(1) The settlement of any protest,
dispute, or claim shall not relieve the
Indian tribe or tribal organization of
any obligations under a self-determination contract.
(2) Violations of law shall be referred
to the tribal or Federal authority having proper jurisdiction.
§ 900.49 What procurement standards
apply to subcontracts?
Each subcontract entered into under
the Act shall at a minimum:
(a) Be in writing;
(b) Identify the interested parties,
their authorities, and the purposes of
the contract;
(c) State the work to be performed
under the contract;
(d) State the process for making any
claim, the payments to be made, and
the terms of the contract, which shall
be fixed; and
(e) Be subject to sections 7 (b) and (c)
of the Act.
§ 900.50 What Federal laws, regulations, and Executive Orders apply
to subcontractors?
Certain provisions of the Act as well
as other applicable Federal laws, regulations, and Executive Orders apply to
subcontracts awarded under self-determination contracts. As a result, subcontracts should contain a provision
informing the recipient that their
award is funded with Indian Self-Determination Act funds and that the recipient is responsible for identifying and
ensuring compliance with applicable
Federal laws, regulations, and Executive Orders. The Secretary and the Indian tribe or tribal organization may,
through negotiation, identify all or a
portion of such requirements in the
self-determination contract and, if so
identified, these requirements should
be identified in subcontracts.

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PROPERTY MANAGEMENT SYSTEM
STANDARDS
§ 900.51 What is an Indian tribe or
tribal organization’s property management system expected to do?
An Indian tribe or tribal organization’s property management system
shall account for all property furnished

or transferred by the Secretary for use
under a self-determination contract or
acquired with contract funds. The
property management system shall
contain requirements for the use, care,
maintenance, and disposition of Federally-owned and other property as follows:
(a) Where title vests in the Indian
tribe, in accordance with tribal law and
procedures; or
(b) In the case of a tribal organization, according to the internal property procedures of the tribal organization.
§ 900.52 What type of property is the
property management system required to track?
The property management system of
the Indian tribe or tribal organization
shall track:
(a) Personal property with an acquisition value in excess of $5,000 per item;
(b) Sensitive personal property,
which is all personal property that is
subject to theft and pilferage, as defined by the Indian tribe or tribal organization. All firearms shall be considered sensitive personal property; and
(c) Real property provided by the
Secretary for use under the contract.
§ 900.53 What kind of records shall the
property management system maintain?
The property management system
shall maintain records that accurately
describe the property, including any serial number or other identification
number. These records should contain
information such as the source, titleholder, acquisition date, cost, share of
Federal participation in the cost, location, use and condition of the property,
and the date of disposal and sale price,
if any.
§ 900.54 Should the property management system prescribe internal controls?
Yes. Effective internal controls
should include procedures:
(a) For the conduct of periodic inventories;
(b) To prevent loss or damage to
property; and
(c) To ensure that property is used
for an Indian tribe or tribal organization’s self-determination contract(s)

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BIA, DOI, and IHS, HHS

§ 900.66

until the property is declared excess to
the needs of the contract consistent
with the Indian tribe or tribal organization’s property management system.
§ 900.55 What are the standards for inventories?
A physical inventory should be conducted at least once every 2 years. The
results of the inventory shall be reconciled with the Indian tribe or tribal
organization’s internal property and
accounting records.
§ 900.56 What maintenance is required
for property?
Required maintenance includes the
performance of actions necessary to
keep the property in good working condition, the procedures recommended by
equipment manufacturers, and steps
necessary to protect the interests of
the contractor and the Secretary in
any express warranties or guarantees
covering the property.
§ 900.57 What if the Indian tribe or
tribal organization chooses not to
take title to property furnished or
acquired under the contract?
If the Indian tribe or tribal organization chooses not to take title to property furnished by the government or
acquired with contract funds, title to
the property remains vested in the Secretary. A list of Federally-owned property to be used under the contract
shall be included in the contract.

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§ 900.58 Do the same accountability
and control procedures described
above apply to Federal property?
Yes, except that requirements for the
inventory and disposal of Federal property are different.
§ 900.59 How are the inventory requirements for Federal property
different than for tribal property?
There are three additional requirements:
(a) The Indian tribe or tribal organization shall conduct a physical inventory of the Federally-owned property
and reconcile the results with the Indian tribe or tribal organization’s property records annually, rather than
every 2 years;
(b) Within 90 days following the end
of an annual funding agreement, the

Indian tribe or tribal organization
shall certify and submit to the Secretary an annual inventory of all Federally-owned real and personal property used in the contracted program;
and
(c) The inventory shall report any increase or decrease of $5,000 or more in
the value of any item of real property.
§ 900.60 How does an Indian tribe or
tribal organization dispose of Federal personal property?
The Indian tribe or tribal organization shall report to the Secretary in
writing any Federally-owned personal
property that is worn out, lost, stolen,
damaged beyond repair, or no longer
needed for the performance of the contract.
(a) The Indian tribe or tribal organization shall state whether the Indian
tribe or tribal organization wants to
dispose of or return the property.
(b) If the Secretary does not respond
within 60 days, the Indian tribe or tribal organization may return the property to the Secretary, who shall accept
transfer, custody, control, and responsibility for the property (together with
all associated costs).

Subpart G—Programmatic Reports
and Data Requirements
§ 900.65 What programmatic reports
and data shall the Indian tribe or
tribal organization provide?
Unless required by statute, there are
no mandatory reporting requirements.
Each Indian tribe or tribal organization shall negotiate with the Secretary
the type and frequency of program narrative and program data report(s)
which respond to the needs of the contracting parties and that are appropriate for the purposes of the contract.
The extent of available resources will
be a consideration in the negotiations.
§ 900.66 What happens if the Indian
tribe or tribal organization and the
Secretary cannot come to an agreement concerning the type and/or
frequency of program narrative
and/or program data report(s)?
Any disagreements over reporting requirements are subject to the declination criteria and procedures in section
102 of the Act and subpart E.

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§ 900.67

25 CFR Ch. V (4–1–15 Edition)

§ 900.67 Will there be a uniform data
set for all IHS programs?
IHS will work with Indian tribe or
tribal organization representatives to
develop a mutually defined uniform
subset of data that is consistent with
Congressional intent, imposes a minimal reporting burden, and which responds to the needs of the contracting
parties.
§ 900.68 Will this uniform data set be
required of all Indian tribe or tribal
organizations contracting with the
IHS under the Act?
No. The uniform data set, applicable
to the services to be performed, will
serve as the target for the Secretary
and the Indian tribes or tribal organizations during individual negotiations
on program data reporting requirements.

Subpart H—Lease of TriballyOwned Buildings by the Secretary
§ 900.69 What is the purpose of this
subpart?
Section 105(l) of the Act requires the
Secretary, at the request of an Indian
tribe or tribal organization, to enter
into a lease with the Indian tribe or
tribal organization for a building
owned or leased by the tribe or tribal
organization that is used for administration or delivery of services under
the Act. The lease is to include compensation as provided in the statute as
well as ‘‘such other reasonable expenses that the Secretary determines,
by regulation, to be allowable.’’ This
subpart contains requirements for
these leases.

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§ 900.70 What elements are included in
the compensation for a lease entered into between the Secretary
and an Indian tribe or tribal organization for a building owned or
leased by the Indian tribe or tribal
organization that is used for administration or delivery of services
under the Act?
To the extent that no
plicative, the following
be included in the lease
(a) Rent (sublease);
(b) Depreciation and
based on the useful life

element is duelements may
compensation:
use allowance
of the facility

based on acquisition costs not financed
with Federal funds;
(c) Contributions to a reserve for replacement of facilities;
(d) Principal and interest paid or accrued;
(e) Operation and maintenance expenses, to the extent not otherwise included in rent or use allowances, including, but not limited to, the following:
(1) Water, sewage;
(2) Utilities;
(3) Fuel;
(4) Insurance;
(5) Building management supervision
and custodial services;
(6) Custodial and maintenance supplies;
(7) Pest control;
(8) Site maintenance (including snow
and mud removal);
(9) Trash and waste removal and disposal;
(10) Fire protection/fire fighting services and equipment;
(11) Monitoring and preventive maintenance of building structures and systems, including but not limited to:
(i)
Heating/ventilation/air
conditioning;
(ii) Plumbing;
(iii) Electrical;
(iv) Elevators;
(v) Boilers;
(vi) Fire safety system;
(vii) Security system; and
(viii) Roof, foundation, walls, floors.
(12) Unscheduled maintenance;
(13) Scheduled maintenance (including replacement of floor coverings,
lighting fixtures, repainting);
(14) Security services;
(15) Management fees; and
(16) Other reasonable and necessary
operation or maintenance costs justified by the contractor;
(f) Repairs to buildings and equipment;
(g) Alterations needed to meet contract requirements;
(h) Other reasonable expenses; and
(i) The fair market rental for buildings or portions of buildings and land,
exclusive of the Federal share of building construction or acquisition costs,
or the fair market rental for buildings
constructed with Federal funds exclusive of fee or profit, and for land.

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BIA, DOI, and IHS, HHS

§ 900.87

§ 900.71 What type of reserve fund is
anticipated for funds deposited into
a reserve for replacement of facilities as specified in § 900.70(c)?
Reserve funds must be accounted for
as a capital project fund or a special
revenue fund.
§ 900.72 Who is the guardian of the
fund and may the funds be invested?
(a) The Indian tribe or tribal organization is the guardian of the fund.
(b) Funds may be invested in accordance with the laws, regulations and
policies of the Indian tribe or tribal organization subject to the terms of the
lease or the self-determination contract.
§ 900.73 Is a lease with the Secretary
the only method available to recover the types of cost described in
§ 900.70?
No. With the exception of paragraph
(i) in § 900.70, the same types of costs
may be recovered in whole or in part
under section 106(a) of the Act as direct
or indirect charges to a self-determination contract.
§ 900.74 How may an Indian tribe or
tribal organization propose a lease
to be compensated for the use of facilities?
There are three options available:
(a) The lease may be based on fair
market rental.
(b) The lease may be based on a combination of fair market rental and
paragraphs (a) through (h) of § 900.70,
provided that no element of expense is
duplicated in fair market rental.
(c) The lease may be based on paragraphs (a) through (h) of § 900.70 only.

Subpart I—Property Donation
Procedures

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GENERAL
§ 900.85 What is the purpose of this
subpart?
This subpart implements section
105(f) of the Act regarding donation of
Federal excess and surplus property to
Indian tribes or tribal organizations
and acquisition of property with funds
provided under a self-determination
contract or grant.

§ 900.86 How will the Secretary exercise discretion to acquire and donate BIA or IHS excess property
and excess and surplus Federal
property to an Indian tribe or tribal
organization?
The Secretary will exercise discretion in a way that gives maximum effect to the requests of Indian tribes or
tribal organizations for donation of
BIA or IHS excess property and excess
or surplus Federal property, provided
that the requesting Indian tribe or
tribal organization shall state how the
requested property is appropriate for
use for any purpose for which a self-determination contract or grant is authorized.
GOVERNMENT-FURNISHED PROPERTY
§ 900.87 How does an Indian tribe or
tribal organization obtain title to
property furnished by the Federal
government for use in the performance of a contract or grant agreement
pursuant
to
section
105(f)(2)(A) of the Act?
(a) For government-furnished personal property made available to an Indian tribe or tribal organization before
October 25, 1994:
(1) The Secretary, in consultation
with each Indian tribe or tribal organization, shall develop a list of the property used in a self-determination contract.
(2) The Indian tribe or tribal organization shall indicate any items on the
list to which the Indian tribe or tribal
organization wants the Secretary to retain title.
(3) The Secretary shall provide the
Indian tribe or tribal organization with
any documentation needed to transfer
title to the remaining listed property
to the Indian tribe or tribal organization.
(b) For government-furnished real
property made available to an Indian
tribe or tribal organization before October 25, 1994:
(1) The Secretary, in consultation
with the Indian tribe or tribal organization, shall develop a list of the property furnished for use in a self-determination contract.
(2) The Secretary shall inspect any
real property on the list to determine

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§ 900.88

25 CFR Ch. V (4–1–15 Edition)

the presence of any hazardous substance activity, as defined in 41 CFR
101–47.202.2(b)(10). If the Indian tribe or
tribal organization desires to take title
to any real property on the list, the Indian tribe or tribal organization shall
inform the Secretary, who shall take
such steps as necessary to transfer
title to the Indian tribe or tribal organization.
(c) For government-furnished real
and personal property made available
to an Indian tribe or tribal organization on or after October 25, 1994:
(1) The Indian tribe or tribal organization shall take title to all property
unless the Indian tribe or tribal organization requests that the United States
retain the title.
(2) The Secretary shall determine the
presence of any hazardous substance
activity, as defined in 41 CFR 101–
47.202.2(b)(10).

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§ 900.88 What should the Indian tribe
or tribal organization do if it wants
to obtain title to government-furnished real property that includes
land not already held in trust?
If the land is owned by the United
States but not held in trust for an Indian tribe or individual Indian, the Indian tribe or tribal organization shall
specify whether it wants to acquire fee
title to the land or whether it wants
the land to be held in trust for the benefit of a tribe.
(a) If the Indian tribe or tribal organization requests fee title, the Secretary shall take the necessary action
under Federal law and regulations to
transfer fee title.
(b) If the Indian tribe or tribal organization requests beneficial ownership
with fee title to be held by the United
States in trust for an Indian tribe:
(1) The Indian tribe or tribal organization shall submit with its request a
resolution of support from the governing body of the Indian tribe in
which the beneficial ownership is to be
registered.
(2) If the request is submitted to the
Secretary of Health and Human Services for land under the jurisdiction of
that Secretary, the Secretary shall
take all necessary steps to effect a
transfer of the land to the Secretary of
the Interior and shall also forward the

Indian tribe or tribal organization’s request and the tribe’s resolution.
(3) The Secretary of the Interior shall
expeditiously process all requests in
accordance with applicable Federal law
and regulations.
(4) The Secretary shall not require
the Indian tribe or tribal organization
to furnish any information in support
of a request other than that required
by law or regulation.
§ 900.89 When may the Secretary elect
to reacquire government-furnished
property whose title has been transferred to an Indian tribe or tribal
organization?
(a) Except as provided in paragraph
(b) of this section, when a self-determination contract or grant agreement,
or portion thereof, is retroceded, reassumed, terminated, or expires, the
Secretary shall have the option to take
title to any item of government-furnished property:
(1) That title has been transferred to
an Indian tribe or tribal organization;
(2) That is still in use in the program;
and
(3) That has a current fair market
value, less the cost of improvements
borne by the Indian tribe or tribal organization in excess of $5,000.
(b) If property referred to in paragraph (a) of this section is shared between one or more ongoing contracts
or grant agreements and a contract or
grant agreement that is retroceded, reassumed, terminated or expires and the
Secretary wishes to use such property
in the retroceded or reassumed program, the Secretary and the contractor
or grantee using such property shall
negotiate an acceptable arrangement
for continued sharing of such property
and for the retention or transfer of
title.
§ 900.90 Does
government-furnished
real property to which an Indian
tribe or tribal organization has
taken title continue to be eligible
for facilities operation and maintenance funding from the Secretary?
Yes.

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BIA, DOI, and IHS, HHS

§ 900.97

CONTRACTOR-PURCHASED PROPERTY
§ 900.91 Who takes title to property
purchased with funds under a selfdetermination contract or grant
agreement pursuant to section
105(f)(2)(A) of the Act?
The contractor takes title to such
property, unless the contractor chooses
to have the United States take title. In
that event, the contractor must inform
the Secretary of the purchase and identify the property and its location in
such manner as the contractor and the
Secretary deem necessary. A request
for the United States to take title to
any item of contractor-purchased property may be made at any time. A request for the Secretary to take fee title
to real property shall be expeditiously
processed in accordance with applicable Federal law and regulation.

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§ 900.92 What should the Indian tribe
or tribal organization do if it wants
contractor-purchased real property
to be taken into trust?
The contractor shall submit a resolution of support from the governing
body of the Indian tribe in which the
beneficial ownership is to be registered. If the request to take contractor-purchased real property into
trust is submitted to the Secretary of
Health and Human Services, that Secretary shall transfer the request to the
Secretary of the Interior. The Secretary of the Interior shall expeditiously process all requests in accord
with applicable Federal law and regulation.
§ 900.93 When may the Secretary elect
to acquire title to contractor-purchased property?
(a) Except as provided in paragraph
(b) of this section when a self-determination contract or grant agreement,
or portion thereof, is retroceded, reassumed, terminated, or expires, the
Secretary shall have the option to take
title to any item of government-furnished property:
(1) Whose title has been transferred
to an Indian tribe or tribal organization;
(2) That is still in use in the program;
and
(3) That has a current fair market
value, less the cost of improvements

borne by the Indian tribe or tribal organization, in excess of $5,000.
(b) If property referred to in paragraph (a) of this section is shared between one or more ongoing contracts
or grant agreements and a contract or
grant agreement that is retroceded, reassumed, terminated or expires and the
Secretary wishes to use such property
in the retroceded or reassumed program, the Secretary and the contractor
or grantee using such property shall
negotiate an acceptable arrangement
for continued sharing of such property
and for the retention or transfer of
title.
§ 900.94 Is contractor-purchased real
property to which an Indian tribe
or tribal organization holds title eligible for facilities operation and
maintenance funding from the Secretary?
Yes.
BIA AND IHS EXCESS PROPERTY
§ 900.95 What is BIA or IHS excess
property?
BIA or IHS excess property means
property under the jurisdiction of the
BIA or IHS that is excess to the agency’s needs and the discharge of its responsibilities.
§ 900.96 How can Indian tribes or tribal organizations learn about BIA
and IHS excess property?
The Secretary shall not less than annually send to Indian tribes and tribal
organizations a listing of all excess
BIA or IHS personal property before reporting the property to GSA or to any
other Federal agency as excess. The
listing shall identify the agency official to whom a request for donation
shall be submitted.
§ 900.97 How can an Indian tribe or
tribal organization acquire excess
BIA or IHS property?
(a) The Indian tribe or tribal organization shall submit to the appropriate
Secretary a request for specific property that includes a statement of how
the property is intended for use in connection with a self-determination contract or grant. The Secretary shall expeditiously process the request and
shall exercise discretion in a way that

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§ 900.98

25 CFR Ch. V (4–1–15 Edition)

gives maximum effect to the request of
Indian tribes or tribal organizations for
the donation of excess BIA or IHS property.
(b) If more than one request for the
same item of personal property is submitted, the Secretary shall award the
item to the requestor whose request is
received on the earliest date. If two or
more requests are received on the same
date, the Secretary shall award the
item to the requestor with the lowest
transportation costs. The Secretary
shall make the donation as expeditiously as possible.
(c) If more than one request for the
same parcel of real property is submitted, the Secretary shall award the
property to the Indian tribe or tribal
organization whose reservation or
trust land is closest to the real property requested.

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§ 900.98 Who takes title to excess BIA
or IHS property donated to an Indian tribe or tribal organization?
The Indian tribe or tribal organization takes title to donated excess BIA
or IHS property. The Secretary shall
provide the Indian tribe or tribal organization with all documentation needed to vest title in the Indian tribe or
tribal organization.
§ 900.99 Who takes title to any land
that is part of excess BIA or IHS
real property donated to an Indian
tribe or tribal organization?
(a) If an Indian tribe or tribal organization requests donation of fee title to
excess real property that includes land
not held in trust for an Indian tribe,
the Indian tribe or tribal organization
shall so specify in its request for donation. The Secretary shall take the necessary action under Federal law and
regulations to transfer the title to the
Indian tribe or tribal organization.
(b) If an Indian tribe or tribal organization asks the Secretary to donate excess real property that includes land
and requests that fee title to the land
be held by the United States in trust
for an Indian tribe, the requestor shall
submit a resolution of support from the
governing body of the Indian tribe in
which the beneficial ownership is to be
registered.
(1) If the donation request is submitted to the Secretary of Health and

Human Services, that Secretary shall
take all steps necessary to transfer the
land to the Secretary of the Interior
with the Indian tribe or tribal organization’s request and the Indian tribe’s
resolution. The Secretary of the Interior shall expeditiously process all requests in accordance with applicable
Federal law and regulations.
(2) The Secretary shall not require
the Indian tribe or tribal organization
to furnish any information in support
of a request other than that required
by law or regulation.
§ 900.100 May the Secretary elect to reacquire excess BIA or IHS property
whose title has been transferred to
an Indian tribe or tribal organization?
Yes. When a self-determination contract or grant agreement, or portion—
thereof, is retroceded, reassumed, terminated, or expires, the Secretary
shall have the option to take title to
any item of the property;
(a) Except as provided in paragraph
(b) of this section when a self-determination contract or grant agreement,
or portion thereof, is retroceded, reassumed, terminated, or expires, the
Secretary shall have the option to take
title to any item of government-furnished property:
(1) Whose title has been transferred
to an Indian tribe or tribal organization;
(2) That is still in use in the program;
and
(3) That has a current fair market
value, less the cost of improvements
borne by the Indian tribe or tribal organization, in excess of $5,000.
(b) To the extent that any property
referred to in paragraph (a) of this section is shared between one or more ongoing contracts or grant agreements
and a contract or grant agreement that
is retroceded, reassumed, terminated
or expires and the Secretary wishes to
use such property in the retroceded or
reassumed program, the Secretary and
the contractor or grantee using such
property shall negotiate an acceptable
arrangement for continued sharing of
such property and for the retention or
transfer of title.

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BIA, DOI, and IHS, HHS

§ 900.105

§ 900.101 Is excess BIA or IHS real
property to which an Indian tribe
or tribal organization has taken
title eligible for facilities operation
and maintenance funding from the
Secretary?
Yes.
EXCESS OR SURPLUS GOVERNMENT
PROPERTY OF OTHER AGENCIES
§ 900.102 What is excess or surplus
government property of other agencies?
(a) ‘‘Excess government property’’ is
real or personal property under the
control of a Federal agency, other than
BIA and IHS, which is not required for
the agency’s needs and the discharge of
its responsibilities.
(b) ‘‘Surplus government property’’
means excess real or personal property
that is not required for the needs of
and the discharge of the responsibilities of all Federal agencies that has
been declared surplus by the General
Services Administration (GSA).

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§ 900.103 How can Indian tribes or
tribal organizations learn about
property that has been designated
as excess or surplus government
property?
The Secretary shall furnish, not less
than annually, to Indian tribes or tribal organizations listings of such property as may be made available from
time to time by GSA or other Federal
agencies, and shall obtain listings upon
the request of an Indian tribe or tribal
organization.
§ 900.104 How may an Indian tribe or
tribal organization receive excess
or surplus government property of
other agencies?
(a) The Indian tribe or tribal organization shall file a request for specific
property with the Secretary, and shall
state how the property is appropriate
for use for a purpose for which a selfdetermination contract or grant is authorized under the Act.
(b) The Secretary shall expeditiously
process such request and shall exercise
discretion to acquire the property in
the manner described in § 900.86 of this
subpart.
(c) Upon approval of the Indian tribe
or tribal organization’s request, the

Secretary shall immediately request
acquisition of the property from the
GSA or the holding agency, as appropriate, by submitting the necessary
documentation in order to acquire the
requested property prior to the expiration of any ‘‘freeze’’ placed on the property by the Indian tribe or tribal organization.
(d) The Secretary shall specify that
the property is requested for donation
to an Indian tribe or tribal organization pursuant to authority provided in
section 105(f)(3) of the Act.
(e) The Secretary shall request a
waiver of any fees for transfer of the
property in accordance with applicable
Federal regulations.
§ 900.105 Who takes title to excess or
surplus Federal property donated
to an Indian tribe or tribal organization?
(a) Title to any donated excess or
surplus Federal personal property shall
vest in the Indian tribe or tribal organization upon taking possession.
(b) Legal title to donated excess or
surplus Federal real property shall vest
in the Indian tribe or tribal organization upon acceptance by the Indian
tribe or tribal organization of a proper
deed of conveyance.
(c) If the donation of excess or surplus Federal real property includes
land owned by the United States but
not held in trust for an Indian tribe,
the Indian tribe or tribal organization
shall specify whether it wants to acquire fee title to the land or whether it
wants the land to be held in trust for
the benefit of an Indian tribe.
(1) If the Indian tribe or tribal organization requests fee title, the Secretary shall take the necessary action
under Federal law and regulations to
transfer fee title to the Indian tribe or
tribal organization.
(2) If the Indian tribe or tribal organization requests beneficial ownership
with fee title to be held by the United
States in trust for an Indian tribe:
(i) The Indian tribe or tribal organization shall submit with its request a
resolution of support from the governing body of the Indian tribe in
which the beneficial ownership is to be
registered.

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§ 900.106

25 CFR Ch. V (4–1–15 Edition)

§ 900.106 If a contract or grant agreement
or
portion
thereof
is
retroceded, reassumed, terminated,
or expires, may the Secretary reacquire title to excess or surplus Federal property of other agencies that
was donated to an Indian tribe or
tribal organization?
No. Section 105(f)(3) of the Act does
not give the Secretary the authority to
reacquire title to excess or surplus government property acquired from other
agencies for donation to an Indian
tribe or tribal organization.

related work for one or more Federal
facilities. It applies to tribal facilities
where the Secretary is authorized by
law to design, construct and/or renovate, or make improvements to such
tribal facilities.
(b) Activities covered by construction contracts under this subpart are:
design and architectural/engineering
services, construction project management, and the actual construction of
the building or facility in accordance
with the construction documents, including all labor, materials, equipment, and services necessary to complete the work defined in the construction documents.
(1) Such contracts may include the
provision of movable equipment, telecommunications and data processing
equipment,
furnishings
(including
works of art), and special purpose
equipment, when part of a construction
contract let under this subpart.
(2) While planning services and construction management services as defined in § 900.113 may be included in a
construction contract under this subpart, they may also be contracted separately using the model agreement in
section 108 of the Act.

PROPERTY ELIGIBLE FOR REPLACEMENT
FUNDING

§ 900.111 What activities of construction programs are contractible?

§ 900.107 What property to which an
Indian tribe or tribal organization
obtains title under this subpart is
eligible for replacement funding?
Government-furnished property, contractor-purchased property and excess
BIA and IHS property donated to an Indian tribe or tribal organization to
which an Indian tribe or tribal organization holds title shall remain eligible
for replacement funding to the same
extent as if title to that property were
held by the United States.

The Secretary shall, upon the request
of any Indian tribe or tribal organization authorized by tribal resolution,
enter into a self-determination contract to plan, conduct, and administer
construction programs or portions
thereof.

(ii) If the donation request of the Indian tribe or tribal organization is submitted to the Secretary of Health and
Human Services, that Secretary shall
take all necessary steps to acquire the
land and transfer it to the Secretary of
the Interior and shall also forward the
Indian tribe or tribal organization’s request and the Indian tribe’s resolution.
(iii) The Secretary of the Interior
shall expeditiously process all requests
in accord with applicable Federal law
and regulations.
(iv) The Secretary shall not require
submission of any information other
than that required by Federal law and
regulation.

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Subpart J—Construction
§ 900.110 What
does
this
subpart
cover?
(a) This subpart establishes requirements for issuing fixed-price or cost-reimbursable contracts to provide: design, construction, repair, improvement, expansion, replacement, erection
of new space, or demolition and other

§ 900.112 What
phases?

are

(a) Construction programs generally
include the following activities in
phases which can vary by funding
source (an Indian tribe or tribal organization should contact its funding
source for more information regarding
the conduct of its program):
(1) The preplanning phase. The phase
during which an initial assessment and
determination of project need is made
and supporting information collected
for presentation in a project application. This project application process is
explained in more detail in § 900.122;

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§ 900.113

(2) The planning phase. The phase during which planning services are provided. This phase can include conducting and preparing a detailed needs
assessment, developing justification
documents,
completing
and/or
verifying master plans, conducting
predesign site investigations and selection, developing budget cost estimates,
conducting feasibility studies, and developing a project Program of Requirements (POR);
(3) The design phase. The phase during
which licensed design professional(s)
using the POR as the basis for design of
the project, prepare project plans, specifications, and other documents that
are a part of the construction documents used to build the project. Site
investigation and selection activities
are completed in this phase if not conducted as part of the planning phase.
(4) The construction phase. The phase
during which the project is constructed. The construction phase includes providing the labor, materials,
equipment, and services necessary to
complete the work in accordance with
the construction documents prepared
as part of the design phase.
(b) The following activities may be
part of phases described in paragraphs
(a)(2), (a)(3), and (a)(4) of this section:
(1) Management; and
(2) Environmental, archeological,
cultural resource, historic preservation, and similar assessments and associated activities.

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§ 900.113

Definitions.

(a) Construction contract means a
fixed-price or cost-reimbursement selfdetermination 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 Housing Improvement
Program or roads maintenance program of the Bureau of Indian Affairs
administered by the Secretary of the
Interior; or
(3) For the health facility maintenance and improvement program administered by the Secretary of Health
and Human Services.

(b) Construction management services
(CMS) means activities limited to administrative support services; coordination; and monitoring oversight of
the planning, design, and construction
process. An Indian tribe or tribal organization’s employee or construction
management services consultant (typically an engineer or architect) performs such activities as:
(1) Coordination and information exchange between the Indian tribe or
tribal organization and the Federal
government;
(2) Preparation of Indian tribe or
tribal organization’s construction contract proposals;
(3) Indian tribe or tribal organization
subcontract scope of work identification and subcontract preparation, and
competitive selection of Indian tribe or
tribal organization construction contract subcontractors (see § 900.110);
(4) Review of work to ensure compliance with the POR and/or the construction contract. This does not involve
construction project management as
defined in paragraph (d) of this section.
(c) Construction programs include programs for the planning, design, construction, repair, improvement, and expansion of buildings or facilities, including but not limited to, housing,
law enforcement and detention facilities, sanitation and water systems,
roads, schools, administration and
health facilities, irrigation and agricultural work, water conservation,
flood control, and port facilities, and
environmental, archeological, cultural
resource, historic preservation, and
conduct of similar assessments.
(d) Construction project management
means direct responsibility for the construction project through day-to-day
on-site management and administration of the project. Activities may include cost management, project budgeting, project scheduling, procurement
services.
(e) Design means services performed
by licensed design professionals related
to preparing drawings, specifications,
and other design submissions specified
in the contract, as well as services provided by or for licensed design professionals during the bidding/negotiating,
construction, and operational phases of
the project.

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§ 900.114

25 CFR Ch. V (4–1–15 Edition)

(f) Planning services means activities
undertaken to support agency and/or
Congressional funding of a construction project. Planning services may include performing a needs assessment,
completing and/or verifying master
plans, developing justification documents, conducting pre-design site investigations, developing budget cost
estimates, conducting feasibility studies as needed and completion of approved justification documents and a
program of requirements (POR) for the
project.
(g) Program of Requirements (POR) is a
planning document developed during
the planning phase for an individual
project. It provides background about
the project; site information; programmatic needs; and, for facilities
projects, a detailed room-by-room listing of spaces, including net and gross
sizes, finish materials to be used, furnishings and equipment, and other information and design criteria on which
to base the construction project documents.
(h) Scope of work means the description of the work to be provided through
a contract issued under this subpart
and the methods and processes to be
used to accomplish that work. A scope
of work is typically developed based on
criteria provided in a POR during the
design phase, and project construction
documents (plans and specifications)
during the construction phase.

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§ 900.114 Why is there a separate subpart in these regulations for construction contracts and grants?
There is a separate subpart because
the Act differentiates between construction contracts and the model
agreement in section 108 of the Act
which is required for contracting other
activities. Construction contracts are
separately defined in the Act and are
subject to a separate proposal and review process.
§ 900.115 How do self-determination
construction contracts relate to ordinary Federal procurement contracts?
(a) A self-determination construction
contract is a government-to-government agreement that transfers control
of the construction project, including
administrative functions, to the con-

tracting Indian tribe or tribal organization to facilitate effective and meaningful participation by the Indian tribe
or tribal organization in planning, conducting, and administering the construction project, and so that the construction project is responsive to the
true needs of the Indian community.
The Secretary’s role in the conduct of
a contracted construction project is
limited to the Secretary’s responsibilities set out in § 900.131.
(b) Self-determination construction
contracts are not traditional ‘‘procurement’’ contracts.
(1) With respect to a construction
contract (or a subcontract of such a
construction contract), the provisions
of the Office of Federal Procurement
Policy Act (41 U.S.C. 401 et seq.) and the
regulations promulgated under that
Act, shall apply to a construction contract or subcontract only to the extent
that application of the provision 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.
(2) A list of the Federal requirements
that meet the requirements of this
paragraph shall be included in an attachment to the contract under negotiations between the Secretary and the
Indian tribe or tribal organization.
(3) Except as provided in paragraph
(b)(2) of this section, no Federal law
listed in section 105(3)(C)(ii) of the Act
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 an Indian tribe or tribal organization enters into under this Act,
unless expressly provided in the law.
(c) Provisions of a construction contract under this subpart shall be liberally construed in favor of the contracting Indian tribe or tribal organization.

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BIA, DOI, and IHS, HHS

§ 900.118

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§ 900.116 Are negotiated fixed-price
contracts treated the same as costreimbursable contracts?
Yes, except that in negotiated fixedprice construction contracts, appropriate clauses shall be negotiated to allocate properly the contract risks between the government and the contractor.
§ 900.117 Do these ‘‘construction contract’’ regulations apply to planning
services?
(a) These regulations apply to planning services contracts only as provided in this section.
(1) The Indian tribe or tribal organization shall submit to the Secretary
for review and approval the POR documents produced as a part of a model
contract under section 108 of the Act or
under a construction contract under
this subpart.
(i) Within 60 days after receipt of the
POR from the Indian tribe or tribal organization for a project that has
achieved priority ranking or that is
funded, the Secretary shall:
(A) Approve the POR;
(B) Notify the Indian tribe or tribal
organization of and make available any
objections to the POR that the Secretary may have; or
(C) Notify the Indian tribe or tribal
organization of the reasons why the
Secretary will be unable either to approve the POR or to notify the Indian
tribe or tribal organization of any objections within 60 days, and state the
time within which the notification will
be made, provided that the extended
time shall not exceed 60 additional
days.
(ii) Within a maximum of 180 days
after receipt of a POR from an Indian
tribe or tribal organization for a
project that is not funded and is not
described in paragraph (a)(1)(i) of this
section, the Secretary shall:
(A) Approve the POR; or
(B) Notify the Indian tribe or tribal
organization of and make available any
objections to the POR; or
(C) Notify the Indian tribe or tribal
organization of the reasons why the
Secretary will be unable either to approve the POR or to notify the Indian
tribe or tribal organization of any objections within 180 days, and state the

time within which the notification will
be made, provided that the extended
time shall not exceed 60 additional
days.
(2) Any failure of the Secretary to
act on a POR within the applicable period required in paragraph (a)(1) of this
section will be deemed a rejection of
the POR and will authorize the commencement of any appeal as provided
in section 110 of the Act, or, if a model
agreement under section 108 of the Act
is used, the disputes provision of that
agreement.
(3) If an Indian tribe or tribal organization elects to provide planning services as part of a construction contract
rather than under a model agreement
as set out in section 108 of the Act, the
regulations in this subpart shall apply.
(b) The parties to the contract are
encouraged to consult during the development of the POR and following submission of the POR to the Secretary.
§ 900.118 Do these ‘‘construction contract’’ regulations apply to construction management services?
No. Construction management services may be contracted separately
under section 108 of the Act. Construction management services consultants
and/or Indian tribe or tribal organization employees assist and advise the
Indian tribe or tribal organization to
implement construction contracts, but
have no contractual relationship with
or authority to direct construction
contract subcontractors.
(a) If the Indian tribe or tribal organization chooses to contract solely for
construction management services,
these services shall be limited to:
(1) Coordination and exchange of information between the Indian tribe or
tribal organization and the Secretary;
(2) Review of work produced by the
Secretary to determine compliance
with:
(i) The POR and design contract during the design stage; or
(ii) The project construction documents during the construction stage;
(3) Disputes shall be resolved in accordance with the disputes clause of
the CMS contract.
(b) If the Indian tribe or tribal organization conducts CMS under section
108 of the Act and the Indian tribe or

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§ 900.119

25 CFR Ch. V (4–1–15 Edition)

tribal organization contracts separately under this subpart for all or
some of the activities in § 900.110, the
contracted activities shall be limited
to:
(1) Coordination and exchange of information between the Indian tribe or
tribal organization and Secretary;
(2) Preparation of tribal or tribal organization construction subcontract
scope of work identification and subcontract preparation, and competitive
selection of tribal or tribal organization construction contract subcontractors;
(3) Review of work produced by tribal
or tribal organization construction
subcontractors to determine compliance with:
(i) The POR and the design contract
during the design stage; or
(ii) The project construction documents during the construction stage.

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§ 900.119 To what extent shall the Secretary consult with affected Indian
tribes before spending funds for
any construction project?
Before spending any funds for a planning, design, construction, or renovation project, whether subject to a competitive application and ranking process or not, the Secretary shall consult
with any Indian tribe or tribal organization(s) that would be significantly affected by the expenditure to determine
and to follow tribal preferences to the
greatest extent feasible concerning:
size, location, type, and other characteristics of the project.
§ 900.120 How does an Indian tribe or
tribal organization find out about a
construction project?
Within 30 days after the Secretary’s
allocation of funds for planning phase,
design phase, or construction phase activities for a specific project, the Secretary shall notify, by registered mail
with return receipt in order to document mailing, the Indian tribe or tribal
organization(s) to be benefitted by the
availability of the funds for each phase
of a project. The Secretarial notice of
fund allocation shall offer technical assistance in the preparation of a contract proposal.
(a) The Secretary shall, within 30
days after receiving a request from an
Indian tribe or tribal organization, fur-

nish the Indian tribe or tribal organization with all information available to
the Secretary about the project including, but not limited to: construction
drawings, maps, engineering reports,
design reports, plans of requirements,
cost estimates, environmental assessments, or environmental impact reports and archeological reports.
(b) An Indian tribe or tribal organization is not required to request this information prior to submitting a notification of intent to contract or a contract proposal.
(c) The Secretary shall have a continuing responsibility to furnish information.
§ 900.121 What happens during the
preplanning phase and can an Indian tribe or tribal organization
perform any of the activities involved in this process?
(a) The application and ranking process for developing a priority listing of
projects varies between agencies. There
are, however, steps in the selection
process that are common to most selection processes. An Indian tribe or tribal organization that wishes to secure a
construction project should contact
the appropriate agency to determine
the specific steps involved in the application and selection process used to
fund specific types of projects. When a
priority process is used in the selection
of construction projects, the steps involved in the application and ranking
process are as follows:
(1) Application. The agency solicits
applications from Indian tribes or tribal organizations. In the request for applications, the Secretary provides specific information regarding the type of
project to be funded, the objective criteria that will be used to evaluate applications, the points or weight that
each criterion will be assigned, and the
time when applications are due. An Indian tribe or tribal organization may
prepare the application (technical assistance from the agency, within resources available, shall be provided
upon request from an Indian tribe or
tribal organization) or may rely upon
the agency to prepare the application.
(2) Ranking/Prioritization. The Secretary evaluates the applications based
on the criteria provided as part of the
application preparation process. The

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BIA, DOI, and IHS, HHS

§ 900.123

Secretary applies only criteria and
weights assigned to each criteria that
were disclosed to the Indian tribe or
tribal organization during the application stage. The applications are then
ranked in order from the application
that best meets application criteria to
the application that least meet the application criteria.
(3) Validation. Before final acceptance
of a ranked application, the information, such as demographic information,
deficiency levels reported in application, the condition of existing facilities, and program housing needs, is
validated. During this process, additional information may be developed
by the Indian tribe or tribal organization in support of the original information or the Secretary may designate a
representative of the Department to
conduct an on-site review of the information contained in the application.
(b) [Reserved]

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§ 900.122 What does an Indian tribe or
tribal organization do if it wants to
secure a construction contract?
(a) The Act establishes a special
process for review and negotiation of
proposals for construction contracts
which is different than that for other
self-determination contract proposals.
The Indian tribe or tribal organization
should notify the Secretary of its intent to contract. After notification,
the Indian tribe or tribal organization
should prepare its contract proposal in
accordance with the sections of this
subpart. While developing its construction contract proposal, the Indian tribe
or tribal organization can request technical assistance from the Secretary.
Not later than 30 days after receiving a
request from an Indian tribe or tribal
organization, the Secretary shall provide to the Indian tribe or tribal organization all information available
about 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. The responsibility of
the Secretary to furnish this information shall be a continuing one.
(b) At the request of the Indian tribe
or tribal organization and before final-

izing its construction contract proposal, the Secretary shall provide for a
precontract negotiation phase during
the development of a contract proposal. Within 30 days the Secretary
shall acknowledge receipt of the proposal and, if requested by the Indian
tribe or tribal organization, shall confer with the Indian tribe or tribal organization to develop a negotiation
schedule. The negotiation phase shall
include, at a minimum:
(1) The provision of technical assistance under section 103 of the Act and
paragraph (a) of this section;
(2) A joint scoping session between
the Secretary and the Indian 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;
(3) An opportunity for the Secretary
to revise plans, designs, or cost estimates of the Secretary in response to
concerns raised, or information provided by, the Indian tribe or tribal organization;
(4) A negotiation session during
which the Secretary and the Indian
tribe or tribal organization shall seek
to develop a mutually agreeable contract proposal; and
(5) Upon the request of the Indian
tribe or tribal organization, the use of
alternative dispute resolution to resolve remaining areas of disagreement
under the dispute resolution provisions
under subchapter IV of chapter 5 of the
United States Code.
§ 900.123 What happens if the Indian
tribe or tribal organization and the
Secretary cannot develop a mutually agreeable contract proposal?
(a) If the Secretary and the Indian
tribe or tribal organization are unable
to develop a mutually agreeable construction contract proposal under the
procedures in § 900.122, the Indian tribe
or tribal organization may submit a
final contract proposal to the Secretary. Not later than 30 days after receiving the final contract proposal, the
Secretary shall approve the contract
proposal and award the contract, unless, during the period the Secretary
declines the proposal under sections

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§ 900.124

25 CFR Ch. V (4–1–15 Edition)

102(a)(2) and 102(b) of the Act (including
providing opportunity for an appeal
under section 102(b)).
(b) Whenever the Secretary declines
to enter into a self-determination contract or contracts under section
102(a)(2) of the Act, the Secretary shall:
(1) State any objections to the contract proposal (as submitted by the Indian tribe or tribal organization) in
writing and provide all documents relied on in making the declination decision within 20 days of such decision to
the Indian tribe or tribal organization;
(2) Provide assistance to the Indian
tribe or tribal organization to overcome the stated objections;
(3) Provide the Indian tribe or tribal
organization with a hearing on the
record with the right to engage in full
discovery relevant to any issue raised
in the matter and the opportunity for
appeal on the objections raised, under
the regulations set forth in subpart L,
except that the Indian tribe or tribal
organization may, in lieu of filing the
appeal, initiate an action in a Federal
district court and proceed directly
under section 110(a) of the Act.

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§ 900.124 May the Indian tribe or tribal
organization elect to use a grant in
lieu of a contract?
Yes. A grant agreement or a cooperative agreement may be used in lieu of
a contract under sections 102 and 103 of
the Act when agreed to by the Secretary and the Indian tribe or tribal organization. Under the grant concept,
the grantee will assume full responsibility and accountability for design
and construction performance within
the funding limitations. The grantee
will manage and administer the work
with minimal involvement by the government. The grantee will be expected
to have acceptable management systems for finance, procurement, and
property. The Secretary may issue
Federal construction guidelines and
manuals applicable to its construction
programs, and the government shall
accept tribal proposals for alternatives
which are consistent with or exceed
Federal guidelines or manuals applicable to construction programs.

§ 900.125 What shall a construction
contract proposal contain?
(a) In addition to the full name, address, and telephone number of the Indian tribe or tribal organization submitting the construction proposal, a
construction contract proposal shall
contain descriptions of the following
standards under which they propose to
operate the contract:
(1) The use of licensed and qualified
architects;
(2) Applicable health and safety
standards;
(3) Adherence to applicable Federal,
State, local, or tribal building codes
and engineering standards;
(4) Structural integrity;
(5) Accountability of funds;
(6) Adequate competition for subcontracting under tribal or other applicable law;
(7) The commencement, performance,
and completion of the contract;
(8) Adherence to project plans and
specifications (including any applicable
Federal construction guidelines and
manuals and the Secretary shall accept
tribal proposals for alternatives which
are consistent with or exceed Federal
guidelines or manuals applicable to
construction programs);
(9) The use of proper materials and
workmanship;
(10) Necessary inspection and testing;
(11) With respect to the self-determination contract between the Indian
tribe or tribal organization and Federal
government, a process for changes,
modifications, stop work, and termination of the work when warranted;
(b) In addition to provisions regarding the program standards listed in
paragraph (a) of this section or the assurances listed in paragraph (c) of this
section, the Indian tribe or tribal organization shall also include in its construction contract proposal the following:
(1) In the case of a contract for design activities, this statement, ‘‘Construction documents produced as part
of this contract will be produced in accordance with the Program of Requirements and/or Scope of Work,’’ and the
POR and/or Scope of Work shall be attached to the contract proposal. If tribal construction procedures, standards

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§ 900.125

and methods (including national, regional, state, or tribal building codes
or construction industry standards) are
consistent with or exceed applicable
Federal standards then the Secretary
shall accept the tribally proposed
standards; and
(2) In the case of a contract for construction activities, this statement,
‘‘The facility will be built in accordance with the construction documents
produced as a part of design activities.
The project documents, including plans
and specifications, are hereby incorporated into this contract through this
reference.’’ If tribal construction procedures, standards and methods (including national, regional, state, or
tribal building codes or construction
industry standards) are consistent with
or exceed applicable Federal standards
then the Secretary shall accept the
tribally proposed standards; and
(3) Proposed methods to accommodate the responsibilities of the Secretary provided in § 900.131; and
(4) Proposed methods to accommodate the responsibilities of the Indian
tribe or tribal organization provided in
§ 900.130 unless otherwise addressed in
paragraph (a) of this section and minimum staff qualifications proposed by
the Indian tribe or tribal organization,
if any;
(5) A contract budget as described in
§ 900.127; and
(6) A period of performance for the
conduct of all activities to be contracted;
(7) A payment schedule as described
in § 900.132;
(8) A statement indicating whether
or not the Indian tribe or tribal organization has a CMS contract related to
this project;
(9) Current (unrevoked) authorizing
resolutions in accordance with § 900.5(d)
from all Indian tribes benefitting from
the contract proposal; and
(10) Any responsibilities, in addition
to the Federal responsibilities listed in
§ 900.131, which the Indian tribe or tribal organization proposes the Federal
government perform to assist with the
completion of the scope of work;
(c) The Indian tribe or tribal organization will provide the following assurances in its contract proposal:

(1) If the Indian tribe or tribal organization elects not to take title (pursuant to subpart I) to Federal property
used in carrying out the contract, ‘‘The
Indian tribe or tribal organization will
not dispose of, modify the use of, or
change the terms of the real property
title, or other interest in the site and
facilities without permission and instructions from the awarding agency.
The Indian tribe or tribal organization
will record the Federal interest in the
title of real property in accordance
with awarding agency directives and
will include a covenant in the title of
real property acquired in whole or in
part with Federal assistance funds to
assure nondiscrimination during the
useful life of the project’’; and
(2) ‘‘The Indian tribe or tribal organization will comply with the Lead-Based
Paint Poisoning Prevention Act (42
U.S.C. 4801 et seq.)’’ which prohibits the
use of lead based paint in construction
or rehabilitation of residential structures;
(3) ‘‘The Indian tribe or tribal organization will comply, or has already complied, with the requirements of titles II
and III of the Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970 (Pub. L. 91–646),’’
which provides for fair and equitable
treatment of persons displaced or
whose property is acquired as a result
of Federal participation in purchases;
and
(4) ‘‘Except for work performed by
tribal or tribal organization employees,
the Indian tribe or tribal organization
will comply, as applicable, with the
provisions of the Davis-Bacon Act (40
U.S.C. 276c and 18 U.S.C. 874),’’ for Federally assisted construction subagreements;
(5) ‘‘The Indian tribe or tribal organization will comply with the flood insurance purchase requirements of section 102(a) of the Flood Disaster Protection Act of 1973 (Pub. L. 93–234),’’
which requires recipients in a special
flood hazard area to participate in the
program and to purchase flood insurance if the total cost of insurable construction and acquisition is $10,000 or
more;
(6) ‘‘The Indian tribe or tribal organization will comply with all applicable

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§ 900.126

25 CFR Ch. V (4–1–15 Edition)

Federal environmental laws, regulations, and Executive Orders;’’
(7) ‘‘The Indian tribe or tribal organization will comply with the Wild and
Scenic Rivers Act of 1968 (16 U.S.C. 1271
et seq.) related to protecting the components or potential components of the
national wild and scenic rivers system;’’
(8) ‘‘The Indian tribe or tribal organization will assist the awarding agency
in assuring compliance with section 106
of the National Historic Preservation
Act of 1966, as amended (16 U.S.C. 470),
EO 11593 (identification and preservation of historic properties), and the Archaeological and Historic Preservation
Act of 1974 (16 U.S.C. 469a–1 et seq.).’’
(d) The Indian tribe or tribal organization and the Secretary will both
make a good faith effort to identify
any other applicable Federal laws, Executive Orders, or regulations applicable to the contract, share them with
the other party, and refer to them in
the construction contract. The parties
will make a good faith effort to identify tribal laws, ordinances, and resolutions which may affect either party in
the performance of the contract.

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§ 900.126 Shall a construction contract
proposal incorporate provisions of
Federal construction guidelines and
manuals?
Each agency may provide or the Indian tribe or tribal organization may
request Federal construction guidelines and manuals for consideration by
the Indian tribe or tribal organization
in the preparation of its contract proposal. If tribal construction procedures, standards and methods (including national, regional, State, or tribal
building codes or construction industry
standards) are consistent with or exceed applicable Federal standards, the
Secretary shall accept the tribally proposed standards.
§ 900.127 What can be included in the
Indian tribe or tribal organization’s
contract budget?
(a) The costs incurred will vary depending on which phase (see § 900.112) of
the construction process the Indian
tribe or tribal organization is conducting and the type of contract that
will be used. The total amount awarded
under a construction contract shall re-

flect an overall fair and reasonable
price to the parties (see § 900.129).
(b) Costs for activities under this
subpart that have not been billed, allocated, or recovered under a contract
issued under section 108 of the Act
should be included.
(c) The Indian tribe or tribal organization’s budget should include the cost
elements that reflect an overall fair
and reasonable price. These costs include:
(1) The reasonable costs to the Indian
tribe or tribal organization of performing the contract, taking into consideration the terms of the contract
and the requirements of the Act and
any other applicable law;
(2) The costs of preparing the contract proposal and supporting cost
data;
(3) The costs associated with auditing
the general and administrative costs of
the Indian tribe or tribal organization
associated with the management of the
construction contract; and
(4) In cases where the Indian tribe or
tribal organization is submitting a
fixed-price construction contract:
(i) The reasonable costs to the Indian
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, local
market conditions, and other relevant
considerations.
(d) In establishing a contract budget
for a construction project, the Secretary shall not be required to identify
separately the components described in
paragraphs (c)(4)(i) and (c)(4)(ii) of this
section.
(e) The Indian tribe or tribal organization’s budget proposal includes a detailed budget breakdown for performing the scope of work including a
total ‘‘not to exceed’’ dollar amount
with which to perform the scope of
work. Specific budget line items, if requested by the Indian tribe or tribal organization, can include the following:
(1) The administrative costs the Indian tribe or tribal organization may
incur including:

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§ 900.128

(i) Personnel needed to provide administrative oversight of the contract;
(ii) Travel costs incurred, both local
travel incurred as a direct result of
conducting the contract and remote
travel necessary to review project status with the Secretary;
(iii) Meeting costs incurred while
meeting with community residents to
develop project documents;
(iv) Fees to be paid to consultants,
such as demographic consultants, planning consultants, attorneys, accountants, and personnel who will provide
construction management services;
(2) The fees to be paid to architects
and engineers to assist in preparing
project documents and to assist in
oversight of the construction process;
(3) The fees to be paid to develop
project
surveys
including
topographical surveys, site boundary descriptions, geotechnical surveys, archeological surveys, and NEPA compliance, and;
(4) In the case of a contract to conduct project construction activities,
the fees to provide a part-time or fulltime on-site inspector, depending on
the terms of the contract, to monitor
construction activities;
(5) In the case of a contract to conduct project construction activities,
project site development costs;
(6) In the case of a contract to conduct project construction activities,
project construction costs including
those costs described in paragraph
(c)(4), of this section;
(7) The cost of securing and installing
moveable equipment, telecommunications and data processing equipment,
furnishings, including works of art, and
special purpose equipment when part of
a construction contract;
(8) A contingency amount for unanticipated conditions of the construction phase of cost-reimbursable contracts. The amount of the contingency
provided shall be 3 percent of activities
being contracted or 50 percent of the
available contingency funds, whichever
is greater. In the event provision of required contingency funds will cause the
project to exceed available project
funds, the discrepancy shall be reconciled in accordance with § 900.129(e).
Any additional contingency funds for
the construction phase will be nego-

tiated on an as-needed basis subject to
the availability of funds and the nature, scope, and complexity of the
project. Any contingency for other
phases will be negotiated on a contract-by-contract basis. Unused contingency funds obligated to the contract
and remaining at the end of the contract will be considered savings.
(9) Other costs incurred that are directly related to the conduct of contract activities.
§ 900.128 What funding shall the Secretary provide in a construction
contract?
The Secretary shall provide an
amount under a construction contract
that reflects an overall fair and reasonable price to the parties. These costs
include:
(a) The reasonable costs to the Indian
tribe or tribal organization of performing the contract, taking into consideration the terms of the contract
and the requirements of the Act and
any other applicable law;
(b) The costs of preparing the contract proposal and supporting cost
data; and
(c) The costs associated with auditing the general and administrative
costs of the tribal organization associated with the management of the construction contract; and
(d) If the Indian tribe or tribal organization is submitting a fixed-price
construction contract:
(1) The reasonable costs to the Indian
tribe or tribal organization for general
administration incurred in connection
with the project that is the subject of
the contract;
(2) 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, local
market conditions, and other relevant
considerations including but not limited to contingency.
(3) In establishing a contract budget
for a construction project, the Secretary is not required to identify separately the components described in
paragraph (d) (1) and (d) (2) of this sections.

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§ 900.129

25 CFR Ch. V (4–1–15 Edition)

§ 900.129 How do the Secretary and Indian tribe or tribal organization arrive at an overall fair and reasonable price for the performance of a
construction contract?
(a) Throughout the contract award
process, the Secretary and Indian tribe
or tribal organization shall share all
construction project cost information
available to them in order to facilitate
reaching agreement on an overall fair
and reasonable price for the project or
part thereof. In order to enhance this
communication, the government’s estimate of an overall fair and reasonable
price shall:
(1) Contain a level of detail appropriate to the nature and phase of the
work and sufficient to allow comparisons to the Indian tribe or tribal organization’s estimate;
(2) Be prepared in a format coordinated with the Indian tribe or tribal
organization; and
(3) Include the cost elements contained in section 105(m)(4) of the Act.
(b) The government’s cost estimate
shall be an independent cost estimate
based on such information as the following:
(1) Prior costs to the government for
similar projects adjusted for comparison to the target location, typically in
unit costs, such as dollars per pound,
square meter cost of building, or other
unit cost that can be used to make a
comparison;
(2) Actual costs previously incurred
by the Indian tribe or tribal organization for similar projects;
(3) Published price lists, to include
regional adjustment factors, for materials, equipment, and labor; and
(4) Projections of inflation and cost
trends, including projected changes
such as labor, material, and transportation costs.
(c) The Secretary shall provide the
initial government cost estimate to the
Indian tribe or tribal organization and
make appropriate revisions based on
concerns raised or information provided by the Indian tribe or tribal organization. The Secretary and the Indian
tribe or tribal organization shall continue to revise, as appropriate, their
respective cost estimates based on
changed or additional information such
as the following:

(1) Actual subcontract bids;
(2) Changes in inflation rates and
market conditions, including local
market conditions;
(3) Cost and price analyses conducted
by the Secretary and the Indian tribe
or tribal organization during negotiations;
(4) Agreed-upon changes in the size,
scope and schedule of the construction
project; and
(5) Agreed-upon changes in project
plans and specifications.
(d) Considering all of the information
available, the Secretary and the Indian
tribe or tribal organization shall negotiate the amount of the construction
contract. The objective of the negotiations is to arrive at an amount that is
fair under current market conditions
and reasonable to both the government
and the Indian tribe or tribal organization. As a result, the agreement does
not necessarily have to be in strict
conformance with either party’s cost
estimate nor does agreement have to
be reached on every element of cost,
but only on the overall fair and reasonable price of each phase of the work included in the contract.
(e) If the fair and reasonable price arrived at under paragraph (d) of this section would exceed the amount available to the Secretary, then:
(1) If the Indian tribe or tribal organization elects to submit a final proposal, the Secretary may decline the
proposal under section 105(m)(4)(C)(v)
of the Act or if the contract has been
awarded, dispute the matter under the
Contract Disputes Act; or
(2) If requested by the Indian tribe or
tribal organization:
(i) The Indian tribe or tribal organization and the Secretary may jointly
explore methods of expanding the
available funds through the use of contingency funds, advance payments in
accordance with § 900.132, rebudgeting,
or seeking additional appropriations;
or
(ii) The Indian tribe or tribal organization may elect to propose a reduction
in project scope to bring the project
price within available funds; or
(iii) The Secretary and Indian tribe
or tribal organization may agree that
the project be executed in phases.

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§ 900.130

§ 900.130 What role does the Indian
tribe or tribal organization play
during the performance of a self-determination construction contract?
(a) The Indian tribe or tribal organization is responsible for the successful
completion of the project in accordance with the approved contract documents.
(b) If the Indian tribe or tribal organization is contracting to perform design phase activities, the Indian tribe
or tribal organization shall have the
following responsibilities:
(1) The Indian tribe or tribal organization shall subcontract with or provide the services of licensed and qualified architects and other consultants
needed to accomplish the self-determination construction contract.
(2) The Indian tribe or tribal organization shall administer and disburse
funds provided through the contract in
accordance with subpart F, § 900.42
through § 900.45 and implement a property management system in accordance with subpart F, § 900.51 through
§ 900.60.
(3) The Indian tribe or tribal organization shall direct the activities of
project architects, engineers, and other
project consultants, facilitate the flow
of information between the Indian
tribe or tribal organization and its subcontractors, resolve disputes between
the Indian tribe or tribal organization
and its subcontractors or between its
subcontractors, and monitor the work
produced by its subcontractors to ensure compliance with the POR.
(4) The Indian tribe or tribal organization shall direct the work of its subcontractors so that work produced is
provided in accordance with the contract budget and contract performance
period as negotiated between and
agreed to by the parties.
(5) The Indian tribe or tribal organization shall provide the Secretary with
an opportunity to review and provide
written comments on the project plans
and specifications only at the concept
phase, the schematic phase (or the preliminary design), the design development phase, and the final construction
documents phase and approve the
project plans and specifications for
general compliance with contract requirements only at the schematic

phase (or the preliminary design) and
the final construction documents phase
or as otherwise negotiated.
(6) The Indian tribe or tribal organization shall provide the Secretary with
the plans and specifications after their
final review so, if needed, the Secretary may obtain an independent government cost estimate in accordance
with § 900.131(b)(4) for the construction
of the project.
(7) The Indian tribe or tribal organization shall retain project records and
design documents for a minimum of 3
years following completion of the contract.
(8) The Indian tribe or tribal organization shall provide progress reports
and financial status reports quarterly,
or as negotiated, that contain a narrative of the work accomplished, including but not limited to descriptions
of contracts, major subcontracts, and
modifications implemented during the
report
period
and
A/E
service
deliverables, the percentage of the
work completed, a report of funds expended during the reporting period, and
total funds expended for the project.
The Indian tribe or tribal organization
shall also provide copies, for the information of the Secretary, of an initial
work and payment schedule and updates as they may occur.
(c) If the Indian tribe or tribal organization is contracting to perform
project construction phase activities,
the Indian tribe or tribal organization
shall have the following responsibilities:
(1) The Indian tribe or tribal organization shall subcontract with or provide the services of licensed and qualified architects and other consultants
as needed to accomplish the self-determination construction contract.
(2) The Indian tribe or tribal organization shall administer and dispense
funds provided through the contract in
accordance with subpart F, § 900.42
through § 900.45 and implement a property management system in accordance with subpart F, § 900.51 through
§ 900.60.
(3) The Indian tribe or tribal organization shall subcontract with or provide the services of construction contractors or provide its own forces to

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§ 900.131

25 CFR Ch. V (4–1–15 Edition)

conduct construction activities in accordance with the project construction
documents or as otherwise negotiated
between and agreed to by the parties.
(4) The Indian tribe or tribal organization shall direct the activities of
project architects, engineers, construction contractors, and other project
consultants, facilitate the flow of information between the Indian tribe or
tribal organization and its subcontractors, resolve disputes between itself
and its subcontractors or between its
subcontractors, and monitor the work
produced by its subcontractors to assure compliance with the project plans
and specifications.
(5) The Indian tribe or tribal organization shall manage or provide for the
management of day-to-day activities of
the contract including the issuance of
construction change orders to subcontractors except that, unless the
Secretary agrees:
(i) The Indian tribe or tribal organization may not issue a change order to
a construction subcontractor that will
cause the Indian tribe or tribal organization to exceed its self-determination
contract budget;
(ii) The Indian tribe or tribal organization may not issue a change order to
a construction subcontractor that will
cause the Indian tribe or tribal organization to exceed the performance period in its self-determination contract
budget; or
(iii) The Indian tribe or tribal organization may not issue to a construction
subcontractor a change order that is a
significant departure from the scope or
objective of the project.
(6) The Indian tribe or tribal organization shall direct the work of its subcontractors so that work produced is
provided in accordance with the contract budget and performance period as
negotiated between and agreed to by
the parties.
(7) The Indian tribe or tribal organization shall provide to the Secretary
progress and financial status reports.
(i) The reports shall be provided
quarterly, or as negotiated, and shall
contain a narrative of the work accomplished, the percentage of the work
completed, a report of funds expended
during the reporting period, and total
funds expended for the project.

(ii) The Indian tribe or tribal organization shall also provide copies, for the
information of the Secretary, of an initial schedule of values and updates as
they may occur, and an initial construction schedule and updates as they
occur.
(8) The Indian tribe or tribal organization shall maintain on the job-site or
project office, and make available to
the Secretary during monitoring visits:
contracts, major subcontracts, modifications,
construction
documents,
change orders, shop drawings, equipment cut sheets, inspection reports,
testing reports, and current redline
drawings.
(d) Upon completion of the project,
the Indian tribe or tribal organization
shall provide to the Secretary a reproducible copy of the record plans and a
contract closeout report.
(e) For cost-reimbursable projects,
the Indian tribe or tribal organization
shall not be obligated to continue performance that requires an expenditure
of more funds than were awarded under
the contract. If the Indian tribe or tribal organization has a reason to believe
that the total amount required for performance of the contract will be greater than the amount of funds awarded,
it shall provide reasonable notice to
the Secretary. If the Secretary does
not increase the amount of funds
awarded under the contract, the Indian
tribe or tribal organization may suspend performance of the contract until
sufficient additional funds are awarded.
§ 900.131 What role does the Secretary
play during the performance of a
self-determination
construction
contract?
(a) If the Indian tribe or tribal organization is contracting solely to perform construction management services either under this subpart or section 108 of the Act, the Secretary has
the following responsibilities:
(1) The Secretary is responsible for
the successful completion of the
project in accordance with the approved contract documents. In fulfilling those responsibilities, the Secretary shall consult with the Indian
tribe or tribal organization on a regular basis as agreed to by the parties to

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BIA, DOI, and IHS, HHS

§ 900.131

facilitate the exchange of information
between the Indian tribe or tribal organization and Secretary;
(2) The Secretary shall provide the
Indian tribe or tribal organization with
regular opportunities to review work
produced to determine compliance with
the following documents:
(i) The POR, during the conduct of
design phase activities. The Secretary
shall provide the Indian tribe or tribal
organization with an opportunity to review the project construction documents at the concept phase, the schematic phase, the design development
phase, and the final construction documents phase, or as otherwise negotiated. Upon receipt of project construction documents for review, the Indian tribe or tribal organization shall
not take more than 21 days to make
available to the Secretary any comments or objections to the construction documents as submitted by the
Secretary. Resolution of any comments
or objections shall be in accordance
with dispute resolution procedures as
agreed to by the parties and contained
in the contract; or
(ii) The project construction documents, during conduct of the construction phase activities. The Indian tribe
or tribal organization shall have the
right to conduct monthly or critical
milestone on-site monitoring visits or
as negotiated with the Secretary;
(b) If the Indian tribe or tribal organization is contracting to perform design and/or construction phase activities, the Secretary shall have the following responsibilities:
(1) In carrying out the responsibilities of this section, and specifically in
carrying out review, comment, and approval functions under this section, the
Secretary shall provide for full tribal
participation in the decision making
process and shall honor tribal preferences and recommendations to the
greatest extent feasible. This includes
promptly notifying the Indian tribe or
tribal organization of any concerns or
issues in writing that may lead to disapproval, meeting with the Indian tribe
or tribal organization to discuss these
concerns and issues and to share relevant information and documents, and
making a good faith effort to resolve
all issues and concerns of the Indian

tribe or tribal organization. The time
allowed for Secretarial review, comment, and approval shall be no more
than 21 days per review unless a different time period is negotiated and
specified in individual contracts. The
21-day time period may be extended if
the Indian tribe or tribal organization
agrees to the extension in writing. Disagreements over the Secretary’s decisions in carrying out these responsibilities shall be handled under subpart N
governing contract disputes under the
Contract Disputes Act.
(2) To the extent the construction
project is subject to NEPA or other environmental laws, the appropriate Secretary shall make the final determination under such laws. All other environmentally related functions are
contractible.
(3) If the Indian tribe or tribal organization conducts planning activities
under this subpart, the Secretary shall
review and approve final planning documents for the project to ensure compliance with applicable planning standards.
(4) When a contract or portion of a
contract is for project construction activities, the Secretary may rely on the
Indian tribe or tribal organization’s
cost estimate or the Secretary may obtain an independent government cost
estimate that is derived from the final
project plans and specifications. The
Secretary shall obtain the cost estimate, if any, within 90 days or less of
receiving the final plans and specifications from the Indian tribe or tribal organization and shall provide all supporting documentation of the independent cost estimate to the Indian
tribe or tribal organization within the
90 day time limit.
(5) If the contracted project involves
design activities, the Secretary shall
have the authority to review for general compliance with the contract requirements and provide written comments on the project plans and specifications only at the concept phase, the
schematic phase, the design development phase and the final construction
documents phase, and approve for general compliance with contract requirements the project plans and specifications only at the schematic phase and

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§ 900.131

25 CFR Ch. V (4–1–15 Edition)

the final construction documents phase
or as otherwise negotiated.
(6) If the contracted project involves
design activities, the Secretary reserves a royalty-free, nonexclusive, and
irrevocable license to reproduce, publish or otherwise use, for Federal government purposes:
(i) The copyright in any work developed under a contract or subcontract of
this subpart; and
(ii) Any rights of copyright to which
an Indian tribe or tribal organization
or a tribal subcontractor purchases
ownership through this contract.
(7) Changes that require an increase
to the negotiated contract budget or an
increase in the negotiated performance
period or are a significant departure
from the scope or objective of the
project shall require approval of the
Secretary.
(8) Review and comment on specific
shop drawings as negotiated and specified in individual contracts.
(9) The Secretary may conduct
monthly on-site monitoring visits, or
alternatively if negotiated with the Indian tribe or tribal organization, critical milestone on-site monitoring visits.
(10) The Secretary retains the right
to conduct final project inspections
jointly with the Indian tribe or tribal
organization and to accept the building
or facility. If the Secretary identifies
problems during final project inspections the information shall be provide
to the Indian tribe or tribal organization and shall be limited to items that
are materially noncompliant.
(11) The Secretary can require an Indian tribe or tribal organization to suspend work under a contract in accordance with this paragraph. The Secretary may suspend a contract for no
more than 30 days unless the Indian
tribe or tribal organization has failed
to correct the reason(s) for the suspension or unless the cause of the suspension cannot be resolved through either
the efforts of the Secretary or the Indian tribe or tribal organization.
(i) The following are reasons the Secretary may suspend work under a selfdetermination contract for construction:
(A) Differing site conditions encountered upon commencement of construc-

tion activities that impact health or
safety concerns or shall require an increase in the negotiated project budget;
(B) The Secretary discovers materially non-compliant work;
(C) Funds allocated for the project
that is the subject of this contract are
rescinded by Congressional action; or
(D) Other Congressional actions
occur that materially affect the subject matter of the contract.
(ii) If the Secretary wishes to suspend the work, the Secretary shall first
provide written notice and an opportunity for the Indian tribe or tribal organization to correct the problem. The
Secretary may direct the Indian tribe
or tribal organization to suspend temporarily work under a contract only
after providing a minimum of 5 working days’ advance written notice to the
Indian tribe or tribal organization describing the nature of the performance
deficiencies or imminent safety, health
or environmental issues which are the
cause for suspending the work.
(iii) The Indian tribe or tribal organization shall be compensated for reasonable costs, including but not limited to
overhead costs, incurred due to any
suspension of work that occurred
through no fault of the Indian tribe or
tribal organization.
(iv) Disputes arising as a result of a
suspension of the work by the Secretary shall be subject to the Contract
Disputes Act or any other alternative
dispute resolution mechanism as negotiated between and agreed to by the
parties and contained in the contract.
(12) The Secretary can terminate the
project for cause in the event non-compliant work is not corrected through
the suspension process specified in
paragraph (11) of this section.
(13) The Secretary retains authority
to terminate the project for convenience for the following reasons:
(i) Termination for convenience is requested by the Indian tribe or tribal organization;
(ii) Termination for convenience is
requested by the Secretary and agreed
to by the Indian tribe or tribal organization;
(iii) Funds allocated for the project
that is the subject of the contract are
rescinded by Congressional action;

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BIA, DOI, and IHS, HHS

§ 900.134

(iv) Other Congressional actions take
place that affect the subject matter of
the contract;
(v) If the Secretary terminates a selfdetermination construction contract
for convenience, the Secretary shall
provide the Indian tribe or tribal organization 21 days advance written notice
of intent to terminate a contract for
convenience; or
(vi) The Indian tribe or tribal organization shall be compensated for reasonable costs incurred due to termination
of the contract.

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§ 900.132 Once a contract and/or grant
is awarded, how will the Indian
tribe or tribal organization receive
payments?
(a) A schedule for advance payments
shall be developed based on progress,
need, and other considerations in accordance with applicable law. The payment schedule shall be negotiated by
the parties and included in the contract. The payment schedule may be
adjusted as negotiated by the parties
during the course of the project based
on progress and need.
(b) Payments shall be made to the Indian tribe or tribal organization according to the payment schedule contained in the contract. If the contract
does not provide for the length of each
allocation period, the Secretary shall
make payments to the Indian tribe or
tribal organization at least quarterly.
Each allocation shall be adequate to
provide funds for the contract activities anticipated to be conducted during
the allocation period, except that:
(1) The first allocation may be greater than subsequent allocations and include mobilization costs, and contingency funds described in § 900.128(e)(8);
and
(2) Any allocation may include funds
for payment for materials that will be
used during subsequent allocation periods.
(c) The Indian tribe or tribal organization may propose a schedule of payment amounts measured by time or
measured by phase of the project (e.g.,
planning, design, construction).
(d) The amount of each payment allocation shall be stated in the Indian
tribe or tribal organization’s contract
proposal. Upon award of the contract,

the Secretary shall transfer the
amount of the first allocation to the
Indian tribe or tribal organization
within 21 days after the date of contract award. The second allocation
shall be made not later than 7 days before the end of the first allocation period.
(e) Not later than 7 days before the
end of each subsequent allocation period after the second allocation, the
Secretary shall transfer to the Indian
tribe or tribal organization the amount
for the next allocation period, unless
the Indian tribe or tribal organization
is delinquent in submission of allocation period progress reports and financial reports or the Secretary takes action to suspend or terminate the contract in accordance with § 900.131(b)(11),
§ 900.131(b)(12), or § 900.131(b)(13).
§ 900.133 Does the declination process
or the Contract Dispute Act apply
to construction contract amendments proposed either by an Indian
tribe or tribal organization or the
Secretary?
The Contract Disputes Act generally
applies to such amendments. However,
the declination process and the procedures in § 900.122 and § 900.123 apply to
the proposal by an Indian tribe or tribal organization when the proposal is
for a new project, a new phase or discreet stage of a phase of a project, or
an expansion of a project resulting
from an additional allocation of funds
by the Secretary under § 900.120.
§ 900.134 At the end of a self-determination construction contract,
what happens to savings on a costreimbursement contract?
The savings shall be used by the Indian tribe or tribal organization to provide additional services or benefits
under the contract. Unexpended contingency funds obligated to the contract, and remaining at the end of the
contract, are savings. No further approval or justifying documentation by
the Indian tribe or tribal organization
shall be required before expenditure of
funds.

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§ 900.135

25 CFR Ch. V (4–1–15 Edition)

§ 900.135 May the time frames for action set out in this subpart be reduced?
Yes. The time frames in this subpart
are intended to be maximum times and
may be reduced based on urgency and
need, by agreement of the parties. If
the Indian tribe or tribal organization
requests reduced time frames for action due to unusual or special conditions (such as limited construction periods), the Secretary shall make a good
faith effort to accommodate the requested time frames.

the impact upon the Indian tribe or
tribal organization if the waiver is not
granted, and the specific contract(s) to
which the waiver will apply.

§ 900.136 Do tribal employment rights
ordinances apply to construction
contracts and subcontracts?
Yes. Tribal employment rights ordinances do apply to construction contracts and subcontracts pursuant to
section 7(b) and section 7(c) of the Act.

The Secretary shall approve or deny
a waiver within 90 days after the Secretary receives a written waiver request. The Secretary’s decision shall be
in writing. If the requested waiver is
denied, the Secretary shall include in
the decision a full explanation of the
basis for the decision.

§ 900.137 Do all provisions of the other
subparts apply to contracts awarded under this subpart?
Yes, except as otherwise provided in
this subpart and unless excluded as follows: programmatic reports and data
requirements, reassumption, contract
review and approval process, contract
proposal contents, and § 900.150 (d) and
(e) of these regulations.

Subpart K—Waiver Procedures

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§ 900.140 Can any provision of the regulations under this part be waived?
Yes. Upon the request of an Indian
tribe or tribal organization, the Secretary shall waive any provision of
these regulations, including any cost
principles adopted by the regulations
under this part, if the Secretary finds
that granting the waiver is either in
the best interest of the Indians served
by the contract, or is consistent with
the policies of the Act and is not contrary to statutory law.
§ 900.141 How does an Indian tribe or
tribal organization get a waiver?
To obtain a waiver, an Indian tribe or
tribal organization shall submit a written request to the Secretary identifying the regulation to be waived and
the basis for the request. The Indian
tribe or tribal organization shall explain the intended effect of the waiver,

§ 900.142 Does an Indian tribe or tribal
organization’s waiver request have
to be included in an initial contract
proposal?
No. Although a waiver request may
be included in a contract proposal, it
can also be submitted separately.
§ 900.143 How
processed?

is

a

waiver

§ 900.144 What happens if the Secretary makes no decision within the
90-day period?
The waiver request is deemed approved.
§ 900.145 On what basis may the Secretary deny a waiver request?
Consistent with section 107(e) of the
Act, the Secretary may only deny a
waiver request based on a specific written finding. The finding must clearly
demonstrate (or be supported by controlling legal authority) that if the
waiver is granted:
(a) The service to be rendered to the
Indian beneficiaries of the particular
program or function to be contracted
will not be satisfactory;
(b) Adequate protection of trust resources is not assured;
(c) The proposed project or function
to be contracted for cannot be properly
completed or maintained by the proposed contract;
(d) The amount of funds proposed
under the contract is in excess of the
applicable funding level for the contract, as determined under section
106(a) of the Act; or
(e) The program, function, service, or
activity (or portion of it) that is the
subject of the proposal is beyond the
scope of programs, functions, services,
or activities that are contractible

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BIA, DOI, and IHS, HHS

§ 900.151

under the Act because the proposal includes activities that cannot lawfully
be carried out by the contractor.
§ 900.146 Is technical assistance available for waiver requests?
Yes. Technical assistance is available
as provided in § 900.7 to prepare a waiver request or to overcome any stated
objection which the Secretary might
have to the request.
§ 900.147 What appeal rights are available?
If the Secretary denies a waiver request, the Indian tribe or tribal organization has the right to appeal the decision and request a hearing on the
record under the procedures for hearings and appeals contained in subpart
L of these regulations. Alternatively,
the Indian tribe or tribal organization
may sue in Federal district court to
challenge the Secretary’s action.
§ 900.148 How can an Indian tribe or
tribal organization secure a determination that a law or regulation
has been superseded by the Indian
Self-Determination Act, as specified
in section 107(b) of the Act?
Any Indian tribe or tribal organization may at any time submit a request
to the Secretary for a determination
that any law or regulation has been superseded by the Act and that the law
has no applicability to any contract or
proposed contract under the Act. The
Secretary is required to provide an initial decision on such a request within
90 days after receipt. If such a request
is denied, the Indian tribe or tribal organization may appeal under subpart L
of these regulations. The Secretary
shall provide notice of each determination made under this subpart to all Indian tribes and tribal organizations.

Subpart L—Appeals

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APPEALS OTHER THAN EMERGENCY REASSUMPTION AND SUSPENSION, WITHHOLDING OR DELAY IN PAYMENT
§ 900.150 What decisions can an Indian
tribe or tribal organization appeal
under this subpart?
(a) A decision to decline to award a
self-determination contract, or a por-

tion thereof, under section 102 of the
Act;
(b) A decision to decline to award a
construction contract, or a portion
thereof, under sections 105(m) and 102
of the Act;
(c) A decision to decline a proposed
amendment to a self-determination
contract, or a portion thereof, under
section 102 of the Act;
(d) A decision not to approve a proposal, in whole or in part, to redesign a
program;
(e) A decision to rescind and reassume a self-determination contract,
in whole or in part, under section 109 of
the Act except for emergency reassumptions;
(f) A decision to refuse to waive a
regulation under section 107(e) of the
Act;
(g) A disagreement between an Indian
tribe or tribal organization and the
Federal government over proposed reporting requirements;
(h) A decision to refuse to allow an
Indian tribe or tribal organization to
convert a contract to mature status,
under section 4(h) of the Act;
(i) All other appealable pre-award decisions by a Federal official as specified in these regulations, whether an
official of the Department of the Interior or the Department of Health and
Human Services; or
(j) A decision relating to a request
for a determination that a law or regulation has been superseded by the Act.
§ 900.151 Are there any appeals this
subpart does not cover?
This subpart does not cover:
(a) Disputes which arise after a selfdetermination
contract
has
been
awarded, or emergency reassumption of
self-determination contracts or suspension of payments under self-determination contracts, which are covered
under § 900.170 through § 900.176 of these
regulations.
(b) Other post-award contract disputes, which are covered under subpart
N.
(c) Denials under the Freedom of Information Act, 5 U.S.C. 552, which may
be appealed under 43 CFR 2 for the Department of the Interior and 45 CFR 5
for the Department of Health and
Human Services; and

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§ 900.152

25 CFR Ch. V (4–1–15 Edition)

(d) Decisions relating to the award of
discretionary grants under section 103
of the Act, which may be appealed
under 25 CFR 2 for the Department of
the Interior, and under 45 CFR 5 for the
Department of Health and Human
Services.
§ 900.152 How does an Indian tribe or
tribal organization know where and
when to file its appeal from decisions made by agencies of DOI or
DHHS?
Every decision in any of the ten
areas listed above shall contain information which shall tell the Indian
tribe or tribal organization where and
when to file the Indian tribe or tribal
organization’s appeal. Each decision
shall include the following statement:
Within 30 days of the receipt of this decision, you may request an informal conference under 25 CFR 900.154, or appeal this
decision under 25 CFR 900.158 to the Interior
Board of Indian Appeals (IBIA). Should you
decide to appeal this decision, you may request a hearing on the record. An appeal to
the IBIA under 25 CFR 900.158 shall be filed
with the IBIA by certified mail or by hand
delivery at the following address: Board of
Indian Appeals, U.S. Department of the Interior, 801 North Quincy Street, Arlington, VA
22203. You shall serve copies of your Notice
of Appeal on the Secretary and on the official whose decision is being appealed. You
shall certify to the IBIA that you have
served these copies.

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§ 900.153 Does an Indian tribe or tribal
organization have any options besides an appeal?
Yes. The Indian tribe or tribal organization may request an informal conference. An informal conference is a
way to resolve issues as quickly as possible, without the need for a formal
hearing. The Indian tribe or tribal organization may also choose to sue in
U.S. District Court under section
102(b)(3) and section 110(a) of the Act.
§ 900.154 How does an Indian tribe or
tribal organization request an informal conference?
The Indian tribe or tribal organization shall file its request for an informal conference with the office of the
person whose decision it is appealing,
within 30 days of the day it receives
the decision. The Indian tribe or tribal
organization may either hand-deliver

the request for an informal conference
to that person’s office, or mail it by
certified mail, return receipt requested. If the Indian tribe or tribal organization mails the request, it will be
considered filed on the date the Indian
tribe or tribal organization mailed it
by certified mail.
§ 900.155 How is
ference held?

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(a) The informal conference shall be
held within 30 days of the date the request was received, unless the Indian
tribe or tribal organization and the authorized representative of the Secretary agree on another date.
(b) If possible, the informal conference will be held at the Indian tribe
or tribal organization’s office. If the
meeting cannot be held at the Indian
tribe or tribal organization’s office and
is held more than fifty miles from its
office, the Secretary shall arrange to
pay transportation costs and per diem
for incidental expenses to allow for
adequate representation of the Indian
tribe or tribal organization.
(c) The informal conference shall be
conducted by a designated representative of the Secretary.
(d) Only people who are the designated representatives of the Indian
tribe or tribal organization, or authorized by the Secretary of Health and
Human Services or by the appropriate
agency of the Department of the Interior, are allowed to make presentations
at the informal conference.
§ 900.156 What happens after the informal conference?
(a) Within 10 days of the informal
conference, the person who conducted
the informal conference shall prepare
and mail to the Indian tribe or tribal
organization a written report which
summarizes what happened at the informal conference and a recommended
decision.
(b) Every report of an informal conference shall contain the following language:
Within 30 days of the receipt of this recommended decision, you may file an appeal
of the initial decision of the DOI or DHHS
agency with the Interior Board of Indian Appeals (IBIA) under 25 CFR 900.158. You may
request a hearing on the record. An appeal to

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BIA, DOI, and IHS, HHS

§ 900.160

the IBIA under 25 CFR 900.158 shall be filed
with the IBIA by certified mail or hand delivery at the following address: Board of Indian Appeals, U.S. Department of the Interior, 801 North Quincy Street, Arlington, VA
22203. You shall serve copies of your Notice
of Appeal on the Secretary and on the official whose decision is being appealed. You
shall certify to the IBIA that you have
served these copies.
[61 FR 32501, June 24, 1996, as amended at 75
FR 31701, June 4, 2010]

§ 900.157 Is the recommended decision
always final?
No. If the Indian tribe or tribal organization is dissatisfied with the recommended decision, it may still appeal
the initial decision within 30 days of
receiving the recommended decision
and the report of the informal conference. If the Indian tribe or tribal organization does not file a notice of appeal within 30 days, or before the expiration of the extension it has received
under § 900.159, the recommended decision becomes final.

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§ 900.158 How does an Indian tribe or
tribal organization appeal the initial decision, if it does not request
an informal conference or if it does
not agree with the recommended
decision resulting from the informal conference?
(a) If the Indian tribe or tribal organization decides to appeal, it shall file
a notice of appeal with the IBIA within
30 days of receiving either the initial
decision or the recommended decision.
(b) The Indian tribe or tribal organization may either hand-deliver the notice of appeal to the IBIA, or mail it by
certified mail, return receipt requested. If the Indian tribe or tribal organization mails the Notice of Appeal,
it will be considered filed on the date
the Indian tribe or tribal organization
mailed it by certified mail. The Indian
tribe or tribal organization should mail
the notice of appeal to: Board of Indian
Appeals, U.S. Department of the Interior, 801 North Quincy Street, Arlington, VA 22203.
(c) The Notice of Appeal shall:
(1) Briefly state why the Indian tribe
or tribal organization thinks the initial decision is wrong;
(2) Briefly identify the issues involved in the appeal; and

(3) State whether the Indian tribe or
tribal organization wants a hearing on
the record, or whether the Indian tribe
or tribal organization wants to waive
its right to a hearing.
(d) The Indian tribe or tribal organization shall serve a copy of the notice
of appeal upon the official whose decision it is appealing. The Indian tribe or
tribal organization shall certify to the
IBIA that it has done so.
(e) The authorized representative of
the Secretary of Health and Human
Services or the authorized representative of the Secretary of the Interior
will be considered a party to all appeals filed with the IBIA under the Act.
§ 900.159 May an Indian tribe or tribal
organization get an extension of
time to file a notice of appeal?
Yes. If the Indian tribe or tribal organization needs more time, it can request an extension of time to file its
Notice of Appeal within 60 days of receiving either the initial decision or
the recommended decision resulting
from the informal conference. The request of the Indian tribe or tribal organization shall be in writing, and shall
give a reason for not filing its notice of
appeal within the 30-day time period. If
the Indian tribe or tribal organization
has a valid reason for not filing its notice of appeal on time, it may receive
an extension from the IBIA.
§ 900.160 What happens after an Indian tribe or tribal organization
files an appeal?
(a) Within 5 days of receiving the Indian tribe or tribal organization’s notice of appeal, the IBIA will decide
whether
the
appeal
falls
under
§ 900.150(a) through § 900.150(g). If so, the
Indian tribe or tribal organization is
entitled to a hearing.
(1) If the IBIA determines that the
appeal of the Indian tribe or tribal organization falls under § 900.150(h),
§ 900.150(i), or § 900.150(j), and the Indian
tribe or tribal organization has requested a hearing, the IBIA will grant
the request for a hearing unless the
IBIA determines that there are no genuine issues of material fact to be resolved.

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§ 900.161

25 CFR Ch. V (4–1–15 Edition)

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(2) If the IBIA cannot make that decision based on the information included in the notice of appeal, the IBIA
may ask for additional statements
from the Indian tribe or tribal organization, or from the appropriate Federal
agency. If the IBIA asks for more
statements, it will make its decision
within 5 days of receiving those statements.
(b) If the IBIA decides that the Indian tribe or tribal organization is not
entitled to a hearing or if the Indian
tribe or tribal organization has waived
its right to a hearing on the record, the
IBIA will ask for the administrative
record under 43 CFR 4.335. The IBIA
shall tell the parties that the appeal
will be considered under the regulations at 43 CFR 4, subpart D, except the
case shall be docketed immediately,
without waiting for the 20-day period
described in 43 CFR 4.336.
§ 900.161 How is a hearing arranged?
(a) If a hearing is to be held, the IBIA
will refer the Indian tribe or tribal organization’s case to the Hearings Division of the Office of Hearings and Appeals of the U.S. Department of the Interior. The case will then be assigned
to an Administrative Law Judge (ALJ),
appointed under 5 U.S.C. 3105.
(b) Within 15 days of the date of the
referral, the ALJ will hold a pre-hearing conference, by telephone or in person, to decide whether an evidentiary
hearing is necessary, or whether it is
possible to decide the appeal based on
the written record. At the pre-hearing
conference the ALJ will provide for:
(1) A briefing and discovery schedule;
(2) A schedule for the exchange of information, including, but not limited
to witness and exhibit lists, if an evidentiary hearing is to be held;
(3) The simplification or clarification
of issues;
(4) The limitation of the number of
expert witnesses, or avoidance of similar cumulative evidence, if an evidentiary hearing is to be held;
(5) The possibility of agreement disposing of all or any of the issues in dispute; and
(6) Such other matters as may aid in
the disposition of the appeal.
(c) The ALJ shall order a written
record to be made of any conference re-

sults that are not reflected in a transcript.
§ 900.162 What happens when a hearing is necessary?
(a) The ALJ shall hold a hearing
within 60 days of the date of the order
referring the appeal to the ALJ, unless
the parties agree to have the hearing
on a later date.
(b) At least 30 days before the hearing, the government agency shall file
and serve the Indian tribe or tribal organization with a response to the notice of appeal.
(c) If the hearing is held more than 50
miles from the Indian tribe or tribal
organization’s office, the Secretary
shall arrange to pay transportation
costs and per diem for incidental expenses to allow for adequate representation of the Indian tribe or tribal organization.
(d) The hearing shall be conducted in
accordance with the Administrative
Procedure Act, 5 U.S.C. 556.
§ 900.163 What is the Secretary’s burden of proof for appeals from decisions under § 900.150(a) through
§ 900.150(g)?
For those appeals, the Secretary has
the burden of proof (as required by section 102(e)(1) of the Act) to establish by
clearly demonstrating the validity of
the grounds for declining the contract
proposal.
§ 900.164 What rights do Indian tribes,
tribal organizations, and the government have during the appeal
process?
Both the Indian tribe or tribal organization and the government agency
have the same rights during the appeal
process. These rights include the right
to:
(a) Be represented by legal counsel;
(b) Have the parties provide witnesses who have knowledge of the relevant issues, including specific witnesses with that knowledge, who are
requested by either party;
(c) Cross-examine witnesses;
(d) Introduce oral or documentary
evidence, or both;
(e) Require that oral testimony be
under oath;

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BIA, DOI, and IHS, HHS

§ 900.167

(f) Receive a copy of the transcript of
the hearing, and copies of all documentary evidence which is introduced at
the hearing;
(g) Compel the presence of witnesses,
or the production of documents, or
both, by subpoena at hearings or at
depositions;
(h) Take depositions, to request the
production of documents, to serve interrogatories on other parties, and to
request admissions; and
(i) Any other procedural rights under
the Administrative Procedure Act, 5
U.S.C. 556.
§ 900.165 What happens after the hearing?
(a) Within 30 days of the end of the
formal hearing or any post-hearing
briefing schedule established by the
ALJ, the ALJ shall send all the parties
a recommended decision, by certified
mail, return receipt requested. The recommended decision shall contain the
ALJ’s findings of fact and conclusions
of law on all the issues. The recommended decision shall also state
that the Indian tribe or tribal organization has the right to object to the
recommended decision.
(b) If the appeal involves the Department of Health and Human Services,
the recommended decision shall contain the following statement:
Within 30 days of the receipt of this recommended decision, you may file an objection to the recommended decision with the
Secretary of Health and Human Services
under 25 CFR 900.166. An appeal to the Secretary under 25 CFR 900.166 shall be filed at
the following address: Department of Health
and Human Services, 200 Independence Ave.
S.W., Washington, DC, 20201. You shall serve
copies of your notice of appeal on the official
whose decision is being appealed. You shall
certify to the Secretary that you have served
this copy. If neither party files an objection
to the recommended decision within 30 days,
the recommended decision will become final.

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(c) If the appeal involves the Department of the Interior, the recommended
decision shall contain the following
statement:
Within 30 days of the receipt of this recommended decision, you may file an objection to the recommended decision with the
Interior Board of Indian Appeals (IBIA)
under 25 CFR 900.166. An appeal to the IBIA
under 25 CFR 900.166 shall be filed at the fol-

lowing address: Board of Indian Appeals, 801
North Quincy Street, Arlington, VA 22203.
You shall serve copies of your notice of appeal on the Secretary of the Interior, and on
the official whose decision is being appealed.
You shall certify to the IBIA that you have
served these copies. If neither party files an
objection to the recommended decision within 30 days, the recommended decision will
become final.
[61 FR 32501, June 24, 1996, as amended at 75
FR 31701, June 4, 2010]

§ 900.166 Is the recommended decision
always final?
No. Any party to the appeal may file
precise and specific written objections
to the recommended decision, or any
other comments, within 30 days of receiving the recommended decision. Objections shall be served on all other
parties. The recommended decision
shall become final 30 days after the Indian tribe or tribal organization receives the ALJ’s recommended decision, unless a written statement of objections is filed with the Secretary of
Health and Human Services or the
IBIA during the 30-day period. If no
party files a written statement of objections within 30 days, the recommended decision shall become final.
§ 900.167 If an Indian tribe or tribal
organization objects to the recommended decision, what will the
Secretary of Health and Human
Services or the IBIA do?
(a) The Secretary of Health and
Human Services or the IBIA has 20
days from the date it receives any
timely written objections to modify,
adopt, or reverse the recommended decision. If the Secretary of Health and
Human Services or the IBIA does not
modify or reverse the recommended decision during that time, the recommended decision automatically becomes final.
(b) When reviewing the recommended
decision, the IBIA or the Secretary
may consider and decide all issues
properly raised by any party to the appeal, based on the record.
(c) The decision of the Secretary or
the IBIA shall:
(1) Be in writing;
(2) Specify the findings of fact or conclusions of law which are modified or
reversed;

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§ 900.168

25 CFR Ch. V (4–1–15 Edition)

(3) Give reasons for the decision,
based on the record; and
(4) State that the decision is final for
the Department.
§ 900.168 Will an appeal hurt the Indian tribe or tribal organization’s
position in other contract negotiations?
No. A pending appeal will not affect
or prevent the negotiation or award of
another contract.
§ 900.169 Will the decisions on appeals
be available for the public to review?
Yes. The Secretary shall publish all
final decisions from the ALJs, the
IBIA, and the Secretary of Health and
Human Services.
APPEALS OF EMERGENCY REASSUMPTION
OF SELF-DETERMINATION CONTRACTS
OR SUSPENSIONS, WITHHOLDING OR
DELAY OF PAYMENTS UNDER A SELFDETERMINATION CONTRACT
§ 900.170 What happens in the case of
emergency reassumption or suspension or withholding or delay of payments?
(a) This subpart applies when the
Secretary gives notice to an Indian
tribe or tribal organization that the
Secretary intends to:
(1) Immediately rescind a contract or
grant and reassume a program; or
(2) Suspend, withhold, or delay payment under a contract.
(b) When the Secretary advises an Indian tribe or tribal organization that
the Secretary intends to take an action
referred to in paragraph (a)(1) of this
section, the Secretary shall also notify
the Deputy Director of the Office of
Hearings and Appeals, Department of
the Interior, 801 North Quincy Street,
Arlington, VA 22203.

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§ 900.171

Will there be a hearing?

Yes. The Deputy Director of the Office of Hearings and Appeals shall appoint an Administrative Law Judge
(ALJ) to hold a hearing.
(a) The hearing shall be held within
10 days of the date of the notice referred to in § 900.170 unless the Indian
tribe or tribal organization agrees to a
later date.

(b) If possible, the hearing will be
held at the office of the Indian tribe or
tribal organization. If the hearing is
held more than 50 miles from the office
of the Indian tribe or tribal organization, the Secretary shall arrange to
pay transportation costs and per diem
for incidental expenses. This will allow
for adequate representation of the Indian tribe or tribal organization.
§ 900.172 What happens after the hearing?
(a) Within 30 days after the end of the
hearing or any post-hearing briefing
schedule established by the ALJ, the
ALJ shall send all parties a recommended decision by certified mail,
return receipt requested. The recommended decision shall contain the
ALJ’s findings of fact and conclusions
of law on all the issues. The recommended decision shall also state
that the Indian tribe or tribal organization has the right to object to the
recommended decision.
(b) If the appeal involves the Department of Health and Human Services,
the recommended decision shall contain the following statement:
Within 15 days of the receipt of this recommended decision, you may file an objection to the recommended decision with the
Secretary of Health and Human Services
under 25 CFR 900.173. An appeal to the Secretary under 25 CFR 900.173 shall be filed at
the following address: Department of Health
and Human Services, 200 Independence Ave.
S.W., Washington, DC 20201. You shall serve
copies of your notice of appeal on the official
whose decision is being appealed. You shall
certify to the Secretary that you have served
this copy. If neither party files an objection
to the recommended decision within 15 days,
the recommended decision will become final.

(c) If the appeal involves the Department of the Interior, the recommended
decision shall contain the following
statement:
Within 15 days of the receipt of this recommended decision, you may file an objection to the recommended decision with the
Interior Board of Indian Appeals (IBIA)
under 25 CFR 900.173. An appeal to the IBIA
under 25 CFR 900.173 shall be filed at the following address: Board of Indian Appeals, 801
North Quincy Street, Arlington, VA 22203.
You shall serve copies of your notice of appeal on the Secretary of the Interior, and on
the official whose decision is being appealed.
You shall certify to the IBIA that you have

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BIA, DOI, and IHS, HHS

§ 900.181

served these copies. If neither party files an
objection to the recommended decision within 15 days, the recommended decision will
become final.
[61 FR 32501, June 24, 1996, as amended at 75
FR 31701, June 4, 2010]

§ 900.173 Is the recommended decision
always final?
No. Any party to the appeal may file
precise and specific written objections
to the recommended decision, or any
other comments, within 15 days of receiving the recommended decision. You
shall serve a copy of your objections on
the other party. The recommended decision will become final 15 days after
the Indian tribe or tribal organization
receives the ALJ’s recommended decision, unless a written statement of objections is filed with the Secretary of
Health and Human Services or the
IBIA during the 15-day period. If no
party files a written statement of objections within 15 days, the recommended decision will become final.

§ 900.175 Will an appeal hurt an Indian
tribe or tribal organization’s position in other contract negotiations?
No. A pending appeal will not affect
or prevent the negotiation or award of
another contract.
§ 900.176 Will the decisions on appeals
be available for the public to review?
Yes. The Secretary shall publish all
final decisions from the ALJs, the
IBIA, and the Secretary of Health and
Human Services.
APPLICABILITY OF THE EQUAL ACCESS TO
JUSTICE ACT
§ 900.177 Does the Equal Access to Justice Act (EAJA) apply to appeals
under this subpart?
Yes. EAJA claims against DOI or
HHS will be heard under 43 CFR 4.601
through 4.628. For HHS, appeals from
an EAJA award will be according to 25
CFR 900.165(b).
[75 FR 31701, June 4, 2010]

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§ 900.174 If an Indian tribe or tribal
organization objects to the recommended decision, what will the
Secretary of Health and Human
Services or the IBIA do?
(a) The Secretary or the IBIA has 15
days from the date he/she receives
timely written objections to modify,
adopt, or reverse the recommended decision. If the Secretary or the IBIA
does not modify or reverse the recommended decision during that time,
the recommended decision automatically becomes final.
(b) When reviewing the recommended
decision, the IBIA or the Secretary
may consider and decide all issues
properly raised by any party to the appeal, based on the record.
(c) The decision of the Secretary or
of the IBIA shall:
(1) Be in writing;
(2) Specify the findings of fact or conclusions of law which are modified or
reversed;
(3) Give reasons for the decision,
based on the record; and
(4) State that the decision is final for
the Department.

Subpart M—Federal Tort Claims
Act Coverage General Provisions
§ 900.180 What
cover?

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subpart

This subpart explains the applicability of the Federal Tort Claims Act
(FTCA). This section covers:
(a) Coverage of claims arising out of
the performance of medical-related
functions
under
self-determination
contracts;
(b) Coverage of claims arising out of
the performance of non-medical-related
functions
under
self-determination
contracts; and
(c) Procedures for filing claims under
FTCA.
§ 900.181 What definitions apply to this
subpart?
Indian contractor means:
(1) In California, subcontractors of
the California Rural Indian Health
Board, Inc. or, subject to approval of
the IHS Director after consultation
with the DHHS Office of General Counsel, subcontractors of an Indian tribe
or tribal organization which are:

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§ 900.182

25 CFR Ch. V (4–1–15 Edition)

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(i) Governed by Indians eligible to receive services from the Indian Health
Service;
(ii) Which carry out comprehensive
IHS service programs within geographically defined service areas; and
(iii) Which are selected and identified
through tribal resolution as the local
provider of Indian health care services.
(2) Subject to the approval of the IHS
Director after consultation with the
DHHS Office of General Counsel, Indian
tribes and tribal organizations which
meet in all respects the requirements
of the Indian Self-Determination Act
to contract directly with the Federal
Government but which choose through
tribal resolution to subcontract to
carry out IHS service programs within
geographically defined service areas
with another Indian tribe or tribal organization which contracts directly
with IHS.
(3) Any other contractor that qualifies as an ‘‘Indian contractor’’ under
the Indian Self-Determination Act.

ference with contract rights, unless
otherwise authorized by 28 U.S.C.
2680(h).
(b) What claims may not be pursued
under FTCA? (1) Except as provided in
§ 900.181(a)(1)
and
§ 900.189,
claims
against subcontractors arising out of
the performance of subcontracts with a
self-determination contractor;
(2) Claims for on-the-job injuries
which are covered by workmen’s compensation;
(3) Claims for breach of contract
rather than tort claims; or
(4) Claims resulting from activities
performed by an employee which are
outside the scope of employment.
(c) What remedies are expressly excluded by FTCA and therefore are barred?
(1) Punitive damages, unless otherwise
authorized by 28 U.S.C. 2674; and
(2) Other remedies not permitted
under applicable state law.

§ 900.182 What other statutes and regulations apply to FTCA coverage?

§ 900.184 Is there a deadline for filing
FTCA claims?
Yes. Claims shall be filed within 2
years of the date of accrual. (28 U.S.C.
2401).

A number of other statutes and regulations apply to FTCA coverage, including the Federal Tort Claims Act (28
U.S.C. 1346(b), 2401, 2671–2680) and related Department of Justice regulations in 28 CFR part 14.

§ 900.185 How long does the Federal
government have to process an
FTCA claim after the claim is received by the Federal agency, before a lawsuit may be filed?
Six months.

§ 900.183 Do Indian tribes and tribal
organizations need to be aware of
areas which FTCA does not cover?

§ 900.186 Is it necessary for a self-determination contract to include any
clauses about Federal Tort Claims
Act coverage?
No, it is optional. At the request of
Indian tribes and tribal organizations,
self-determination contracts shall include the following clauses to clarify
the scope of FTCA coverage:
(a) The following clause may be used
for all contracts:

Yes. There are claims against self-determination contractors which are not
covered by FTCA, claims which may
not be pursued under FTCA, and remedies that are excluded by FTCA. General guidance is provided below as to
these matters but is not intended as a
definitive description of coverage,
which is subject to review by the Department of Justice and the courts on
a case-by-case basis.
(a) What claims are expressly barred by
FTCA and therefore may not be made
against the United States, an Indian tribe
or tribal organization? Any claim under
28 U.S.C. 2680, including claims arising
out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or inter-

For purposes of Federal Tort Claims Act
coverage, the contractor and its employees
(including individuals performing personal
services contracts with the contractor to
provide health care services) are deemed to
be employees of the Federal government
while performing work under this contract.
This status is not changed by the source of
the funds used by the contractor to pay the
employee’s salary and benefits unless the
employee receives additional compensation
for performing covered services from anyone
other than the contractor.

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BIA, DOI, and IHS, HHS

§ 900.189

(b) The following clause is for IHS
contracts only:
Under this contract, the contractor’s employee may be required as a condition of employment to provide health services to nonIHS beneficiaries in order to meet contractual obligations. These services may be provided in either contractor or non-contractor
facilities. The employee’s status for Federal
Tort Claims Act purposes is not affected.

§ 900.187 Does FTCA apply to a self-determination contract if FTCA is not
referenced in the contract?
Yes.

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§ 900.188 To what extent shall the contractor cooperate with the Federal
government in connection with tort
claims arising out of the contractor’s performance?
(a) The contractor shall designate an
individual to serve as tort claims liaison with the Federal government.
(b) As part of the notification required by 28 U.S.C. 2679(c), the contractor shall notify the Secretary immediately in writing of any tort claim
(including any proceeding before an administrative agency or court) filed
against the contractor or any of its
employees that relates to performance
of a self-determination contract or subcontract.
(c) The contractor, through its designated tort claims liaison, shall assist
the appropriate Federal agency in preparing a comprehensive, accurate, and
unbiased report of the incident so that
the claim may be properly evaluated.
This report should be completed within
60 days of notification of the filing of
the tort claim. The report should be
complete in every significant detail
and include as appropriate:
(1) The date, time and exact place of
the accident or incident;
(2) A concise and complete statement
of the circumstances of the accident or
incident;
(3) The names and addresses of tribal
and/or Federal employees involved as
participants or witnesses;
(4) The names and addresses of all
other eyewitnesses;
(5) An accurate description of all government and other privately-owned
property involved and the nature and
amount of damage, if any;

(6) A statement as to whether any
person involved was cited for violating
a Federal, State or tribal law, ordinance, or regulation;
(7) The contractor’s determination as
to whether any of its employees (including Federal employees assigned to
the contractor) involved in the incident giving rise to the tort claim were
acting within the scope of their employment in carrying out the contract
at the time the incident occurred;
(8) Copies of all relevant documentation, including available police reports,
statements of witnesses, newspaper accounts, weather reports, plats and photographs of the site or damaged property, such as may be necessary or useful for purposes of claim determination
by the Federal agency; and
(9) Insurance coverage information,
copies of medical bills, and relevant
employment records.
(d) The contractor shall cooperate
with and provide assistance to the U.S.
Department of Justice attorneys assigned to defend the tort claim, including, but not limited to, case preparation, discovery, and trial.
(e) If requested by the Secretary, the
contractor shall make an assignment
and subrogation of all the contractor’s
rights and claims (except those against
the Federal government) arising out of
a tort claim against the contractor.
(f) If requested by the Secretary, the
contractor shall authorize representatives of the Secretary to settle or defend any claim and to represent the
contractor in or take charge of any action. If the Federal government undertakes the settlement or defense of any
claim or action the contractor shall
provide all reasonable additional assistance in reaching a settlement or asserting a defense.
§ 900.189 Does this coverage extend to
subcontractors of self-determination contracts?
No. Subcontractors or subgrantees
providing services to a Public Law 93–
638 contractor or grantee are generally
not covered. The only exceptions are
Indian contractors such as those under
subcontract with the California Rural
Indian Health Board to carry out IHS
programs in geographically defined
service areas in California and personal

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§ 900.190

25 CFR Ch. V (4–1–15 Edition)

services contracts under § 900.193 (for
§ 900.183(b)(1))
or
§ 900.183(b)
(for
§ 900.190).
MEDICAL-RELATED CLAIMS
§ 900.190 Is FTCA the exclusive remedy for a tort claim for personal injury or death resulting from the
performance of a self-determination
contract?
Yes,
except
as
explained
in
§ 900.183(b). No claim may be filed
against a self-determination contractor or employee for personal injury
or death arising from the performance
of medical, surgical, dental, or related
functions by the contractor in carrying
out self-determination contracts under
the Act. Related functions include
services such as those provided by
nurses, laboratory and x-ray technicians, emergency medical technicians
and other health care providers including psychologists and social workers.
All such claims shall be filed against
the United States and are subject to
the limitations and restrictions of the
FTCA.
§ 900.191 Are employees of self-determination
contractors
providing
health services under the self-determination contract protected by
FTCA?
Yes. For the purpose of Federal Tort
Claims Act coverage, an Indian tribe or
tribal organization and its employees
performing medical-related functions
under a self-determination contract are
deemed a part of the Public Health
Service if the employees are acting
within the scope of their employment
in carrying out the contract.

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§ 900.192 What employees are covered
by
FTCA
for
medical-related
claims?
(a) Permanent employees;
(b) Temporary employees;
(c) Persons providing services without compensation in carrying out a
contract;
(d) Persons required because of their
employment by a self-determination
contractor to serve non-IHS beneficiaries (even if the services are provided in facilities not owned by the
contractor); and

(e) Federal employees assigned to the
contract.
§ 900.193 Does FTCA coverage extend
to individuals who provide health
care services under a personal services contract providing services in
a facility that is owned, operated,
or constructed under the jurisdiction of the IHS?
Yes. The coverage extends to individual personal services contractors
providing health services in such a facility, including a facility owned by an
Indian tribe or tribal organization but
operated under a self-determination
contract with IHS.
§ 900.194 Does FTCA coverage extend
to services provided under a staff
privileges agreement with a nonIHS facility where the agreement
requires a health care practitioner
to provide reciprocal services to the
general population?
Yes. Those services are covered, as
long as the contractor’s health care
practitioners do not receive additional
compensation from a third party for
the performance of these services and
they are acting within the scope of
their employment under a self-determination contract. Reciprocal services
include:
(a) Cross-covering other medical personnel who temporarily cannot attend
their patients;
(b) Assisting other personnel with
surgeries or other medical procedures;
(c) Assisting with unstable patients
or at deliveries; or
(d) Assisting in any patient care situation where additional assistance by
health care personnel is needed.
§ 900.195 Does FTCA coverage extend
to the contractor’s health care practitioners providing services to private patients on a fee-for-services
basis when such personnel (not the
self-determination contractor) receive the fee?
No.

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BIA, DOI, and IHS, HHS

§ 900.203

§ 900.196 Do covered services include
the conduct of clinical studies and
investigations and the provision of
emergency services, including the
operation of emergency motor vehicles?
Yes, if the services are provided in
carrying out a self-determination contract. (An emergency motor vehicle is
a vehicle, whether government, contractor, or employee-owned, used to
transport passengers for medical services.)
§ 900.197 Does FTCA cover employees
of the contractor who are paid by
the contractor from funds other
than those provided through the
self-determination contract?
Yes, as long as the services out of
which the claim arose were performed
in carrying out the self-determination
contract.
§ 900.198 Are Federal employees assigned to a self-determination contractor under the Intergovernmental Personnel Act or detailed
under section 214 of the Public
Health Service Act covered to the
same extent that they would be if
working directly for a Federal
agency?
Yes.
§ 900.199 Does FTCA coverage extend
to health care practitioners to
whom staff privileges have been extended in contractor health care facilities operated under a self-determination contract on the condition
that such practitioner provide
health services to IHS beneficiaries
covered by FTCA?
Yes, health care practitioners with
staff privileges in a facility operated
by a contractor are covered when they
perform services to IHS beneficiaries.
Such personnel are not covered when
providing services to non-IHS beneficiaries.

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§ 900.200 May persons who are not Indians or Alaska Natives assert
claims under FTCA?
Yes. Non-Indian individuals served
under the contract whether or not on a
fee-for-service basis, may assert claims
under this subpart.

PROCEDURE FOR FILING MEDICALRELATED CLAIMS
§ 900.201 How should claims arising
out of the performance of medicalrelated functions be filed?
Claims should be filed on Standard
Form 95 (Claim for Damage, Injury or
Death) or by submitting comparable
written information (including a definite amount of monetary damage
claimed) with the Office of the General
Counsel, General Law Division, Claims
Office, 330 Independence Avenue, SW,
Room 4256, Wilbur J. Cohen Federal
Building, Washington, DC 20201, or at
such other address as shall have been
provided to the contractor in writing.
[61 FR 32501, June 24, 1996, as amended at 72
FR 52791, Sept. 17, 2007]

§ 900.202 What should a self-determination contractor or a contractor’s employee do on receiving such
a claim?
They should immediately forward the
claim to the PHS Claims Branch at the
address indicated in § 900.201 and notify
the contractor’s tort claims liaison.
§ 900.203 If the contractor or contractor’s employee receives a summons
and/or a complaint alleging a tort
covered by FTCA, what should the
contractor do?
As part of the notification required
by 28 U.S.C. 2679(c), the contractor
should immediately inform the Chief,
Litigation Branch, Business and Administrative Law Division, Office of
General Counsel, Department of Health
and Human Services, 330 Independence
Avenue SW., Room 5362, Washington,
DC 20201, and the contractor’s tort
claims liaison, and forward the following materials:
(a) Four copies of the claimant’s
medical records of treatment, inpatient and outpatient, and any related
correspondence, as well as reports of
consultants;
(b) A narrative summary of the care
and treatment involved;
(c) The names and addresses of all
personnel who were involved in the
care and treatment of the claimant;
(d) Any comments or opinions that
the employees who treated the claimant believe to be pertinent to the allegations contained in the claim; and

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§ 900.204
(e) Other
§ 900.188(c).

25 CFR Ch. V (4–1–15 Edition)
materials

identified

in

NON-MEDICAL RELATED CLAIMS
§ 900.204 Is FTCA the exclusive remedy for a non-medical related tort
claim arising out of the performance of a self-determination contract?
Yes.
Except
as
explained
in
§ 900.183(b), no claim may be filed
against a self-determination contractor or employee based upon performance of non-medical-related functions under a self-determination contract. Claims of this type must be filed
against the United States under FTCA.
§ 900.205 To what non-medical-related
claims against self-determination
contractors does FTCA apply?
It applies to:
(a) All tort claims arising from the
performance of self-determination contracts under the authority of the Act
on or after October 1, 1989; and
(b) Any tort claims first filed on or
after October 24, 1989, regardless of
when the incident which is the basis of
the claim occurred.
§ 900.206 What employees are covered
by FTCA for non-medical-related
claims?
(a) Permanent employees;
(b) Temporary employees;
(c) Persons providing services without compensation in carrying out a
contract;
(d) Persons required because of their
employment by a self-determination
contractor to serve non-IHS beneficiaries (even if the services are provided in facilities not owned by the
contractor); and
(e) Federal employees assigned to the
contract.

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§ 900.207 How are non-medical related
tort claims and lawsuits filed for
IHS?
Non-medical-related tort claims and
lawsuits arising out of the performance
of self-determination contracts with
the Indian Health Service should be
filed in the manner described in
§ 900.201 (for both §§ 900.207 and 900.208).

§ 900.208 How are non-medical related
tort claims and lawsuits filed for
DOI?
Non-medical-related claims arising
out of the performance of self-determination contracts with the Secretary
of the Interior should be filed in the
manner described in § 900.201 with the
Assistant Solicitor, Procurement and
Patents, Office of the Solicitor, Department of the Interior, Room 6511,
1849 C Street NW., Washington, DC
20240.
§ 900.209 What should a self-determination contractor or contractor’s
employee do on receiving a nonmedical related tort claim?
(a) If the contract is with DHHS,
they should immediately forward the
claim to the PHS Claims Branch at the
address indicated in § 900.201 and notify
the contractor’s tort claims liaison.
(b) If the contract is with DOI, they
should immediately notify the Assistant Solicitor, Procurement and Patents, Office of the Solicitor, Department of the Interior, Room 6511, 1849 C
Street N.W., Washington, DC 20240.
§ 900.210 If the contractor or contractor’s employee receives a summons
and/or complaint alleging a nonmedical related tort covered by
FTCA, what should an Indian tribe
or tribal organization do?
(a) If the contract is with the DHHS,
they should immediately inform the
Chief, Litigation Branch, Business and
Administrative Law Division, Office of
General Counsel, Department of Health
and Human Services, 330 Independence
Avenue S.W., Room 5362, Washington,
DC 20201 and the contractor’s tort
claims liaison.
(b) If the contract is with the Department of the Interior, they should immediately notify the Assistant Solicitor, Procurement and Patents, Office
of the Solicitor, Department of the Interior, Room 6511, 1849 C Street N.W.,
Washington, DC 20240, and the contractor’s tort claims liaison.

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BIA, DOI, and IHS, HHS

§ 900.220

Subpart N—Post-Award Contract
Disputes
§ 900.215 What
cover?

does

this

§ 900.218 What is a claim under the
CDA?

subpart

(a) This subpart covers:
(1) All HHS and DOI self-determination contracts, including construction
contracts; and
(2) All disputes regarding an awarding official’s decision relating to a selfdetermination contract.
(b) This subpart does not cover the
decisions of an awarding official that
are covered under subpart L.
§ 900.216 What other statutes and regulations apply to contract disputes?
(a) The Contract Disputes Act of 1978
(CDA), Public Law 95–563 (41 U.S.C. 601
as amended);
(b) If the matter is submitted to the
CBCA, 48 CFR part 6101; and
(c) The Equal Access to Justice Act
(EAJA), 5 U.S.C. 504 and 28 U.S.C. 2412,
and regulations at 48 CFR 6101.30,
6101.31 (CBCA), 43 CFR 4.602, 4.604
through 4.628 (DOI), and 45 CFR 13.4
through 13.7 (HHS).
[61 FR 32501, June 24, 1996, as amended at 75
FR 31701, June 4, 2010]

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§ 900.217 Is filing a claim under the
CDA our only option for resolving
post-award contract disputes?
No. The Federal government attempts to resolve all contract disputes
by agreement at the awarding official’s
level. These are alternatives to filing a
claim under the CDA:
(a) Before issuing a decision on a
claim, the awarding official should
consider using informal discussions between the parties, assisted by individuals who have not substantially participated in the matter, to aid in resolving differences.
(b) In addition to filing a CDA claim,
or instead of filing a CDA claim, the
parties may choose to use an alternative dispute resolution mechanism,
pursuant to the provisions of the Administrative Dispute Resolution Act,
Public Law 101–552, as amended, 5
U.S.C. 581 et seq., or the options listed
in section 108(1)(b)(12) of the Indian
Self-Determination Act, as applicable.

(a) A claim is a written demand by
one of the contracting parties, asking
for one or more of the following:
(1) Payment of a specific sum of
money under the contract;
(2) Adjustment or interpretation of
contract terms; or
(3) Any other claim relating to the
contract.
(b) However, an undisputed voucher,
invoice, or other routing request for
payment is not a claim under the CDA.
A voucher, invoice, or routing request
for payment may be converted into a
CDA claim if:
(1) It is disputed as to liability or
amount; or
(2) It is not acted upon in a reasonable time and written notice of the
claim is given to the awarding official
by the senior official designated in the
contract.
§ 900.219 How does an Indian tribe,
tribal organization, or Federal
agency submit a claim?
(a) An Indian tribe or tribal organization shall submit its claim in writing
to the awarding official. The awarding
official shall document the contract
file with evidence of the date the claim
was received.
(b) A Federal agency shall submit its
claim in writing to the contractor’s
senior official, as designated in the
contract.
§ 900.220 Does it make a difference
whether the claim is large or small?
Yes. The Contract Disputes Act requires that an Indian tribe or tribal organization making a claim for more
than $100,000 shall certify that:
(a) The claim is made in good faith,
(b) Supporting documents or data are
accurate and complete to the best of
the Indian tribe or tribal organization’s knowledge and belief;
(c) The amount claimed accurately
reflects the amount believed to be
owed by the Federal government; and
(d) The person making the certification is authorized to do so on behalf
of the Indian tribe or tribal organization.

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§ 900.221
§ 900.221

25 CFR Ch. V (4–1–15 Edition)
What happens next?

(a) If the parties do not agree on a
settlement, the awarding official will
issue a written decision on the claim.
(b) The awarding official shall always
give a copy of the decision to the Indian tribe or tribal organization by certified mail, return receipt requested, or
by any other method which provides a
receipt.
§ 900.222

What goes into a decision?

A decision shall:
(a) Describe the claim or dispute;
(b) Refer to the relevant terms of the
contract;
(c) Set out the factual areas of agreement and disagreement;
(d) Set out the actual decision, based
on the facts, and outline the reasoning
which supports the decision; and
(e) Contain the following language:
This is a final decision. You may appeal
this decision to the Civilian Board of Contract Appeals (CBCA), 1800 F Street, NW.,
Washington, DC 20245. If you decide to appeal, you must, within 90 days from the date
you receive this decision, mail or otherwise
furnish written notice to the CBCA and provide a copy to the individual from whose decision the appeal is taken. The notice must
indicate that an appeal is intended, and refer
to the decision and contract number. Instead
of appealing to the CBCA, you may bring an
action in the U.S. Court of Federal Claims or
in the United States District Court within 12
months of the date you receive this notice.
[61 FR 32501, June 24, 1996, as amended at 71
FR 76601, Dec. 21, 2006; 75 FR 31701, June 4,
2010]

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§ 900.223 When does an Indian tribe or
tribal organization get the decision?
(a) If the claim is for more than
$100,000, the awarding official shall
issue the decision within 60 days of the
day he or she receives the claim. If the
awarding official cannot issue a decision that quickly, he or she shall tell
you when the decision will be issued.
(b) If the claim is for $100,000 or less,
and you want a decision within 60 days,
you shall advise the awarding official
in writing that you want a decision
within that period. If you advise the
awarding official in writing that you
do want a decision within 60 days, the
awarding official shall issue the deci-

sion within 60 days of the day he or she
receives your written notice.
(c) If your claim is for $100,000 or less
and you do not advise the awarding official that you want a decision within
60 days, or if your claim exceeds
$100,000 and the awarding official has
notified you of the time within which a
decision will be issued, the awarding
official shall issue a decision within a
reasonable time. What is ‘‘reasonable’’
depends upon the size and complexity
of your claim, and upon the adequacy
of the information you have given to
the awarding official in support of your
claim.
§ 900.224 What happens if the decision
does not come within that time?
If the awarding official does not issue
a decision within the time required
under § 900.223, the Indian tribe or tribal organization may treat the delay as
though the awarding official has denied
the claim, and proceed according to
§ 900.222(e),
§ 900.225 Does an Indian tribe or tribal
organization get paid immediately
if the awarding official decides in
its favor?
Yes. Once the awarding official decides that money should be paid under
the contract, the amount due, minus
any portion already paid, should be
paid as promptly as possible, without
waiting for either party to file an appeal. Any payment which is made
under this subsection will not affect
any other rights either party might
have. In addition, it will not create a
binding legal precedent as to any future payments.
§ 900.226 What rules govern appeals of
cost disallowances?
In any appeal involving a disallowance of costs, the Board of Contract
Appeals will give due consideration to
the factual circumstances giving rise
to the disallowed costs, and shall seek
to determine a fair result without rigid
adherence to strict accounting principles. The determination of allowability shall assure fair compensation
for the work or service performed,
using cost and accounting data as
guides, but not rigid measures, for
ascertaining fair compensation.

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BIA, DOI, and IHS, HHS

§ 900.231

§ 900.227 Can the awarding official
change the decision after it has
been made?
(a) The decision of the awarding official is final and conclusive, and not
subject to review by any forum, tribunal or government agency, unless an
appeal or suit is timely commenced as
authorized by the Contract Disputes
Act. Once the decision has been made,
the awarding official may not change
it, except by agreement of the parties,
or under the following limited circumstances:
(1) If evidence is discovered which
could not have been discovered through
due diligence before the awarding official issued the decision;
(2) If the awarding official learns that
there has been fraud, misrepresentation, or other misconduct by a party;
(3) If the decision is beyond the scope
of the awarding official’s authority;
(4) If the claim has been satisfied, released or discharged; or
(5) For any other reason justifying
relief from the decision.
(b) Nothing in this subpart shall be
interpreted to discourage settlement
discussions or prevent settlement of
the dispute at any time.
(c) If a decision is withdrawn and a
new decision is issued that is not acceptable to the contractor, the contractor may proceed with the appeal
based on the new decision. If no new
decision is issued, the contractor may
proceed under § 900.224.
(d) If an appeal or suit is filed, the
awarding official may modify or withdraw his or her final decision.

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§ 900.228 Is an Indian tribe or tribal
organization entitled to interest if
it wins its claim?
Yes. If an Indian tribe or tribal organization wins the claim, it will be entitled to interest on the amount of the
award. The interest will be calculated
from the date the awarding official receives the claim until the day it is
paid. The interest rate will be the rate
which the Secretary of the Treasury
sets for the Renegotiation Board under
the Renegotiation Act of 1951, Public
Law 92–41, 26 U.S.C. 1212 and 26 U.S.C.
7447.

§ 900.229 What role will the awarding
official play during an appeal?
(a) The awarding official shall provide any data, documentation, information or support required by the
CBCA for use in deciding a pending appeal.
(b) Within 30 days of receiving an appeal or learning that an appeal has
been filed, the awarding official shall
assemble a file which contains all the
documents which are pertinent to the
appeal, including:
(1) The decision and findings of fact
from which the appeal is taken;
(2) The contract, including specifications and pertinent modifications,
plans and drawings;
(3) All correspondence between the
parties which relates to the appeal, including the letter or letters of claims
in response to which the decision was
issued;
(4) Transcripts of any testimony
taken during the course of the proceedings, and affidavits or statements
of any witnesses on the matter in dispute, which were made before the filing
of the notice of appeal with the CBCA;
and
(5) Any additional information which
may be relevant.
[61 FR 32501, June 24, 1996, as amended at 71
FR 76601, Dec. 21, 2006]

§ 900.230 What is the effect of a pending appeal?
(a) Indian tribes and tribal organizations shall continue performance of a
contract during the appeal of any
claims to the same extent they would
had there been no dispute.
(b) A pending dispute will not affect
or bar the negotiation or award of any
subsequent contract or negotiation between the parties.

Subpart O—Conflicts of Interest
§ 900.231 What is an organizational
conflict of interest?
An organizational conflict of interest
arises when there is a direct conflict
between the financial interests of the
contracting Indian tribe or tribal organization and:
(a) The financial interests of beneficial owners of Indian trust resources;

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§ 900.232

25 CFR Ch. V (4–1–15 Edition)

(b) The financial interests of the
United States relating to trust resources, trust acquisitions, or lands
conveyed or to be conveyed pursuant to
the Alaska Native Claims Settlement
Act 43 U.S.C. 1601 et seq.; or
(c) An express statutory obligation of
the United States to third parties. This
section only applies if the conflict was
not addressed when the contract was
first negotiated. This section only applies where the financial interests of
the Indian tribe or tribal organization
are significant enough to impair the
Indian tribe or tribal organization’s objectivity in carrying out the contract,
or a portion of the contract.
§ 900.232 What must an Indian tribe or
tribal organization do if an organizational conflict of interest arises
under a contract?
This section only applies if the conflict was not addressed when the contract was first negotiated. When an Indian tribe or tribal organization becomes aware of an organizational conflict of interest, the Indian tribe or
tribal organization must immediately
disclose the conflict to the Secretary.
§ 900.233 When must an Indian tribe or
tribal organization regulate its employees or subcontractors to avoid
a personal conflict of interest?
An Indian tribe or tribal organization
must maintain written standards of
conduct to govern officers, employees,
and agents (including subcontractors)
engaged in functions related to the
management of trust assets.

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§ 900.234 What types of personal conflicts of interest involving tribal officers, employees or subcontractors
would have to be regulated by an
Indian tribe?
The Indian tribe or tribal organization would need a tribally-approved
mechanism to ensure that no officer,
employee, or agent (including a subcontractor) of the Indian tribe or tribal
organization reviews a trust transaction in which that person has a financial or employment interest that
conflicts with that of the trust beneficiary, whether the tribe or an allottee. Interests arising from membership
in, or employment by, an Indian tribe

or rights to share in a tribal claim need
not be regulated.
§ 900.235 What personal conflicts of interest must the standards of conduct regulate?
The standards must prohibit an officer, employee, or agent (including a
subcontractor) from participating in
the review, analysis, or inspection of
trust transactions involving an entity
in which such persons have a direct financial interest or an employment relationship. It must also prohibit such
officers, employees, or agents from accepting any gratuity, favor, or anything of more than nominal value,
from a party (other than the Indian
tribe) with an interest in the trust
transactions under review. Such standards must also provide for sanctions or
remedies for violation of the standards.
§ 900.236 May an Indian tribe elect to
negotiate contract provisions on
conflict of interest to take the place
of this regulation?
Yes. An Indian tribe and the Secretary may agree to contract provisions, concerning either personal or organizational conflicts, that address the
issues specific to the program and activities contracted in a manner that
provides equivalent protection against
conflicts of interest to these regulations. Agreed-upon contract provisions
shall be followed, rather than the related provisions of this regulation. For
example, the Indian tribe and the Secretary may agree that using the Indian
tribe’s own written code of ethics satisfies the objectives of the personal conflicts provisions of this regulation, in
whole or in part.

Subpart P—Retrocession and
Reassumption Procedures
§ 900.240 What
mean?

does

A retrocession means the return to
the Secretary of a contracted program,
in whole or in part, for any reason, before the expiration of the term of the
contract.

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BIA, DOI, and IHS, HHS

§ 900.248

§ 900.241 Who may retrocede a contract, in whole or in part?

§ 900.246 What
mean?

An Indian tribe or tribal organization
authorized by an Indian tribe may
retrocede a contract.

Reassumption means rescission, in
whole or in part, of a contract and assuming or resuming control or operation of the contracted program by the
Secretary without consent of the Indian tribe or tribal organization. There
are two types of reassumption: emergency and non-emergency.

§ 900.242 What is the effective date of
retrocession?
The retrocession is effective on the
date which is the earliest date among:
(a) One year from the date of the Indian tribe or tribal organization’s request;
(b) The date the contract expires; or
(c) A mutually agreed-upon date.
§ 900.243 What effect will an Indian
tribe or tribal organization’s retrocession have on its rights to contract?
An Indian tribe or tribal organization’s retrocession shall not negatively
affect:
(a) Any other contract to which it is
a party;
(b) Any other contracts it may request; and
(c) Any future request by the Indian
tribe or tribal organization to contract
for the same program.
§ 900.244 Will an Indian tribe or tribal
organization’s
retrocession
adversely affect funding available for
the retroceded program?
No. The Secretary shall provide not
less than the same level of funding that
would have been available if there had
been no retrocession.

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§ 900.245 What obligation does the Indian tribe or tribal organization
have with respect to returning
property that was used in the operation of the retroceded program?
On the effective date of any retrocession, the Indian tribe or tribal organization shall, at the request of the Secretary, deliver to the Secretary all requested property and equipment provided under the contract which have a
per item current fair market value,
less the cost of improvements borne by
the Indian tribe or tribal organization,
in excess of $5,000 at the time of the
retrocession.

does

§ 900.247 Under what circumstances is
a reassumption considered an
emergency instead of non-emergency reassumption?
(a) A reassumption is considered an
emergency reassumption if an Indian
tribe or tribal organization fails to fulfill the requirements of the contract
and this failure poses:
(1) An immediate threat of imminent
harm to the safety of any person; or
(2) Imminent substantial and irreparable harm to trust funds, trust lands,
or interest in such lands.
(b) A reassumption is considered a
non-emergency reassumption if there
has been:
(1) A violation of the rights or
endangerment of the health, safety, or
welfare of any person; or
(2) Gross negligence or mismanagement in the handling or use of:
(i) Contract funds;
(ii) Trust funds;
(iii) Trust lands; or
(iv) Interests in trust lands under the
contract.
§ 900.248 In a non-emergency reassumption, what is the Secretary
required to do?
The Secretary must:
(a) Notify the Indian tribes or tribal
organizations served by the contract
and the contractor in writing by certified mail of the details of the deficiencies in contract performance;
(b) Request specified corrective action to be taken within a reasonable
period of time, which in no case may be
less than 45 days; and
(c) Offer and provide, if requested,
the necessary technical assistance and
advice to assist the contractor to overcome the deficiencies in contract performance. The Secretary may also

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§ 900.249

25 CFR Ch. V (4–1–15 Edition)

make a grant for the purpose of obtaining such technical assistance as provided in section 103 of the Act.
§ 900.249 What happens if the contractor fails to take corrective action to remedy the contract deficiencies identified in the notice?
The Secretary shall provide a second
written notice by certified mail to the
Indian tribes or tribal organizations
served by the contract and the contractor that the contract will be rescinded, in whole or in part.
§ 900.250 What shall the second written notice include?
The second written notice shall include:
(a) The intended effective date of the
reassumption;
(b) The details and facts supporting
the intended reassumption; and
(c) Instructions that explain the Indian tribe or tribal organization’s right
to a formal hearing within 30 days of
receipt of the notice.
§ 900.251 What is the earliest date on
which the contract will be rescinded in a non-emergency reassumption?
The contract will not be rescinded by
the Secretary before the issuance of a
final decision in any administrative
hearing or appeal.
§ 900.252 In an emergency reassumption, what is the Secretary required
to do?
(a) Immediately rescind, in whole or
in part, the contract;
(b) Assume control or operation of all
or part of the program; and
(c) Give written notice to the contractor and the Indian tribes or tribal
organizations served.

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§ 900.253 What shall the written notice
include?
The written notice shall include the
following:

(a) A detailed statement of the findings which support the Secretary’s determination;
(b) A statement explaining the contractor’s right to a hearing on the
record under § 900.171 within 10 days of
the emergency reassumption or such
later date as the contractor may approve;
(c) An explanation that the contractor may be reimbursed for actual
and reasonable ‘‘wind up costs’’ incurred after the effective date of the
rescission; and
(d) A request for the return of property, if any.
[61 FR 32501, June 24, 1996, as amended at 75
FR 31701, June 4, 2010]

§ 900.254 May the contractor be reimbursed for actual and reasonable
‘‘wind up costs’’ incurred after the
effective date of rescission?
Yes.
§ 900.255 What obligation does the Indian tribe or tribal organization
have with respect to returning
property that was used in the operation of the rescinded contract?
On the effective date of any rescission, the Indian tribe or tribal organization shall, at the request of the Secretary, deliver to the Secretary all
property and equipment provided under
the contract which has a per item current fair market value, less the cost of
improvements borne by the Indian
tribe or tribal organization, in excess
of $5,000 at the time of the retrocession.
§ 900.256 Will a reassumption adversely affect funding available for
the reassumed program?
No. The Secretary shall provide at
least the same level of funding that
would have been provided if there had
been no reassumption.

PARTS 901–999 [RESERVED]

382

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