Public Law 93-638, as Amended

1. Public Law 93-638, as Amended The Indian Self-Determination and Education Assistance Act of 1975 REVIEW

2. In 638, what is the Federal Governments main purpose? • In 638, what is the Tribes intent?

3. Public Law 93-638, as Amended Intent • To assure maximum participation by Indian Tribes in the planning and administration of Federal services, programs and activities for Indian communities. Page 6 of “the Act” 900.3 Policy Statements-Regulations • The Secretary’s commitment to Indian self-determination requires that these regulations be liberally construed for the benefit of Indian tribes…

4. Negotiation • The federal responsibility is therefore • Technical Assistance • Centered on negotiating workable administrative processes.

5. Key Principles • The act provides tribes with 4 flexible and innovative tools to help them respond to their own critical needs and priorities. • Contracting of Bureau Programs • Planning and Designing Programs that the Bureau continues to operate. • Tribal Management Systems that secure their financial operations, particularly in regard to Federal funding of contracts and grants • Grants to tribal governing bodies.

6. Key Principles • Tribal operation and direction of Bureau Programs for Indians is intended to increase: • Tribal governments will increase their responsibilities. • Federal involvement will shift to technical assistance, evaluation, and monitoring.

7. Public Law 93-638, as Amended P.L. 93-638, the Law • January 4, 1975 Codified by: to systematize Promulgated – (published, make known) • Regulations: • 25 CFR, Ch. I, Subchapter M, • Parts 273, 275 and 276 • 25 CFR, Ch. V, Part 900, Subparts A – P • 25 CFR, Ch. VI, Parts 1000 and 1001

8. Contract Administration Public Law 93‑638, as Amended 25 CFR – Indians Part 900

9. Contract Administration What is it We Do? The Act: The Law, Paragraph 1 • To provide maximum Indian participation in the Government and education of the Indian people; to provide for the full participation of Indian tribes in programs and services conducted by the Federal Government for Indians… The Regulations: CFR Part 900, Subpart A(b) Secretarial Policy (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…

10. 900.3 (9)Policy Statements-Regulations It is the Secretary’s policy that no later than upon receipt of a contract proposal under the Act (or written notification 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 contractible functions, as my be necessary to ensure a timely transfer of responsibilities and funding to Indian tribes and tribal organizations

11. Contract Administration (definition) What is Contract Administration? “Those measures each party to the contract should take to assure that the promises exchanged or the agreements achieved in the contract are carried out.” Procurementis the Acquisition of goods, services or works from an external source. It is favourable that the goods, services or works are appropriate and that they are procured at the best possible cost to meet the needs of the purchaser in terms of quality and quantity, time, and location. Corporations and public bodies often define processes intended to promote fair and open competition for their business while minimizing exposure to fraud and collusion.

12. Legal and Binding – Elements of a Contract • Competent Parties:There must be at least two persons, each of whom has the legal capacity to act. • Adults • Have Authority • Offer and Acceptance:The parties must agree to the terms of the contract. • Mutual Agreement • Mutual Consideration:There must be sufficient consideration to enforce the promise. Consideration is the price bargained for and paid for a promise. • Obligations must be reciprocal • Lawful Purpose:The agreement must not require the performance of an illegal act by either party. • Prohibited or not authorized by law

13. READ Contract Administration THE CONTRACT!! • Know: • What is supposed to be done. • When it is supposed to be done. • Where it should be done. • How it is supposed to be done. • Who is supposed to do it. • How often should it be done. • How will you know when it is done. • Plan for: • Modifications • Disputes and Appeals • Retrocession • Reassumption

14. Contract Administration Contract Types: • Cost Reimbursement • Fixed Price RISK?

15. Cost-Reimbursement Characteristics: • Cost to the Government varies according to the Contractor’s actual costs. • The negotiated cost that appears in the contract is the amount that the Contractor must not exceed without the Awarding Official’s approval. • The burden for both performance and cost control is borne by the Government, not by the Contractor.

16. Cost-Reimbursement • The Contractor is entitled to recover his actual costs, subject to the Limitation of Costs clause (if included) and applicable Cost Principles (OMB Circular A‑87), regardless of his progress toward fulfilling the SOW. General - Goods/Services acquired and Reimbursed: Cost Reimbursement generally covers: • Research and Development Services • Studies • Services for which there is no definitive SOW. • All Non‑ConstructionSelf‑Determination Contracts.

17. Characteristics: Fixed Price • Contract price cannot be changed unless a provision for contract price adjustment is included in the contract (i.e., the Changes clause or a provision for exercise of an option). • The burden of both performance (meeting the specifications or statement of work) and cost control is on the Contractor.

18. Characteristics - continued • The Contractor is entitled to payment of the fixed price only if he delivers the product or performs the services in accordance with the contract specifications or statement of work. General - Goods/Services acquired: • Supplies (Standard commercial items.) • Architectural and Engineering Services • Construction • Services for which the SOW has few unknowns. Fixed Price

19. Administrative Guidelines Federal Acquisition What the Federal Government Does What is waived? What is adhered to? Commercial • Federal Acquisition Regulations (FAR) • 48 CFR (Code of Federal Regulations) • Chapter 3 - Department of Health and Human Services • Chapter 14 - Department of the Interior

20. Administrative Guidelines Self‑determination Acquisition • Public Law 93-638, as Amended, Title I, Sections 102 - 111 • 25 CFR (Code of Federal Regulations) • Chapter M, Parts 273, 275 and 276 • Chapter V, Part 900, Subparts A – P • Chapter VI, Parts 1000 and 1001 • Regional Implementation Plan • Internal Agency Procedures Handbook for Non-Construction • Contract Support Policy • Indian Affairs Manual –(Includes Designation of Authority) • The Contract

21. P.L. 93-638, as Amended REMEMBER… • Waived applicability of the Davis‑Bacon Act. [Section 7(a)] • Waived applicability of 31 USC 63. [Section 9] • Changed Normal Federal Acquisition Relationship.[ Sec. 102(a)(1)] • Government Decision to Contract • "The Secretary is directed, upon the request of any Indian tribe by tribal resolution, to enter into a self-determination contract or contracts...” • Waived Federal Procurement Laws and Regulations. [Sec. 105(a)] • Negotiation without advertising • No Bid or Performance Bond Requirement • Authorized Self-Determination Contracts to include provisions for the performance of Personal Services. [Sec. 105(g)]

22. Contract Administration DEFINITIONS - Section 4(j) “Self‑Determination Contract” means a contract (or grant or cooperative agreement utilized under Section 9(Act, pg 15)…between a tribal organization and the appropriate Secretary for the planning, conduct and administration of programs or services which are otherwise provided to Indian tribes and their members pursuant to Federal law: Provided, That …no contract (or grant or cooperative agreement under Section 9 [450e-l] of this act) entered into under title I of this Act shall be construed to be a procurement contract.

23. Contract Administration Projects DEFINITIONS - Section 4(m) “Construction Contract” means a fixed‑price or cost‑reimbursementself‑determination contract for a construction project, except that such term does not include any contract: • That is limited to providing planning services and construction management services (or a combination of such services); • For the housing Improvement Program or Roads Maintenance Program of the Bureau of Indian Affairs administered by the Secretary of the Interior; or • For the Health Facility Maintenance and Improvement Program administered by the Secretary of Health and Human Services. Programs Sect. 108

24. Contract Administration “Section 108 Agreement” =Contractual Agreement THE Contract – “Programs” Sec. 108(a) Each Self‑determination contract entered into under this Act shall: • (1) contain, or incorporate by reference, the provisions of the model agreement described in subsection (c), and • (2) contain such other provisions as are agreed to by the parties. “Subpart J Contract” • Sec. 105(m)(1) Each construction contract requested, approved, or awarded under this Act, shall be subject to: • the provisions of this Act, other than sections 102(a)(2) [time frame], 106(l) [withholding payment], 108 [Model Agreement], and 109 [reassumption]

25. Contract Administration Contract or Grant Provisions and Administration Section 105(a) (1) Notwithstanding any other provision of law, subject to paragraph (3), the contracts and cooperative agreements entered into with tribal organizations …shall not be subject to Federal contracting or cooperative agreement laws (including any regulations), except …that such laws expressly apply to Indian tribes. FAR (Federal Acquisition Regulations) (2) Program standards applicable to a non-construction Self‑determination contract shall be set forth in the contract proposal and the final contract of the tribe or tribal organization.

26. Contract Administration • Section 105 (c-o) pg. 32-40 PowerPoint Read and discuss

27. CONTRACT FUNDING AND INDIRECT COSTS Section106 (a) Amount of funds provided: (1) Secretarial Funding Level (2) Contract Support Cost (Defined) “Policy” (3) Contract Support Cost (Examples) • Direct Contract Support Cost • Indirect Cost (4) Savings (5) Start-Up Cost (6)Pre-Award Cost

28. Regulations 25 CFR, Chapter V, Part 900, Subparts A – P Subpart A: General Provisions Subpart B: Definitions Subpart C: Contract Proposal Contents Subpart D: Review and Approval of Contract Proposals Subpart E: Declination Procedures Subpart F: Standards for Tribal or Tribal Organization Management Systems Subpart G: Programmatic Reports and Data Requirements Subpart H: Lease of Tribally‑Owned Buildings by the Secretary Subpart I: Property Donation Procedures Subpart J: Construction Subpart K: Waiver Procedures Subpart L: Appeals Subpart M: Federal Tort Claims Act Coverage - General Provisions Subpart N: Post‑Award Contract Disputes Subpart O: Conflicts of Interest Subpart P: Retrocession and Reassumption Procedures

29. Contract Administration Purpose and Scope of the Regulations • These regulations codify uniform and consistent rules for contracts by the Department of Health and Human Services and the Department of the Interior in implementation… • Programs funded by other departments and agencies. Included under this part are programs administered by the DHHS and DOI for the benefit of Indians for which appropriations are to other Federal Agencies. • The Part included in contracts by reference… • Freedom of Information Act does not apply to records kept solely by Indian Tribes and tribal organizations. • Privacy Act – Tribal government records shall not be considered Federal Records. • Information Collection is required by the Secretary to safeguard Federal funds and resources.

30. Contract Administration Personnel in the Contracting Process • Bureau Representatives (See Tools Tab) • Regional Office • Regional Director • Superintendant, Finance Officer, etc. • Awarding Official • AOTR/SAOTR • Agency Office • Superintendent, Line Officer, Finance • 638 Coordinator • Awarding Official • AOTR/SAOTR • Tribal Representatives • Tribal Government • Tribal Council - Tribal Chairperson • Tribal Program Manager • Tribal Contract Manager

31. Contract Administration Rights and Responsibilities • General: • Each party has a RIGHT to expect the performance agreed to by the other • Each party has the RESPONSIBILITY to perform what was agreed to. • Contractor: • Periodic/Annual Progress Reports • Periodic Financial Status Reports (SF‑425) • Single Audit • Allow Bureau Monitoring

32. Contract Administration Responsiblities • AOTR/SAOTR: • Review and recommend acceptance/rejection of reports (progress and financial). • Review and recommend approval/declination of payment requests. • Monitor Contractor performance. • Provide Program specific technical assistance. • Conduct periodic on‑site Monitoring Visits. • Report to Awarding Official. • Review Delegation of Authority

33. Contract Administration Planning Activities: • Character of SOW • Complexity • Program • Redesign • Type of Contract • Mature vsNon‑Mature • Master Contract • Multi‑Program (CTGP/OATG) • Contractor Reporting Requirements • Monthly, Quarterly, Semi‑Annual, Annual Progress • Technical • Financial

34. Contract Administration • Property • Government Furnished Property • Contractor Acquired Property • GSA and “Other” Property • Deliverables • What are they? • What is the procedure for delivery? • Unusual Features • Is there some unique aspect of the contract that requires special attention?

35. Contract Administration Legal Nature of Contracts • Mutual promises. • Binding legal agreement. • Describes service or program to be delivered. • Administrative requirements that the parties must perform. Authority to Contract • Federal Government • Indian Tribe (Tribal Government) Contract Administration • Internal Administration (Contractor Actions) • External Administration (Federal Actions)

36. Contract Administration Monitoring PowerPoint

37. Contract Administration Contract Administration File Plan Basic Contract File: • Copy of contract and all modifications. • Copy of any and all documents referenced in the contract. • Indirect Cost Negotiation Agreement • Single Audit Report (if applicable) • List of all items the Contractor is required to submit. • List of all information or documents provided to the Contractor. • Monitoring Plan

38. Contract Administration AOTR File: • Copy of AOTR/SAOTR Designation Letter. • Copy of transmittal letter to Contractor. • Specialized functions delegated to AOTR/SAOTR. Internal Correspondence File: • Record of communications between AOTR/SAOTR and Contractor or other personnel. • Copies of all correspondence between the AOTR/SAOTR and the Awarding Official. • Copies of correspondence between AOTR/SAOTR and others regarding the contract.

39. Contract Administration Contractor Correspondence File: • Copies of all general correspondence related to the contract. • Original copies of all Contractor submittals (i.e.: reports, data, etc.) • Copies of all letters of approval (or denial), voucher schedule, payment schedule, etc. Payment File: • Copies of payment requests. • Copies of vouchers. • Back‑up documents, if needed.

40. Contract Administration AOTR/SAOTR Reports: • Copies of Trip Reports (AOTR/SAOTR, Awarding Official, etc.) • Copies of Monitoring Reports. • Copies of Quarterly/Semi‑Annual AOTR Reports.

41. Reports and Standards • Program Assessment Rating Tool (PART) • Generally Accepted Accounting Principles –GAAP • GASB-34 Government Accounting Standards Board • Government Performance and Results Act (GPRA)

42. Indicate Partners • Name an Awarding Official • An Awarding Official’s Technical/Tribal Chair Representative/Tribal Program Director • A Finance/Property Manager

43. Central Office West Your Source for Self-Determination / P.L. 93-638 Serving Indian Country

44. Our Mission To provide technical assistance in all aspects of Self-Determination Contracting and Administration; and P.L. 93-638, as Amended; including the Single Audit Act where required.

45. Training and Presentations Roll-playing With the Civilian Board of Contract Appeals

46. Central Office West Training is located in the Division of Self-Determination Services, Offices of Indian Services, Albuquerque, NM. COW provides training and technical assistance for both Tribal and Bureau personnel working in this field. The Training Division develops an annual training schedule, maintains class records, develops curriculum and administers tests to Federal employees to maintain their training requirements.

47. Networking for Best Results With Directors like – Leroy Gishi (Transportation)

48. Interfacing with Bureau Directorsand a Variety of Expertise

49. Finance Gary King

50. Finance and Accounting • We assist in implementing Indian Self-Determination initiatives. • Assist to resolve OMB Circular A-133, Single Audit Act Issues • Assist in OMB A-123, Internal Controls resolution • Assist in OMB A-87, Cost Principles difficulties Personnel work on-site with Tribes and Tribal Organizations, Bureau Agencies and Personnel.