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Self-Determination Act
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1103430
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Self-Determination Act
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Bradley H. Patterson Files (Ford Administration)
Bradley Patterson's Native American Programs Files
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Indians of North America
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The original documents are located in Box 5, folder "Self-Determination Act" of the
Bradley H. Patterson Files at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
51282
RULES AND REGULATIONS
Title 25-Indians
F. Part 406 is redesignated as Part 276.
Based on two series of nationwide In-
CHAPTER I-BUREAU OF INDIAN AF-
Sections 406.1 through 406.16 are redes-
dian and Alaska Native consultation ses-
FAIRS, DEPARTMENT OF THE INTERIOR
ignated as §§ 276.1 through 276.16.
sions, the Bureau of Indian Affairs has
G. Part 407 is redesignated as Part 277.
SUBCHAPTER Y-INDIAN SELF-DETERMINATION
attempted to spell out clearly the regu-
AND EDUCATION ASSISTANCE ACT PROGRAMS
Sections 407.1 through 407.53 are redes-
latory requirements necessary to imple-
ignated as §§ 277.1 through 277.53.
CONTRACTS AND GRANTS UNDER INDIAN
ment Pub. L 93-638. A concerted effort
The purpose of the regulations is to
SELF-DETERMINATION AND EDUCA-
has been made to incorporate into the
implement the Indian Self-Determina-
TION ASSISTANCE ACT; EDUCATION
regulations three principal perspectives:
CONTRACTS UNDER JOHNSON-
tion and Education Assistance Act. (Pub.
The intent bLCongress and the President
O'MALLEY ACT
L. 93-638; 88 Stat. 2203). Part 271 (for-
as reflected in the legislation; the con-
merly Part 401) contains regulations
tinuing Federal responsibility and trust
Revocation, Redesignation and Issuance
under which tribal organizations, upon
relationships toward Indian tribes; and
of Regulations
the request of an Indian tribe, can con-
the expressed wishes and desires of tribal
OCTOBER 24, 1975.
tract for the operation of all or parts of
and Alaska Native leaders and members.
authorized Bureau of Indian Affairs pro-
This notice is published in the exer-
The Bureau of Indian Affairs believes
grams for the benefit of Indians and
cise of rulemaking authority delegated
that such a posture has been achieved
Alaska Natives. Under Part 272 (for-
by the Secretary of the Interior to the
in these regulations.
merly Part 402), tribal governing bodies
Commissioner of Indian Affairs by 230
Public Law 93-638 is a significant piece
may receive grants for strengthening
DM 2. The authority to issue regulations
of legislation for Indian and Alaska Na-
tribal governments; planning, training,
is vested in the Secretary of the Interior
tive people. The implementing regula-
evaluation, or other activities to improve
by 5 U.S.C. 301 and sections 463 and 465
tions buttress the spirit and substance
a tribe's capacity to contract; acquiring
of the Revised Statutes (25 U.S.C. 2 and
of this legislation by emphasizing the
land for those purposes; and planning,
following elements: The role of tribal
9).
designing, monitoring. and evaluating
and Alaska Native governments as the
Beginning on page 40982 of the Sep-
Federal programs serving the tribe or
key decision-makers in the self-deter-
tember 4, 1975, FEDERAL REGISTER (40 FR
Alaska Native group.
mination process; the expanded powers
40982), there was published a notice of
Under Part 273 (formerly Part 403), a
and responsibilities of Indian Education
proposed rulemaking to amend Chapter
State, school district, or Indian corpo-
Committees in public school assistance
I of Title 25 of the Code of Federal Reg-
ration may contract for supplemental
programs serving Indian and Alaska Na-
ulations by revoking Part 33 under Sub-
programs or operational support for
tive-thildren; the recognition of the de-
chapter E and by adding new Parts 401
education. The regulaitons in Part 273
sirability of tribally-controlled and op-
through 407 under a new Subchapter Y.
replace the regulations in Part 33 and
erated schools as an alternative to Fed-
The amendment was proposed under the
reflect the changes made to the Johnson-
authority in the Indian Self-Determina-
eral and public learning systems; the
O'Malley Act (the Act of April 16, 1934
availability of grants to strengthen tribal
tion and Education Assistance Act (Pub.
(48 Stat. 596), as amended by the Act
and Alaska Native governments and to
L 93-638; 88 Stat. 2203)
of June 4, 1936 (49 Stat. 1458, 25 U.S.C.
enhance their eventual capability to op-
I. REDESIGNATION
452-456) by the Indian Self-Determina-
erate a Bureau program under contract
tion and Education Assistance Act (Pub.
or to redesign a Bureau program for op-
Parts 401 through 407 are being. re-
L. 93-638; 88 Stat. 2203). Tribal organi-
eration by the Bureau; and the use of
designated upon the request of the Of-
zations can contract for supplemental
Federal personnel for expanding the hu-
fice of the FEDERAL REGISTER because
programs or operational support for edu-
man resource base of tribal and Alaska
these Parts were incorrectly numbered
cation under Part 271 upon the request
Native governing bodies.
when published as proposed regulations.
of an Indian tribe.
An important feature of the legislation
The Office of the Federal Register has
Part 274 (formerly Part 404) con-
is the change it makes in the contract
assigned only Parts 1 through 299 to
tains regulations under which tribal or-
relationship by directing the Bureau to
Chapter I of Title 25 of the Code of Fed-
ganizations may receive contracts or
contract a program to a tribal organiza-
eral Regulations which can be issued by
services for school construction for pre-
tion upon the request of a tribe unless
the Bureau of Indian Affairs. The Parts
viously private schools that are con-
the Bureau can make a finding to sup-
beginning with 300 on up are assigned
trolled or managed by an Indian tribe or
port declination in accordance with cri-
to other Chapters and other offices. Since
tribal organization.
teria set out in the Act. Unlike the or-
the Bureau cannot use Part numbers 401
Part 275 (formerly Part 405) informs
linary relationship between the govern-
through 407, these Parts are redesignated
the Indian tribes of ways in which they
ment and a prospective contractor, un-
as follows:
can obtain the use of Government em-
der this legislation the burden of proof
A. Part 401 is redesignated as Part 271.
ployees in operating all or parts of Bu-
is on the Bureau to show that the con-
Sections 401.1 through 401.26 are redes-
reau of Indian Affairs programs under
tract should not be entered into. Both
ignated as §§ 271.1 through 271.26. A new
contract
the statute and the regulations stipulate,
§ 271.27 is added and $ 401.27 is redesig-
-Part 276 (formerly Part 406) contains
unless substantial evidence in support of
nated as § 271.28. Remaining §§ 401.31
the administrative requirements for
a specific declination criteria exists, the
through 401.84 are redesignated as
grants available under Part 272. These
Bureau will enter into the proposed
§§ 271.31 through 271.84.
administrative requirements are basi-
contract.
B. Part 402 is redesignated as Part 272.
cally the same as those in Federal Man-
The public was given until October 4,
Sections 402.1 through 402.55 are redes-
agement Circular 74-7 which applies to
1975, to submit written comments, sug-
ignated as §§ 272.1 through 272.55.
the administration of grants with States
gestions, or objections regarding the pro-
C. Part 403 is redesignated as Part 273.
and local governments. Federal Manage-
posed amendment. All comments re-
Sections 403.1 through 403.44 are redes-
ment Circular 74-7 is being revised to
ceived with respect to the proposed
ignated as §§ 273.1 through 273.44. Sec-
also apply to Indian tribes.
amendment were given due considera-
tion 403.45 is deleted. Sections 403.46
Under Part 277 (formerly Part 407), a
tion.
through 403.54 are redesignated as
State education agency or school district
II. CHANGES MADE DUE TO COMMENTS
§§ 273.45 through 273.53. Remaining
may contract for acquiring sites for, or
RECEIVED
§§ 403.61 through 403.73 are redesignated
for constructing, acquiring, or renovat-
as §§ 273.61 through 273.73.
ing, school facilities needed for educating
As a result of comments received, the
D. Part 404 is redesignated as Part 274.
Indians residing on an Indian reserva-
following changes in the regulations are
Sections 404.1 through 404.53 are redes-
tion or other trust land.
made in addition to language changes
ignated as §§ 274.1 through 274.53.
for clarification:
The regulations have been developed
E. Part 405 is redesignated as Part 275.
in consultation with national, regional,
A. PART 271:
Sections 405.1 through 405.4 are redes-
tribal, and Alaska Native organizations
1. The phrase "Revolving Funds for
ignated as §§ 275.1 through 275.4.
served by the Bureau of Indian Affairs.
Loans; Indian Loan Guarantee and In-
FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
Digitized from Box 5 of the Bradley H. Patterson Files at the Gerald R. Ford Presidential Library
RULES AND REGULATIONS
51283
surance Funds" is added to § 271.2(d)
19. Several changes are made in
34. Section 271.49(a) (3) is revised to
to make it clear that programs and ac-
§ 271:20 to permit recontracting applica-
permit a tribal organization- to submit
tivities enumerated as line items in the
tions to go directly to the Area Director,
its report when, in a multi-tribal situa-
Bureau's budget under those subactiv-
to permit more time to consider such ap-
tion, all of the tribes have not endorsed
ities are considered a "business related
plications and to make it clear that
the report within a certain time.
function".
tribes may withdraw from multi-tribal
35. Section 271.54(a) is revised to
2. The definition of "Indian tribe" in
contracts.
clarify what is included in the Bureau's
§ 271.2(i) is changed to make clear the
20. An additional paragraph (b) is
direct operational costs and that such
involvement of the United States Gov-
added to § 271.21 which requires applica-
costs do not form a basis for reducing a
ernment.
tions for contracts to be submitted at
tribal organization's allowable indirect
3. The definition of "previously private
least 120 days in advance of the proposed
costs.
school" in $ 271.2(j) is revised to con-
contract starting date when the pro-
36. Section 271.55(c) is revised to re-
form to the definition in Part 273.
posed contract may result in the dis-
quire savings under a retroceded con-
4. In § 271.2(p), the phrase "tribal gov-
placement of Bureau personnel, to give
tract to be carried over to provide serv-
erning body" is added for clarification.
the Bureau sufficient time to comply with
ices and benefits by the Bureau.
5. Section 271.2(q). is changed to
appropriate Civil Service Commission
37. A new $ 271.56 is added to con-
make it clear that the subactivity of
requirements.
form the regulations to the requirements
"minerals, mining, irrigation, and
21. Section 271.22(e) (2) is revised to
of the Privacy Act (5 U.S.C. 552a).
power" is included in the definition of
permit applicants to request additional
38. Section 271.65(c) is revised to pro-
"Tribal governmental function."
time to respond to the-Superintendent's
6. Section 271.2(r). is revised to make
written recommendations to avoid pos-
vide for the appeal under this section to
it clear that intertribal organizations are
sible declination.
be sent to the Director, Office of Hear-
considered "tribal" organizations."
22. Section 271.23(1 (1) is revised to
ings and Appeals.
7. Section 271.2(s) is revised to clarify
set a limit on the time the Bureau can
39. Section 271.72 is revised to per-
what is a resource"
take to negotiate a contract.
mit. tribes that so desire to retrocede
8. Section 271.2(t) is revised to
23. Section 271.23(b) (2) is revised to
from a multi-tribal contract, to delineate
strengthen the definition of "trust re-
make both the time and the place of the
the conditions under which such retro-
sponsibility." and limit the definition to
meeting under that section at the mutual
cession may occur, and to state the
the purposes of the regulations.
agreement of the parties.
rights of both the retroceding and non-
9. Paragraphs (e) and (f) are added
24. Section 271.25(b) is revised to
retroceding tribes.
to $ 271.3 to insure consultation with
clarify when, how and to whom recom-
40. Section 271.73 is revised to permit
cognizant Indian organizations and give
mendations are to be furnished.
a tribal governing body to submit its
tribal groups and opportunity to sug-
25. Section 271.25(d) (1) is revised to
application to contract for a retroceded
gest. changes annually or at their own
set a time limitation on negotiating a
program directly to the Area Director or
initiative
contract when an Area Director's rec-
Commissioner, as appropriate.
10. An additional paragraph (h): is
ommendation to decline is not accepted
41. Section 271.74 is revised to make it
added to § 271.4 to make it clear that the
by the Commissioner.
clear that when reassumption of a pro-
eligibility: criteria for services for in-
26. Former § 401.27 is redesignated as
gram is contemplated because of viola-
dividuals is: not changed by the regula-
$ 271.28 and a new § 271.27 is added to
tion of rights there must be a pattern or
tions, but that there is a means by which
provide a mechanism for the Commis-
practice of such violation.
eligibility criteria may be waived.
sioner to extend technical assistance to
42. Section 271.74(b) and (c) are re-
11. Section 271.13 is changed to
tribes in the event of declination.
vised to emphasize a tribal organization's
eliminate the need for an application
27. Section 271.32 is revised to more
right to a hearing and decision and to
form.
clearly delineate what are considered
provide for the Commissioner reviewing
12. An additional paragraph is
contractable trust resources programs
an Area Director's decision to reassume
added to $ 271.14 which requires staffing
or portions thereof.
a contract before the reassumption can
information to be given in the applica-
28. Paragraphs (a) and (e) (1) of
$271.4F are revised to take into consid-
take place.
tion.
eration modifications or supplements to
43. Section 271.75 is revised to require
13. An additional paragraph (b) (4) is
added to 271.15 to make it clear that
Chapter 2000 of the Treasury Fiscal Re-
the Bureau to give a tribal organization
applications. recontracts that are not
quirements Manual that might occur
an opportunity to present a plan to over-
within the purview. of $271.1(a) may be
and to permit letters of credit to be used
come deficiencies in contract perform-
declined
when the advance payment requirement
ance before action to cancel can be taken
14. Section: 27115(c) (4) is revised: to
Is $120,000 rather than $250,000.
and the right to have an Area Director's
emphasize the positive effectiof a tribal
29. Section 271.42() is revised to make
decision reviewed by the Commissioner
it clear that when equipment is trans-
before any proposed cancellation action
governing body's resolution on the matter
ferred to & contractor itmust meet cer-
can occur. In addition, paragraph (h)
of community support.
tairr standards the time of transfer.
(formerly $ 401.75(e)) is revised to
15. Section 271.15(c) (5)-(i) and
30. An additional paragraph (d) is
clarify the funding level for a program
$ 271.15(c) (i)?(A) are revised to per-
mit an agreement to develop a personnel
added to $ 271.44 to: make it clear that a
under a contract cancelled for cause.
tribal governing body establish its
44. Section 271.76(a) is revised to per-
system rather than requiring the system
to be in place:
own Indian preference requirements to
mit the Bureau to operate the program
the extent. that such requirements are
under a retroceded contract at either the
16. Sections 271:16(a) 271.20; 271.62,
271.82, 271.83 (a) and (b), and 271.84
not inconsistent with the intent of the
level intended by, the contract or as oper-
are revised to recognize any limitations
regulations.
ated previously by the Bureau.
that a: tribal governing body might in-
31. Section 271.46 is revised to con-
45. Section 271.77(b) is revised to
clude in its resolution requesting a
form. to the requirements of the Federal
make the position and ceiling reserve
contract.
Records Act and to require that records
applicable only to those contracts ini-
17. A new paragraph. (b) (3) is added
used or created under the contract are
tially entered into on or after the effec-
to $ 271.16 to permit Bureaue records to
returned to the Bureau for proper
tive date of the regulations.
be physically located at the contract site
disposition.
46. Section 271.81 (c): is revised to
when copying such records is not prac-
32. Section 271.47(a) is revised to
require the hearing official to issue a
ticable or feasible due to their volume.
make it clear that examination of rec-
decision within 30 days of the hearing.
18. Paragraph (c) (2) (vii)- of & 271.18
ords are restricted to those that are
47. Section 271.83 (a) is changed to
is expanded to emphasize the rights of
contract-related.
33. Section 271.49(a) and (b) is re-
provide for an appeal to the Director,
the tribal governing body to set limita-
tions. on. tribal organizations
by
vised to make reports, required there-
Office of Hearings and Appeals, as. pro-
resolution
under, contract-related.
vided in Subpart G of 43 CFR Dart 4.
FEDERAL REGISTER, VOL 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
51284
RULES AND REGULATIONS
B. PART 272
3 years" is substituted to establish a base
students in programs contracted under
1. The definition of "tribal govern-
age. The term "except those who are en-
Part 273.
ment", "tribal governing body", and
rolled in Bureau or sectarian operated
18. Section 273.35 is completely revised
"tribal council" is added as paragraph
schools" is added after "grade(s) 12" to
to provide for meeting the full costs of
(q) of § 272.2. Existing paragraphs (q)
denote that these educational facilities
peripheral dormitory students attend-
and (r) of former § 402.2 are redesig-
are not included as eligible applicants.
ing local public schools.
nated as paragraphs (r) and (s) of
7. Section 273.13(b) (1) (iv) is cor-
19. Additions are made to $ 273.38 to
§ 272.2. This change is made for consis-
rected to read "70%" instead of "75%,"
assure equal treatment of Indian chil-
tency with Part 271.
due to a misprint. Also, the last sentence
dren. The additions are at the end of the
2. The definitions of "Indian tribe,"
of this paragraph, referring to the 51%
first sentence and at the end of the sec-
"resolution," "trust resources," and
eligible Indian enrollment, is deleted as
tion.
"trust responsibilities" given in para-
the Commissioner has the delegated au-
20. A new phrase is added at the end
graphs (j), (1), (r), and (s) of 272.2
thority to waive any part(s) of these
of § 273.44(a) and in § 273.44(b) after
are revised to be consistent with the
regulations.
the word "may" to emphasize the role of
definitions in Part 271.
8. A change is made to § 273.13(b) (1)
tribal governing bodies on their reserva-
3. Comments were received pertain-
by adding (v), (vi) and (vii) to
tions.
ing to the need for more specific proce-
strengthen the basis for contractor ac-
21. Former § 403.45 on wage and labor
dures in § 272.4 which provides for re-
countability.
standards is deleted as not being appli-
vising or amending the regulations in
9. Sections 273.15(a), 273.16(c) and
cable to contracts under this part.
Part 272. As a result, new paragraphs
273.17(d) are deleted. The deleted para-
22. A new paragraph (d) is added to
(e) and (f) are added to this section to
graphs related to the matter of estab-
§ 273.45 on Indian preference to con-
provide for more extensive and far-
lishing Indian Education Committees
form to 25 CFR 271.44.
reaching consultation with tribes and
where majority Indian school boards al-
23. Section 273.47 is revised to refer to
Indian organizations in this regard.
ready exist. Since the Act was silent on-
Federal Records Act requirements.
4. Comments expressing concern about
this issue, i.e. it neither required nor pro-
24. The term "and to the tribe(s) is
potential but unintentional limitations
hibited an Indian Education Committee
added in § 273.50(c) after the phrase
on the use of grants were received. Ac-
where a majority Indian school board
"Indian Education Committee(s)" to
cordingly, language changes are made in
already existed, the Bureau is not in-
assure tribal notification.
paragraphs (a), (b), and (d) of § 272.12
cluding this element in the regulations.
25. A new § 273.54 is added to include
providing "sight examples" rather than
Majority Indian school boards may make
the Privacy Act requirements in the reg-
using phrases such as "this includes but
provisions for such parental involvement.
ulations.
is not limited to".
10. Section 273.16(a) (4) is changed by
D. PART 274:
5. Many comments received expressed
inserting "Commissioner through the"
concern about § 272.15(b) (2) and (3).
before the word "appropriate" and by in-
1. The definition of "average daily
The major concern in this regard was
serting "or suspension" after the word
membership" in former § 404.3(a) is de-
"cancellation." This change is made to
leted as the term is not used in the text.
the $20,000 maximum limitation on int-
permit suspension of a program as an
Subsequent paragraphs in the section
tial planning grants to be used to develop
alternative to cancellation under certain
are redesignated.
larger grant applications. Accordingly,
circumstances.
2. The definitions of "Indian tribe" and
language is added to clarify the source
of funds for these initial planning
11. Section 273.18(j), which requires
"tribal organization" in paragraphs (j)
that the education plan list special pro-
and (r) of § 274.3 are revised to be con-
grants. Also, it should be noted that this
$20,000 limitation does not apply to the
grams which are or will be operated and
sistent with the definitions in Part 271:
which gives examples of such-programs,
3. A definition of "tribal government,"
final grant application itself but rather
is deleted and will be considered for in-
"tribal governing body," and "tribal
to the cost of developing such an appli-
cation. Another change is that the ap-
clusion in the program guidelines to be
council" is added as $ 274.3(q) to con-
proving officer shall take action on an
developed. Subsequent paragraphs are
form to the definition in Part 271.
redesignated.
4. The definition in $ 274.3(n) for "pre-
initial planning grant application within
12. Section 273.18(g), which requires
viously private school" is changed by de-
30 days instead of "with a minimum of
certain written information be provided
leting the phrase "early childhood" and
delay."
as part of the education plan, is revised
substituting "age 3 years" to establish
C. PART 273:
to clarify the material that is to be pro-
a specific base age that is less ambiguous
1. The definitions of "Indian tribe"
vided as part of the plan.
than the deleted term. Also deleted from
this section is the last sentence to clar-
and "tribal organization" in paragraphs
13. The term "February 1" is substi-
ify that such schools could be other than
(g) and (v) of § 273.2 are revised to be
tuted in § 273.21 in place of "January 15"
former sectarian facilities.
consistent with the definitions in Part
to give consideration for election to
5. New paragraphs (d) and (e) are
271.
Pueblo Councils. The same change is
added to § 274.5 to conform to 25 CFR
2. The definition for "previously pri-
made in §§ 273.25(b) and 273.28(b)
271.3.
vate school" in § 273.2(n) is changed by
14. Section 273.24(b) is amended by
6. Section 274.11(b) is changed by add-
deleting the phrase "early childhood"
deleting the word "promptly" and insert-
ing new language for this paragraph as
and substituting "age 3 years" to estab-
ing the phrase "within 20 days" after the
a condition of eligibility so Federal
lish a specific base age that is less am-
word "request" to specify the response
monies for construction are used only
biguous than the deleted term. Also
time allowed.
for facilities on tribal or government
deleted from this section is the last sen-
15. In § 273.25(a), the phrase "and any
land. The term "early childhood" is also
tence to clarify that such schools could
additional information requested in
deleted in § 274.11(c) for consistency
be other than former sectarian facilities.
§ 273.24(b)" is inserted in place of the
with § 274.3(n).
3. The definition of "reservation" in
phrase "except as given in paragraph (b)
7. The term "No later than" is inserted
§ 273.2(o) is revised to give statutory
of this section." This change is made to
to begin the sentence in $ 274.22(a) to
reference for Alaska Native regions and
clarify the change made in § 273.24(b).
provide flexibility of operations.
to delete the restrictive words "public
The same change is made to $ 273.28(a).
8. Section 274.34 is revised to assure
domain."
16. Section 273.31 is completely revised
compliance and that funds are used for
4. A definition of "tribal government,"
to establish a policy for gradual phase-
the purpose of the Act.
"tribal governing body," and "tribal
out of operational support and add a
9. A new phrase is added at the end of
council" is added as § 273.2(u) to con-
hold-harmless provision for supplemental
§ 274.36(a) and in § 274.36(b) after the
form to the definitions in Part 271.
assistance.
word "may" to emphasize the role of
5. Paragraphs (d) and (e) are added
17. The last sentence of $ 273.32 is
tribal governing bodies on their reserva-
to § 273.3 to conform to 25 CFR 271.3.
added to provide some flexibility for
tions.
6. The term "early childhood" is also
Indian Education Committees to approve
-10. A new paragraph (d) (4) is added
deleted in § 273.12 and the phrase "age
de minimus participation by non-eligible
to § 274.36 to allow records to be physi-
FEDERAL REGISTER, VOL 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
RULES AND REGULATIONS:
51285
cally located at the contract site where
vised to conform to the same definition
tribal governing body does not request
copying is not practical or feasible be-
in Part 271.
a contract. Although the Bureau recog-
cause a large volume is involved.
5. A definition of "tribal government,"
nizes that other contracting authorities
11. A new paragraph (d) is added to
"tribal governing body," and "tribal
are available to it, it does not believe
§ 274.38 on Indian preference to conform
council" is added as § 277.3(o) to conform
that the mandate of the Act would be
to 25 CFR 271.44.
to the definition in Part 271.
served if it contracts for Bureau pro-
6. New paragraphs (d) and (e) are
grams under these other authorities be-
E. PART 275:
added to § 277.4 to conform to 25 CFR
cause the tribal governing body involved
1. The definition of "tribal govern-
271.3.
does not request the contract under the
ment" and "tribal council" in paragraph
7. Section 274.11(a) is amended by
regulations promulgated to implement
(j) of § 275.2 is changed to include "tri-
deleting the term "State education
the Act.
bal governing body" to comply with the
agency or" and that portion of the sen-
3. Comments were received that were
definition in Part 271.
tence after the word "Indians." These
critical of the Bureau's restricting con-
2. The definitions of "Indian tribe'
changes-are in conformity with the cur-
tracting under the Act to non-profit cost
and "tribal organization" in paragraphs
rent regulations for Pub. L. 81-815 issued
reimbursable contracts. The Bureau be-
(f) and (k) are revised to be, consistent
by the Department of Health, Education,
lieves that the requirements found in
with the definitions in Part 271
and Welfare
section 106 of the Act concerning the
3. In § 275.3(a)(1) (formerly $405.3
8. In 277.12(a), the term Indian
amount of funds to be provided under a
(a)), the word "shall" is changed to
Education Committee" is substituted for
contract and how savings under a con-
"may" in the second sentence to make
the term 'public school officials", as
tract can be utilized, can best be served
it clear that the agreement is optional
stated in the Act. Further, in 277.12
through non-profit cost reimbursable
and not required.
(c), the term "and the Indian Education
contracts.
4. The paragraphs in $ 275.3 are re-
Committee". is inserted after the word
4. One commentator objected to the
designated because the requirements in
"officials" to maintain consistency with
Bureau's perception of the role of the
paragraph (c) (4) relate to more than
paragraph (a) of that section.
tribal governing body in the contracting
agreements under the 1834 Act.
9. The word "Regional" is deleted in
process and felt the role of the Indian
5. Section 275.3(b) (formerly § 405.3
$ 277.13(a) in consultation with the De-
people and community was being sub-
(c) (4) is revised to clarify that the
partment of Health, Education, and Wel-
verted thereby, citing the language in
contracts referred to are contracts under
fare as is the phrase in (277.13(b) (1)
section 102 of the Act whereby requests
Part 271 and that the application must
(1) after the word "purposes"
for contracts must be submitted by In-
be submitted, instead of notifying the
10. Deletions are made in § 277.22(e)
dian tribes in support of this contention.
Area Director, at least 120 days in ad-
The term "local education agency" is
The Bureau does not agree with this
vance.
substituted for the phrase "tribe to ob-
analysis and feels that the Act clearly
PART 276:
tain its approval". Also deleted is the
mandates the role of the tribal governing
1. The definitions of Indian tribe"
phrase after the word "adequacy". These
body in the contracting process.
and "tribal organization" in paragraphs
changes are in conformity with Pub. L.
5. One commentator observed that in
(i) and (r) of § 276.2 are revised. to be
81-815 regulations issued by the Depart-
certain States only Certified Public Ac-
consistent with the definitions in Part
ment of Health, Education, and Welfare.
countants can be licensed under State
271. The definition of letter of credit"
11. Section 277.24 is revised to assure
law and suggested that provision be
in paragraph this section is re
compliance and that funds are used for
made in the regulations for the certifi-
vised to reflects memorandum of un-
the purposes of the Act.
cation of accountants in such States un-
12. A new phrase is added at the end
derstanding between the Departments
der rules and regulations that would be
of $ 277.26(a) and in -§ 277.26(b) after
of Interior and Treasury
developed by the Secretary. The Bureau
the word "may" to emphasize the role of
2. A definition of "tribal government,"
does not believe that such action would.
tribal governing bodies on their reserva-
"tribal governing body;" and "tribal
be feasible or practical and, therefore.
tions
council" is added as 276.2(q) to con-
has taken no action on this comment.
13. A new paragraph (d) is added to
form to the definition in Part 271.
6. One commentator felt that the ret-
$ 277.28 on Indian preference to conform
3. A new paragraph (c) is added to
rocession procedure of the regulations,
to 25 CFR 271.44.
276.13 to further clarify Indian prefer
as they relate to a tribal governing body's
14. The last sentence of § 277.31(e) is
ence procedures.
right to request retrocession of a con-
deleted and new language inserted upon
4. Section 276 revised by adding
tract when the contractor is not the trib-
the:advice of the Department of Health,
procedures for grant rescission as recom-
al governing body, violates the contrac-
Education, and Welfare regarding pub-
mended by the Library of Congress
tor's right to due process. The Bureau be-
lic school policies.
lieves that the tribe that requests a con-
277:
III CHANGES Nor ADOPTED
tract also has the right to request retro-
1. The lastssentence of $ 277.2(b) is
Certain other comments have been
cession of the contract and that the pro-
amended to clarify-the language. In ad-
carefully considered but have not been
cedures set forth in the regulations con-
dition, the phrase "designated by the
accepted. The following suggestions were
cerning the tribal organization's rights
Commissioner" is inserted after "officer"
not adopted for the reasons given:
in this situation do not violate due
to denote that authority for construc-
process.
tion contracts for school facilities will
A. PART 271
7. Several commentators suggested
not be delegated to Bureau of Indian Af-
Various comments were received re-
that the regulations should provide for
fairs Area Directors but will remain
garding the definition of "Indian," "In-
the payment of a tribal. organization's
vested in the Commissioner.
dian tribe." "tribal organization" and
legal expenses when a hearing or appeal
2. The definition of "arerage daily
'trust responsibility". Although the defi-
is involved. The Bureau feels that these
membership" in former $ 407.3(a) is de-
finitions contained in the regulations may
suggestions were well made, but does not
leted as the term does not appear in the
not resolve each commentator's concern,
believe it is authorized to provide for
text. Subsequent paragraphs in the sec-
it is felt that the definitions are consist-
such payments.
tion are redesignated
ent with the Act and generally in con-
8. Several commentators took excep-
3. The definitions in $ 407.3 (h), (k)
formity with what was expressed during
tion to the requirement for contractors
and (1) are deleted as they presently
the consultation sessions required by the
to make a monthly report regarding the
appear in the Pub. L 81-815 regulations
Act.
contract to the members of the tribe(s)
issued by the Department of Health,
Education, and Welfare and are not re-
2. Two commentators expressed the
being served under the contract. The
Bureau believes that the people receiving
quired here.
opinion that tribal organizations should
contract services should receive this in-
4. The definition of "Indian tribe" in
be allowed to contract for Bureau pro-
formation on a regular basis without
§ 277.3(g) (formerly 407.3(j)) is re-
grams under other authorities when the
having to make a specific request for it.
FEDERAL REGISTER, VOL 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
51286
RULES AND REGULATIONS
9. Some concern was expressed over
erational support taken off the top will
Health Service, Department of Health,
the regulations dealing with appeals. The
be phased-out, as stated in § 273.31, over
Education and Welfare, to implement
Bureau is giving this matter further con-
a three year period. The allocation of
Pub. L. 93-638 be the same. Since the
sideration and will utilize the comments
funds for supplementary programs or
early planning stages of the regulations,
submitted in its consideration.
operational support will be determined
Bureau of Indian Affairs and Indian
10. Several commentators expressed
so as to assure an equitable distribution
Health Service staffs have consulted con-
the opinion that the equal opportunity
for eligible Indian students with the pro-
tinually on making both sets of regula-
provisions of the regulations were not
viso that each State in FY 1977 will re-
tions as consistent as possible. We will
not applicable to Indian tribes in view
ceive no less than 75 percent of its FY
work further with the Indian Health
of Title VII-of the Civil Rights Act. The
1975 supplementary program assistance.
Service and other Department of Health,
Bureau does not believe that the argu-
4. Some commentators raised issues-
Education and Welfare representatives
ments submitted in support of this posi-
regarding the internal operation of tribal
on possible revisions and amendments to
tion are so clear as to require a change
governing bodies relating to such matters
the regulations to achieve greater uni-
in the regulations at this time. Counsel
as Indian preference, the Indian Educa-
formity and consistency. No amendments
has, however, been sought and the results
tion Committee, etc. The Bureau of In-
will be made without appropriate Indian
will be considered when received.
dian Affairs takes the position that these
consultation or which would detract
B. PART 272:
issues fall within the purview of the gov-
from the legislative intent or statutory
erning bodies of tribes to be resolved in
provisions of the Act.
1. Many comments pertained to "tribal
their dealings with their constituents.
Accordingly, Chapter I of Title 25 of
organizations" and recommended that
"tribal organizations" be permitted to
D. PART 274:
the Code of Federal Regulations is
apply for or request grants on the same
amended by revoking Part 33 under Sub-
1. Several comments were received re-
basis as tribal governing bodies as per
chapter E and by adding new Parts 271
garding the requirement of vesting land
§§ 272.11 and 272.16. The Bureau's posi-
through 277 under a new Subchapter Y
title in the tribe or in the United States
as set forth below.
tion in this regard is that a tribal gov-
in order to qualify for construction
erning body should be the prime grantee
monies. The Bureau of Indian Affairs de-
IV. EFFECT ON OTHER DOCUMENTS
with all of the authority and respon-
clares this requirement is a policy de-
A. On the effective date of these regu-
sibility this designation infers. In effect,
cision to protect the integrity and ex-
lations, the tribal contracting guidelines
the Bureau believes that "tribal orga-
penditure of Federal funds.
published beginning on page 6377 of the
nizations" should not have equal status
2. Some commentators raised ques-
February 11, 1975, FEDERAL REGISTER (40
with tribal governing bodies in this grant
tions related to the minimum or pro-
FR 6377) are hereby revoked. These
program and that the regulations as
jected enrollment figure of 25 pupils in
guidelines are no longer needed since all
written reaffirm the basic authority and
elementary grades. The Bureau believes
contracting with tribal organizations for
responsibility of tribal governing bodies
an enrollment figure lower than this
the operation of.all parts of Bureau pro-
for tribal business affairs. Tribal govern-
number would not prove economically
grams will be done in accordance with
ing bodies may, of course, subgrant or
feasible in construction.
25 CFR Part 271 and 41 CFR Part 14H-
subcontract with tribal organizations as
70.
per § 272.26.
E. PART 275:
B. On the effective date of these regu-
2. Other comments recommended that
There were no major suggestions re-
lations, the All Purpose Tribal Contract
authority for the approval, execution
ceived regarding Part 275 which were not
issued by memorandum dated May 7,
and administration of grants be ex-
adopted.
1974, is hereby revoked.
tended to the Agency or Superintendent
F. PART 276:
C. Part 20 of the Bureau of Indian
level. The Bureau agrees that input at the
Affairs Manual on Indian involvement
the Agency or Superintendent level is
1. Some comments were received which
programs will be revoked by a release
and has provided for this input in § 272.-
pertained to Part 276, Uniform Admin-
memorandum to be issued in the near
15 and § 272.18. However, the Bureau
istrative Requirements for Grants. With
future. The revocation will be made
has determined that it is administra-
the exception of changes to §§ 276.13 and
effective on the effective date of these
tively and technically difficult for any
276.15, no significant changes were made
regulations.
given Agency or Superintendent to as-
in Part 276. This is because the stand-
sume these responsibilities and that the
ards and requirements contained in Part
D. Except for Part 14H-70, Chapter
276, including Appendices A and B, con-
14H of. Title 41 of the Code of Federal
Area or Commissioner levels are better
form with Federal Management Circular
Regulations which contains the Bureau
equipped by virtue of available staff and
technical expertise to function in this re-
74-7 "Uniform administrative require-
of Indian Affairs procurement regula-
gard. Also, this is consistent with the
ments for grants-in-aid to State and
tions will be revised as-soon as possible
approval, execution and administration
local governments". These administra-
after the effective date of the regulations
procedures prescribed in Part 271 on
tive standards and requirements are
in 25 CFR Parts 271 through 277.
contracts.
minimal and are in use government-
Effective date. The revocation of Part
wide, including grant programs provided
33 and the addition of Parts 271 through
C. PART 273
to Indians by other Federal agencies.
277 shall become effective on December
1. Several respondents objected to the
4, 1975.
G. PART 277:
inclusion of "previously private schools"
MORRIS THOMPSON,
as participants under this Part. The
1. Several comments were received re-
Commissioner of Indian Affairs.
Bureau of Indian Affairs does not agree
garding language directly affecting
SUBCHAPTER Y-INDIAN SELF-DETERMINATION
with these respondents as the Act re-
either Pub. L. 81-815 or its regulations.
AND EDUCATION ASSISTANCE ACT PROGRAMS
quires that such schools be included, as
The Bureau of Indian Affairs takes the
PART 271-CONTRACTS UNDER INDIAN
stated in Title II, Section 208.
position that the regulations for Pub. L.
SELF-DETERMINATION ACT
2. Various comments were also re-
93-638 affecting public school construc-
celved regarding the composition, scope
tion, i.e. Part 277, in no way modify the
Subpart A-General Provisions
Sec.
of duties, powers, and responsibilities of
procedures, criteria, and regulatory
271.1
Purpose and scope.
the Indian Education Committee. The
mechanisms inherent in Pub. L. 81-815
271.2
Definitions.
Bureau takes the position that the pres-
as administered by the Department of
271.3
Revision or amendment of regula-
Health, Education and Welfare.
tions.
ent regulations reflect the legislative in-
271.4
Statement of policy.
tent and statutory provisions of the Act
H. GENERAL COMMENTS APPLYING TO ALL
Subpart B-Application Process
relative to this Committee.
PARTS:
271.11
Eligible applicants.
3. Suggestions were made to alter, in
1. Several comments were received
271.12
Contractable functions or programs.
one form or another, the allocation and
suggesting that the regulations issued by
271.13
Application information.
distribution of funds under this Part.
271.14
the Bureau of Indian Affairs, Depart-
Content of application.
271.15
The Bureau takes the position that op-
Criteria for declining to contract.
ment of Interior, and by the Indian
271.16
Access to Bureau records.
FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
RULES AND REGULATIONS
51287
Sec.
Subpart A-General Provisions
Funds; and also programs or parts of
271.17 Pre-application technical assistance.
271.18 Tribal request for initial contracts.
§ 271.1 Purpose and scope.
programs connected with construction
271.19 Status of contracts in effect before
projects but exclusive of the actual con-
(a) The purpose of the regulations in
effective date of regulations
struction of the project.
this Part is to give the application and
271.20 Recontracting.
(e) "Commissioner" means the Com-
271.21 Submission of requests to contract.
approval process for non-profit contracts
missioner of Indian Affairs.
271.22 Review and action by Superintend-
with the Bureau under section 102 of
(f) "Days" means calendar days.
ent.
Title I of the Indian Self-Determination
(g) "Economic enterprise" means any
271.23 Review and action by Area Director.
and Education Assistance Act (Public
commercial, industrial, agricultural, or
271.24 Area Office recommendation to de-
Law 93-638, 88 Stat. 2203). Title I is
business activity that is at least 51 per-
cline.
known as the Indian Self-Determination
cent Indian owned, established or or-
271.25 Review and action by Commissioner.
Act. Contracts under the Act include
271.26 Appeal of Commissioner's decision to
ganized for the purpose of profit.
"tribal governmental functions" as de-
decline.
(h) "Indian tribe" means any Indian
271.27 Technical assistance after declina-
fined in § 271.2(q), "business related
Tribe, Band, Nation, Rancheria, Pueblo,
tion.
functions" as defined in § 271.2(d), and
Colony or Community, including any
271.28 Failure of Bureau Agency or Area Of-
certain contractable trust resources pro-
Alaska Native village or regional or vil-
fice officials to act.
grams or parts of programs as set forth
lage corporation as defined in or estab-
Subpart C-Additional Requirements for Trust
in § 271.32. The nature of contracts with
lished pursuant to the Alaska Native
Responsibilities
Indian entities which do not fall within
Claims Settlement Act (85 Stat. 688)
271.31 Applicability.
the purview of the Act, including con-
which is federally recognized as eligible
271.32 Contractable functions or programs.
tracts which may provide for profit, and
by the United States Government
271.33 Content of application.
the conditions for entering into such con-
through the Secretary for the special
271.34 Criteria for declining to contract.
tracts, are set forth in the regulations
programs and services provided by the
Subpart D-General Contract Requirements
implementing the Act of June 25, 1910
Secretary to Indians because of their
(36 Stat. 861, 25 U.S.C. 47), commonly
status as Indians.
271.41 Advance payments.
271.42 Use of government property
referred to as the "Buy Indian" Act.
(i) "Indian" means a person who is
271.43 Wage and labor standards.
(b) Section 104 of Title I of the Act
a member of an Indian tribe.
271.44 Indian preference.
provides authority for making grants for
(j) "Previously private school" means
271.45 Liability and motor vehicle in-
certain purposes. It is the Bureau's pol-
a school (other than a Federal school
surance.
icy to make grants for the purpose spec-
formerly operated by the Bureau) that
271.46
Recordkeeping.
ified in Section 104 of the Act in lieu of
is operated primarily for Indian stu-
271.47 Records-access to and retention.
contracts. Part 272 of this chapter gives
271.48 Freedom of information.
dents in any grade or grades from age 3
the procedures and requirements for ob-
271.49 Annual reporting
years through grade(s) 12; and. which
271.50 Penalties.
taining grants under section 104 of the
at the time of application is controlled,
271.51 Federal contracting laws and regula-
Act.
and sanctioned or chartered by the gov-
tions.
(c) Nothing in these regulations shall
erning body(s) of. an Indian tribe(s).
271.52 Term of contract.
be construed as:
(k) "Recontracting" means the enter-
271.53 Performing personal services
(1) Affecting, modifying, diminishing,
ing into a contract with a tribal organi-
271.54 Contract funds.
or otherwise impairing the sovereign
zation which holds a contract for the
271.55 Savings under contract.
immunity from suit enjoyed by an In-
271.56 Privacy Act requirements,
same program.
dian tribe;
(1) "Resolution" means the formal
Subpart E-Contract Revision or Amendment
(2) Authorizing or requiring the ter-
manner in which the tribal government
Sec.
mination of any-trust responsibility of
expresses its legislative will in accord-
271.61 Requesting revision or amendment.
the United States with respect to the
ance with its organic documents. In the
271.62 Review and-action by contracting
Indian people; or
absence of such organic document, a
officer
(3) Permitting significant reduction
271.63 Contracting officer's recommenda-
written expression adopted pursuant to
in services to Indian people as a result
tion to decline.
tribal practices will be acceptable.
of this Part.
271.64 Review and action by Area Director
(m) "Secretary" means the Secretary
or Commissioner.
(d) Nothing in these regulations shall
of the Interior.
271.65 Appeal of Area Director's or Com-
be construed to mandate a tribe to apply
(n) "Superintendent" means the offi-
missioner's decision to decline.
for a contract or contracts with the Bu-
cial in charge of a Bureau of Indian Af-
271.66 Revisions or amendments proposed
reau to plan, conduct, and administer
fairs Agency Office.
by Bureau.
all or parts of any Bureau program. Such
(o) "Tribal Chairman" means tribal
Subpart F-Retrocession and Reassumption
applications under these regulations are
chairman, governor, chief or other per-
271.71 Retrocession
strictly voluntary
son recognized by the tribal government
271.72 Full retrocession procedures.
§ 271.2 Definitions.
as its chief executive officer.
271.73 Tribal assumption of retroceded con-
(p) "Tribal government, "tribal gov-
tracts.
As used in this part: (a) "Act" means
erning body" and tribal council" means
271.74 Reassumption.
the Indian Self-Determination and Edu-
the recognized governing body of an In-
271.75 Cancellation for cause.
cation Assistance Act (Public Law 93-
dian tribe.
271.76 Bureau operation of retroceded and
638, 88 Stat. 2203)
reassumed contracts.
(q) "Tribal governmental function"
(b) "Area Director" means the official
271.77 Authorized position and end-of-year
means all programs authorized to be ad-
in charge of a Bureau of Indian Affairs
employment ceiling reserve for Bu-
ministered by the Bureau for the benefit
Area Office.
reau operation of retroceded, reas-
of Indians enumerated as line items in
sumed or cancelled contracts.
(c) "Bureau" means the Bureau of
the Bureau's annual budget requests un-
Indian Affairs.
der the Activities of Education and In-
Subpart G-Hearings and Appeals
(d) "Business related function" means
dian Services, the Subactivities of Di-
271.81 Hearings
all programs authorized to be adminis-
rect Employment and Road Mainte-
271.82 Appeals from decision or action by
tered by the Bureau for the benefit of
nance, and those programs related to
Area Director.
Indians enumerated as line items in the
Irrigation and Power Operation and
271.83 Appeals from decision or action by
Bureau's annual budget request under
Maintenance identified as a part of the
Commissioner.
Tribal Resources Development as the
subactivity minerals, mining, irrigation
271.84 Appeals from Bureau decision to can-
Sub-activities of Business Enterprise De-
and power under the Activity of Tribal
cel contract for cause.
velopment, Credit and Indian Action
Resources Development.
AUTHORITY: Sec. 102, Public Law 98-638, 88
Teams; Revolving Funds for Loans; In-
(r) "Tribal organization" means the
Stat. 2203, unless otherwise noted.
dian Loan Guaranty and Insurance
recognized governing body of any In-
FEDERAL REGISTER, VOL 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
51288
RULES AND REGULATIONS
dian tribe; or any legally established or-
dian. people for self-determination by
ganization of Indians or tribes which is
(h) The regulations in this Part are
assuring maximum Indian participation
controlled, sanctioned, or chartered by
in the direction of educational as well as
not meant to and do not change the
such governing body or bodies or which is
eligibility criteria which individuals must
other Federal services to Indian com-
democratically elected by the adult
meet to be eligible any program cur-
munities so as to render such services
members of the Indian community to be
rently operated by the Bureau. The eligi-
more responsive to the needs and desires
served by such organization and which
of those communities.
bility criteria for each Bureau program
includes the maximum participation of
(b) The Congress has declared its
is given in the Part of Chapter I, Title
Indians in all phases of its activities;
25 of the Code of Federal Regulations
commitment to the maintenance of the
Provided, That a request for a contract
which deals with that program. A con-
Federal Government's unique and con-
must be made by the tribe that will re-
tractor shall use the existing Bureau
tinuing relationship with and responsi-
ceive services under the contract: Pro-
bilities to the Indian people through the
eligibility criteria in operating all or
vided further, That in any case where a
parts of a Bureau program under a con-
establishment of a meaningful Indian
contract is let to an organization to per-
tract under this part unless a waiver is
self-determination policy which will per-
form services benefiting more than one
obtained from the Commissioner. The
mit an orderly transition from Federal
Indian tribe, the approval of each such
domination of programs for and services
Commissioner may not waive eligibility
Indian tribe shall be a prerequisite to the
criteria established by statute. The Com-
to Indians to effective and meaningful
letting of such contract
missioner may waive eligibility criteria
participation by the Indian people in the
(s) "Trust resources" means natural
planning, conduct, and administration
established by regulation in Chapter I,
resources, land, water, minerals, funds
of those programs and services.
Title 25 of the Code of Federal Regu-
lations.
or property, asset, or claim, including
(c) It is the policy of the Bureau to
any intangible right or interest on any
facilitate the efforts of Indian tribes to
Subpart B-Application Process
of the foregoing, which is held by the
plan, conduct, and administer programs,
United States in trust for any Indian
§ 271.11 Eligible applicants.
or portions thereof, which the Bureau is
tribe or any Indian individual or which
authorized to administer for the benefit
Any tribal organization is eligible to
is held by any Indian tribe or Indian in-
of Indians and to facilitate the coordina-
apply for a contract or contracts with
dividual subject to a restriction on alien-
tion of all Federal and other programs
the Bureau to plan, conduct, and admin-
ation imposed by the United States.
on Indian reservations.
ister all or parts of Bureau programs
(t) "Trust responsibility" means, for
(d) It is the policy of the Bureau to
under section 102 of the Act. However,
the purposes of this part only, the re-
continually encourage Indian tribes to
before the Bureau can enter into a con-
tect, manage. develop and approve au-
become increasingly knowledgeable
tract with a tribal organization, it must
thorized transfers of interests in trust
about Bureau programs and the oppor-
be requested to do so by the Indian tribe
resources held by Indian tribes and In-
tunities Indian tribes have regarding
or tribes to be served by the contract in
dian individuals to a standard of the
them; however, it is the policy of the
accordance with § 271.18.
highest degree of fiduciary responsibility.
Bureau to leave to Indian tribes the ini-
§ 271.12 Contractable Bureau pro-
& 271.3 Revision or amendment of
tiative in making requests for contracts
grams.
regulations.
and to regard self-determination as in-
In order to make any substantive re-
cluding the decision of an Indian tribe
Tribal organizations are entitled to
visions or amendments to the regulations
not to request contracts.
contract with the Bureau to plan, con-
duct, and administer all or parts of any
in this Part, the Secretary shall take the
(e) It is the policy of the Bureau not
program which the Bureau is authorized
following actions:
to impose sanctions on Indian tribes
to administer for the benefit of Indians.
(a) Consult with Indian tribes and
with regard to contracting or not con-
All or parts of any program include:
national and regional Indian organiza-
tracting; however, the special resources
made available to facilitate the efforts
(a) Any part of a Bureau program
tions to the extent practicable about the
need for revision or amendment and con-
of those Indian tribes which do wish to
which is divisible from the remainder of
sider their views in preparing the pro-
contract should be made known to all
the program so long as the contract does
posed revision or amendment
tribes, as should the current realities of
not significantly reduce benefits to
(b) Present the proposed revision or
funding and Federal personnel limi-
Indians served by the non-contracted
tations.
part(s) of the program. However, to the
amendment to the Committees on In-
extent that it is within the Bureau's
terior and Insular Affairs of the United
(f) Contracting is one of several
existing authority and the program OF
States Senate and House of Representa-
mechanisms by which Indian tribes can
part thereof involves only one tribe and
tives.
exercise their right to plan, conduct,
one Bureau Agency or Area Office, the
(c) Publish the proposed revisions or
and administer programs or portions
benefits provided to Indians by the non-
amendments in the Federal Register as
thereof which the Secretary is author-
ized to administer for the benefit of
contracted part(s) of the program may
proposed rulemaking to provide adequate
be reduced at the request of the tribe.
Indians Another mechanism afforded
notice to, and receive comments from, all
When the program or part thereof
interested parties.
Indian tribes is the use of a grant, as
serves more than one tribe, the benefits
provided in Part 272 of this chapter, or
(d) After consideration of all com-
provided by the non-contracted part(s)
other resources, to plan the manner in
ments received, publish the regulations
of the program may be reduced when all
which It wishes the Bureau to operate a
in the FEDERAL REGISTER in final form
of the tribes served consent to a reduc-
program or portion thereof
tion.
not less than 30 days before the date
they are made effective
(g) Contracting by its very nature
(b) A single employee position only
places Bureau officials in the dual posi-
(e) Annually consult with Indian
when the functions to be performed pro-
tion of assisting Indian tribes, in many
tribes and national and regional Indian
vide a direct service to Indians and
instances, by furnishing technical assist-
organizations about the need for revision
meets the criteria in paragraph (a) of
ance in preparation of contract propo-
this section.
or amendment, and consider their views
sals, and of carrying out their fiscal and
in preparing the revision or amendment.
administrative responsibilities as officials
(c) Programs or parts of programs or
(f) Nothing in this section shall
of the Federal Government It is recog-
services that are authorized but not cur-
preclude Indian tribes or national or
nized that very often these two posi-
rently operated or provided by the
Bureau.
regional Indian organizations from initi-
tions are in opposition to each other.
ating request for revisions or amend-
The Act and these regulations are de-
(d) Operation of, or services provided
ments subject to paragraphs (a), (b),
signed to address this problém to the
by, previously private schools.
(c) and (d) of this section.
degree practicable. The Commissioner,
(e) All of the foregoing paragraphs of
§ 271.4 Statement of policy.
Area Directors and Superintendents, as
this section apply to trust resources pro-
line officers of the Bureau, are expected
grams or portions thereof. Additional
(a) The Congress has recognized the
to balance these two positions within the
criteria for contractable trust resources
obligation of the United States to re-
framework of the regulations in this
spond to the strong expression of the In
programs, or portions thereof, are given
Part
in 271.32.
FEDERAL REGISTER, VOL. 40, NO. 213-JUESDAY, NOVEMBER 4, 1975
RULES AND REGULATIONS
§ 271.13 Application information.
organization may submit a written agree-
performance under the contract with re-
ment to establish a bookkeeping and ac-
spect to the factors listed in this para-
Application instructions and related
counting system that meets the standards
graph.
materials may be obtained from Super-
of Appendix B of Part 276 of this chapter
(1) Equipment, buildings and facil-
intendents, Area Directors, and the
and to have the bookkeeping and ac--
ities. No higher standards with regard
Commissioner.
counting system certified before the Bu-
to buildings, facilities, or equipment shall
§ 271.14 Contents of contract applica-
reau disburses any funds under a contract
be applied to tribal organizations than
awarded as a result of the application.
have previously been applied to the Bu-
tion.
When a certification has been submitted
reau. As provided in § 271.42, the Bureau
Application for a contract under this
in connection with a previous application,
shall make available the use of all equip-
Part shall contain the following infor-
mation in sufficient detail to permit eval-
the applicant may state this fact instead
ment which has been allocated to the
uation of the application in light of the
of submitting a new certification.
operation of the program by the Bureau
(n) Proposed system for managing
in the past, unless the Bureau proves
declination criteria set forth in § 271.15.
property and keeping records or agree-
the provision of the equipment will seri-
No further detail is, or shall be, required.
ment to establish within 90 days of con-
ously interfere with the Bureau's ability
(a) Full name, address and telephone-
tract execution, a satisfactory system for
to provide services to Indian people in
number of the tribal organization which
managing property and keeping records.
non-contracted programs. Where equip-
is applying for the contract.
(o) Advance payment required by the
ment is shared by the programs to be
(b) Full name of tribe(s) with which
tribal organization for contract
contracted and other non-contracted
the tribal organization is affiliated.
(p) Term of contract requested and
programs, equipment-sharing or other
(c) Full name of tribe(s) directly ben-
efiting or receiving cervices from the pro-
proposed starting date of contract.
suitable arrangements shall be stated.
in the contract.
posed contract.
271.15 Criteria for declining to con-
(2) Bookkeeping-and accounting pro-
(d) Documentation of the tribal re-
tract.
cedures. It must be clearly demonstrated
quest to contract as required in § 271.18.
(a) The Commissioner may decline to
by the Bureau that the tribal organiza-
(e) Date of submission to the Bureau.
contract only for the specific causes given-
tion which will undertake the contract.
and the name of the office where the ap-
in paragraph (b) of this section. The
does not have or cannot set in place,
plication was submitted.
burden of proof is on the Commissioner
using the contract funds, an accounting
(f) Signature by the authorized repre-
to demonstrate, through substantial evi-
and bookkeeping system which will be
sentative of the tribal organization and
dence, that one: of the specific grounds
adequate.
the date thereof.
for declination exists and that, therefore,
(3) Substantive knowledge of the pro-
(g) Estimated number of Indian people
the application must be declined.
gram to be contracted.
who will receive benefits or services from
(b) The Commissioner may decline to
(i) Where the tribal organization pro-
the contract, based on available data in-
contract when:
posing to contract is the tribal govern-
cluding tribal records.
(1) The services to be provided to the
ing body and the program or functions
(h) Descriptive narrative of what
intended Indian beneficiaries of the par-
to be contracted is a tribal governmental
functions, Bureau programs, or portions.
ticular program. or function to be: con-
function, there shall be an absolute pre--
of programs the tribal organization.
tracted will not be satisfactory.
sumption that the tribal governing body:
wants to contract for.
(i) It will be presumed by the Bureau
has substantive knowledge of the pro-,
(i) Plan of operations, which shall in-
that the program plan and budget set
gram or function to be contracted.
clude but is not limited to:
forth by the tribal organization provides
(ii) Where the tribal organization pro-
(1) A statement of tribal goals and ob-
a basis for the delivery of. satisfactory
posing to contract is not the tribal gov-
jectives to be obtained by the contract
services to the Indian people unless it
erning body or the program or function
(2) The organization, methods and
can be demonstrated by the Bureau by
to be contracted is not a tribal govern-:
procedures to be used to accomplish the
substantial evidence that the program
mental function, the tribal organiza-
tribal goals and objectives.
will yield results which will be deleterious
tion shall be presumed to have substan-
(3) The means to. measure progress
to the welfare of the Indian people to be
tive knowledge of the program to be con-
and accomplishment
tracted. if the tribal organization meets
served.
(4) The budget showing the amount
(ii) The service to be provided shall
one or more of the following conditions:
and sources. of funding and other re-
be deemed satisfactory if the contract
(A) The tribal organization has ade-
sources required for the contract.
application indicates that the applicant
quately managed a similar program be-t
(5) Staffing plan, including extent, if
has or will establish procedures to as-
fore through grant or contract.
any, that Bureau personnel may be
sure that services and assistance shall be
(B) The tribal organization which is
utilized. (See Part 275 of this chapter for
provided to the Indians affected by the
to manage the project possesses by virtue
staffing options the applicant may wish
contract in a fair and uniform manner.
of its-knowledge and/or experience sub-,
to consider).
Such procedures include eligibility cri-
stantive knowledge of the program to be
contracted.
(6) The evaluation criteria and-con-
teria for a tribal member to receive serv-
trol systems the tribal organization will
(C) The tribal organization has been
ices; recordkeeping adequate to verify
a consumer of such services in the past.
use to assure that the quality and quan-
the fairness and uniformity of services in
and thus has developed an understanding
tity of actual performance conforms to
case of formal complaints; an adequate
of the issues involved with the program
the requirements of the plan.
complaint procedure available to all In-
sufficient to enable it to effectively carry
(j) Statement of tribal organization's
dians affected; and those rights the
out the contract operation; and, the
substantive knowledge of the program,
individual will retain following the
tribal organization can secure through
part of a program or functions to be
complaint.
the resources of the contract, Bureau
contracted.
(2) Adequate protection of trust re-
staff or other resources, the training in
(k) Description of personnel system
sources is not assured. Criteria for de-
the particular subject area. which will
and position descriptions for key per-
termining if there is adequate, protec-
develop its substantive knowledge of the
tion of trust resources are given in
sonnel.
program.
(1) Listing of equipment, facilities, and
§ 271.34.
(4) Community support Before the
buildings needed to carry out the con-
(3) The proposed project or function
Bureau can enter into a contract there
tract and how the tribal organization in-
to be contracted cannot be properly com-
must be a request made in accordance
tends to obtain them.
pleted or maintained by the proposed
with § 271.18. The tribal governing
contract.
(m) Certification by a licensed ac-
body's resolution under § 271.18 shall be
countant that the bookkeeping and ac-
(4) The application is not within the
presumed to demonstrate that there is
counting procedures the tribal organiza-
purview of § 271.1(a).
community support for the proposed
tion presently uses meet the standards of
(c) In arriving at his finding, the
contract. Unless it can be demon-
Appendix B of Part 276 of this chapter.
Commissioner shall consider whether the
strated by substantial evidence that
In place of the certification, the tribal
tribal organization would be deficient in
there is a lack of community support for
FEDERAL REGISTER, VOL 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
51290
RULES AND REGULATIONS
the contract and the lack of support will
(e) Tribes may request a waiver from
(3) Preparing technical parts of the
result in unsatisfactory services, inade-
the Commissioner of regulations in this
contract application.
quate protection of trust resources or im-7
chapter as given in $ 1.2 of this chapter.
(4) Such other ways as may be re
possibility of service maintenance, the
(f) Bureau officials may not decline to
quested.
tribal governing body's resolution shall
enter into a contract with a tribal orga-
(b) Upon the request of a tribe, to the
be deemed conclusive. Those asserting
nization because of any objection that
extent that funds are available, the
that there is a lack of community sup-
could be overcome through the contract.
Bureau may make technical assistance
port for a proposed contract must dem-
§ 271.16 Access to Bureau records.
available to the tribal organizations from
onstrate that they have exhausted their
sources including, but not limited to:
tribal remedies before the matter is con-
(a) Upon the request of a tribal orga-
(1) Technical assistance organizations
sidered by the Bureau. In any event,
nization, the Superintendent or Area
under contract with the Bureau.
there will be no finding by the Bureau of
Director shall make available any infor-
(2) Grants under Part 272 of this
a lack of community support that would
mation requested and such other infor-
chapter.
result in deficiencies in performance
mation as the tribal organization may
(3) Other technical assistance re-
under the contract until those asserting
need to prepare a contract application
sources funded by the Bureau.
it have exhausted all their tribal
or carry out a contract. Tribal organiza-
(c) Upon the request of a tribe, the
remedies.
tions, other than the governing body of
Bureau will also assist tribal organiza-
(5) Adequacy of trained personnel. The
an Indian tribe (except when operating
tions in obtaining technical assistance
adequacy of trained personnel available
under a contract authorized under the
from other Federal agencies.
to the tribal organization to carry out
Act), shall seek such information
the proposed contract will be presumed
through that tribe's chairman or other
§ 271.18 Tribal request for initial con-
tract.
if any of the following conditions exist:
official(s) designated by the tribal gov-
(i) If the tribal organization has a per-
erning body, unless the tribal resolution
(a) Before the Bureau can enter into
sonnel system that prescribes minimum
under $ 271.18(d) (1) or subsequent reso-
a contract with a tribal organization, it
occupational qualification standards,
lution sets forth another procedure. Re-
must be requested to do so by the tribe
procedures for the selection of personnel
quests for information are subject only
to be served under the contract. The
on the basis of such standards, and the
to the limits of the Freedom of Informa-
tribe's request shall be in the form of a
personnel to be used under the proposed
tion Act (5 U.S.C. 552) as amended by
resolution by the tribal governing body.
contract are to be employed under the
the Act of November 21, 1974 (Public Law
If the tribal organization is applying for
personnel system.
93-502, 88 Stat. 1561), the Privacy Act
a contract to perform services benefiting
(ii) If there is no tribal personnel sys-
(5 U.S.C. 552a) and other applicable
more than one tribe, an authorizing res-
tem, it will be assumed that the person-
laws. Information to be made available
olution from each tribal governing body
nel to be employed under the proposed
shall include, but not be limited to:
must be obtained before submitting the
contract are adequately trained if the
(1) Data on program services to in-
application to the Bureau for approval. A
tribal organization has established po-
tended beneficiaries;
tribal governing body may pass a single
sition descriptions for key personnel to
(2) Reports on Bureau program opera-
resolution authorizing a tribal organiza-
be employed under the contract and
tions for the past three years;
tion to apply for, negotiate, and execute
agrees to establish a personnel system
(3) Present Bureau staffing pattern
more than one contract if the resolution
similar to the one described in paragraph
and grade levels, existing vacancies and
specifies for each contract the same in-
(c) (5) (i) of this section.
position descriptions;
formation required in paragraphs (b)
(6) Other necessary components of
(4) Data on the amount of funds which
and (c) of this section.
contract performance.
have been provided for the direct opera-
(b) The resolution of the tribal gov-
(i) All other necessary components of
tion of the specific program(s) or por-
erning body shall authorize the applicant
contract performance will be deemed to
tions thereof by the Bureau during the
tribal organization to apply for, negoti-
be met unless a tribal organization
past fiscal year and proposed contract
ate and contract with the Bureau, sub-
(A) Does not agree to develop an ade-
period;
ject to the specific terms, conditions and
quate personnel system that provides
(5) Existing appraisals, inventories,
limitations of the resolution and appli-
selection standards which insure equal
and assessment of trust resources.
cable tribal laws, codes, and regulations.
access to all qualified tribal members;
(b) The tribal organization shall have
The resolution shall include the results
(B) Has not agreed to establish and
access to Bureau records as follows:
of the vote (the number for and against),
maintain a property management sys-
(1) The tribal organization shall have
the date the resolution was approved,
tem which will adequately account for
access to needed Bureau records at the
and signature of the person authorized
and protect government property.
appropriate Bureau office for review and
to certify the accuracy of the informa-
(C) Has not agreed to keep such rec-
making copies of selected records.
tion contained in the resolution.
ords: as required pursuant to § 271.46,
(2) If the tribal contractor needs a
(c) The tribal governing body's re-
make reports required by 8 271.49, or to
reasonable volume of identifiable Bureau
quest (resolution) should include the
make such reports and information
records, the Bureau will furnish the
following:
available to Indian clients as required by
copies to the tribal organization.
(1) When the tribal organization is
$ 271.48.
(3) Where a large volume of records
the tribal governing body:
(D) Has not submitted a completed
are needed and copying is not practical
(1) A brief statement of the contract
contract application
or feasible, the records may be physically
scope.
(ii) All "other necessary components
located at the contract site provided that
(ii) The tribal official authorized to
have been specifically identified in this
Bureau official is designated by the Com-
negotiate the contract and any amend-
section. No other components shall be
missioner or Area Director as custodian
ments thereto.
defined which may serve as a basis for
of the records.
(iii) The tribal official authorized to
declination unless they are added to
(c) Failure of the Bureau to provide
execute the contract and any amend-
these regulations by revision or amend-
such access may be appealed under the
ments thereof.
ment of the regulations.
provisions set out in 43 CFR 2.17.
(iv) The expiration date of the au-
(d) Program plans and designs of
thorities granted by the resolution.
§ 271.17 application technical as-
tribal organizations for contract opera-
(v) The extent and procedure, if any,
sistance.
tion of Bureau programs or parts may
for review of the contract and any
be inconsistent with other Parts of this
(a) Upon the request of a tribe, Bureau
amendments thereto by the tribal gov-
chapter if a waiver is obtained from the
Agency and Area Offices shall provide
erning body before execution.
Commissioner. Inconsistencies between
technical assistance to a tribal organiza-
(vi) The proposed date for contract
such plans and designs-and Bureau man-
tion to assist them in:
commencement.
uals, guidelines or other procedures that
(1) Determining the appropriateness of
(vii) The proposed term of the con-
are appropriate to programs or parts of
contracting.
tract
programs operated by the Bureau are not
(2) Developing an effective program
(2) When the tribal organization is
grounds for declination.
design and plan of operations.
other than the tribal governing body:
FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
RULES AND REGULATIONS
51291
(1) The name of the tribal organiza-
(a) If the original contract provided
official at least 120 days before the con-
tion:
services to only one Indian tribe, written
tract's proposed starting date so the
(ii) A brief statement of the contract
applications to recontract shall be sent
Bureau can comply with all Civil Service
by the tribal organization to the Area
Commission requirements which apply to
scope.
(iii) The extent and procedure for re-
Office as follows:
separation and/or reassignment of Fed-
view by the tribal governing body of the
(1) Directly, when the tribal organi-
eral employees.
contract and any amendments thereto
zation involved is the governing body of
§ 271.22 Review and action by Superin-
prior to execution by the tribal orga-
the tribe
tendent.
nization.
(2) Through the governing body of the
(iv) The tribal office or official to
tribe for review when the tribal organiza-
The Superintendent shall take the fol-
which the Bureau should send copies of
tion is not the governing body of the
lowing actions after receiving the con-
contract documents and correspondence.
tribe. Submission shall be made to the
tract application:
(v) The proposed term of the contract.
governing body at least 120 days before
(a) Within five days of receipt, the
(vi) The proposed date for contract
the original contract expires. Copies of
Superintendent shall notify the appli-
commencement.
the submision shall be sent to the Super-
cant and the tribal governing body, if
(vii) Any limitations on authorities
intendent and Area Director at the time
different from the applicant, that the
granted the tribal organization, includ-
of submission to the tribal governing
application was received.
ing authorities granted to or vested in
body. The tribal organization shall
(b) Within 15 days of receipt, the
the tribal organization and/or tribal gov-
promptly notify the Area Director in
Superintendent shall review the applica-
erning body in regard to:
writing of the date the tribal governing
tion for completeness and request any
(A) Access to Bureau records under
body received the application. If, within
additional information from the appli-
$ 271.16.
45 days after receiving the application,
cant or from the requesting tribe that
(B) Recontracting under 271.20.
the tribal governing body does not pro-
is needed to satisfy the requirements of
(C) Appeals of a decision of the Com-
vide the Area Director with a formal
§ 271.14.
missioner under $ 271.26,
resolution objecting to the application to
(c) Within 30 days of receipt, the Su-
(D) Requests revise or amend a
recontract, the absence of receipt of such
perintendent shall make recommenda-
contract under §§ 271.61 and 271.62.
resolution shall constitute the tribe's re-
tions in writing to the applicant and the
(E) Requests for contract retrocession
quest to recontract.
tribal governing body which he feels are
under 11 271.71 and 271.72.
(b) If the original contract provided
needed to avoid possible declination and
(P) Right to appeal-under § 271.82
services to more than one Indian tribe,
shall indicate the technical assistance
§ 271.83 or § 271.84.
the tribal organization must give a copy
available from the Agency Office to cor-
(d) Any procedures given in this sec-
of the written application to recontract
rect any deficiencies.
tion concerning the manner in which a
to each tribal governing body 120 days
(d) The Superintendent shall provide
tribal governing body passes a tribal res-
before the original contract expires. The
the technical assistance offered in the
olution shall apply except where incon-
tribal organization shall promptly notify
written recommendation as requested by
sistent with the tribe's organic docu-
the Bureau office, where the application
the tribal organization and tribal govern-
ments or in the absence of such organic
is to be submitted under 271.21, in
ing body.
documents the tribal practice.
writing of the date the tribal governing
(e) The Superintendent shall forward
bodies received copies of the application.
the application to the Area Office with
§ 271.19 Status of contracts in effect be-
fore effective date: of regulations
If, within 45 days after receiving copies
his comments and recommendations as
of the application, none of the tribal gov-
follows:
Contracts: between the Bureau
erning bodies provide the appropriate
(1) Within 30 days after receiving the
and tribal organizations, which were en-
Bureau office with a formal resolution
application when the Superintendent has
tered into before the effective date of
objecting to the application to recontract,
no recommendations to make to the ap-
these regulations and are still in effect,
the absence of receipt of such resolutions
plicant.
shall continue until expiration of that
shall constitute the tribe's request to re-
(2) Within 10 days after making writ-
Contract Any revisions OK amendments
contract. If one or more of the tribal
ten. recommendations to the applicant
requested during the contract period
governing bodies involved object to the
when the applicant does not respond, or
shall be subject/to the provisions of Sub-
contract, they may withdraw from the
request additional time in which to
part E of this Partner
contract. In such case those withdrawing
respond or refuses the technical assist-
(b) Upon completion of contracts in
can stipulate how they wish the previ-
ance offered.
effect) before the effective date of the
ously contracted services to be rendered
§ 271.23 Review and action by Area Di-
regulations, one of the following: will
and the remainder may be recontracted
rector.
occur:
at the option of the tribes involved
Upon receipt of the contract applica-
(1) Where the tribal organization was
§ 271.21 Submission of requests to con-
tion, the Area Director will review the ap-
authorized to enter into its existing con-
tract.
plication and the Superintendent's rec-
tractsby a triball resolutions even if the
(a) Tribal requests to contract and
ommendations or, where the application
resolution was passed before the effec-
contract applications shall be submitted
was submitted directly to the Area Direc-
tive date of these regulations, the tribal
to the Bureau, as follows:
tor as provided for in § 271.21, obtain the
organization shall have the right to re-
contract subject to the provisions given
(1) To the Superintendent when the
appropriate Superintendents' recom-
tribe(s) or Indians to be served by the
mendations within 10 days and then pro-
in $ 271.20.
(2) Where the tribal organization did
contract are within the jurisdiction of
ceed as follows:
that Agency office.
(a) Notify the applicant and the tribal
not have a tribar resolution authorizing
it to enter into the existing contract, it
(2) To the Area Director when the
governing body, if different from the ap-
shall not be entitled to recontract, but
tribe(s) OF Indians to be served by the
plicant, that the application was received,
contract are within the jurisdiction of
within five days of its receipt.
must obtain a tribal request as provided
more than one Agency office in the same
(b) Within 30 days, review the con-
in § 271.18 and submit application as
Bureau Area.
tract application, the recommendations
provided in § 271.14
(3) To the Commissioner- when the
of the Superintendent, any responses
§ 271.20 Recontractings
tribe(s) or Indians to be served by the
from the contract applicant or the tribal
The Bureau will recontract for the
contract are within the jurisdiction of
governing body and the criteria for dec-
same function(s) or programs as the
more than one Area Office.
lination set forth in § 271.15 to deter-
original contract at the written request
(b) An application for a contract
mine if there are any declination issues
of the tribal organization designated in
under this Part may be submitted at any
that must be addressed, and at the com,
the tribal resolution. Requests for re-
time: However, when the proposed con-
pletion of the review, take one of the Tol-
contracting shall be made as follows un-
tract may result in the displacement of
lowing actions as appropriate:
less restricted by the resolution under
Bureau personnel, the application must
(1) If there are no declination issues,
8 271.18(c) (2) or subsequent resolutions:
be submitted to the appropriate Bureau
the Area Director will notify the contract
FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
51292
RULES AND REGULATIONS
applicant in writing of this fact, and
tween the Agency, Area and applicant
(iii) The applicant must use these
shall negotiate and award the contract
and/or tribe, and all responses thereto,
rights within 30 days after receiving the
within 30 days of notifying the applicant,
including any reports of meetings be-
notice required in paragraph (d) (2) of
unless a later date is requested by the
tween the parties relative to the applica-
this section.
applicant, and furnish a copy of any
tion.
(e) If the applicant requests a meet-
documents to be used by the Bureau dur-
(5) Copy of original application.
ing with the Commissioner under para-
ing negotiations.
(c) The Area Director shall send the
graph (d) (2) (ii) of this section, the
(2) If it is felt that there are declina-
written recommendation to the Com-
Commissioner shall:
tion issues that must be resolved, the
missioner within 15 days after the time
(1) Select a site for a meeting between
Area Director will notify the applicant
periods provided in § 271.23(b) (2) (iii)
the applicant and the Commissioner or
and/or tribal governing body of this fact
and (iv) At the same time, he shall send
his representative from the Bureau's
in writing. The notice shall include a list
a copy of the written recommendation
headquarters.
of the declination issues identified by the
to the tribal organization and tribal
(2) Authorize payment of transporta-
Area Director, the reason(s) for such
erning body.
tion costs and per diem under terms he
identification, a copy of any documents
(d) Within 15 days of receipt of the
may make to allow adequate representa-
used in arriving at the issues, recom-
Area Director's recommendation to de-
tion of the applicant and the appropriate
mendations for resolving the issues and
cline, the applicant may notify the Com-
tribe(s), if the meeting is more than 50
the technical assistance available for
missioner and the Area Director that it
miles from the office of the applicant.
this purpose. The notice shall also re-
accepts the offer of technical assistance
(3) Notify the applicant and the ap-
quest a meeting with the applicant and/
described in paragraph (b) (3) of this
or tribal governing body to discuss the
propriate tribe(s) of the time, location
section, thereby staying the declination
issues and seek agreement on a course
and other terms of the meetings.
process. To reconstitute the application
(4) Hold the meeting within 30 days
of action to resolve them. The meeting
process the applicant must notify the
shall be held within 15 days of the ap-
of the request, unless the applicant re-
Area Director, at which time the Area
quests a later date.
plicant's and/or tribal governing body's
Director shall proceed in accordance with
(f) (1) If the Commissioner deter-
receipt of the notice or at a time and
§ 271.23.
place mutually agreed to by the parties.
mines the application should be declined,
(i) If the applicant accepts the tech-
§ 271.25 Review and action by Commis-
the declination notice shall be issued as
sioner.
follows:
nical assistance, it shall be provided in
(i) Within 15 days after receiving the
accordance with the applicant's request.
(a) Within five days after receiving a
applicant's rebuttal submitted under
At such time as the issues are thus re-
contract application submitted directly
paragraph (d) (2) (1) of this section or
solved, the Area Director will so advise
under § 271.21 or a contract application
(ii) After the conclusion of the meet-
the applicant and offer to enter into
and the Area Director's recommendations
ing under paragraph (e) of this section.
negotiations within 15 days of resolution
to decline, the Commissioner shall notify
or at the applicant's convenience.
(iii) Within 45 days after notifying
the applicant and the tribal governing
the applicant under paragraph (d) (2) of
(ii) If the applicant declines the Area
body(s) in writing of the receipt of the
this section when the applicant has not
Director's offer of technical assistance
application.
used the rights under paragraph (d) (2)
and the matter is not otherwise resolved,
(b) Within 20 days after an applica-
of this section.
the Area Director shall proceed in ac-
tion is received by the Commissioner
(2) The declination notice shall be in
cordance with § 271.24.
under § 271.21, the Commissioner shall
writing and shall contain:
(iii) If the applicant does not respond
direct and the appropriate Area Direc-
within 30 days of receipt of the Area
(i) Identification of specific objec-
tor(s) shall furnish written recom-
tions, categorized under one or more of
Director's recommendations and offer of
mendations to the Commissioner, the
the declination criteria set forth in
assistance, and does not request addi-
tribal governing body(s) and the
§ 271.15.
tional time in which to respond, the Area
applicant.
(ii) Specific recommendations on ac-
Director shall proceed in accordance
(c) Within 15 days after receiving the
tions required by the applicant to over-
with § 271.24.
Area Directors' recommendations, the
(iv) If the applicant does not agree
come objections and a description of the
Commissioner shall review the applica-
nature, scope, and source of the tech-
with the Area Director's recommenda-
tion, the Area Directors' recommenda-
nical assistance which will be available
tions and the matter is not resolved
tions, and the declination criteria in
to overcome declination objections.
within 30 days of the Area Director's
§ 271.15.
receipt of the applicant's response to the
(iii) Copies of all correspondence be-
(d) Within 15 days after receiving the
Area Director's recommendations, the
tween the Bureau, applicant and/or
Area Directors' recommendations, the
Area Director shall proceed in accord-
tribe(s), and all responses thereto, in-
Commissioner shall notify the applicant,
ance with § 271.24.
cluding any reports of meetings between
the appropriate tribal governing bodies,
the parties relative to the application.
§ 271.24 Area Director's recommenda-
and the Area Director(s) of one of the
(iv) Copy of original application.
tion to decline.
following:
(1) When the Commissioner does not
(v) The appeal rights of the appli-
(a) If the Area Director, the applicant
accept the Area Director's recommenda-
cant and/or-the tribal governing body
and the tribal governing body fail to
under § 271.83.
resolve the declination issues, the Area
tions to decline, notice shall be given that
the recommendations are not accepted
§ 271.26 Appeals of Commissioner's de-
Director shall prepare a written recom-
and that the Bureau shall negotiate and
cision to decline.
mendation to decline.
(b) This recommendation shall con-
award the contract within 45 days, un-
The tribal organization and/or the
tain, at a minimum, the following in-
less the applicant requests additional
tribal governing body shall have 60 days
time.
formation:
to appeal to the Board of Indian Appeals,
(2) When the Commissioner accepts
(1) Identification of specific objec-
Department of Interior, Washington,
the Area Directors' recommendations
tions, categorized under one or more of
D.C., the decision by the Commissioner to
and believes that the Bureau should not
the declination factors set forth in
decline to contract. Provided, that the
contract as requested, notice shall be
§ 271.15.
tribal organization is authorized by the
given that the Commissioner plans to
(2) Specific recommendations on ac-
tribal governing body in the request
issue a declination notice and that the
tions required by the applicant or tribe
under § 271.18(c) (2) or subsequent
applicant has the following rights:
to overcome objections.
resolution to make such an appeal. The
(i) The applicant may submit a writ-
appeal shall be made as provided in
(3) Description of the nature, scope,
ten rebuttal to the Commissioner's plan
§ 271.83.
and source of the technical assistance
to issue a declination notice.
which has been provided or offered by
(ii) The applicant may request a
§ 271.27 Technical assistance after
the Bureau to assist the tribal organiza-
meeting with the Commissioner or his
declination.
tion to overcome declination objections.
representative under paragraph (e) of
If the Commissioner's decision to de-
(4) Copies of all correspondence be-
this section.
cline to contract is not appealed or is
FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
RULES AND REGULATIONS
51293
upheld on appeal, the Commissioner
projects, protection of the forest against
(b) The contract application provides
shall immediately offer technical assist-
wildfire, trespass, disease. or insect in-
for the termination of a trust respon-
ance to the tribal governing body for the
festation, and participation in cooper-
sibility.
purpose of overcoming the declination
ative programs with other Federal, State,
(c) The contract application provides
issues. Within 30 days of the tribal gov-
or tribal organizations related to pro-
for completion or maintenance of the
erning body's acceptance of this offer,
grams of the Bureau. Activities which
project or function to a lesser standard
the Commissioner will make technical
already are provided Indian forests from
than under Bureau administration. How-
assistance available to the tribal govern-
non-Bureau sources, as part of the man-
ever, a tribal proposal to raise perform-
ing body for the development of a plan
agement of a forested area larger than
ance standards shall not be used as a
for overcoming the objections that re-,
the reservation, are not contractable un-
reason for declination.
sulted in the decision to decline.
der provisions of this Part. Advice and
(d) The proposed activity requires
technical assistance provided individual
special skills for its performance and the
§ 271.28 Failure of Bureau Agency or
landowners in connection with forestry
proposed key staff does not meet Civil
Area Office to act.
programs will be made concurrently by
Service Commission or excepted qualifi-
Whenever a Bureau Agency or Area
the contractor and an appropriately des-
cation standards, other accepted profes-
Office official fails to take action on a
ignated Federal official.
sional standards appropriate to the dis-
contract application within the time
(f) Range management: development
cipline involved, or are not otherwise
limits established in this Part, the tribal
of contract stipulations for agricultural
recognized as technically qualified.
organization that submitted the applica-
leases/permits (land use stipulations or
conservation standards necessary to de-
Subpart D-General Contract
tion, may, at its option, request action
Requirements
by the next higher Bureau official. In
fine each use shall be incorporated in and
such cases, the official that failed to act
made a part of such lease or permit);
$ 271.41 Advance payments.
shall immediately forward the applica-
supervision of compliance, fee collection,
(a) At the request of a tribal contrac-
tion and all material pertinent thereto
watershed management, game and fish
tor, the Bureau contracting officer shall
to the official to whom the request for
management, outdoor recreation, wild-
make advance payments under contracts
action was made.
fire prevention and control.
as provided in this section. The require-
(g) Wildlife and parks: conservation,
Subpart C-Additional Requirements for
ments given in this section and in Chap-
use, and development of wildlife (in-
Trust Responsibilities
ter 2000 of the Treasury Fiscal Require-
cluding fisheries resources), and preser-
ments Manual, as modified or supple-
$ 271.31 Applicability.
vation of natural beauty, historical sites,
mented, apply to making the advance
This Subpart gives additional require-
and archeological remains.
payments.
ments applicable to the application and
(h) Water inventories and other ap-
(b) Any request for advance payment
approval process for contracts under this
propriate programs for protection of
by a tribal contractor shall specify the
Part which involve the Bureau's trust
water rights.
amount(s) required and the dates such
responsibilities in the area of natural
(i) Hunting and fishing: programs to
advance(s) will be required and shall be
resources, such as assessments, irriga-
regulate and enforce on- and off-reser-
supported by a schedule of estimated
vation hunting and fishing and programs
tion; real estate, forestry, range manage-
expenditures.
ment, wildlife and parks, water inven-
to provide data supporting litigation con-
(c) An initial advance will be limited
tories, and hunting and fishing.
cerning hunting and fishing issues.
to the amount of estimated expenditures
§ 271.33 Content of application.
for a sufficient period of time required to
§ 271.32 Contractable functions or pro-
In addition to the information re-
effect payment, based on experience in
grams.
quired in § 271.14, the following addi-
the locality. The initial advance may be
Contractable trust resources programs,
made in amounts and at times deter-
or portions thereof, include the follow-
tional information shall be included in
mined suitable to satisfy the minimum
the contract application when a trust
ing:
essential needs of the contractor.
(a) Assessments; inventories of exist-
resource or responsibility is involved:
ing resources in trust for individuals and
(a) A statement of the impact of pro-
(d) Later advances may be made at
posed activity on trust resources related
times and in amounts determined neces-
for tribes.
sary to insure availability of funds for
(b) Soil and moisture conservation:
to:
(1) Maintenance of inventory levels
timely payment of the tribal contractor's
basic soil and water conservation, water-
and values to tribes and to individuals;
obligations and to minimize the time be-
shed protection, flood prevention, coop-
tween withdrawal from the Treasury and
erative surveys and investigations, and
and,
resource conservation and development.
(2) Income to individuals and tribe.
expenditure. Requests for advances after
an initial advance shall be accompanied
(c) Irrigation: development, con-
The statement must also demonstrate a
struction, recordkeeping, rehabilitation;
thorough assessment of the trust re-
and supported by a report of expendi-
operations and maintenance.
sources issues, positive steps to protect
tures to date and the amount of funds
the trust resources, provisions that limit
on hand.
(d) (1) Real estate: land use planning
or eliminate potential for conflicts-of-
(e) Advance payments shall be made
and zoning, maintenance of land records,
interest, and that no delegation of trust
as follows:
preparation of abstracts of title, research
(1) When the annual advance to a
programs to determine heirship and in-
responsibility is requested.
tribal contractor is expected to exceed
ventory of estates, collection of technical
(b) A statement of the special skills
data and studies to be used in determi-
and qualifications required of personnel
$120,000 in the aggregate and the con-
tract term is for at least one year, the
nations of tribal claims to real property,
attached to program activity impacting
letter-of-credit method normally shall
collection of data leading to ascertain-
on trust resources and trust responsibility.
be used. The requirements contained in
ment of surface and subsurface re-
§ 271.34 Criteria for declining to con-
Chapter 2000 of the Treasury Fiscal Re-
sources, administration of leases.
tract.
quirements Manual, as modified or sup-
(2) Advice and technical assistance
provided individual landowners in con-
If a contract application includes
plemented, shall apply to making these
a project or function which is related to
advance payments.
nection with lease negotiations initially
the Bureau's performance of a trust
(2) Except as provided in paragraph
will be made concurrently by the con-
responsibility in the area of natural re-
(e) (1) of this section, advance payments
tractor and an appropriately designated
Federal official.
sources as given in § 271.32, the Com-
shall be made by check made payable to
(e) Forestry: forest management and
missioner shall decline to contract if he
the tribal contractor and handled as
planning, including the making of in-
finds that:
follows:
ventories, management plans and main-
(a) The contract application provides
(1) Advance payments may be made
tonance, tribal or individual Indian con-
for or would necessarily require the dele-
directly to the tribal contractor when the
sultation services, administration of
gation to the tribal organization of a
contractor is a tribal governing body, a
timber sales and Indian permit cutting,
trust responsibility vested by law in the
non-profit Indian organization serving as
conduct of timber stand improvement
Secretary or the Commissioner.
a governmental instrumentality of an
FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
51294
RULES AND REGULATIONS
Indian tribe or an intertribal council.
tractors in the construction, alteration,
(a) Fully reflect all financial tran
However, when the contractor is not one
or repair of buildings or other facilities
actions involving the receipt and
of the above, the advance payment may
in connection with contracts under this
penditure of funds provided under th
be made directly if all of the following
Part shall be paid wages not less than
contract in a manner which will provid
conditions exist:
those on similar construction in the lo-
accurate, current and complete disclo
(A) The advance payment does not
cality as determined by the Secretary of
sure of financial status; correlation with
exceed $2500.
Labor in accordance with the Davis-
budget or allowable cost schedules; and
(B) It is the only advance payment
Bacon Act of March 3, 1931 (46 Stat.
clear audit facilitating data.
involved in the contract.
1494), as amended. However, this
(b) Reflect the amounts and sources
(C) The performance time is less than
requirement doees not apply where the
of funds other than contract funds
90 days.
tribal contractor is the recognized gov-
which may be included in the operation
(D) The advance payment does not
erning body of the tribe or a non-profit
of a program.
exceed 85% of the amount of the
Indian organization serving as a gov-
(c) Provide for the creation, mainte
contract.
ernmental instrumentality of an Indian
nance and safeguarding of records of
(ii) Checks for advance payments
tribe and the construction, alteration, or
lasting value, including those involving
which cannot be made directly to the
repair work is being performed by the
individual rights, such as permanent
tribal contractor, as given in paragraph
tribal organization or the tribe with its
student records and transcripts.
(e) (2) (i) of this section, shall be marked
own employees.
(d) Provide for orderly retirement of
for deposit in a special bank account
§ 271.44 Indian preference.
records used or created under the con
established for the contract. No part of
tract. Such records shall be returned to
the funds deposited in the special bank
(a) Any contract made by the Bureau
the Bureau for disposition according to
account shall be mingled with -other
with a tribal organization shall provide
the General Records Schedules and the
funds of the tribal contractor before the
that the tribal contractor shall, to the
Bureau Records Control Schedules.
funds are withdrawn to meet obligations
greatest extent feasible, give preference
under the contract.
in and opportunities for employment and
§ 271.47 Records-access to and reten-
(f) Tribal contractors shall not be held
training to Indians.
tion.
accountable for interest earned on funds
(b) Any contract made by the Bureau
(a) During the term of a contract un-
advanced pending disbursement. How-
with a tribal organization shall provide
der this Part and for three years after
ever, bank balances must be maintained
that the tribal contractor shall, to the
the project or undertaking is completed,
at the minimum level consistent with
greatest extent feasible, give preference
the Comptroller General, the Secretary
program requirements. Requests for ad-
in the award of subcontracts to Indian
and the Commissioner or any of their
vances shall be reviewed to insure that
organizations and to Indian-owned eco-
duly authorized representatives shall
excess funds are not advanced.
nomic enterprises.
have access, for audit and examination
(c) All subcontractors employed by the
purposes, to any of the tribal contrac-
(g) Sub-advances may be made when
tribal organization shall, to the extent
predetermined as a part of contracted
tor's books, documents, papers, and rec-
possible, give preference to Indians for
ords which, are related or pertinent to
programs or when specifically author-
employment and training and shall be
ized in writing by the contracting officer.
the contract or any subcontract, with
required to include in their bid submis-
the following exceptions:
Sub-advances will not be made to indi-
sion a plan to achieve maximum use of
(1) The records shall be retained be-
viduals except for approved travel. In
Indian personnel.
yond the three year period if audit find-
such cases, the sub-advances shall not
(d) In the performance of contracts
ings have not been resolved.
exceed the minimum required for one
under this Part 271 and subject to the
(2) When records are transferred to
trip and shall be settled by voucher or
provisions of Part 14 H-70 of Title 41, a
or maintained by the Bureau, the three
repayment within 30 days.
tribal governing body may develop its
year retention requirement does not per-
§ 271.42 Use of Government property.
own Indian preference requirements to
tain to the contractor for those records.
the extent that such requirements are
(b) The tribal contractor will be re-
(a) In carrying out a contract made
not inconsistent with the purpose and
sponsible for maintaining all documents
under this Part, the Superintendent,
intent of paragraphs (a), (b), and (c)
such as invoices, purchase orders, can-
Area Director or Commissioner shall,
of this section.
celled checks, balance sheets and all
wherever possible, permit a tribal con-
§ 271.45 Liability and motor vehicle in-
other records relating to financial trans-
tractor to use existing buildings, facili-
actions in a manner which will facilitate
ties, and related equipment and other
surance.
auditing. The tribal contractor will be
personal property owned by the Bureau
(a) Tribal organizations shall obtain
responsible for maintaining files of cor-
within his jurisdiction To the extent
public liability insurance under con-
respondence and other documents re-
possible, arrangements on the use of
tracts entered with the Bureau under
lating to the administration of the pro-
Bureau property shall be provided for in
this Part. However, where the contract-
gram or project properly separated from
the contract agreement. In determining
ing officer determines that the risk of
general records or cross-referenced to
whether real or personal property can
death, personal injury or property
general files.
be provided, the Bureau shall determine
damage under the contract is small and
whether it can provide comparable serv-
that the time and cost of procuring the
§ 271.48 Freedom of information.
ices for any of the uncontracted part(s)
insurance is great in relation to the risk,
(a) Unless otherwise required by law,
of the program.
the contract may be exempted from this
the Bureau shall not place restrictions
(b) Requests for the use of Bureau
requirement.
on tribal contractors which will limit
property which arise after signing of
(b) Notwithstanding paragraph (a) of
public access to the tribal contractors'
the contract shall be submitted to the
this section, any contract which requires
records except when records must re-
relevant Bureau official by the tribal or-
or authorizes, either expressly or by im-
main confidential.
ganization. Such requests should be
plication, the use of motor vehicles must
(b) A tribal contractor under this
granted and the contract appropriately
contain a provision requiring the tribal
Part shall make all-reports and infor-
amended unless such use will seriously
organization to provide liability insur-
mation concerning the contract, includ-
interfere with the administration of
ance, regardless of how small the risk.
ing the report required under § 271.49,
existing Bureau programs. The property
available to the Indian people which the
at the time of transfer must conform to
§ 271.46 Recordkeeping.
contractor serves or represents. Reports
the minimum standards established by
A tribal contractor will be required to
and information may be withheld from
the Occupational Safety and Health Act
maintain a record-keeping system which
disclosure only when both of the follow-
of 1970 (84 Stat 1590), as amended (29
will allow the Bureau to meet its legal
ing conditions exist:
U.S.C. 651).
records program requirements under the
(1) The reports and information fall
$ 271.43 Wage and labor standards.
Federal Records Act (44 U.S.C. 3101 et
within one of the following exempt
seq.) and to facilitate contract retroces-
categories:
(a) All laborers and mechanics em-
sion or reassumption under Subpart F of
(1) Specifically required by statute or
ployed by tribal contractors or subcon-
this part. Such a record system shall:
Executive Order to be kept secret.
FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
RULES AND REGULATIONS
51295
(ii) Related solely to internal person-
quested by the Commissioner and may
§ 271.51 Federal contracting laws and
nel rules and practices of the Bureau.
be submitted as follows:
regulations.
(iii) Commercial or financial infor-
(1) When the contract is with the gov-
mation obtained from a person or firm
erning body of an Indian tribe, the tribe
(a) Contracts with a tribal organiza-
on a privileged or confidential basis.
shall submit the report to the Area
tion under this Part shall comply with
(iv) Memoranda or letters between
Director.
the Bureau procurement regulations con-
agencies of the Federal Government
(2) When the contract is with a tribal
tained in 41 CFR Part 14H-70, except as
which would not be available by law to
organization other than the governing
provided in paragraph (b) of this section.
a party other than the Federal Govern-
body of the tribe, the tribe has the option
(b) The Commissioner may waive any
ment in litigation with the Federal
of having the tribal organization prepare
Federal contracting laws, executive or-
Government.
the report and submit it to the tribe for
ders, regulations, rules and other admin-
(v) Personnel, medical, and similar
review and approval before the tribe
istrative requirements which he deter-
files where disclosure would be a clearly
submits-it to the Area Director or Com-
mines are not appropriate for the pur-
unwarranted invasion of personal pri-
missioner as appropriate.
poses of the contract involved or are in-
vacy.
(3) When the contract benefits more
consistent with the Act. Regulations and
(vi) Investigatory records compiled
than one tribe, the tribal organization
clauses which are deemed inconsistent or
for law enforcement purposes when pro-
shall prepare and submit the report to
inappropriate for inclusion in contracts
duction of the records would:
each of the tribes benefiting under the
entered into under the Act may be
(A) Interfere with enforcement pro-
contract. Each tribe shall endorse the re-
waived, modified or supplemented in 41
ceedings;
port before submitting it to the Area
CFR Part 14H-70 of the Bureau's pro-
(B) Deprive a person of a right to a
Director or Commissioner as appropriate.
curement regulations. Requests for
fair trial;
Should any of the tribes fail to endorse
waivers may be made as follows:
(C) Be an unwarranted invasion of
the report within 75 days of its receipt,
(1) Tribal organizations may submit
personal privacy:
the tribal organization may submit the
written requests for a waiver or modifica-
(D) Disclose the identity of a confiden-
report with the endorsements that have
tion of contract regulations on specific
tial source and confidential information
been received.
contracts to the Commissioner through,
furnished only by the confidential source;
(b) The annual report shall be sub-
or jointly with, the contracting officer.
(E) Disclose investigative techniques
mitted to the Area Director or Commis-
The contracting officer will promptly
and procedures; or
sioner as appropriate within 90 days
transmit the request and his recommen-
(F) Endanger the life or physical
after the end of the fiscal year in which
dations on it to the Commissioner, who
safety of law enforcement personnel.
the contract was performed. However,
shall issue a ruling within 15 days after
(vii) Contained in or related to exami-
receipt of the request.
upon receipt of a written request, the
nation, operating, or condition reports
(2) When the waiver or modification
period for submitting the report may be
prepared for the use of an agency of the
extended by the Area Director or the
requested is determined by the Commis-
Federal Government responsible for the
Commissioner if there is just cause for
sioner to apply in general, it will be made
regulation or supervision of financial
a part of 41 CFR Part 14H-70. When the
such extension.
institutions.
Commissioner determines that the re-
(c) In addition to the yearly reporting
(viii) Geological and geophysical infor-
quest for modification or waiver should
requirement given in paragraphs (a) and
mation and data concerning wells
not apply in general but is warranted for
(b) of this section, the contract shall
(2) Disclosure is prohibited by statute
provide that the tribal contractor will
the contract to which the request per-
tains, the tribal organization and the
or Executive Order or sound grounds
make available monthly. to members of
exist for using the exemption given in
contracting officer will be so advised in
the tribe(s) affected, an accounting of
writing.
paragraph (b) (1) of this section.
the amounts and the purposes for which
(3) If the request for waiver or mod-
(c) A request to inspect or copy reports
the contract funds were expended during
ification is determined by the Commis-
and information shall be in writing and
the previous monthly period in the fol-
must reasonably describe the reports and
lowing manner:
sioner not to be appropriate, the tribal
(1) By posting a notice containing
organization will be notified in writing.
information requested. The request may
such information on or before the tenth
(c)-Contracts will be negotiated on a
be delivered or mailed to the tribal con-
non-competitive basis without advertis-
tractor. Within ten working days after
of each month, at a conspicuous place
receiving the request, the tribal contrac-
readily accessible to members of the
ing when the contracts are requested by
tor shall determine whether to grant or
tribe(s) affected; or,
a tribal governing body in accordance
with $ 271.18.
deny the request. The requester shall be
(2) By such other means as is mu-
(d) A tribal organization is not re-
notified immediately of the determina-
tually agreed to by the tribal contractor
tion
and the Bureau.
quired to furnish performance and pay-
ment bonds before carrying out a
(d) The time limit for making a deter-
(d) In addition to the requirements
contract under this Part for the con-
mination may be extended up to an ad-
contained in paragraphs (a), (b) and (c)
struction of public buildings or works as
ditional ten working days for good rea-
of this section, the tribal contractor shall
required by the Miller Act of August 24,
son. The requester shall be notified in
furnish other contract-related reports
1935 (49 Stat. 793), as amended. How-
writing of the extension, reasons for the
when and as required by the Area Direc-
ever, the tribal organization shall re-
extension, and date on which the deter-
tor or Commissioner.
quire each of its subcontractors to fur-
mination is expected to be made.
§ 271.50 Penalties.
nish both performance and payment
§ 271.49 Annual reporting.
bonds as follows:
If any officer, director, agent, or em-
(1) A performance bond with a surety
(a) For each fiscal year during which
ployee of, or connected with, any con-
a tribal organization receives or expends
or sureties satisfactory to the approving
tractor or subcontractor under this Part
official, and in an amount he deems ade-
funds pursuant to a contract under this
embezzles, willfully misapplies, steals, or
quate, for the protection of the United
Part. the tribe which requested the con-
obtains by fraud any of the funds or
States.
tract must submit a report to the Com-
property connected with the contract or
missioner. The report shall include, but
subcontract, he shall be subject to the
(2) A payment bond with a surety or
not be limited to, an accounting of the
following penalties:
sureties satisfactory to the approving of-
amounts and purposes for which the con-
(a) If the amount involved does not
ficial for the protection of all persons
tract funds were expended, the tribe's
exceed $100, he shall be fined not more
supplying labor and material in carry-
evaluation of the contract performance
ing out the contract. Whenever the total
than $1,000 or imprisoned not more than
using the criteria submitted in the con-
amount payable by the terms of the con-
one year, or both.
tract application, and information on the
tract is not more than $1,000,000, the
(b) If the amount involved exceeds
conduct of the program or services in-
payment bond shall be one-half the total
$100, he shall be fined not more than
volved. The report shall include any
amount payable by the terms of the con-
$10,000 or imprisoned for not more than
tract. Whenever the total amount pay-
other contract-related information re-
two years, or both.
able by the terms of the contract is more
FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
51296
RULES AND REGULATIONS
than $1,000,000 but not more than $5,-
(b) Direct costs under contracts for
U.S.C. 552a). Examples of the tribal con-
000,000, the payment bond shall be 40
operation of programs or parts operated
tractor's responsibilities are:
percent of the total amount payable by
by the Bureau before contract operations
(1) To continue maintaining those sys-
the terms of the contract. Whenever the
shall be not less than the funds that are
tems of records declared by the Bureau
total amount payable by the terms of the
programmed and available for the pro-
to be subject to the Privacy Act as pub-
contract is more than $5,000,000, the
gram or part at the time of the contract
lished in the FEDERAL REGISTER.
payment bond shall be $2,500,000.
application, except as limited in para-
(2) To make such records available to
§ 271.52 Term of contract.
graph (g) of this section.
individuals involved.
(c) Direct costs under contracts for
(3) To disclose an individual's record
(a) The term of contracts under this
the operation of programs or parts au-
Part shall not exceed one year except
to third parties only after receiving per-
thorized to be operated by the Bureau,
mission from the individual to whom the
that contracts may be made for a longer
but not operated by the Bureau, for the
term up to three years, subject to avail-
record pertains. 43 CFR 2.56 lists excep-
benefit of the Indians to be served under
tions to this procedure.
ability of funds under the following cir-
the contract shall be determined by
(4) To establish a procedure to account
cumstances:
mutual agreement based on a compari-
for access, disclosures, denials, and
(1) The services provided under the
son of similar programs operated by the
amendments to records.
contract can reasonably be expected to
applicant, the requesting tribe, other
(5) To provide safeguards for the pro-
be continuing in nature and, as a result,
tribes, the Bureau, other governmental,
tection of the records.
a longer contract term would be advan-
public or private organizations.
(b) The tribal contractor may not:
tageous.
(d) Direct costs for programs or parts
(1) Discontinue or alter any estab-
(2) The Indian tribe(s) to be Served
to be contracted at the Agency Office
lished systems of records without prior
by the contract request that the term be
level shall be based on the funds avail-
approval of the appropriate Bureau sys-
more than one year. The tribal organiza-
able at that level.
tems manager.
tion will indicate the desired term of the
(e) Direct costs for programs or parts
(2) Deny requests for notification or
contract on the application form. When
to be contracted at the Area Office level
access of records without prior approval
the Indian tribe(s) request that the con-
shall be based on funds available at that
of the appropriate Bureau systems man-
tract be approved as provided in § 271.18,
level.
ager.
that will also be deemed a request for the
(f) Allowability of costs under con-
(3) Approve or deny requests for
longer term indicated in the application.
tracts shall be determined under Appen-
amendments of records without prior
(b) Contracts made for a term of
dix A of Part 276 of this chapter.
approval of the appropriate Bureau sys-
more than one year may be renegotisted
(g) Funds provided under contract for
tems manager.
annually to reflect factors, including, but
direct or indirect costs shall not cause
(4) Establish a new system of records
not limited to, cost increases beyond the
a reduction in funds provided for other
without prior approval of the Depart-
control of the tribal contractor. Proposed
programs or parts not under contract,
ment of Interior and the Office of Man-
changes in the services provided under
except as agreed to by the affected
agement and Budget.
the contract which reflect changes in
tribe(s) and within the existing authori-
(5) Collect information about an in-
program emphasis may be considered
ties of the Bureau.
dividual unless it is relevant or necessary
during the annual renegotiation if the
to accomplish a purpose of the Bureau
changes fall within the general scope of
§ 271.55 Savings under contract.
as required by statute or Executive
the contract. Such changes may be ini-
tiated by either the tribal contractor or
(a) If it becomes apparent during the
Order.
contract term that the estimated amount
(c) The tribal contractor is subject to
the Bureau but must be agreed to by
of a contract under this Part will be in
the penalties provided in subsection (i)
both.
excess of actual expenditures under the
of 5 U.S.C. 552a.
§ 271.53 Performing personal services.
contract, the identified savings shall be
used to provide additional services or
Subpart E-Contract Revision or
Any contract made under this Part
Amendment
benefits under the contract.
may include provisions for the perform-
(b) When both the tribal organization
§ 271.61 Requesting revision or amend-
ance of personal services which would
and the Bureau agree that it is not prac-
ment.
otherwise be performed by Federal em-
ployees. Such services include, but are
ticable to spend the savings during the
(a) Any contract made under this
contract term and the contract funds
not limited to, performing the following
Part may be revised or amended as
functions in accordance with the con-
were appropriated pursuant to the Act of
deemed necessary to carry out the pur-
tract and applicable rules and regula-
November 2, 1921 (42 Stat. 208), the
poses of the program, project or func-
savings may be carried over into the
tions:
tion being contracted.
succeeding fiscal year contract, except as
(a) Determining the eligibility of ap-
(b) The contractor shall submit pro-
otherwise specifically provided in appro-
plicants for assistance, benefits, or serv-
posed revisions and amendments to the
priation acts. Savings carried over into
Bureau as follows:
ices.
a succeeding fiscal year shall be added
(1) To the contracting officer in the
(b) Determining the extent or amount
to the contract amount for that fiscal
Area Office when the tribe(s) or Indians
of assistance, benefits, or services to be
year. The savings shall not reduce the
served by the contract are within the
provided.
amount that would have been made
jurisdiction of that-Area Office.
(e) Determining the provisions of such
available if there had been no savings.
(2) To the contracting officer in the
assistance, benefits, or services.
(c) If there are savings under a con-
Bureau's headquarters in Washington,
8 271.54 Contract funds.
tract that is retroceded as provided in
D.C. when the tribe(s) or Indians served
§ 271.71, the savings shall be used by the
are within the jurisdiction of more than
The tribal organization shall be en-
Bureau to operate the program or part of
one Area Office:
titled to be funded for direct and in-
a program covered by the retroceded
(c) The contractor shall send copies
direct costs under the contract as fol-
contract. The savings shall be carried
of all requests for revisions or amend-
lows:
over and used for such operations during
ments to the designated representative of
(a) Direct costs under contracts for
the succeeding fiscal year, except as
the tribal governing body at the same
operations of programs or parts shall
otherwise specifically provided in appro-
time as they are sent to the appropriate
not be less than the Bureau would have
priation acts.
contracting officer.
provided if the Bureau operated the pro-
gram or part during the contract. Direct
§ 271.56 Privacy Act requirements.
§ 271.62 Review and action by contract-
costs shall include the Bureau's direct
(a) When & tribal contractor operates
ing officer.
costs for planning, administering, and
a system of records to accomplish a Bu-
Upon receipt of the proposed revision
evaluating the program or part and shall
reau function, the contractor shall com-
or amendment from the contractor, the
not be used to reduce indirect costs other-
ply with Subpart D of 43 CFR Part 2
contracting officer shall, unless the tribal
wise allowable to the tribal organization.
which implements the Privacy Act (5
resolution under § 271.18(c) (2) or any
FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
RULES AND REGULATIONS
51297
subsequent amendment restricts such
contracting officer shall prepare a writ-
(1) The contractor and the tribal gov-
action. proceed as follows:
ten recommendation to decline.
erning body(s) may submit a written re-
(a) Within five days. notify in writ-
(b) This recommendation shall con-
buttal to the Area Director's or Commis-
ing the contractor and the tribal govern-
tain, at a minimum, the following infor-
sioner's plan to issue a declination notice.
ing body(s) if different from the con--
mation:
(ii) The contractor and the tribal gov-
tractor, of receipt of the proposed re-
(1) Identification of specific objec-
erning body(s) may request to appear
vision or amendment and that the tribal
tions, categorized under one OF more of
before the Area Director or Commis-
governing body(s) shall have 15 days
the declination factors: set forth in
sioner or their representatives under par-
from receipt of the notice to send any
§ 271.15.
agraph (d) of this section.
written objections to the contracting of-
(2) Specific recommendations on ac-
(iii) The contractor and the tribal gov.
ficer. If the tribal governing body(s) ob-
tions required by the contractor or
erning body(s) must exercise these rights
ject to the proposed revision or amend-
tribe(s) to overcome objections.
within 30 days after receiving the notice
ment, the contracting officer shall SO
(3) Description of the nature, scope,
required in paragraph (c) (2) of this
notify the contractor and the proceed-
and source of the technical assistance
section.
ings under this subpart shall cease.
which has been provided or offered by
(d) If the contractor and the tribal
(b) Within 30 days after the tribal
the Bureau to assist the contractor and
governing body request to appear be-
governing body(s) received the notice, if
the tribal governing body(s) to overcome
fore the Area Director or Commissioner
no objections are received, review the
the declination objections.
under paragraph (c) (ii) of this sec-
proposed revision or amendment and the
(4) Copies of all correspondence be-
tion, the Area Director or Commissioner
criteria for declination given in § 271.15.
tween the contracting officer and con-
shall:
At the completion of the review, the fol-
tractor and tribal governing body(s) and
(1) Select a site for a meeting between
lowing action will be taken as appropri-
all responses thereto, including any re-
the contractor, the tribal governing
ate:
ports of meetings between the parties
body(s), and the Area Director or Com-
(1) If there are no declination issues,
relative to the proposed revision or
missioner. The Area Director or Com-
the contracting officer will notify the
amendment.
missioner may designate a representative
contractor and the tribal governing
(5) Copy of original proposed revi-
from his office to attend the meeting.
body(s) in writing of this fact and revise
sion or amendment.
(2) Authorize payment of transporta-
or amend the contract within 30 days
(c) The contracting officer shall make
tion costs and per diem under terms he-
of issuing the notice or at their
written recommendations to:
may make to allow adequate representa-
convenience.
(1) The Area Director when the
tion of the contractor and the appropri-
(2) If it is felt that there are declina-
tribe(s) or Indians served by the con-
ate tribe(s), if the meeting is more than
tion issues that must be resolved, the
tract are within the jurisdiction of that
50 miles from the office of the contractor.
contracting officer will notify the con-
Area Office.
(3) Notify the contractor and the ap-
tractor and the tribal governing body(s)
(2) The Commissioner when the tribes
propriate tribe(s) of the time, location
of this fact and the extent of the issues,
or Indians served are within the jurisdic-
and other terms of the meeting.
recommend a course of action to resolve
tion. of more than one Area Office.
(4) Hold the meeting within 30' days
the issues and offer technical assistance
§ 271.64 Review and action by Area Di-
of the request, unless the contractor and
to resolve the issues within 30 days after
rector or Commissioner.
the tribal governing body(s) request a
issuing the notice.
later day.
(1) If the contractor and the tribal
(a) Within five days after receiving
(e) (1) The Area Director or Commis-
governing body(s) accept the technical
a. proposed revision or amendment and
sioner shall issue a declination notice as
assistance, it shall continue in accord-
the contracting officer's recommenda-
follows:
ance with their request. At such time as
tions to decline, the Area Director or
the issues are thus resolved the contract-
Commissioner as given in $271.61 shall
(1) Within 15 days after receiving the
ing officer will so advise the contractor
notify the contractor and the tribal gov-
contractor's and tribal governing
and the tribal governing body(s) and
erning body(s) in writing of the receipt
body(s)' rebuttal submitted under para-
graph (c) (2) (i) of this section or after
revise or amend the contract within 15
of the proposed revision or amendment.
the conclusion of the meeting under
days of resolution or at their conven-
(b) Within 15 days after receiving the
paragraph (d) of this section.
ience.
contracting officer's recommendations,
(ii) If the contractor and the tribal
the Area Director or Commissioner shall
(ii) Within 45 days after issuing the
notice under paragraph (c) (2) of this
governing body(s) decline the contract-
review the application, the contracting
section when the contractor and tribal:
ing officer's offer of technical assistance
officer's recommendations, and the dec-
governing body(s) have not used the
and the matter is not otherwise resolved,
lination criteria in $ 271.15.
rights under paragraph (c) (2) of this
the contracting officer shall proceed in
(c) Within 15 days after receiving the
section.
accordance with for 271.63.
contracting officer's recommendations,
(2) The declination notice shall be in
(iii) If the contractor and the tribal
the Area Director or Commissioner shall
writing and shall contain:
governing body(s) do not respond within
notify the contractor, the appropriate
(i) Identification of specific objections,
30 days of receipt of the contracting of-
tribal governing body(s), and the con-
categorized under one or more of the dec-
ficer's recommendations and offer of as-
tracting office of one of the following:
lination criteria set forth in $ 271.15.
sistance and do not request additional
(1) When the Area Director or Com-
(ii) Specific recommendations on ac-
time in which to respond the contract-
missioner does not accept the contract-
tions required by the contractor or tribe
ing officer shall proceed in accordance
ing officer's recommendations to decline,
to overcome the objections.
with $ 271.63.
notice shall be given that the recommen-
(iii) Description of the nature, scope,
(iv) If the contractor and the tribal
dations are not accepted and that the
and source of the technical assistance
governing body(s) do not agree with the
Bureau shall revise or amend the con-
which has been provided or offered by
contracting officer's recommendations
tract as requested by the contractor and
the Bureau to assist the contractor and
and the matter is not resolved within 30
the tribal governing body(s).
the tribal governing body(s) to overcome
days of the contracting officer's receipt of
(2) When the Area Director or Com-
declination objections.
their response to the contracting officer's
missioner accepts the contracting offi-
(iv) Copies of all correspondence be-
recommendations, the contracting officer
cer's recommendations and believes the
tween the Bureau, the contractor and/
shall proceed in accordance with $ 271.63.
Bureau should not revise or amend the
or tribe, and all responses thereto. in-
§ 271.63 Contracting officer's recom-
contract as. requested, notice shall be
cluding any reports or meetings between
mendation to decline.
given that the Area Director or Commis-
the parties relative to the application.
sioner plans to issue a declination notice
(w) Copy of original proposed revision
(a) If the contracting officer, the con-
and that the contractor and the tribal
or amendment.
tractor, and the tribal governing body
governing body(s) have the following
(vi) The appeal of rights of the con-
fail to resolve the declination issues, the
rights:
tractor and the tribal governing body(s)
FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
51298
RULES AND REGULATIONS
under $ 271.82 or § 271.83 as given in
tribe(s), except when the tribe(s) and
outlining the reasons why retrocession
271.65.
the Commissioner mutually agree on a
was requested.
later date.
271.65 Appeal of Area Director's or
(g) Retrocession of a contract by an
Commissioner's decision to decline.
(b) When the contract is with a
Indian tribe shall be without prejudice
tribal organization other than the tribal
to:
(a) The contractor and/or the tribal
governing body and the tribal resolution
(1) Any other contract to which it is
toverning body(s) shall have 60 days to
required under § 271.18(e) (2) does not
a party.
appeal the decision by the Area Director
vest in the tribal governing body the sole
(2) Any other contracts it may re-
Commissioner to decline to amend the
right to request retrocession, the tribal
quest.
contract.
governing body shall consult with the
(3) Any future request to contract for
(b) An appeal from an Area Director's
tribal organization and, if so requested,
the programs or services covered by the
decision to decline to amend the con-
offer it an opportunity to be heard in
retroceded contract, insofar as the con-
tract shall be made to the Commissioner
accordance with tribal procedures
ditions which led to retrocession are no
as provided in § 271.82.
before requesting retrocession of the
longer a factor and the tribal organiza-
(c) An appeal from the Commis-
contract.
tion is the same one that held the retro-
sioner's decision to decline to amend the
(c) When the contract is with a tribal
ceded contract.
contract shall be made to Director, Office
organization which is performing serv-
of Hearings and Appeals, Department of
§ 271.73 Tribal assumption of retro-
ices benefiting more than one Indian
ceded contracts.
Interior, Washington, D.C., as provided
tribe, all or any of the tribes may re-
in $ 271.83.
Wherever an Indian tribe chooses to
quest a retrocession in accordance with
$ 271.66 Revisions or amendments pro-
the procedures provided for in the tribal
retrocede a contract operated by a tribal
resolution required for the initial con-
organization other than the tribal gov-
posed by Bureau.
tract § 271.18(c) (2) When all of the
erning body, the tribal governing body
(a) Where the Bureau proposes a re-
tribes request retrocession, the retroces-
pursuant to $ 271.18 may contract for
vision or amendment to a specific con-
sion shall be accomplished as provided
the program. In such a case, the tribal
tract, it shall notify the contractor and
for in this section. When one or more,
governing body shall submit a contract
the tribal governing body(s) in writing
but not all of the tribes request retro-
application pursuant to § 271.14; Pro-
of the following:
cession, the contract will continue until
vided, That the tribal governing body
(1) The specific revision or amend-
the end of the contract term or the fiscal
may submit the contract application di-
ment which is proposed
year, whichever comes first. In such case
rectly to the Area Director or Commis-
(2) The rationale for the proposal
the Bureau shall assess its available re-
sioner, as appropriate.
(b) All amendments proposed by the
sources and capabilities to provide such
§ 271.74 Reassumption.
Bureau must be agreed to, in writing,
services independently of and in addi-
by the contractor, the tribal governing
(a) A contract made under this Part
tion to that being provided under the
body(s) and the Bureau. If such agree-
may be terminated, and control or opera-
contract and inform the tribes request-
ment cannot be obtained, the proposed
tion of the program or function assumed
ing retrocession of the level of services
amendment shall not be adopted by the
by the Commissioner or Area Director as
that will be available to them upon
Bureau.
appropriate, in whole or in part, when
retrocession. The fact that these services
the Commissioner or Area Director de-
Subpart F-Retrocession and
may necessarily be at a reduced level
termines that the tribal organization's
Reassumption
will not constitute cause to cancel the
performance under the contract involves:
§ 271.71 Retrocession.
existing contract providing services to
(1) The violation of the rights of any
tribes not retroceding. The existing con-
(a) Tribal governing bodies not only
persons can be identified as a pattern or
tract will be modified as appropriate to
practice, or
have a right to contract for Bureau pro-
reflect the nonparticipation to the tribes
(2) The endangerment of the health,
grams or portions thereof, as they
no longer being served. The Bureau will,
safety and welfare of any persons, or
choose, but. also have a right to return
however, provide sufficient resources to
(3) Gross negligence or mismanage-
responsibility for the operation of a con-
maintain the existing level of services
ment in the handling or misuse of funds
tracted program or portion thereof to
under the contract to the tribes that did
provided under the contract.
the Bureau for any reason they deem
not request retrocession.
(b) If the Commissioner or Area DI-
appropriate. Retrocession specifically
(d) Within 15 days after receipt by the
rector as appropriate finds there is an
recognizes the Federal Government's
Commissioner or Area Director of a re-
unique and continuing relationship with
immediate threat to safety, he may, upon
quest for retrocession. representatives of
written notice to the tribal organization.
and responsibility to Indian people.
the tribe(s), the tribal organization when
(b) When a tribal organization ex---
appropriate, and the Commissioner or
immediately suspend the contract and
periences specific problems with the op-
Area Director as appropriate shall meet
resume control or operation of the pro-
eration of a contract and is considering
and take the following actions:
gram. In such an event, the Commis-
(1) Mutually agree on a plan for or-
sioner or Area Director will hold a hear-
the possibility of retrocession, it may
derly transfer of responsibilities.
ing within 10 days. The hearing shall be
request the Bureau to assist it to avoid
(2) Mutually agree on a plan for in-
conducted as provided in § 271.81. The
retrocession. In the event of such a re-
ventorying and accounting for materials
decision issued pursuant to § 271.81(c)
quest, the Bureau will:
and supplies on hand, equipment, facili-
shall include a statement of the correc-
(1) Meet with appropriate officials of
ties and real property.
tive action needed to be taken by the
the tribal organization and the tribe,
(3) Establish an accounting of funds,
tribal organization before it can assume
where the tribal governing body is not
current and anticipated obligations, and
operation of the contract.
the contractor, to develop a plan to avoid
costs of operation until the retrocession
(c) (1) If there is no immediate threat
retrocession.
date.
to safety, the Commissioner or Area Di-
(2) Provide, to the extent possible,
(4) Identify all records relating to the
special technical assistance to assist the
rector as appropriate shall provide writ-
contract and to the contracted function.
ten notice to the tribal organization of
tribal organization to satisfactorily op-
(e) On the date of retrocession, the
intent to terminate the contract. The
erate the program and enable it to avoid
tribal contractor will deliver to the Bu-
retrocession.
notice shall give the reasons for the pro-
reau all property that was acquired with
posed termination, the corrective meas-
§ 271.72 Full retrocession procedures.
contract funds and all materials, supplies
ures necessary, and a reasonable time
and records of whatever nature which
(a) Whenever an Indian tribe requests
period in which corrective action must
have been identified as necessary for the
be taken. The Commissioner or Area Di-
retrocession of a contract, retrocession
continuation of the program, project or
shall be effective upon a date specified by
rector shall also hold a hearing in ac-
function.
cordance with § 271.81 within 10 days of
the Commissioner or Area Director as ap-
(f) Within 60 days after retrocession,
issuance of the notice.
propriate but no later than 120 days
the tribe(s) and the Bureau will jointly
(2) When the decision resulting from
after the date of the request from the
develop a report to the Commissioner
the hearing held pursuant to $ 271.81 is
FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
RULES AND REGULATIONS
51299
adverse to the tribal organization, the
the Commissioner to review the Area
§ 271.76 Bureau operation of retro-
decision shall as a minimum state the
Director's decision as provided in para-
ceded, reassumed or cancelled for
corrective action that must be taken,
graphs (e) and (f) of this section, the
cause contracts.
state the technical assistance the Bureau
Area Director will cancel the contract
will provide the tribal organization and
(a) The Bureau shall provide to the
for cause. The contracting officer will
give the tribal organization at least 60
tribe(s) and Indians served by a contract
notify the tribal organization, in writing,
days in which to take corrective action.
which is retroceded, reassumed, or can-
of the cancellation. The notice shall give
celled for cause not less than the same
Within 30 days of the tribal organiza-
the reasons for the cancellation and the
quantity and quality of service that
tion's receipt of an Area Director's de-
right of the tribal organization to appeal
would have been provided at the level
cision, it may request the Commissioner
under $ 271.84.
to review the decision. If the Commis-
(e) When the Area Director deter-
intended by the contract or operated
previously by the Bureau.
sioner determines that staying the Area
mines the contract should be cancelled
Director's decision will not result in an
for cause the decision shall state as a
(b) The Bureau shall provide to the
tribe(s) and Indians served by a contract
immediate threat to safety, he may pro-
minimum: The reasons for the decision;
which is retroceded, reassumed, or can-
vide additional time for taking correc-
the actions that must be taken to achieve
celled for cause not less than the same
tive action. If the Commissioner deter-
satisfactory performance; the technical
mines the Area Director's decision is not
quantity and quality of permanent and
assistance the Bureau will provide 60
temporary personnel that meet the U.S.
correct, he may advise the Area Director
days to correct its performance deficien-
Civil Service qualifications that would
to rescind the hearing decision.
cies; and the tribal organization's right
have been provided at the level intended
(d) A decision to terminate the con-
of appeal under § 271.84. The decision
tract and reassume control or operation
by the contract or previously operated
shall also advise the tribal organization
by the Bureau. The procedures in $ 271.-
may be appealed as provided in $271.82
that it may request the Commissioner to
or $271.83, as appropriate.
77 will be followed to obtain personnel
review the decision and that such re-
(e) The Commissioner may decline to
to operate programs or parts of programs
quest must be made within 30 days of
previously under contract with a tribal
enter into a new contract and may retain
receipt of the decision
control of the program or function until
(f) The Commissioner's review will be
organization but returned for operation
he is satisfied that the conditions which
by the Bureau because the contract was
conducted and the tribal. organization
caused the contract to be terminated
either retroceded, reassumed or. can-
advised of the results within 30 days of
celled for cause.
have been corrected.
receiving the request. If the Commis-
(c) This section shall apply to all con-
§ 271.75 Cancellation of contract for
sioner concurs in the Area Director's de-
cision, the tribal organization will be so
tracts for the operation of Bureau pro-
cause
grams or parts of programs in effect. at
advised in writing and of its right to
(a) Any contract with a tribal orga-
the time of the effective date of these
appeal the Area Director's decision pur-
nization entered into under this Part
regulations. entered into under the au-
suant to § 271.84. If the Commissioner
may be cancelled for cause when the
decides that the Area Director's decision
thority of the Buy Indian Act (25 U.S.C.
tribal organization fails to perform
47), and any contracts under this Part.
is not supported by the record, he will
within the terms and conditions of the
(d) Actions under this section shall
so advise both the Area Director and the
contract.
tribal organization and the cancellation
not cause a reduction in the quality and
(b) Before. cancellation of the con-
quantity of services to tribe(s) or Indi-
action will cease. In no case shall an
tract, the Area Director or Commissioner
ans not served by contracts which are
Area Director cancel a contract until the
shall advise the tribal organization and
retroceded, reassumed or cancelled for
review requested by a tribal organiza-
the tribal governing body(s) if different
cause.
tion has been completed by the Commis-
than the tribal organization in writing
sioner and results thereof have been
§ 271.77 Authorized position and end-
of the following:
received.
of-year employment ceiling reserve
(1) The reasons why the Area Director
(g) When a contract is cancelled for
for Bureau operation of retroceded,
or Commissioner is considering cancel-
cause, the Bureau will either perform
reassumed or cancelled contracts.
ling the contract.
the work with its own forces or by an-
(a) When authorized permanent and
(2) That the tribal organization will
other contract, as appropriate. When
other positions and permanent and
be given at least 45 days to present an
the-Bureau does not have sufficient forces
acceptable plan to overcome the de-
other end-of-year employment ceiling
on hand to immediately perform the
are not required for the operation of all
ficiencies in its contract performance.
work, it may, for temporary periods of
or parts of a Bureau program because
(3) That the Bureau will furnish
the shortest duration possible, contract
the program or parts of a program are:
technical advice an assistance to help
with a contractor that is not a tribal
overcome the deficiencies in the contract
under contract with a. tribal organiza-
organization. However, in such cases,
tion under this Part, the positions and
performance, when requested
the advice of the tribe(s) will be obtained
ceilings shall be reserved. The positions
(c) When the contract is with other
to determine how they desire the services
and ceiling reserved shall be avail-
than the governing body of the Indian
to be rendered.
tribe, the tribe(s) receiving services or
able only for the same program or parts.
(h) Excess costs resulting from a can-
of a program at the same locations if the
benefits under the contract will be noti-
cellation that are required to operate the
fied when a cancellation. for cause is
Bureau must operate the program or
program will be provided by the Bureau
parts of a program because a tribe has
contemplated. The notice shall include
to the extent that funds are available for
retroceded the contract or because the
the reasons why a cancellation for cause
that fiscal year. However, if current
Bureau has reassumed or cancelled the
is contemplated and any supporting
funds are not sufficient to maintain the
contract for cause.
documents used by the Area. Director
program at its planned level, the pro-
to reach his conclusions. The notice
(b) The Bureau shall establish a posi-
gram may be reduced until funds become
shall also offer to hold a meeting with
tion and ceiling reserve for all contracts
available for the remainder of the fiscal
the tribe(s) to discuss the issues and ex-
for the operation of all or parts of Bu-
year, at which time the program will be
plore any options available to the
reau programs initially entered into on
resumed at its planned level.
tribe(s). The Area Director and the
or after the effective date of these regu-
(i) Any tribal organization that has
lations.
tribe(s) will mutually consider the rele-
a contract cancelled for cause must dem-
vant issues before the Area Director
onstrate that the causes which led to the
Subpart G-Hearings and Appeals
proceeds with any cancellation action.
cancellation have been cured before it
§ 271.81 Hearings.
(d) If the tribal organization does not
will be considered for another contract.
present an acceptable plan to overcome
Hearings required by § 271.74 shall be
In addition, there must be a new resolu-
conducted as follows:
the deficiencies in its contract perform-
tion and a new request from the Indian
ance within 45 days of its receipt of the
(a) The tribal organization and the
tribe(s) that will receive services or ben-
notice of deficiencies or does not request
Indian tribe(s) shall be notified, in writ-
efits under the contract.
ing, of the hearing. The notice shall give
FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY. NOVEMBER 4,, 1975
51300
RULES AND REGULATIONS
the date, time, place, and purpose of the Sec.
the administrative and programmatic
hearing.
272.15
Assistance in completing form.
provisions are specified.
(b) A written record of the hearing
272.16
Request from tribal governing body.
shall be made. The record shall include
272.17
Grant approval limitations.
(i) "Grantee" means the tribal govern-
272.18
written statements submitted at the 272.19
Submitting application to Agency.
ing body which is responsible for admin-
Agency Office review and recommen-
istration of the grant.
hearing or within five days following the
dation.
(j) "Indian tribe" means any Indian
hearing.
272.20
Deadline for Agency Office action.
Tribe, Band, Nation, Rancheria, Pueblo,
(c) Within 30 days of the hearing, the
272.21
Area Office review and action.
Colony or Community, including any
Commissioner or Area Director as ap-
272.22
Deadline for Area Office action.
Alaska Native village or regional or vil-
propriate shall issue a written decision
272.23
Central Office review and decision.
on the issues considered during the
272.24
Deadline for Central Office action.
lage corporation as defined in or estab-
272.25
Grant execution and administration.
lished pursuant to the Alaska Native
hearing.
272.26
Subgrants and subcontracts.
Claims Settlement Act (85 Stat. 688)
S 271.82 Appeals from decision or ac-
272.27
Acceptance of tribal plans for the
which is federally recognized as eligible
tion by Area Director.
operation of Bureau programs.
by the United States Government
Subpart C-General Grant Requirements
through the Secretary for the special
A tribal organization (unless restricted
by the tribal resolution under § 271.18
272.31
Applicability.
programs and services provided by the
272.32
Secretary to Indians because of their
(c) (2) or subsequent resolutions) or
Reports and availability of informa-
tribal governing body may appeal any
tion to Indians.
status as Indians.
272.33
Matching share.
(k) "Indian" means a person who is a
decision made or action taken by an
272.34
Performing personal services.
member of an Indian tribe.
Area Director under this Part. Such ap-
273.35
Fair and uniform services.
(1) "Resolution" means the formal
peal shall be made to the Commissioner
272.36
Penalties.
manner in which the tribal government
as provided in Part 2. of this chapter
Subpart D-Grant Revision, Cancellation, or
expresses its legislative will pursuant to
S 271.83 Appeals from decision or ac-
Assumption
its organic documents. In the absence of
tion by Commissioner.
272.41 Revisions or amendments of grants.
such organic documents a written ex-
272.42 Assumption
(a) A tribal organization (unless re-
pression adopted pursuant to tribal (cur-
stricted by the tribal resolution under
Subpart E-Hearings and Appeals
rent) practices will be acceptable.
$ 271.18(c) (2) or subsequent resolutions)
272.51
Hearings.
(m) "Secretary" means the Secretary
or tribal governing body may appeal the
272.52
Appeals from decision or action by
of the Interior.
Commissioner's decision to decline to
Superintendent.
(n) "Superintendent" means the offi-
272.53
contract or to decline to amend a con-
Appeals from decision or action by
cial in charge of a Bureau of Indian Af-
Area Director.
tract under §§ 271.25 or 271.64 to the
fairs Agency Office.
272.54
Appeals from decision or action by
Director, Office of Hearings and Appeals,
(o) "Subcontracts" means contracts
Commissioner
Department of the Interior, as provided
272.55 Failure of Agency or Area Office to
undertaking some of the obligations of
in Subpart G of 43 CFR Part 4.
act.
primary grants.
(b) A tribal organization (unless re-
(p) "Subgrants" means secondary.
AUTHORITY: Sec. 104, Pub. L. 93-638, 88
tricted by the tribal resolution under
Stat. 2203, unless otherwise noted
grants undertaking some of the obliga-
$ 271.18(c) (2) or subsequent resolutions)
tions of primary grants.
or tribal governing body may appeal any
Subpart A-General Provisions
(q) "Tribal government", "tribal gov-
other decision made, action taken, or ac-
§ 272.1 Purpose and scope.
erning body" and "tribal council" means
tion not taken within the time limits re-
the recognized governing body of an
The purpose of the regulations in this
Indian tribe.
quired by this Part, by the Commissioner
Part is to provide the application and ap-
if authorized and as provided in Part 2 of
(r) "Trust resources" means natural
proval procedures for the award by the
this chapter. A decision by the Commis-
resources, land, water, minerals, funds or
Bureau of grants under section 104(a)
sioner concerning funding levels for a
property, asset, or claim, including any
of Title I of the Indian Self-Determina-
program or part of a program to be con-
intangible right or interest in any of the
tion and Education Assistance Act (Pub-
tracted is considered to be an exercise
foregoing, which is held by the United
lic Law 93-638, 88 Stat. 2203). Title I is
of the Commissioner's discretionary au-,
States in trust for any Indian tribe or
known as the Indian Self-Determination
thority and, therefore, is final for the
Indian individual subject to a restriction
Act.
Secretary.
on alienation imposed by the United
§ 271.84 Appeals from Bureau decision
§ 272.2 Definitions.
States.
(s) "Trust responsibility" means for
to cancel contract for cause.
As used in this Part:
the purposes of this Part only the respon-
A tribal organization (unless restricted
(a) "Act" means the Indian Self-
sibility assumed by. the United States
by the tribal resolution under § 271.18
Determination and Education Assistance
Government, by virtue of treaties, stat-
(c) (2) or subsequent resolutions) may
Act (Public Law 93-638, 88 Stat. 2203)
utes and other means, legally associated
appeal the Bureau's decision to cancel
(b) "Applicant" means a tribal gov-
with the role of trustee, to protect, man-
for cause any contract made under this
erning body applying for a grant under
age, develop and approve authorized
Part. Such appeal shall be made to the
this Part.
transfers of interest in trust resources
Director of the Office of Hearings and
(c) "Area Director" means the official
held by Indian tribes and Indian individ-
Appeals as provided in Subpart G of 43
in charge of a Bureau of Indian Affairs
uals to a standard of the highest degree
CFR Part 4.
Area Office.
of fiduciary responsibility.
(d) "Bureau" means the Bureau of
§ 272.3 Effect on existing Indian rights.
PART 272-GRANTS UNDER INDIAN
Indian Affairs.
SELF-DETERMINATION ACT
The regulations in this Part are not
(e) "Commissioner" means the Com-
meant to and do not:
Subpart A-General Provisions
missioner of Indian Affairs.
Sec.
(a) Affect, modify, diminish, or other-
272.1
Purpose and scope.
(f) "Days" means calendar days.
wise impair the sovereign immunity from
272.2
Definitions.
(g) "Economic enterprise" means any
suit enjoyed by an Indian tribe; or
272.3 Effect on existing Indian rights.
commercial, industrial, agricultural or
272.4 Revision or amendment of regula-
business activity that is at least 51 per
(b) Authorize, require or permit the
tions.
272.5
cent Indian owned, established or orga-
termination of any existing trust respon-
Statement of policy.
nized for the purpose of profit.
sibility of the United States with respect
Subpart B-Application Process
(h) "Grant" means a written agree-
to the Indian people.
272.11 Eligibility requirements.
ment between the Bureau and a tribal
272.12
Purpose of grants.
§ 272.4 Revision or amendment of reg-
272.13 Obtaining application instructions
governing body where the Bureau pro-
ulations.
and materials.
vides funds to carry out specified pro-
Before making any substantive revi-
272.14 Content of application.
grams, services or activities and where
sions or amendments to the regulations
FEDERAL. REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
RULES AND REGULATIONS
51301
in this part, the Secretary shall take the
administer Federal programs under con-
(3) Training of tribal officials and em-
following actions:
tract, or enable the tribe to provide di-
ployees in areas related to the conduct
(a) Consult with Indian tribes and
rection to Bureau programs and to other
and administration of programs of the
national and regional Indian organiza-
Federal programs serving it.
Bureau which the Indian tribe may wish
tions to the extent practicable about the
(e) Emphasis on planning and train-
to operate under contract.
need for revision or amendment and
ing in relation to the purposes of a grant
(4) Costs associated with contracting
consider their views in preparing the
given in paragraph (d) of this section
to enable tribal contracting. Examples
proposed revision or amendment.
is considered in keeping with the intent
of such costs include curriculum develop-
(b) Present the proposed revision or
of section 104(a) of the Act. Applica-
ment in support of tribal contracting of
amendment to the Committees on In-
tions which include these elements are
schools, in-service training programs to
terior and Insular Affairs of the United
encouraged.
develop the skills of employees of the
States Senate and House of Represent-
atives.
Subpart B-Application Process
Indian tribe on a continuing basis, special
on-the-job training activities in support
(c) Publish any proposed revisions or
§ 272.11 Eligibility requirements.
of tribal members being prepared to
amendments in the FEDERAL REGISTER as
The governing body of any Indian tribe
assume program responsibilities.
proposed rulemaking to provide adequate
or tribes may apply for a grant under
(c) Acquisition of land in connection
notice to, and receive comments from
this Part.
with paragraphs (a) and (b) of this sec-
all interested parties.
tion. Procedures for acquisition of land
(d) After consideration of all com-
§ 272.12 Purposes of grants.
are prescribed in § 276.11 of this chapter.
ments received, publish the regulations
Grants are for the purpose of (a)
(d) Planning, designing, monitoring,
in the FEDERAL REGISTER in final form
Strengthening and improving adminis-
and evaluating Federal programs serving
not less than 30 days before the date
tration of tribal government. Examples
the Indian tribe. An example of this re-
they are made effective.
in this specific regard are as follows:
gard is assisting the tribal government to
(e) Annually consult with Indian
(1) Developing the capability of the
influence Federal programs presently
tribes and national and regional Indian
executive, legislative, and judicial
offered or those that could be offered to
organizations about the need for revi-
branches of tribal government in such
the tribe to assure that they are respon-
sion or amendment, and consider their
areas as administration of planning, fi-
sive to the needs of Indian tribes. A tribal
views in preparing the revision or
nancial management, or merit personnel
government may monitor and evaluate
amendment.
systems.
the operations of such programs which
(f) Nothing in this section shall pre-
(2) Improvement of tribally funded
now serve tribal members and replan
clude Indian tribes or national or re-
programs or activities.
and redesign those programs to better
gional organizations from initiating re-
(3) Development. construction, im-
respond to their needs. Bureau programs
quests for revisions or amendments,
provement, maintenance, preservation, or
which are planned, replanned, designed
subject to paragraphs (a), (b), (c) and
operation of tribal facilities or resources.
or redesigned in accordance with this
(d) of this section.
(4) Training of tribal officials and em-
paragraph shall be implemented by the
§ 272.5 Statement of policy.
ployees in areas relating to the planning.
Bureau as prescribed in § 272.27.
conduct and administration of tribal
(e) Funds made available for grants
(a) The Indian Self-Determination
programs.
for the purposes described above may
and Education Assistance Act (Pub. L
(5) Design and implementation of new
be applied as matching shares for other
93-638) is intended to facilitate in-
Federal or non-Federal grant programs
creased self-determination for American
tribal government operations.
Indians by providing a means through
(6) Development of policy-making,
as prescribed in $ 272.33.
which they may plan, conduct and ad-
legislative and judicial skills.
$ 272.13 Obtaining application instrue-
minister programs and services to In-
(b) Planning, training, evaluation or
tions and materials.
dian people. These programs and serv-
other activities designed to improve the
ices are essentially those authorized by
capacity of an Indian tribe to enter into
Application instructions and related
the Act of April 16, 1934 (Johnson-
a contract or contracts pursuant to sec-
application materials may be obtained
O'Malley Act) the Act of November 2,
tion 102 of the Act and the additional
from Superintendents, Area Directors,
and the Commissioner.
1921 (Snyder Act) and other subsequent
costs associated with the initial years of
Acts.
operation under such a contract or con-
§ 272.14 Content of application.
(b) A most important aid available to
tracts. Examples of use of grants by In-
assist Indians in achieving this objective
dian tribes, as indicated in this para-
Application for a grant under this Part
shall include:
of increased self-determination is the
graph, are as follows:
grant authority provided in section 104
(1) Evaluation of programs and serv-
(a) Name and address of Indian tribal
of the Act. This grant authority will as-
ices currently being provided directly by
governing body(s) applying for a grant.
sist Indian tribes in improving their gov-
the Bureau in order to determine:
(b) Descriptive name of project.
(i) Whether it is appropriate for the
(c) Federal funding needed.
erning capabilities, increase their ability
Indian tribe to enter into a contract pur-
(d) Population directly benefiting
to effectively administer programs under
from the project.
contract, and enable them to provide di--
suant to section 102 of the Act for a pro-
gram or a portion of a program.
(e) Length of project.
rection to the Federal programs intended
(f) Beginning date.
to serve Indian people.
(ii) Whether the Indian tribe can im-
(g) Project budget categories or items.
(c) Under this grant authority the
prove the quality or quantity of the serv-
(h) Program narrative statement.
Bureau of Indian Affairs will administer
ice now available.
(i) Certification or evidence of request
a program of Indian self-determination
(iii) Whether certain components
by Indian tribe.
grants which shall be subject to Parts
should be redesigned but the program
(j) Name and address of Bureau office
272 and 276 of this chapter. In the ad-
should continue to be operated by the
to which application is submitted.
ministration of this grant program, it
Bureau.
(k) Date application is submitted to
shall be the Bureau's policy that ap-
(iv) Whether the program as currently
Bureau.
proval of applications for these grants
administered by the Bureau is adequate
shall include a determination that there
(1) Additional information pertaining
to meet tribal needs and, therefore, the
to grant applications for funds to be
is a direct and reasonable relationship
Indian tribal organization does not wish
between the applicant's proposal and the
used as matching shares will be requested
to contract or modify the program.
as prescribed in § 272.33.
provisions of section 104a of the Act and
(2) Planning or redesigning a Bureau
of $ 272.12.
program before the Indian tribe con-
§ 272.15 Assistance in developing and
(d) In accordance with this policy, it
tracts for it, and development of an oper-
completing grant applications.
shall be the responsibility of the appli-
ational plan for carrying out the antici-
(a) Technical assistance and support
cant to establish that such a grant will
pated contract in order to facilitate the
necessary to develop and complete grant
improve the tribe's governing capabili-
transition of the program from Bureau
applications under this Part shall be pro-
ties, enhance the tribe's ability to
to tribal operation.
vided by the Superintendents, Area Di-
FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
51302
RULES AND REGULATIONS
rectors and their designated representa-
§ 272.18 Submitting application
to
(1) Review the application following
tives upon request of the applicant.
Agency Office.
the applicable review procedure pre-
(b) Applicants may apply for initial
An application for a grant under this
scribed in § 272.19.
planning grants to cover the costs of
Part shall be initially submitted to the
(2) Review the Superintendent's rec-
developing and completing larger grant
appropriate Superintendent for review
ommendation as pertains to the appli-
applications. Such initial planning grants
and recommendation as prescribed in
cation.
will be made from funds which may be
§ 272.19. This does not include applica-
(3) Approve or disapprove the appli-
budgeted for grants under this part for
tions for initial planning grants to de-
cation.
tribal governing bodies. Applications for
velop and complete larger grant appli-
(b) In instances where a joint appli-
these initial planning grants shall be
cations. Such initial planning grant
cation is made by tribes representing
made as follows:
applications are submitted and acted
more than one Area Office administra-
(1) An application for an initial plan-
ning grant may be accomplished by sub-
upon as prescribed in § 272.15(b).
tive jurisdiction, the Area Director shall
add his recommendation for approval or
mission of a tribal request as prescribed
§ 272.19 Agency Office review and rec-
disapproval to that of the Superintend-
in § 272.16, together with an accompany-
ommendation.
ent and shall forward the application and
ing letter from the tribal governing
(a) Recommendation for approval or
recommendations to the Commissioner
body requesting an initial planning grant
disapproval of a grant under this Part
for further action.
in a specific amount. This letter shall in-
shall be made by the Superintendent
(c) Upon taking action as prescribed
clude a brief description of the proposed
when the intent, purpose and scope of
in paragraph (a) or (b) of this section,
initial planning project, its purpose or
the grant proposal pertains to or involves
the Area Director shall promptly notify
objective as related to development or
an Indian tribe or tribes located within
the applicant in writing as to the action
completion of a larger grant application,
that Superintendent's administrative
taken. If the action taken is disapproval
and the initial planning project budget
jurisdiction.
or recommendation for disapproval of
categories or items.
(b) Upon receipt of an application for
the application, the Area Director will
(2) This initial planning grant shall
a grant under this Part, the Superintend-
include in the written notice the specific
be no more than 10% of total grant
ent shall:
reasons therefor.
funds which may be budgeted for grants
(1) Acknowledge in writing receipt of
under this part for the tribal governing
§ 272.22 Deadline for Area Office ac-
the application within 10 days of its
tion.
body, up to a maximum of $20,000.
arrival at the Agency Office.
(3) An application for an initial plan-
(2) Review the application for com-
Within 30 days of receipt of an appli-
ning grant shall be submitted directly
pleteness of information and promptly
cation for a grant under this Part, the
to the appropriate officer having grant
request any additional information which
Area Director shall take action as pre-
approval authority as prescribed in
may be required to make a recommen-
scribed in § 272.21. Extension of this
§ 272.17(a) or (b) and shall be acted
dation.
deadline will require consultation with
upon by that officer within 30 days.
(3) Assess the completed application
and written consent of the applicant.
§ 272.16 Request from tribal governing
for appropriateness of purpose as pre-
§ 272.23 Central Office review and de-
body.
scribed in $ 272.12, and for overall
cision.
feasibility.
The Bureau shall not make a grant
Upon receipt of an application for a
(4) Inform the applicant, in writing
under this Part unless specifically and
and before any final recommendation, of
grant requiring Central Office approval,
officially requested to do so by a tribal
the Commissioner shall:
any special problems or impediments
governing body. This request may be in
which may result in a recommendation
(a) Review the application following
the form of a tribal resolution, an en-
for disapproval; offer any available tech-
the applicable review procedures pre-
dorsement included in the grant appli-
scribed in § 272.19.
nical assistance required to overcome
cation or such other forms as the tribal
(b) Review Agency and Area Office
such problems or impediments; and
constitution or current practice requires.
solicit the applicant's written response.
recommendations as pertain to the ap-
plication.
§ 272.17 Grant approval limitations.
(5) Recommend approval or disap-
proval following full assessment of the
(c) Approve or disapprove the appli-
(a) Area Office approval. Authority
cation.
completed application and forward the
for approval of a grant application under
(d) Promptly notify the applicant in
application and recommendation to the
this Part shall be with the Area Director
Area Director for further action.
writing as to the approval or disapproval
when the intent, purpose and scope of
of the application. If the application is
(6) Promptly notify the applicant in
the grant proposal pertains solely to an.
disapproved, the Commissioner will in-
writing as to the final recommendation.
Indian tribe or tribes located within that
If the recommendation is for disapproval,
clude in the written notice the specific
Area Director's administrative jurisdic-
reasons therefor.
the Superintendent will include in the
tion.
written notice to the applicant the spe-
§ 272.24 Deadline for Central Office ac-
(b) Central Office approval. Authority
cific reasons therefor.
tion.
for approval of a grant application under
(7) In instances where a joint appli-
Within 30 days of receipt of an appli-
this Part shall be with the Commissioner
cation is made by tribes representing
cation for a grant under this Part the
when the intent, purpose and scope of
more than one Agency Office adminis-
the grant proposal pertains to Indian
Commissioner shall take action as pre-
trative jurisdiction, copies of the applica-
scribed in § 272.23. Extension of this
tribes representing different Area Office
tion shall be provided by the applicants
deadline will require consultation with
administrative jurisdictions but located
to each involved Superintendent for re-
within the Commissioner's overall ad-
and written consent of the applicant.
view and recommendation as prescribed
ministrative jurisdiction.
in this section.
§ 272.25 Grant execution and adminis-
(c) Grant approvals under this sec-
tration.
tion shall be subject to availability of
§ 272.20 Deadline for Agency Office
(a) Grants approved pursuant to
funds. These funds will include those
action.
§ 272.17(a) shall be executed and admin-
which are:
Within 30 days of receipt of an appli-
istered at the Area Office level.
(1) Directly appropriated for imple-
cation for a grant under this Part, the
(b) Grants approved pursuant to
mentation of this Act.
Superintendent shall take action as pre-
$ 272.17(b) shall be-executed and admin-
(2) Appropriated under other Acts for
scribed in § 272.19. Extension of this
istered at the Central Office level pro-
Bureau programs which are related to
deadline will require consultation with
vided that the Commissioner may desig-
the purposes prescribed in § 272.12. How-
and written consent of the applicant.
nate an Area Office to execute or admin-
ever, this does not include funds appro-
§ 272.21 Area Office review and action.
ister such a grant.
priated for Indian Business Development
(a) Upon receipt of an application for
§ 272.26 Subgrants and subcontracts.
Fund grants which are administered
a grant requiring Area Office approval,
The grantee may make subgrants or
under Part 80 of this chapter.
the Area Director shall:
subcontracts under this part provided
FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
RULES AND REGULATIONS
51303
that such subgrants or subcontracts are
(b) Superintendents, Area Directors,
celled for cause, the Bureau may decline
for the purpose for which the grant was
and their designated representatives will,
to enter into a new grant agreement until
made and that the grantee retains ad-
upon tribal request, assist tribes in ob-
satisfied that the cause for cancellation
ministrative and financial responsibility
taining information concerning other
has been corrected.
over the activity and the funds.
Federal grantor agencies with matching
fund programs and will, upon tribal re-
Subpart E-Hearings and Appeals
§ 272.27 Acceptance of tribal plans for
quest, provide technical assistance to
§ 272.51 Hearings-
the operation of Bureau programs.
tribes in developing applications for sub-
Hearings referred to in § 276.15 of this
Any Bureau program, excluding any
mission to those Federal grantor
chapter shall be conducted as follows:
trust resources program, which is
agencies.
(a) The grantee and the Indian
planned, replanned, designed or rede-
signed by a tribe under a grant provided
§ 272.34 Performing personal services.
tribe(s) affected shall be notified, in
under this part, or from any other re-
Any grant provided under this Part
writing, at least 10 days before the hear-
source, shall be implemented by the Bu-
may include provisions for the perform-
ing. The notice should give the date, time,
reau if requested by the tribe through
ance of personal services- which would
place, and purpose of the hearing.
resolution. However, before implemen-
otherwise be performed by Federal
(b) A written record of the hearing
shall be made. The record shall include
tation the program shall meet the fol-
employees.
written statements submitted at the
lowing requirements:
§ 272.35 Fair and uniform services.
hearing or within 5 days following the
(a) Funding. staffing and other re-
Any grant provided under this Part
hearing.
sources are available to implement the
plan.
shall include provisions to assure the fair
(c) The hearing will be conducted on
and uniform provision by the grantee of
as informal a basis as possible.
(b) The implementation of the plan
would not cause a reduction in the qual-
services and assistance to all Indians in-
§ 272.52 Appeals from decision or ac-
ity or quantity of services to Indians.
cluded within or affected by the intent,
tion by Superintendent.
(c) The plan meets the administrative
purpose and scope of that grant.
(a) A grantee may appeal any decision
planning requirements of the Bureau.
§ 272.36 Penalties.
made or action taken by a Superinten-
However, the plan need not meet the
planning requirements for the particular
If any officer, director, agent, or em-
dent under this Part. Such appeal shall
ployee of, or connected with, any recipi-
be made to the Area Director as provided
program.
ent of a grant, subgrant, contract or sub-
in Part 2 of this chapter.
(d) The plan provides a basis for the
contract under this Part, embezzles, will-
(b) The appellant shall provide its
delivery of satisfactory services to Indian
people, unless it can be demonstrated by
fully misapplies, steals, or obtains by
own attorney or other advocates to rep-
the Bureau by substantial evidence that
fraud any of the money, funds, assets, or
resent it during the appeal process.
the plan will yield results which will be
property which are the subject of such a
§ 272.53 Appeals from decision or ac-
deleterious to the welfare of the Indian
grant, subgrant, contract, or subcontract,
tion by Area Director.
people to be served.
he shall be subject to the following
(a) A grantee may appeal any decision
(e) The Commissioner may waive any
penalties:
made or action taken by an Area Director
regulatory requirements given elsewhere
(a) If the amount involved does not
under this Part. Such appeal shall be
in this chapter or any other requirements
exceed $100, he shall be fined not more
than $1,000 or imprisoned not more than
made to the Commissioner as provided
not inconsistent with law. Inconsisten-
in Part 2 of this chapter.
cles between tribal plans and Bureau
one year, or both.
(b) If the amount involved exceeds
(b) The appellant shall provide its own
manual, guidelines, or other non-regula-
tory procedures are not constraints on
$100, he shall be fined not more than
attorney or other advocates to represent
$10,000 or imprisoned for not more than
it during the appeal process.
the tribal plans.
two years, or both.
§ 272.54 Appeals from decision or ac-
Subpart C-General Grant Requirements
tion by Commissioner.
Subpart D-Grant Revision, Cancellation,
§ 272.31 Applicability.
or Assumption
(a) A grantee may appeal any decision
The general requirements for grant ad-
§ 272.41 Revisions or amendments of
made or action taken by the Commis-
sioner under this Part only as provided
ministration in this Subpart are appli-
grants.
in Part 2 of this chapter.
cable to all Bureau grants provided to
(a) Requests for budget revisions or
(b) The appellant shall provide its
tribal governing bodies under this Part,
amendments to grants awarded under
own attorney or other advocates to rep-
except to the extent inconsistent with an
this Part shall be made as provided in
resent it during the appeal process.
applicable Federal statute or regulation.
$ 276.14 of this chapter.
§ 272.32 Reports and availability of in-
(b) Requests for revisions or amend-
§ 272.55 Failure of Agency or Area Of-
formation to Indians.
ments to grants provided under this Part,
fice to act.
other than budget revisions referred to
Whenever a Superintendent or Area
Any tribal governing body receiving
in paragraph (a) of this section, shall be
Director fails to take action on a grant
a grant under this Part shall make in-
made to the Bureau officer responsible
application within the time limits estab-
formation and reports concerning that
for approving the grant in its original
lished in this Part, the applicant may at
grant available to the Indian people
form. Upon receipt of a request for revi-
its option, request action by the next
which it serves or represents. Access to
sions or amendments to grants, the re-
higher Bureau official who has grant ap-
these data shall be requested in writing
sponsible Bureau officer shall follow pre-
proval authority as prescribed in this
and shall be made available by the tribe
cisely the same review procedures and
Part. In such instances, the Superin-
within 10 days of receipt of that request,
time specified in § 272.19.
tendent or Area Director who failed to
subject to any exceptions provided for in
act shall immediately forward the ap-
the Freedom of Information Act (5 U.S.C.
§ 272.42 Assumption.
plication and all related materials to
552), as amended by the Act of No-
(a) When the Bureau cancels a grant
that next higher Bureau official.
vember 21, 1974 (P.L. 93-502; 88 Stat.
for cause as specified in § 276.15 of this
1561).
chapter, the Bureau may assume control
PART 273-EDUCATION CONTRACTS
§ 272.33 Matching share.
or operation of the grant program, ac-
UNDER JOHNSON-O'MALLEY ACT
tivity or service. However, the bureau
(a) Specific Federal laws notwith-
shall not assume a grant program, ac-
Subpart A-General Provisions
standing, grant funds provided to tribal
tivity or service that it did not administer
Sec.
governing bodies under this Part may be
before tribal grantee control unless the
273.1
Purpose and scope.
used as matching shares for any other
273.2
Definitions.
tribal grantee and the Bureau agree to
273.3
Revision or amendment of regula-
Federal or non-Federal grant programs
the assumption.
tions.
which contribute to the purposes speci-
(b) When the Bureau assumes control
273.4
Policy of maximum Indian partici-
fied in $ 272.12.
or operation of a grant program can-
pation.
FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
51304
RULES AND REGULATIONS
Subpart B-Application Process
such support is necessary to maintain
Stat. 1458, 25 U.S.C. 452-456), and fur-
Sec.
established State educational standards.
ther amended by the Act of January 4,
273.11 Eligible applicants.
(b) The application and approval proc-
1975 (88 Stat. 2203).
273.12
Eligible students.
ess in this part applies specifically to
273.13 Proposals eligible for contracts.
(1) "Operational support" means those
273.14 Preparing the education plan.
contracts with a State, school district,
expenditures for school operational costs
273.15 Establishment of Indian Education
or Indian corporation.
in order to meet established State ed-
Committee.
(c) Contracts with tribal organiza-
ucational standards or State-wide re-
273.16 Powers and duties of Indian Educa-
tions for supplemental and operational
quirements.
tion Committee.
support will be entered into only upon
(m) "Pub. L. 93-638" means the In-
273.17 Programs approved by Indian Educa-
the request of an Indian tribe(s), and
dian Self-Determination and Education
tion Committee.
shall be subject to the provisions of Part
273.18 Additional requirements for educa-
Assistance Act (Pub. L. 93-638; 88 Stat.
271 of this chapter and 41 CFR Part
2203).
tion plan.
273.19
Obtaining application forms.
14H-70, except as provided in § 273.11.
(n) "Previously private school" means
273.20
Content of application to contract.
(d) Nothing in these regulations shall
a school (other than a Federal school
273.21 Tribal request for contract.
be construed as:
formerly operated by the Bureau) that is
273.22 Application approval officials.
(1) Affecting, modifying, diminishing,
operated primarily for Indian students
273.23 Submitting application to Area of-
or otherwise impairing the sovereign im-
from age 3 years through grades 12; and,
fice.
munity from suit enjoyed by an Indian
which at the time of application is con-
273.24 Area Office review and decision.
tribe;
273.25 Deadline for Area Office action.
trolled, sanctioned, or chartered by the
273.26 Submitting application to Central
(2) Authorizing or requiring the ter-
government body(s) of an Indian
Office.
mination of any existing trust respon-
tribe(s).
273.27 Central Office review and decision
sibility of the United States with re-
(o) "Reservation" or "Indian Reserv-
273.28 Deadline for Central Office action.
spect to the Indian people; or,
ation" means any Indian tribe's reserva-
273.29 Negotiating the contract.
(3) Permitting significant reduction in
tion, Pueblo, Colony, or Rancheria,
Subpart C-Funding Provisions
services to Indian people as a result of
including former reservations in Okla-
this Part.
273.31
Distribution formula.
homa, Alaska Natives regions established
273.32 Pro rata requirement.
(e) Nothing in these regulations shall
pursuant to the Alaska Native Claims
273.33 Use of funds for operational support.
be construed to mandate an Indian tribe
Settlement Act (85 Stat. 688), and In-
273.34 Use of other Federal, State and local
to request a contract or contracts. Such
dian allotments.
funds.
requests are strictly voluntary
(p) "School district" or "local educa-
273.35
Capital outlay or debt retirement
273.36
Eligible subcontractors.
§ 273.2 Definitions.
tion agency" means that subdivision of
273.37 Use of funds outside of schools.
As used in this Part:
the State which contains the public ele-
273.38 Equal quality and standard of edu-
mentary and secondary educational in-
(a) "Area Director" means the offi-
cation.
stitutions providing educational services
cial in charge of a Bureau of Indian
Affairs Area Office.
and is controlled by a duly elected board,
Subpart D-General Contract Requirements
(b) "Bureau" means the Bureau of
commission, or similarly constituted
273.41 Special program provisions to be in-
assembly.
cluded in contract.
Indian Affairs.
273.42 Civil Rights Act violations.
(c) "Commissioner" means the Com-
(q) "Secretary" means the Secretary
of the Interior.
273.43 Advance payments.
missioner of Indian Affairs.
273.44 Use and transfer of Government
(d) "Days" means calendar days.
(r) "State" means a State of the
property.
(e) "Economic enterprise" means any
United States of America or any political
273.45 Indian preference.
subdivision of a State.
273.46 Liability and motor
commercial, industrial, agricultural, or
(s) "Superintendent" means the official
ance.
business activity that is at least 51 per-
in charge of a Bureau of Indian Affairs
273.47 Recordkeeping.
cent Indian owned, established or or-
Agency Office.
273.48 Audit and inspection.
ganized for the purpose of profit.
273.49 Freedom of information.
(f) "Education plan" means a com-
(t) "Supplemental programs" means
273.50 Annual reporting.
prehensive plan for the programmatic
those programs designed to meet the
273.51 Penalties.
and fiscal services of and accountability
specialized and unique educational needs
273.52 State school laws.
by a contractor for the education of eli-
of eligible Indian students which may
273.53 Applicable procurement regulations.
273.54 Privacy Act requirements.
gible Indian students under this Part.
have resulted from socio-economic con-
(g) "Indian tribe" means any Indian
ditions of the parents, from cultural or
Subpart E-Contract Revision or Cancellation
Tribe, Band, Nation Rancheria, Pueb-
language differences or other factors, and
273.61 Contract revision or amendment.
lo, Colony or Community, including
as provided by $ 273.34(b)
273.62 Cancelling a contract for cause.
any Alaska Native village or regional or
(u) "Tribal government", "tribal gov-
Subpart F-Appeals
village-corporation as defined in or es-
erning body" and "tribal Council" means
273.71 Contract appeal.
tablished pursuant to the Alaska Native
the recognized governing body of an In-
Claims Settlement Act (85 Stat. 688)
dian tribe.
273.72 Appeal from decision to cancel con-
tract for cause.
which is federally recognized as eligible
(v) "Tribal organization," means the
273.73 Other appeals.
by the United States Government
recognized governing body of any Indian
AUTHORITY: 25 U.S.C. 452-456; sec. 202,
through the Secretary for the special
tribe or any legally established organiza-
Pub. L. 93-638, 88 Stat. 2203, unless other
programs and services provided by the
tion of Indians or tribes which is con-
wise noted.
Secretary to Indians because of their
trolled, sanctioned, or chartered by such
status as Indians.
Subpart A-General Provisions
governing body or bodies, or which is
(h) "Indian corporation" means a le-
democratically elected by the adult mem-
§ 273.1 Purpose and scope.
gally established organization of Indians
bers of the Indian community to be
(a) The purpose of the regulations in
chartered under State or Federal law
served by such organization and which
this Part is to set forth the application
and which is not included within the
includes the maximum participation of
and approval process for education con-
definition of "tribal organization" given
Indians in all phases of its activities:
tracts under the Johnson-O'Malley Act.
in paragraph (u) of this section.
Provided, That a request for a contract
Such contracts shall be for the purpose
(i) "Indian Education Committee"
must be made by the Indian tribe that
of financially assisting those efforts de-
means one of the entities specified by
will receive services under the contract;
signed to meet the specialized and
$ 273.15.
Provided further, That in any case where
unique educational needs of eligible In-
(j) "Indian" means a person who is
a contract is let to an organization to
a member of an Indian tribe.
dian students, including programs sup-
perform services benefiting more than
(k) "Johnson-O'Malley Act" means
one Indian tribe, the approval of each
plemental to the regular school program
the Act of April 16, 1934 (48 Stat. 596),
such Indian tribe shall be a prerequisite
and school operational support, where
as amended by the Act of June 4, 1936 (49
to the letting of such contract.
FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
RULES AND REGULATIONS
51305
§ 273.3 Revision or amendment of reg.
(2) The requirements in §§ 271.1
without regard to contract funds pur-
ulations.
through 271.27, 271.41 through 271.52,
suant to this part.
In order to make any substantive revi-
271.54, 271.61 through 271.68, and 271.81
(vii) It shall not budget or project a
through 271.84 shall apply to such con-
deficit by using contract funds pursuant
sion or amendments to regulations in this
part, the Secretary shall take the fol-
tracts with tribal organizations.
to this Part.
(3) The provisions in §§ 271.71
(2) The requirements given in para-
lowing actions:
(a) Consult with Indian tribes and
through 271.77 of this chapter concern-
graph (b) (1) of this section do not apply
ing retrocession and reassumption of
to previously private schools.
national and regional Indian organiza-
programs do not apply to a tribal orga-
(c) At his discretion, the Commissioner
tions to the extent practicable about the
need for revision or amendment and
nization retroceding a contract for sup-
may consider as eligible a proposal to
consider their views in preparing the
plemental programs or operational sup-
contract under which a school district
proposed revision or amendment.
port as the Bureau does not operate
will be reimbursed for the full per capita
(b) Publish the proposed revisions or
education programs authorized to be
costs of educating Indian students who
contracted under the Johnson-O'Malley
meet all of the following:
amendments in the Federal Register as
proposed rulemaking to provide ade-
Act. However, the tribal organization
(1) Are members of recognized Indian
may retrocede such a contract and the
tribes.
quate notice to, and receive comments
Bureau will then contract with a State,
from, all interested parties.
(2) Do not normally reside in the State
(c) After consideration of all com-
school district, or Indian corporation
in which the school district is located.
under this Part for the supplemental
ments received, publish the regulations
(3) Are residing in Federal boarding
in the Federal Register in final form not
programs or operational support.
facilities for the purpose of attending
(4) The requirements in §§ 273.12
less than 30 days before the date they
public schools within the school district.
through 273.18, 273.20, 273.21, 273.31
are made effective.
through 273.39, 273.41, 273.51 and 273.52
§ 273.14 Preparing the education plan.
(d) Annually consult with Indian
tribes and national and regional Indian
shall apply to such contracts with tribal
A prospective contractor in consulta-
organizations about the need for revi-
organizations.
tion with its Indian Education Commit-
sion or amendment, and consider their
(5) The requirements in 41 CFR Part
tee(s) shall formulate an education plan
14H-70 shall apply to such contracts
and submit it to the appropriate Area Di-
views in preparing the revision or
with tribal organizations.
rector as a. part of the application to
amendment
(e) Nothing in this section shall pre-
§ 273.12 Eligible students.
contract required by § 273.20. Such plan
shall become a part of any contract
clude Indian tribes or national or re-
Indian students, from age 3 years
awarded. The education plan shall con-
gional Indian organizations from initiat-
through grade(s) 12, except those who
tain:
ing request for revisions or amendments
are enrolled in Bureau or sectarian op-
subject to paragraphs (a), (b), and (c)
(a) The education programs approved
erated schools, shall be eligible for bene-
of this section.
by the Indian Education Committee(s)
fits provided by a contract pursuant to
as required in § 273.17.
§ 273.4 Policy of maximum Indian par-
this Part if they are 1/4 or more degree
Indian blood and recognized by the
(b) Other requirements for the educa-
ticipation.
Secretary as being eligible for Bureau
tion plan given in § 273.18.
The meaningful participation in all
aspects of educational program develop-
services. Priority shall be given to con-
§ 273.15 Establishment of Indian Edu-
ment and implementation by those
tracts (a) which would serve Indian
cation Committee.
affected by such programs is an essential
students on or near reservations and (b)
(a) When a school district to be
requisite for success. Such participation
where a majority of such Indian stu-
dents will be members of the tribe(s)
affected by a contract(s). for the educa-
not only enhances program responsive-
of such reservations (as defined in
tion of Indians pursuant to this Part
ness to the needs of those served, but
has a local school board not composed of
also provides them with the opportunity
$ 273.2(o)).
a majority of Indians, the tribal govern-
to determine and affect the desired level
§ 273.13 Proposals eligible for contracts.
ing body(s) of the Indian tribe(s)
of educational achievement and satis-
(a) Any proposal to contract for fund-
affected by the contract(s) under this
faction which education can and should
ing a program which meets the definition
Part shall specify one of the following
provide. Consistent with this concept,
of a supplemental program given in
entities to serve as the Indian Education
maximum Indian participation in the
§ 273.2(t) will be considered an eligible
Committee for the purpose of this Part:
development, approval and implementa-
proposal under this Part.
(1) An Indian Education Committee to
tion of all programs contracted under
(b) (1) To contract for operational
be elected from among the parents (in-
this Part shall be required.
support, a public school district shall be
cluding persons acting in loco parentis
Subpart B-Application Process
required to establish as part of the pro-
except school administrators or officials)
posal that:
of eligible Indian students enrolled in the
§ 273.11 Eligible applicants.
(1) It cannot meet the applicable min-
school(s) affected by a contract(s) under
(a) Any State, school district, tribal
imum State standards or requirements
this Part; or
organization or Indian corporation is
without such funds.
(2) A local Indian committee estab-
eligible to apply for contracts for sup-
(ii) It has made a reasonable tax effort
"lished pursuant to section 305(b) (2) (B)
plemental or operational support pro-
with a mill levy at least equal to the
(ii) of the Act of January 23, 1972 (86
grams. For the purposes of this Part,
State average in support of educational
Stat. 235) and existing prior to January
previously private schools as defined in
programs.
4, 1975; or
$ 273.2(n) are considered tribal orga-
(iii) It has fully utilized all other
(3) An Indian advisory school board
nizations.
sources of financial aid, including all
or Indian Education Committee estab-
(b) States, school districts, or Indian
forms of State aid and Pub. L. 874 pay-
lished pursuant to the Johnson-O'Malley
corporations shall apply for contracts
ments. The State aid contribution per
Act and existing prior to January 4,
for supplemental or operational support
pupil must be at least equal to the State
1975.
programs as required in this Part.
average.
(b) When the local school board is
(c) Tribal organizations must comply
(iv) There is at least 70 percent eligi-
not composed of a majority of Indians
with the following requirements to ob-
ble Indian enrollment within the school
and the tribal governing body(s) of the
tain contracts for supplemental pro-
district.
Indian tribe(s) affected by a contract(s)
grams or operational support:
(v) It shall clearly identify the edu-
under this Part determine which of the
(1) The application submitted by the
cational needs of the students intended
entities provided for in paragraph (a) of
tribal organization shall meet the re-
to benefit from the contract.
this section is to serve as the Indian Edu-
quirements in $ 273.20 in addition to
(vi) It has made a good faith effort in
cation Committee for the purpose of this
those in $ 271.14 of this chapter.
computing State and local contributions
Part, it shall notify the Area Director of
FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
RULES AND REGULATIONS
51307
program
results,
and
dissemination
§ 273.24 Area Office review and decision.
(c) On receiving an application for
thereof.
Upon receiving a contract application,
operational support, make formal writ-
(4) Determination of staff and pro-
ten determination and findings support-
the Area Director shall:
gram effectiveness in meeting the stated
ing the need for such funds. In arriving
(a) Notify the applicant in writing that
needs of target students.
at such a determination, the Commis-
the application has been received. This
sioner must be assured that each local
§ 273.19 Obtaining application forms.
notice shall be made within fourteen
education agency has made a good faith
Application forms, instructions, and
(14) days after the Area Office receives
effort in computing State and local con-
related application materials are avail-
the application.
tributions without regard to funds re-
(b) Review the application for com-
able from Agency Superintendents, Area
quested pursuant to this Part.
Directors and the Commissioner. Use of
pleteness and request within 20 days any
(d) Assess the completed application
additional information from the appli-
standard application forms will facilitate
to determine if the contract proposal is
cant which will be needed to reach a
processing of applications. However,
feasible and if the proposal and the ap-
decision.
they are not required if the information
plication comply with the appropriate
(c) On receiving an application for
required by $ 273.20 is given in the ap-
requirements of the Johnson-OMalley
operational support, make formal written
plication to contract.
Act and of the regulations in this Part.
determination and findings supporting
(e) Approve or disapprove the appli-
§ 273.20 Content of application to con-
the need for such funds. In arriving at
cation after fully reviewing and assessing
tract.
such a determination, the Area Director
the application and any additional infor-
An application for a contract under
must be assured that each local educa-
mation submitted by the applicant.
this Part shall be in writing and shall
tion agency has made a good faith effort
(f) Promptly notify the applicant in
contain the following:
in computing State and local contribu-
writing of the decision to approve or dis-
(a) Name, address, and telephone
tions without regard to funds requested
approve the application. If the applica-
number of the proposed contractor.
pursuant to this Part.
tion is disapproved, the notice will give
(b) Name, address, and telephone
(d) Assess the completed application
the reasons for disapproval and the ap-
number of the tribe(s) to be served by
to determine if the contract proposal is
plicant's right to appeal pursuant to Part
the contract.
feasible and if the proposal and the ap-
2 of this chapter.
(c) Descriptive narrative of the con-
plication comply with the appropriate
requirements of the Johnson-O'Malley
§ 273.28 Deadline for Central Office
tract proposal.
(d) The education plan required by
Act and of the regulations in this Part.
action.
$ 273.14.
(e) Approve or disapprove the applica-
(a) The Commissioner shall approve
(e) A separate budget outlining the
tion after fully reviewing and assessing
or disapprove an application for a con-
Johnson-O'Malley funds for operational
the application and any additional in-
tract within sixty (60) days after the
support and/or supplemental programs,
formation submitted by the applicant.
Central Office receives the application,
by line item. to facilitate accountability.
(f) Promptly notify the applicant in
and any additional information re-
(f) A clear identification of what edu-
writing of the decision to approve or dis-
quested in § 273.27(b). The sixty (60)
cational needs the Johnson-OMalley
approve the application. If the applica-
day deadline can be extended after ob-
funds requested for operational support
tion is disapproved, the notice will give
taining the written consent of the ap-
will address.
the reasons for disapproval and the ap-
plicant.
(g) Documentation of the require-
plicant's right to appeal pursuant to Part
(b) An application under this Part
ments for operational support in $ 273.13
2 of this chapter.
cannot be approved before February 1
(b) (1).
§ 273.25 Deadline for Area Office action.
preceding the school year for which the
contract will be let.
§ 273.21 Tribal request for contract.
(a) The Area Director shall approve or
(a) An Indian tribal governing
disapprove an application for a contract
$ 273.29 Negotiating the contract.
body(s) that desires that a contract be
within sixty (60) days after the Area
After the proposal for a contract has
entered into with a tribal organization
Office receives the application and any
been approved by the Area Director or
must so notify the Area Director no later
additional information requested in
Commissioner as provided in $ 273.22, the
than February 1 preceding the school
s 273.24(b). The sixty (60) day deadline
contract will be negotiated by a Bureau
year for which the contract will be let.
can be. extended after obtaining the
contracting officer assisted by Bureau
(b) If the tribal governing body's no-
written consent of the applicant
education personnel.
tice is not received by the date given in
(b) An application under this Part
paragraph (a) of this section, the Area
cannot be approved before February 1
Subpart C-Funding Provisions
Director may contract with the State,
preceding the school year for which the
§ 273.31 Distribution formula.
school district, or Indian corporation
contract will be let.
(a) Funds for both supplemental pro-
under this Part.
§ 273.26 Submitting application to Cen-
grams and operational support shall be
§ 273.22 Application approval officials.
tral Office.
apportioned among the States on a sub-
When services under the proposed con-
stantially equal basis, based upon the
(a) Each Area Director is authorized to
tract will be provided to Indian children
number of eligible Indian students for
approve the contract(s) submitted by the
State, school district, or Indian corpora-
within the jurisdiction of two or more
whom funds are sought, with allowances
Area Offices, the completed application
being made for the actual cost of de-
tion under this Part which will provide
services to Indian children within the
shall be submitted to the Commissioner
livering educational services in each
through the respective Area Offices.
State; except that, any State or con-
jurisdiction of that Area Office.
tractor who meets criteria in this Part
(b) When a proposed contract(s) will
§ 273.27 Central office review and de-
and received operational support in FY
provide services to Indian children within
cision.
1976 may continue to receive such funds
the jurisdiction of more than one Area
Upon receiving a contract application,
in FY 1977 and FY 1978 in addition to
Office, the contract must be approved by
the Commissioner shall:
those described above. However, the
the Commissioner.
(a) Notify the applicant in writing
amount of such assistance each year will
§ 273.23 Submitting application to
that the application has been received.
be equal to that State or contractor's
Area Office.
This notice shall be made within fourteen
prior year operational support allocation
When services under the proposed con-
(14) days after the Central Office receives
reduced by one-third of its FY 1976 oper-
tract will be provided to Indian children
the application.
ational support allocation. Further, in
(b) Review the application for com-
FY 1977 no State shall receive less than
within the jurisdiction of a single Area
pleteness and request within 20 days any
75% of the supplemental program assist-
Office, the completed application shall be
additional information from the appli-
ance they received in FY 1975.
submitted to the Area Director of that
cant which will be needed to reach a
(b) Except as described in paragraph
Area Office.
decision.
(a) of this section, all other funds shall
FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
51308
RULES AND REGULATIONS
be distributed among the contractors
appropriate individual, organization or
within each State so that each contractor
and the Department of Health, Educa-
corporation.
will receive approximately the same
tion, and Welfare. If the report of the
amount for each eligible Indian student
§ 273.37 Use of funds outside of schools.
investigation conducted by the Depart-
to be served under the contract.
Nothing in these regulations shall pre-
ment of Health, Education, and Welfare
discloses a failure or threatened failure
(c) The Commissioner may make ex-
vent the Commissioner from contracting
ceptions to the provisions of paragraphs
with Indian corporations who will ex-
to comply with this Part, and if the non-
(a) and (b) of this section based upon
pend all or part of the funds in places
compliance cannot be corrected by in-
other than the public or private schools
formal means, compliance with this Part
the special cultural, linquistic, social or
educational needs of the communities
in the community affected.
may be effected by the suspension or
termination of or refusal to contract or
involved, including the actual cost of
education in the community.
§ 273.38 Equal quality and standard of
to continue financial assistance under
education.
the Johnson-O'Malley Act or by any
§ 273.32 Pro rata requirement.
Contracts with State education agen-
other means authorized by law. As de-
All monies provided by a contract pur-
cies or school districts receiving funds
lineated in 43 CFR 17.1, 17.8, and 17.9,
suant to this Part, shall be expended only
under the provisions of this part shall
such other means may include reference
for the benefit of eligible Indian stu-
provide educational opportunities to all
to the Department of Justice with a rec-
dents. Where students other than eligible
Indian children within that school dis-
ommendation that appropriate legal pro-
Indian students participate in programs
trict on the same terms and under the
ceedings be brought by the United States
contracted under this part, money ex--
same conditions that apply to all other
to secure compliance or by formal hear-
pended under such contract shall be pro-
students provided that it will not affect
ing before the Commissioner or, at his
rated to cover the participation of only
the rights of eligible Indian children to
discretion, before an administrative law
the eligible Indian students, except
receive benefits from the supplemental
judge designated in accordance with sec-
where the participation of non-eligible
programs as provided for in this part.
tion 11 of the Administrative Procedure
students is so incidental as to be de
School districts receiving funds under
Act. The Secretary, may, by agreement
minimus. Such de minimus participa-
this part must insure that Indian chil-
with one or more other Federal depart-
tion must be approved by the Indian Ed-
dren receive all aid from the State, and-
ments, provide for the conduct of con-
ucation Committee.
other proper sources other than this
solidated or joint hearings as prescribed
contract, which other schools in the dis-
in 43 CFR 17.8(e)
§ 273.33 Use of funds for operational
trict and other school districts similarly
support.
§ 273.43 Advance payments.
situated in the State are entitled to
All funds for school operational sup-
receive. In no: instance shall there be
Advance payments to States, school
port shall be used to meet established
discrimination against Indians or schools
districts and Indian corporations will be
State educational standards or State-
enrolling such Indians.
made in accordance with the applicable
wide requirements:
provisions of 41 CFR 1 as supplemented
Subpart D-General Contract
by 41 CFR 14 and-4 CFR 14H except
§ 273.34 Use of other Federal, State and
Requirements
41 CFR Part 14H-70.
local funds.
§ 273.41 Special program provisions to
be included in contract.
$ 273.44 Use and transfer of Govern-
(a) Contract funds under this part
ment property.
shall supplement, and not supplant, Fed-
All contracts under this Part shall
eral, State and local funds. Each con-
(a) The use of Government-owned
contain the following:
tract shall require that the use of these
facilities for school purposes may be
(a) The education plan required by
contract funds will not result in a de-
authorized when not needed for Gov-
§§ 273.14 and 273.18 and, as part of the
crease in State, local, or Federal funds
ernment activities. Transfer of title to
education plan, the education programs
which would be made available for In-
such facilities (except land) may be ar-
approved by the Indian Education Com-
dian students if there were no funds
ranged under the provisions of the Act
mittee(s) under § 273.17.
under this Part.
of June 4, 1953 (67 Stat. 41) subject to
(b) Any formal written determination
(b) State, local and other Federal
the approval of the tribal government if
funds must be used to provide compara-
and findings made by the Area Director
such property is located on a reservation.
ble services to non-Indian and Indian
or Commissioner supporting the need for
(b) In carrying out a contract made
students prior to the use of Johnson-
operational support as required by
under this Part, the Area Director or
O'Malley funds for the provision of sup-
$$ 273.24(c) and 273.27(c)
Commissioner may, with the approval of
plementary program services to~Indian
(c) The provision that State, local, and
the tribal government, permit a con-
children.
other Federal funds shall be used to pro-
tractor to use existing buildings, facili-
(c) Funds for operational support shall
vide comparable services to non-Indian
ties, and related equipment and other
be used only as prescribed in § 273.33.
and Indian students prior to the use of
personal property owned by the Bureau
Johnson-O'Malley funds for the provi-
within his jurisdiction under terms and
$ 273.35 Capital outlay or debtrretire-
sion of supplementary program services
conditions agreed upon for their use and
ment.
to Indian children, as required in
maintenance. The property at the time
In no instance shall contract funds
$ 273.34(b)
of transfer must conform to the mini-
provided under this part be used as pay-
§ 273.42 Civil Rights Act violations.
mum standards established by the Occu-
ment for capital outlay or debt retire-
pational Safety and Health Act of 1970
ment expenses; except that, such costs
In no instance shall there be dis-
(84 Stat. 1590), as amended (29 U.S.C.
are allowable if they are considered to
crimination against Indians or schools
651). Use of Government property is
be a part of the full per capita cost of
enrolling such Indians. When informed
subject to the following conditions:
educating eligible Indian students who
by a complainant or through its own dis-
(1) When nonexpendable Government
reside in Federal boarding facilities for
covery that possible violation of Title
property is turned over to public school
the purpose of attending public schools.
VI of the Civil Rights Act of 1964 exists
authorities or Indian corporations under
within a State school district receiving
a use permit, the permittee shall insure
§ 273.36 Eligible subcontractors.
funds under this Part, the Department
such property against damage by flood,
No contract funds under the Johnson-
of the Interior shall, in accordance with
fire, rain, windstorm, vandalism, snow,
O'Malley Act shall be made available by
Federal requirements, notify the De-
and tornado in amounts and with com-
the Bureau directly to other than tribal
partment of Health, Education, and Wel-
panies satisfactory to the Federal officer
organizations, States, school districts and
fare of the possible violation of Title VI.
in charge of the property. In case of
Indian corporations. However, tribal or-
The Department of Health, Education,
damage or destruction of the property
ganizations, States, school districts, and
and Welfare will conduct an investiga-
by flood, fire, rain, windstorm, vandalism,
Indian corporations receiving funds
tion into the matters alleged, pursuant
snow or tornado, the insurance money
under this part may use the funds to sub-
to a Memorandum of Understanding be-
collected shall be expended only for re-
contract for necessary services with any
tween the Department of the Interior
pair or replacement of property. Other-
FEDERAL REGISTER, VOL 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
RULES AND REGULATIONS
51309
wise, insurance proceeds shall be paid to
tractor may be exempted from this re-
shall be further maintained until final
the Bureau.
quirement.
determination has been made on the
(2) If the public school authority is
(b) Notwithstanding paragraph (a) of
questioned expenditures.
self-insured and can present evidence of
this section, any contract which requires
(e) All contracts, non-confidential
that fact to the Area Director or Com-
or authorizes, either expressly or by im-
records concerning all students served
missioner, insurance for lost or damaged
plication, the use of motor vehicles must
by the program, reports, budgets, budget
property will not be required. However,
contain a provision requiring the State,
estimates, plans, and other documents
the public school authority will be re-
school district, or Indian corporation to
pertaining to preceding and current year
sponsible for replacement of such lost or
provide liability insurance, regardless of
administration of the contract program
damaged property at no cost to the Gov-
how small the risk.
shall be made available by the contractor
ernment or for paying the Government
(c) If the public school authority is
and local school officials to each member
enough to replace the property.
self-insured and can present evidence of
of the Indian Education Committee and
(3) The permittee shall maintain the
that fact to the Area Director or Com-
to members of the public upon request.
property in a reasonable state of repair
missioner, liability and motor vehicle in-
The contractor or local school official
consistent with the intended use and
surance will not be required.
shall provide, free of charge. single copies
educational purposes.
of such documents upon request.
(c) The contractor may have access
§ 273.47 Recordkeeping.
§ 273.49 Freedom of information.
to existing Bureau records needed to
A contractor will be required to main-
carry out a contract under this Part, as
tain a recordkeeping system which will
(a) Unless otherwise required by law,
follows:
allow the Bureau to meet its legal records
the Bureau shall not place restrictions
(1) The Bureau will make the records
program requirements under the Federal
on contractors which will limit public
available subject to the provisions of the
Records Act (44 U.S.C. 3101 et seq.).
access to the contractor's records except
Freedom of Information Act (5 U.S.C.
Such a record system shall:
when records must remain confidential.
552), as amended by the Act of Novem-
(b) A contractor under this Part shall
ber 21, 1974 (Pub. L. 93-502, 88 Stat.
(a) Fully reflect all financial transac-
make all reports and information con-
tions involving the receipt and expendi-
1561)
cerning the contract available to the In-
(2) The contractor may have access
ture of funds provided under the contract
dian people which the contract affects.
to needed Bureau records at the appro-
in a manner which will provide accurate;
Reports and information may be with-
priate Bureau office for review and mak-
current and complete disclosure of finan-
held from disclosure only when both of
cial status; correlation with budget or
ing copies of selected records.
the following conditions exist:
(3) If the contractor needs a small
allowable cost schedules; and clear audit
(1) The reports and information fall
volume of identifiable Bureau records,
facilitating data.
within one of the following exempt cate-
the Bureau will furnish the copies to the
(b) Reflect the amounts and sources
gories:
of funds other than Bureau contract
contractor.
(i) Specifically required by statute or
funds which may be included in the op-
Executive Order to be kept secret.
§ 273.45 Indian preference.
eration of the contract.
(ii) Commercial or financial infor-
(a) Any contract made by the Bureau
(c) Provide for the creation, mainte-
mation obtained from a person or firm on
with a State, school district or Indian
nance and safe guarding of records of
a privileged or confidential basis.
corporation shall provide that the con-
lasting value, including those involving
(iii) Personnel, medical, social, psy-
tractor shall, to the greatest extent fea-
individual rights. such as permanent rec-
chological, academic achievement and
sible, give preference in and opportunities
ords and transcripts.
similar files where disclosure would be a
for employment and training to Indians.
(d) Provide for orderly retirement of
clearly unwarranted invasion of person-
(b) Any contract made by the Bureau
permanent records in accordance with
al privacy.
with a State, school district or Indian
General Records Schedules and the Bu-
(2) Disclosure is prohibited by statute
corporation shall provide that the con-
reau Records Control Schedule, when
or Executive Order or sound grounds ex-
tractor shall, to the greatest extent fea-
there is no established system set up by
ist for using the exemption given in para-
sible, give preference in the award of
the State, school district, or Indian
graph (b) (1) of this section.
subcontracts to Indian organizations and
corporation.
(c) A request to inspect or copy re-
Indian-owned economic enterprises
§ 273.48 Audit and inspection.
ports and information shall be in writ-
(c) All subcontractors employed by the
ing and must reasonably describe the re-
(a) During the term of a contract
contractor shall, to the extent possible,
ports and information requested. The re-
under this Part and for three years after
give preference to Indians for employ-
quest may be delivered or. mailed to the
the project or undertaking is completed,
ment and training and shall be required
contractor. Within ten (10) working days
the Comptroller General and the Secre-
to include in their bid submission a plan
after receiving the request, the contrac-
to achieve maximum use of Indian
tary, or any of their duly authorized rep-
tor shall determine whether to grant or
resentatives, shall have access, for audit
personnel.
deny the request. The requester shall be
(d) In the performance of contracts
and examination purposes, to any of the
notified immediately of the determina-
under this Part 273 and subject to the
contractor's books, documents, papers,
tion.
provisions of Part 14H of Title- 41, a
and records which, in their opinion, may
be related or pertinent to the contract
(d) The time limit for making a de-
tribal governing body may develop its
own Indian preference requirements to
or any subcontract.
termination may be extended up to an
(b) The contractor will be responsible
additional ten (10) working days for good
the extent that such requirements are
for maintaining all documents such as
reason. The requester shall be notified in
not inconsistent with the purpose and
invoices, purchase orders, cancelled
writing of the extension, reasons for the
intent of paragraphs (a), (b) and (c) of
checks, balance sheets and all other rec-
extension, and date on which the de-
this section.
ords relating to financial transactions
termination is expected to be made.
§ 273.46 Liability and motor vehicle in-
in a manner which will facilitate audit-
§ 273.50 Annual reporting.
surance.
ing. The contractor will be responsible
(a) A contractor under this Part shall
(a) States, school districts and Indian
for maintaining files of correspondence
make a detailed annual report to the ap-
corporations shall obtain public liability
and other documents relating to the ad-
proving official before September 15 of
insurance under contracts entered into
ministration of the contract properly
each year and covering the previous
with the Bureau under this Part. How-
separated from general records or cross-
school year. The report shall include, but
ever, where the Bureau contracting
referenced to general files.
not be limited to, an accounting of the
officer determines that the risk of death,
(c) The contractor receiving funds
amounts and purposes for which the con-
personal injury or property damage
under this Part shall be responsible for
tract funds were expended, information
under the contract is small and that the
contract compliance.
on the conduct of the program, a quanti-
time and cost of procuring the insurance
(d) The records involved in any claim
tative evaluation of the effectiveness of
is great in relation to the risk, the con-
or expenditure that has been questioned
the contract program in meeting the
FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
51310
RULES AND REGULATIONS
stated objectives contained in the appli-
(2) To make such records available to
right of the contractor to appeal under
cant's educational plans, and a complete
individuals involved.
Subpart C of 43 CFR Part 4.
accounting of actual receipts at the end
(3) To disclose an individual's record
(d) When a contract is cancelled for
of the contract period.
to third parties only after receiving per-
cause, the Bureau will attempt to per-
(b) In addition to the yearly reporting
mission from the individual to whom the
form the work by another contract.
requirement given in paragraph (a) of
record pertains. 43 CFR 2.56 lists excep-
(e) Any contractor that has a con-
this section, the contractor shall furnish
tions to this procedure.
tract cancelled for cause must demon-
other contract-related reports when
(4) To establish a procedure to ac-
state that the cause(s) which led to the
and as required by the Area Director or
count for access, disclosures, denials, and
cancellation have been remedied before
Commissioner.
amendments to records.
it will be considered for another contract.
(c) A contractor under this Part shall
(5) To provide safeguards for the pro-
send copies of the reports required by
tection of the records.
Subpart F-Appeals
paragraphs (a) and (b) of this section
(b) The contractor may not:
§ 273.71 Contract appeal.
to the Indian Education Committee(s)
(1) Discontinue or alter any estab-
A contractor may appeal an adverse
and to the tribe(s) under the contract at
lished systems of records without prior
decision or action of a Bureau contract-
the same time as the reports are sent to
approval of the appropriate Bureau sys-
ing officer regarding a contract under
the Bureau.
tems manager.
this Part as provided in Subpart C of
§ 273.51 Penalties.
(2) Deny requests for notification or
43 CFR Part 4.
access of records without prior approval
If any officer, director, agent, or em-
of the appropriate Bureau systems man-
§ 273.72 Appeal from decision to can
ployee of, or connected with, any con-
ager.
cel contract for cause.
tractor or subcontractor under this Part
(3) Approve or deny requests for
A contractor may appeal the decision
embezzles, willfully misapplies, steals, or
amendments of records without prior ap-
of a Bureau official to cancel a contract
obtains by fraud any of the funds or
proval of the appropriate Bureau systems
under this Part for cause. The appeal
property connected with the contract or
manager.
shall be made as provided in Subpart C
subcontract, he shall be subject to the
(4) Establish a new system of records
of 43 CFR Part 4.
following penalties:
without prior approval of the Depart-
(a) If the amount involved does not
§ 273.73 Other appeals.
ment of Interior and the Office of Man-
exceed $100, he shall be fined not more
agement and Budget.
Any decision or action taken by a Bu-
than $1,000 or imprisoned not more than
(5) Collect information about an in-
reau official under this Part, other than
one year, or both.
dividual unless it is relevant or necessary
those given in §§ 273.71 and 273.72, may
(b) If the amount involved exceeds
to accomplish a purpose of the Bureau
be appealed as provided in Part 2 of this
$100, he shall be fined not more than
as required by statute or Executive
chapter.
$10,000 or imprisoned for not more than
Order.
two years, or both.
(c) The contractor is subject to the
PART 274-SCHOOL CONSTRUCTION
§ 273.52 State school laws.
penalties provided in subsection (i) of
CONTRACTS OR SERVICES FOR TRIB-
5 U.S.C. 552a.
ALLY OPERATED PREVIOUSLY PRIVATE
In those States where Public Law 83-
SCHOOLS
280, 18 U.S.C. 1162 and 28 U.S.C. 1360
Subpart E-Contract Revision or
do not confer civil jurisdiction, State em-
Cancellation
Subpart A-General Provisions
Sec.
ployees may be permitted to enter upon
§ 273.61 Contract revision or amend-
274.1
Purpose.
Indian tribal lands, reservations, or allot-
ment.
274.2
Scope.
ments if the duly-constituted governing
274.3
Definitions.
body of the tribe adopts a resolution of
Any contract made under this Part
274.4
Effect on existing Indian rights.
consent for the following purposes:
may be revised or amended as deemed
274.5
Revision or amendment of regula-
(a) Inspecting school conditions in the
necessary to carry out the purposes of
tions.
public schools located on Indian tribal
the program being contracted. A contrac-
Subpart B-Application Process
lands, reservations, or allotments.
tor may make a written request for a
274.11
revision or amendment of a contract to
Eligible applicants.
(b) Enforcing State compulsory school
274.12
the Bureau contracting officer. However,
Obtaining Application forms.
attendance laws against Indian children,
274.13
Contents of application.
no program approved by the Indian Ed-
parents or persons standing in loco
274.14 Assistance in completing applica-
ucation Committee shall be altered from
tions.
parentis.
the time of its original approval to the
274.15
Tribal request.
§ 273.53 Applicable procurement regu-
end of the contract period without the
274.16 Where to submit application.
lations.
written approval of the Committee.
274.17 When to submit application.
274.18 Agency Office review and action.
States, school districts, or Indian cor-
§ 273.62 Cancelling a contract for cause,
274.19 Area Office review and action.
porations wanting to contract with the
274.20
(a) Any contract entered into under
Priorities for providing construction
Bureau under this part must comply
contracts or services.
with the applicable requirements in the
this Part may be cancelled for cause
274.21
Central Office review and action.
Federal Procurement Regulations (41
when the contractor fails to perform the
274.22
On-site inspection and cost estimate.
CFR Part 1), as supplemented by the In-
work called for under the contract or
274.23 Preparing a commitment-to-fund
terior Procurement Regulations (41 CFR
fails to permit an Indian Education Com-
listing.
Part 14), and the Bureau of Indian
mittee to perform its duties pursuant to
274.24 Performing construction work.
Affairs Procurement Regulations (41
this Part.
274.25 Reapplication.
(b) Before cancelling the contract, the
274.26 Funding provisions.
CFR Part 14H), except 41 CFR Part
14H-70.
Bureau will advise the contractor in
Subpart C-General Contract Requirements
writing of the following:
274.31 Applicability.
§ 273.54 Privacy Act requirements.
(1) The reasons why the Bureau is
274.32 Architectural design.
(a) When a contractor operates a sys-
considering cancelling the contract.
274.33 Facilities construction.
tem of records to accomplish a Bureau
(2) The contractor will be given an
274.34 Selecting initial equipment.
274.35
Payment to contractors.
fucntion, the contractor shall comply
opportunity to bring its work up to an
274.36 Use and transfer of Government
with Subpart D of 43 CFR Part 2 which
acceptable level
property.
implements the Privacy Act (5 U.S.C.
(c) If the contractor does not over-
274.37
Wage and labor standards.
552a). Examples of the contractor's re-
come the deficiencies in its contract per-
274.38 Indian preference.
sponsibilities are:
formance, the Bureau shall cancel the
274.39 Liability and motor vehicle in-
surance.
(1) To continue maintaining those
contract for cause. The Bureau will no-
274.40 Recordkeeping.
systems of records declared by the Bureau
tify the contractor, in writing, of the
274.41
Audit and inspection.
to be subject to the Privacy Act as pub-
cancellation. The notice shall give the
274.42 Freedom of information.
lished in the FEDERAL REGISTER.
reasons for the cancellation and the
274.43
Reporting.
FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
RULES AND REGULATIONS
51311
Sec.
(h) "Economic enterprise" means any
contract or from the Bureau by other
274.44 Repayment of funds.
commercial, industrial, agricultural, or
means; Provided further, That in any
274.45 Penalties.
business activity that is at least 51 per-
case where a contract or services will
274.16 Applicable procurement regulations.
cent Indian owned, established or orga-
affect more than one Indian tribe, the
274.47 Contract revision cr amendment.
274.48 Cancelling a contract for cause.
nized for the purpose of profit.
approval of each such Indian tribe shall
274.49 Privacy Act requirements.
(i) "Existing school facilities" means
be prerequisite to the approval of the ap-
all facilities constructed as school build-
plication for the contract or services.
Subpart D-Appeals
ings and used continuously for classroom
274.51 Contract appeal.
§ 274.4 Effect on existing Indian rights.
purposes. Excluded are basement rooms,
274.52 Appeal from decision to cancel con-
hallways, or other space, the use of which
Nothing in these regulations shall be
tract for cause.
for school purposes (in view of the char-
construed as:
274.53 Other appeals.
acter, inaccessibility or other equally
(a) Affecting, modifying, diminishing,
AUTHORITY: Sec. 204 and 208, Pub. L. 93-
cogent reasons) seriously restricts the
or otherwise impairing the sovereign im-
638. 88 Stat. 2203, unless otherwise noted.
educational objective, or has impaired or
munity from suit enjoyed by an Indian
Subpart A-General Provisions
will impair the health or safety of the
tribe;
school children.
(b) Authorizing or requiring the
§ 274.1 Purpose.
(j) "Indian tribe" means any Indian
termination of any existing trust respon-
The purpose of the regulations in this
Tribe, Band, Nation, Rancheria, Pueblo,
sibility of the United States with respect
Part is to give the application and ap-
Colony or Community, including any
to the Indian people; or
proval process for obtaining a contract
Alaska Native village or regional or vil-
(c) Permitting significant reduction in
or services from the Bureau for school
lage corporation as defined in or estab-
services to Indian people as a result of
construction for previously private
lished pursuant to the Alaska Native
this Part.
schools now controlled and operated by
Claims Settlement Act (85 Stat. 688)
tribes or tribally approved Indian orga-
which is federally recognized as eligible
§ 274.5 Revision or amendment of reg-
ulations.
nizations under sections 204 and 208 of
by the United States Government
Title II of the Indian Self-Determination
through the Secretary for the special
In order to make any substantive re-
and Education Assistance Act (Pub. L.
programs and services provided by the
visions or amendments to regulations in
93-638, 88 Stat. 2203).
Secretary to Indians because of their
this Part, the Secretary shall take the
status as Indians.
following actions:
§ 274.2 Scope.
(k) "Indian" means a person who is
(a) Consult with Indian tribes and na-
The Act authorizes the expenditure of
a member of an Indian tribe.
tional and regional Indian organizations
funds authorized and appropriated un-
(1) "Initial equipment" means any
to the extent practicable about the need
der Part B of the Act to contract or
movable equipment necessary and appro-
for revision or amendment and consider
provide services for school construction
priate to equip minimum school facili-
their views in preparing the proposed re-
for tribally operated previously private
ties. Such term does not include equip-
vision or amendment.
schools. After an application has been
ment purchased to replace any equip-
(b) Publish the proposed revisions or
completed and approved by the tribe, the
ment which is obsolete or worn out and
amendments in the Federal Register as
application is forwarded through Bureau
which was purchased with funds under
proposed rulemaking to provide adequate
channels to the Commissioner for rank-
the Act.
notice to, and receive comments from, all
ing by priority. If a project is within the
(m) "Minimum school facilities"
interested parties.
funding priority, the Bureau contracting
means classroom and auxiliary rooms
(c) After consideration of all com-
officer offers to negotiate a contract with
and initial equipment necessary to op-
the applicant subject to approval by the
ments received, publish the regulations in
erate an approved educational program
the FEDERAL REGISTER in final form not
requesting tribe(s) for architectural-
for the membership of the school at
engineering design, facilities construc-
less than 30 days before the date they are
normal capacity in accordance with cri-
made effective.
tion and purchase of equipment to pro-
teria established by the Bureau.
vide educational facilities meeting Bu-
(d) Annually consult with Indian
(n) "Previously private school" means
reau space standards and construction
tribes and national and regional Indian
a school (other than a Federal school
code regulations. Subject to approval by
organizations about the need for revi-
formerly operated by the Bureau), that
the requesting tribe(s), the applicant
sion or amendment, and consider their
is operated primarily for Indian students
then has the following options:
views in preparing the revision or
from age 3 years through grade(s) 12;
(a) Enter into a contract with the
amendment.
and, which at the time of application is
Bureau under which the applicant per-
controlled, sanctioned, or chartered by
(e) Nothing in this section shall pre-
forms all or part of the necessary work
the governing body(s) of an Indian
clude Indian tribes or national or re-
with the Bureau performing the rest.
tribe(s).
gional Indian organizations from initiat-
(b) Request that the Bureau perform
ing request for revisions or amendments
or arrange for the performance of all
(o) "Secretary" means the Secretary
subject to paragraph (a), (b), and (c),
of the Interior.
the necessary work.
of this section.
"Superintendent" means the offi-
§ 274.3 Definitions.
cial in charge of a Bureau of Indian Af-
Subpart B-Application Process
As used in this Part:
fairs Agency Office.
§ 274.11 Eligible applicants.
(a) "Act" means the Indian Self-
(q) "Tribal government", "tribal gov-
Any tribal organization which meets
Determination and Education Assistance
erning body", and "tribal council" means
all of the following criteria is eligible to
Act (Public Law 93-638, 88 Stat. 2203).
the recognized governing body of an In-
apply for a contract with or services from
(b) "Area Director" means the official
dian tribe.
the Bureau for school construction:
in charge of a Bureau of Indian Affairs
(r) "Tribal organization" means the
Area Office.
(a) The tribal organization must con-
recognized governing body of any Indian
(c) "Attendance area" means, in rela-
trol and manage the previously private
tribe; or any legally established organi-
tion to a particular school, the area in
school for which the organization is ap-
zation of Indians or tribes which is con-
which the children who are normally
plying for a contract or services under
trolled, sanctioned, or chartered by such
served by that school reside.
this Part.
governing body or bodies or which is
(d) "Bureau" means the Bureau of
democratically elected by the adult
(b) Title to the land on which the con-
Indian Affairs.
members of the Indian community to be
struction for the previously private
(e) "Commissioner" means the Com-
served by such organization and which
school is located must be vested in the
missioner of Indian Affairs.
includes the maximum participation of
tribe or the United States; or, a lease
(f) "Contractor" means an applicant
Indians in all phases of its activities;
for the useful life of the improvement
who has been awarded a contract under
Provided, That a request for a contract
must be entered into with the tribe or
this Part.
or services must be made by the Indian
the United States for the ground on
(g) "Days" means calendar days.
tribe that will receive services under the
which it is located.
FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
RULES AND REGULATIONS
51313
intendent having jurisdiction over the
(d) Project description and justifica-
ments in Subpart C of this Part and with
tribe(s) requesting the contract or
tion required by § 274.13(j).
41 CFR Part 14H-70.
services.
§ 274.21 Central Office review and
(b) To have the Bureau perform or
(b) When the contract or services
action.
arrange for the performance of all the
requested in the application will benefit
work needed.
more than one tribe under the jurisdic-
Within 30 days after receiving an ap-
tion of more than one Agency Office
plication directly or from the Area Di-
§ 274.25 Reapplication.
within one Area, the application and
rector, the Commissioner will take the
following actions:
Once an applicant has applied for a
documentation of the tribal requests
(a) Notify the applicant in writing
contract or services and the project has
shall be delivered or mailed to the Area
Director involved.
that the application was received in the
been placed on the Bureauwide priority
Central Office.
listing, there is no need to reapply. The
(c) When the contract or services re-
quested in the application will benefit
(b) Review each application submit-
project will be carried on the priority
more than one tribe under the jurisdic-
ted directly to the Commissioner as given
listing until placed on the commitment-
tion of more than one Area Office, the
in § 274.16(c) for completeness, request
to-fund list. However, if changes occur
application and documentation of the
any needed information from the appli-
which would affect the project's rank
cant, and assign the proposed project a
and, thus, its priority, the applicant must
tribal requests shall be delivered or
priority.
submit a new application
mailed to the Commissioner.
(c) Update the Bureauwide priority
§ 274.26 Funding provisions.
§ 274.17 When to submit application.
listing of all approved projects in order
(a) No funds from any contract under
Applications may be submitted by a
of priority with the project with the
this Part shall be made available by the
tribal organization to the Bureau atany
highest priority listed first. As new appli-
Bureau directly to other than Indian
time to be placed on the Bureau's prior-
cations are received, they will be added
tribes and tribal organizations. However,
ity listing.
to the priority listing according to their
Indian tribes and tribal organizations
ranking.
§ 274.18 Agency Office review and
assisted under this Part may use funds
action.
(d) Notify each applicant in writing
provided to subcontract for necessary
of the project's priority ranking on the
services.
(a) The Superintendent has 30 days
Bureauwide list. The applicant will be
(b) Twenty-five (25) per cent of all
from receipt of an application to notify
notified of any subsequent changes to
funds appropriated under Title II, Part
the applicant in writing of its receipt,
that ranking if new applications were
B, section 204 of the-Act shall be ex-
review the application for completeness,
received with a higher ranking.
pended for construction of previously
and request any needed information
from the applicant.
§ 274:22 On-site inspection and cost esti-
private schools controlled and managed
by a tribal organization. Any unobli-
(b) When the Superintendent has de-
mate.
gated funds will be retained until com-
termined that the application is com-
(a) No later than three months before
pletion of the project and unexpended
plete, he will forward the completed
the new fiscal year begins, the Commis-
funds returned to the Bureau. Projects
application with documentation of the
sioner or his representative shall conduct
which are partially funded shall be given
tribal request(s) to the Area Director
an on-site inspection for projects high
first consideration for the additional
having jurisdiction over that Agency
on the priority listing, beginning with
funding necessary to complete such proj-
Office with a written statement that the
the project ranked highest on the Bu-
ects.
application is complete.
reauwide priority listing. The on-site in-
Subpart C-General Contract
§ 274.19 Area Office review and action.
spection is to determine which buildings
Requirements
are to be retained, demolished or remod-
Within 30 days after receiving an ap-
eled and to gather initial information re-
§ 274.31 Applicability.
plication directly or from the Superin-
tendent, the Area Director will take the
quired for development of the planning
This Subpart applies only when the
document.
applicant exercises the option of con-
following actions:
(a) Notify the applicant in writing
(b) From this information, a tentative
tracting with the Bureau to perform all
cost estimate for design, construction
or part of the construction work.
that the application was received in the
Area Office.
and equipment will be made for budget
§ 274.32 Architectural design.
(b) Review each application sub-
purposes in cooperation with the tribal
mitted directly to the Area Office as pro-
organization.
(a) Plans and specifications for a proj-
ect shall comply with such Federal, State
vided in § 274.16(b) for completeness
§ 274.23 Preparing a commitment-to-
and local laws, ordinances and regula-
and obtain any needed information from
fund listing.
tions pertaining to standards or con-
the applicant.
(c) Assign each proposed project an
As each high priority project is given
struction and safety requirements as may
be applicable.
Area Office priority. The Area Office will
an on-site inspection and a tentative cost
estimate is made, the project will be
(b) An Architect/Engineer shall be
include an updated priority index with
placed on a commitment-to-fund list-
selected by the contractor subject to the
each application or group of applications
ing. Projects will be added as long as the
advice and assistance of the Commis-
transmitted to the Commissioner for
sioner who shall counsel the contractor
appropriate action.
total of the tentative cost estimates is
(d) Forward each application and
less than the amount of funds appropri-
with respect to professional qualifica-
documentation of tribal request(s) to
ated for previously private school con-
tions and performance history of firms
the Commissioner.
struction for the new fiscal year. Each
so the best qualified firm for the work is
applicant will be notified in writing when
selected. No Architect/Engineer agree-
§ 274.20 Priorities for funding construc-
the project has been placed on the com-
ment shall be entered into by the con-
tion.
mitment-to-fund listing.
tractor until the Commissioner has re-
viewed the agreement and consented in
As prescribed in §§ 274.19(c) and
§ 274.24 Performing construction work.
writing to its provisions.
274.21(b), the Area Director and Com-
(c) Plans and specifications must con-
missioner shall evaluate and assign pri-
When a project has been placed on
form to the project description, with ap-
orities on the basis of the application
the commitment-to-fund listing, the ap-
proved revisions. Such plans and specifi-
data submitted as required by $ 274.13
plicant will be given the following op-
including:
cations must be forwarded for the ap-
tions, subject to approval by the request-
proval of the Commissioner including
(a) Education program required by
ing tribe(s)
§ 274.13(g).
schematic design, design development,
(a) To negotiate a contract with the
and final construction document.
(b) Geographic attendance boundaries
Bureau to perform all of the work or part
given in § 274.13(h).
of the work needed for the project with
§ 274.33 Facilities construction.
(c) Enrollment characteristics given
the Bureau performing the rest. Such
in § 274.13(i).
(a) The Commissioner may assist in
contracts shall comply with the require-
preconstruction and construction activi-
FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
51314
RULES AND REGULATIONS
ties to assure conformity with the re-
visions of the Act of June 4, 1953 (67
quirements of the Act. Approval of all
structing, altering, or repairing buildings
Stat. 41), subject to the approval of the
or other facilities in connection with con-
proposed preconstruction documents will
tribal government if property is located
be obtained from the Commissioner. As-
tracts under this Part shall be paid
on a reservation.
wages not less than those on similar con-
sistance prior to the preparation of these
(b) In carrying out a contract made
and similar documents will be provided,
struction in the locality as determined
under this Part, the Commissioner may,
by the Secretary of Labor in accordance
upon request, by the Commissioner or
with the approval of the tribal govern-
his representative. A preliminary confer-
with the Davis-Bacon Act of March 3,
ment, permit a contractor to use existing
ence may be suggested with the project
1931 (46 Stat. 1494), as amended. How-
buildings, facilities, and related equip-
architect and others if that seems de-
ever, this requirement does not apply
ment and other personal property owned
sirable. The Commissioner will provide
where the contractor is the recognized
by the Bureau within his jurisdiction un-
governing body of the tribe and the con-
sufficient copies of all forms used to pre-
der terms and conditions agreed upon
pare the documents required for the
struction, alteration or repair work is
for their use and maintenance. The
project.
being performed by the tribal organiza-
property at the time of transfer must
(b) The Commissioner will provide,
tion or the tribe with its own employees.
conform to the minimum standards es-
upon request, technical supervision and
tablished by the Occupational Safety and
$ 274.38 Indian preference.
services to the contractor in connection
Health Act of 1970 (84 Stat. 1590), as
(a) Any contract made by the Bureau
with the construction of school facilities.
amended (29 U.S.C. 651).
with a tribal organization shall provide
When appropriate, such services will
(c) Use of Government property is sub-
that the contractor shall, to the greatest
provide assistance with periodic inspec-
Ject to the following conditions:
extent feasible, give preference in and
tion of construction progress and deter-
(1) When nonexpendable Government
opportunities for employment and train-
mine the propriety of making partial
property is turned over to the tribal or-
ing to Indians.
payments as construction progresses.
ganization under a use permit, the per-
(b) Any contract made by the Bureau
§ 274.34 Selecting initial equipment.
mittee shall insure the property against
with a tribal organization shall provide
damage by flood, fire, rain, windstorm,
that the contractor shall, to the greatest
Equipment procured with payments
vandalism, snow and tornado in amounts
extent feasible, give preference in the
under this Part must be approved by the
and with companies satisfactory to the
award of subcontracts to Indian organi-
Commissioner before invitations for bids
Federal officer in charge of the property.
zations and Indian-owned economic
or requests for proposals as to the ac-
In case of damage or destruction of the
enterprises.
quisition of such equipment are issued.
property by flood, fire, rain, windstorm,
(c) All subcontractors employed by
In order to obtain such approval, a list
vandalism, snow or tornado, the insur-
the contractor shall, to the extent possi-
of equipment to be procured (indicating
ance money collected shall be expended
ble, give preference to Indians for em-
quantities, costs, and specifications)
only for repair or replacement of the
ployment and training and shall be re-
shall be provided to the Commissioner
property. Otherwise, insurance proceeds
quired to include in their bid submission
for prior approval.
shall be paid to the Bureau.
a plan to achieve maximum use of In-
§ 274.35 Payment to contractors.
(2) If the tribal organization is self-
dian personnel.
insured and can present evidence of that
(d) In the performance of contracts
(a) At the request of a contractor, the
fact to the Commissioner, insurance for
under this Part 274 and subject to the
Bureau contracting officer may make ad-
lost or damaged property will not be re-
provisions of Part 14H-70 of Title 41, a
vance payments under contracts made
quired. However, the tribal organization
tribal governing body may develop its
under this Part. The requirements given
will be responsible for replacement of
own Indian preference requirements that
in this section and in Chapter 2000 of
such lost or damaged property at no cost
are not inconsistent with the purpose
the Treasury Fiscal Requirements Man-
to the Government or for paying the
and intent of paragraph (a), (b), and
ual apply to making the advance pay-
Government enough to replace the
(c) of this section.
ments.
property.
(b) Any request for advance payment
(3) The permittee shall maintain the
§ 274.39 Liability and motor vehicle in-
by a contractor shall specify the
surance.
property in a reasonable state of repair
amount(s) required and the dates such
consistent with the intended use and ed-
(a) Tribal organizations shall obtain
advance(s) will be required and shall
ucational purposes.
public liability insurance under contracts
be supported by a schedule of estimated
(d) The contractor may have access to
entered into with the Bureau under this
expenditures.
existing Bureau records needed to carry
Part. However, where the Bureau con-
(c) An initial advance shall be limited
out a contract under this Part, as
tracting officer determines that the risk
to the amount of estimated expendi-
follows:
of death, personal injury or property
tures for a period of time required to
(1) The Bureau will make the records
damage under the contract is small and
effect payment, based on experience in
available subject to the provisions of the
that the time and cost of procuring the
the locality. The initial advance shall be
Freedom of Information Act (5 U.S.C.
insurance is great in relation to the risk,
made in amounts and at times deter-
552), as amended by the Act of Novem-
the contract may be exempted from this
mined suitable to satisfy the minimum
ber 21, 1974 (Pub. L. 93-502, 88 Stat.
requirement.
essential needs of the contractor.
1561).
(b) Notwithstanding paragraph (a)
(d) Later advances shall be made at
(2) The contractors may have access
of this section, any contract which re-
times and in amounts determined neces-
to needed Bureau records at the appro-
quires or authorizes, either expressly or
sary to insure availability of funds for
priate Bureau office for review and mak-
by implication, the use of motor vehicles
timely payment of the contractor's ob-
ing copies of selected records.
must contain a provision requiring the
ligations and to minimize the time be-
(3) If the contractor needs a small vol-
tribal organization to provide liability
tween withdrawal from the Treasury and
insurance, regardless of how small the
ume of identifiable Bureau records, the
expenditure. Requests for advances after
risk.
Bureau will furnish the copies to the
an Initial advance shall be accompanied
contractor.
§ 274.40 Recordkeeping.
and supported by a report of expendi-
(4) Where a large volume of records
tures to date and the amount of funds
A contractor will be required to de-
on hand.
are needed and copying is not practical
velop and maintain a record-keeping
or feasible, the records may be physically
system which will:
S 274.36 Use and transfer of Govern-
located at the contract site provided
(a) Fully reflect all financial transac-
ment property.
that a Bureau official is designated by
tions involving the receipt and expendi-
the Commissioner or Area Director as
ture of funds provided under the con-
(a) The use of Government-owned fa-
custodian of the records.
cilities for tribal purposes may be au-
tract in a manner which will provide ac-
thorized when not needed for Govern-
§ 274.37 Wage and labor standards.
curate, current and complete disclosure
of financial status; correlation with-
ment activities. Transfer of title to such
All laborers and mechanics employed
facilities may be arranged under the pro-
budget or allowable cost schedules; and
by contractors or subcontractors in con-
clear audit facilitating data.
FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
RULES AND REGULATIONS
ties to assure conformity with the re-
visions of the Act of June 4, 1953 (67
structing, altering, or repairing buildings
quirements of the Act. Approval of all
Stat. 41), subject to the approval of the
or other facilities in connection with con-
proposed preconstruction documents will
tribal government if property is located
tracts under this Part shall be paid
obtained from the Commissioner. As-
on a reservation.
wages not less than those on similar con-
istance prior to the preparation of these
(b)- In carrying out a contract made
struction in the locality as determined
ad similar documents will be provided,
under this Part, the Commissioner may,
by the Secretary of Labor in accordance
upon request, by the Commissioner or
with the approval of the tribal govern-
with the Davis-Bacon Act of March 3,
his representative. A preliminary confer-
ment, permit a contractor to use existing
1931 (46 Stat. 1494), as amended. How-
once may be suggested with the project
buildings, facilities, and related equip-
ever, this requirement does not apply
architect and others if that seems de-
ment and other personal property owned
where the contractor is the recognized
irable. The Commissioner will provide
by the Bureau within his jurisdiction un-
governing body of the tribe and the con-
sufficient copies of all forms used to pre-
der terms and conditions agreed upon
struction, alteration or repair work is
pare the documents required for the
for their use and maintenance. The
being performed by the tribal organiza-
project.
property at the time of transfer must
tion or the tribe with its own employees.
(b) The Commissioner will provide,
conform to the minimum standards es-
upon request, technical supervision and
tablished by the Occupational Safety and
§ 274.38 Indian preference.
services to the contractor in connection
Health Act of 1970 (84 Stat. 1590) as
(a) Any contract made by the Bureau
with the construction of school facilities.
amended (29 U.S.C. 651).
with a tribal organization shall provide
When appropriate, such services will
(c) Use of Government property is sub-
that the contractor shall, to the greatest
provide assistance with periodic inspec-
ject to the following conditions:
extent feasible, give preference in and
tion of construction progress and deter-
(1) When nonexpendable Government
opportunities for employment and train-
mine the propriety of making partial
property is turned over to the tribal or-
ing to Indians.
payments as construction progresses
ganization under a use permit, the per-
(b) Any contract made by the Bureau
mittee shall insure the property against
with a tribal organization shall provide
§ 274.34 Selecting initial equipment.
damage by flood, fire, rain, windstorm,
that the contractor shall, to the greatest
Equipment procured with payments
vandalism, snow and tornado in amounts
extent feasible, give preference in the
under this Part must be approved by the
and with companies satisfactory to the
award of subcontracts to Indian organi-
Commissioner before invitations for bids
Federal officer, in charge of the property.
zations and Indian-owned economic
or requests for proposals as to the ac-
In case of damage or destruction of the
enterprises.
quisition of such equipment are issued.
property by flood, fire, rain, windstorm,
(c) All subcontractors employed by
In order to obtain such approval, a list
vandalism; snow or tornado, the insur-
the contractor shall, to the extent possi-
of equipment to be procured (indicating
ance money collected shall be expended
ble, give preference to Indians for em-
quantities, costs, and specifications)
only for repair or replacement of the
ployment and training and shall be re-
shall be provided to the Commissioner
property. Otherwise, insurance proceeds
quired to include in their bid submission
for prior approval.
shall be paid to the Bureau.
a plan to achieve maximum use of In-
(2) If the tribal organization is self-
dian personnel.
§ 274.35 Payment to contractors.
insured and can present evidence of that
(d) In the performance of contracts
(a) At the request of a contractor, the
fact to the Commissioner, insurance for
under this Part 274 and subject to the
Bureau contracting officer may make ad-
lost or damaged property will not be re-
provisions of Part 14H-70 of Title 41, a
vance payments under contracts made
quired. However, the tribal organization
tribal governing body may develop its
under this Part. The requirements given
will be responsible for replacement of
own Indian preference requirements that
in this section and in Chapter 2000 of
such lost or damaged property at no cost
are not inconsistent with the purpose
the Treasury Fiscal Requirements Man-
to the Government or for paying the
and intent of paragraph (a), (b), and
ual apply to making the advance pay-
Government enough to replace the
(c) of this section.
ments.
property.
§ 274.39 Liability and motor vehicle in-
(b) Any request for advance payment
(3) The permittee shall maintain the
surance.
by a contractor shall specify the
property in a reasonable state of repair
amount(s) required and the dates such
consistent with the intended use and ed-
(a) Tribal organizations shall obtain
advance(s) will be required and shall
ucational purposes.
public liability insurance under contracts
be supported by a schedule of estimated
(d) The contractor may have access to
entered into with the Bureau under this
expenditures.
existing Bureau records needed to carry
Part. However, where the Bureau con-
(c) An initial advance shall be limited
out a contract under this Part, as
tracting officer determines that the risk
to the amount of estimated expendi-
follows:
of death, personal injury or property
tures for a period of time required to
(1) The Bureau will make the records
damage under the contract is small and
effect payment, based on experience in
available subject to the provisions of the
that the time and cost of procuring the
Freedom of Information Act (5 U.S.C.
insurance is great in relation to the risk,
the locality. The initial advance shall be
552), as amended by the Act of Novem-
the contract may be exempted from this
made in amounts and at times deter-
ber 21, 1974 (Pub. L. 93-502, 88 Stat.
requirement.
mined suitable to satisfy the minimum
1561).
(b) Notwithstanding paragraph (a)
essential needs of the contractor.
of this section, any contract which re-
(d) Later advances shall be made at
(2) The contractors may have access
quires or authorizes, either expressly or
times and in amounts determined neces-
to needed Bureau records at the appro-
by implication, the use of motor vehicles
sary to insure availability of funds for
priate Bureau office for review and mak-
must contain a provision requiring the
timely payment of the contractor's ob-
ing copies of selected records.
tribal organization to provide liability
ligations and to minimize the time be-
(3) If the contractor needs a small vol-
insurance, regardless of how small the
tween withdrawal from the Treasury and
ume of identifiable Bureau records, the
risk.
expenditure. Requests for advances after
Bureau will furnish the copies to the
an initial advance shall be accompanied
contractor.
§ 274.40 Recordkeeping.
and supported by a report of expendi-
(4) Where a large volume of records
A contractor will be required to de-
tures to date and the amount of funds
are needed and copying is not practical
velop and maintain a record-keeping
on hand.
or feasible, the records may be physically
system which will:
located at the contract site provided
(a) Fully reflect all financial transac-
$ 274.36 Use and transfer of Govern-
that a Bureau official is designated by
tions involving the receipt and expendi-
ment property.
the Commissioner or Area Director as
ture of funds provided under the con-
(a) The use of Government-owned fa-
custodian of the records.
tract in a manner which will provide ac-
cilities for tribal purposes may be au-
curate, current and complete disclosure
thorized when not needed for Govern-
§ 274.37 Wage and labor standards.
of financial status; correlation with-
ment activities. Transfer of title to such
All laborers and mechanics employed
budget or allowable cost schedules; and
facilities may be arranged under the pro-
by contractors or subcontractors in con-
clear audit facilitating data.
FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
RULES AND REGULATIONS
51315
(b) Reflect the amounts and sources
ist for using the exemption given in
consent of the contractor. A contractor
of funds other than Bureau contract
paragraph (b) (1) of this section.
may make a written request for a revi-
funds which may be included in the con-
(c) A request to inspect or copy reports
sion or amendment of a contract to the
struction project.
and information shall be in writing and
Bureau contracting officer.
(c) Provide for the creation, main-
must reasonably describe the reports and
(b) If the contracting officer disap-
tenance and safeguarding of records of
information requested. The request may
proves the proposed revision or amend-
lasting value.
be delivered or mailed to the contractor.
ment of the contract, he will notify the
§ 274.41 Audit and inspection.
Within ten (10) working days after re-
contractor in writing within 30 days af-
ceiving the request, the contractor shall
ter receiving the request. The notice
(a) During the term of a contract un-
determine whether to grant or deny the
shall state:
der this Part and for three years after
request. The requester shall be notified
(1) The objections to the requested re-
the project or undertaking is completed,
immediately of the determination.
vision or amendment.
the Comptroller General and the Sec-
(d) The time limit for making a de-
(2) The right of the contractor to ap-
retary, or any of their duly authorized
termination may be extended up to an
peal as provided in Subpart C of 43 CFR
representatives, shall have access for
additional ten (10) working days for good
Part 4.
audit and examination purposes to any
reason. The requester shall be notified
of the contractor's books, documents,
in writing of the extension, reasons for
$ 274.48 Cancelling a contract for cause.
papers, and records which, in their opin-
the extension, and the date on which the
(a) Any contract entered into under
ion, may be related or pertinent to the
determination is expected to be made.
this Part may be cancelled for cause
contract or any subcontract
(b) The contractor will be responsi-
§ 274.43 Reporting.
when the contractor fails to perform the
work called for under the contract.
ble for maintaining all documents such
(a) A contractor under this Part shall
(b) Before cancelling the contract, the
as invoices, purchase orders, cancelled
make a detailed report to the Commis-
Bureau will advise the contractor in
checks, balance sheets and all other rec-
sioner after construction is completed.
writing of the following:
ords relating to financial transactions in
The report shall include, but not be lim-
(1) The reasons why the Bureau is
a manner which will facilitate auditing.
ited to, an accounting of the amounts
considering cancelling the contract.
The contractor will be responsible for
and purposes for which the contract
(2) That the contractor will be given
maintaining files of correspondence and
funds were expended.
an opportunity to bring its work up to
other documents relating to the admin-
(b) The contractor shall furnish other
an acceptable level.
istration of the program under the con-
contract-related reports when and as re-
(3) That the Bureau may furnish tech-
tract properly separated from general
quired by the Commissioner.
nical advice and assistance to help over-
records or cross-referenced. to general
(c) A contractor under this Part shall
come the deficiencies in the contract
files.
send copies of the reports required by
performance, when requested.
(c) The contractor receiving funds
paragraphs (a) and (b) of this section
(c) If the contractor does not over-
under this Part shall be primarily re-
to the tribal governing body(s) who re-
come the deficiencies in its contract per-
sponsible for contract compliance.
quested the contract at the same time
formance, the Bureau will cancel the
(d) The records involved in any claim
as the reports are sent to the Bureau.
contract for cause. The Bureau will noti-
or expenditure that has been questioned
§ 274.44 Repayment of funds.
fy the contractor, in writing. of the can-
shall be further maintained until final
cellation. The notice shall give the rea-
determination has been made on the
Any funds paid under a contract en-
sons for the cancellation and the right
questioned expenditure.
tered into under this Part which are not
of the contractor to appeal under Sub-
(e) All contracts, reports, budgets,
expended, obligated or used for the pur-
part C of 43 CFR Part 4.
budget estimates, plans, and other docu-
poses of the contract during its term
(d) When a contract is cancelled for
ments pertaining to administration of
shall be returned to the Bureau.
cause, the Bureau will either perform the
the contract shall be made available by
the contractor. The contractor shall pro-
§ 274.45 Penalties.
work with its own forces or by another
contract, as appropriate. However, when
vide, free of charge, single copies of such
If any officer, director, agent, or em-
the contract is with other than the gov-
documents upon request.
ployee of, or connected with, any con-
erning body of the Indian tribe, the ad-
§ 274.42 Freedom of information.
tractor or subcontractor under this Part
vice of the tribe(s) will be obtained to
embezzles, willfully misapplies, steals, or
determine how they wish the work to be
(a) Unless otherwise required by law,
obtains by fraud any of the funds or
performed.
the Bureau shall not place restrictions
property connected with the contract or
on contractors which will limit public ac-
subcontract, he shall be subject to the
§ 274.49 Privacy Act requirements.
cess to the contractor's records except
following penalties:
(a) When a contractor operates a sys-
when records must remain confidential.
(a) If the amount involved does not
tem of records to accomplish a Bureau
(b) A contractor under this Part shall
exceed $100, he shall be fined not more
function, the contractor shall comply
make all reports and information con-
than $1,000 or imprisoned not more than
with Subpart D of 43 CFR Part 2 which
cerning the contract available to the
one year, or both.
implements the Privacy Act (5 U.S.C.
Indian people which the contractor
(b) If the amount involved exceeds
552 a). Examples of the contractor's re-
serves or represents. Reports and infor-
sponsibilities are:
mation may be withheld from disclosure
$100, he shall be fined not more than
only when both of the following condi-
$10,000 or imprisoned for not more than
(1) To continue maintaining those
tions exist:
two years, or both.
systems of records declared by the Bu-
reau to be subject to the Privacy Act as
(1) The reports and information fall
§ 274.46 Applicable procurement regu-
published in the FEDERAL REGISTER.
within one of the following exempt cate-
lations.
(2) To make such records available to
gories:
individuals involved.
(i) Specifically required by statute or
41 CFR Part 14H-70 provides the con-
Executive Order to be kept secret.
tract clauses which shall be included in
(3) To disclose an individual's record
contracts made with tribal organizations
to third parties only after receiving per-
(ii) Commercial or financial informa-
under this Part and places some require-
mission from the individual to whom the
tion obtained from a person or firm on a
ments on them in addition to those given
record pertains. 43 CFR 2.56 lists excep-
privileged or confidential basis.
(iii) Personnel, medical, and similar
in this Subpart.
tions to this procedure.
(4) To establish a procedure to ac-
files where disclosure would be a clearly
§ 274.47 Contract revision or amend-
count for access, disclosures, denials, and
unwarranted invasion of personal pri-
ment.
amendments to records.
vacy.
(a) Any contract made under this
(5) To provide safeguards for the pro-
(iv) Geological and geophysical infor-
Part may be revised or amended as
tection of the records.
mation and data concerning wells.
deemed necessary to carry out the pur-
(b) The contractor may not:
(2) Disclosure is prohibited by statute
poses of the contract. No revision or
(1) Discontinue or alter any estab-
or Executive Order or sound grounds ex-
amendment shall be made without the
lished systems of records without prior
FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
51316
RULES AND REGULATIONS,
approval of the appropriate Bureau sys-
Secretary to Indians because of their
(A) whose positions are in the program
tems manager.
status as Indians.
or portion of the program to be con-
(2) Deny requests for notification or
(g) "Indian" means a person who is a
tracted; or
access of records without prior approval
member of an Indian tribe.
(B) in a portion of the program to con-
of the appropriate Bureau systems man-
(h) "Superintendent" means the of-
tinue under Bureau operation in connec-
ager.
ficial in charge of a Bureau of Indian
tion with a contract for other portions of
Affairs Agency Office.
the program.
Subpart D-Appeals
(i) "Tribal Chairman" means tribal
(iii) The proposed agreement will be
s 274.51 Contract appeal.
chairman, governor, chief or other per-
worked out between the tribe, the Super-
A contractor may appeal an adverse
son recognized by the tribal government
intendent, and the Area Director and for-
decision or action of a Bureau contract-
as its chief executive officer.
warded to the Commissioner for final
ing officer regarding a contract under
(j) "Tribal government" "tribal gov-
approval.
this Part as provided in Subpart C of 43
erning body," and "tribal council" means
(b) When a contract application
CFR Part 4.
the recognized governing body of any
under Part 271 of this chapter does not
Indian tribe.
include a proposed agreement for direc-
§ 274.52 Appeal from decision to can-
(k) "Tribal organization" means the
tion of Bureau employees, the applica-
cel contract for cause.
recognized governing body of any Indian
tion must be submitted at least 120 days
A contractor may appeal the decision
tribe; or any legally established organi-
in advance of the proposed effective date
of a Bureau official to cancel a contract
zation of Indians or tribes which is con-
of the contract to allow time for place-
under this Part for cause. The appeal
trolled, sanctioned, or chartered by such
ment of affected employees.
shall be made as provided in Subpart C
governing body or bodies or which is
of 43 CFR Part 4.
democratically elected by the adult
§ 275.4 Implementing regulations.
members of the Indian community to
Regulations to implement section 105
§ 274.53 Other appeals.
be served by such organization and
of the Act will be issued by the Civil
Any decision or action taken by a Bu-
which includes the maximum participa-
Service Commission. The regulations will
reau official under this Part, other than
tion of Indians in all phases of its
cover the situations described in para-
those given in §§ 274.51 and 274.52 may
activities.
graphs (a) (1) and (a) (2) of $ 275.3.
be appealed only as provided in Part 2
of this chapter.
§ 275.3 Methods for staffing.
(a) An Iidian tribal organization may
PART 276-UNIFORM ADMINISTRATIVE
use any of the following three methods
REQUIREMENTS FOR GRANTS
PART 275-STAFFING
to employ or obtain the services of Bu-
Sec.-
Sec.
275.1 Purpose and scope.
reau employees:
276.1
Purpose and scope.
275.2 Definitions.
(1) Agreement in accordance with the
276.2
Definitions.
275.3 Methods for staffing.
276.3
Cash depositories.
Intergovernmental Personnel Act of 1970
275.4 Implementing regulations.
276.4
Bonding and insurance.
(5 U.S.C. 3371-3376). The agreement
276.5
Recordkeeping.
AUTHORITY: Sec. 502, 84 Stat. 1909, 1925;
may be arranged between the tribal or-
276.6
Program income.
Sec. 105, Pub. L. 93-638, 88 Stat. 2203; 25
ganization, the employee, and the Area
276.7
Standards for grantee financial man-
U.S.C. 48.
Director or Commissioner. Assistance will
agement systems.
be provided by the Area Personnel Office
276.8
Financial reporting requirements.
§ 275.1 Purpose and scope.
in complying with Civil Service instruc-
276.9
Monitoring and reporting program
The purpose of this Part is to outline
tions (Federal Personnel Manual Chapter
performance.
methods available to tribes for utilizing
276.10
Grant payment requirements.
334) for completing an agreement.
the services of Bureau employees. These
276.11
Property management standards.
(2) Employment of Bureau employees
regulations are not intended to prevent
276.12
Procurement standards.
on or before December 31, 1985, when
276.13
an Indian tribe or tribal organization
Indian preference in grant admin-
serving under an appointment not limit-
istration.
from staffing their programs by other
ed to one year or less. A mutual agree-
276.14
Budget revision.
methods they feel appropriate. However,
ment will be made between a tribal
276.15
Grant closeout.
when an Indian tribe or tribal organiza-
organization and the employee before
276.16
Subgrants and subcontracts to non-
tion decides to provide Bureau employees
leaving Federal employment to retain
profit organizations.
certain Federal benefits, Civil Service
coverage for any of the following Federal
APPENDIX A-PRINCIPLES FOR DETERMINING
Commission regulations must be
benefits:
COSTS APPLICABLE TO GRANTS
adhered to.
(i) Compensation for work injuries.
APPENDIX B-FINANCIAL REPORTING REQUIRE-
§ 275.2 Definitions.
(ii) Retirement.
MENTS
As used in this Part:
(iii) Health insurance.
AUTHORITY: 34 CFR 256; Sec. 104, Public
(a) "Act" means the Indian Self-De-
(iv) Life insurance.
Law 93-638, 88 Stat. 2203, unless otherwise
termination and Education Assistance
noted.
(3) An agreement by an Indian tribe in
Act (Public Law 93-638, 88 Stat. 2203).
accordance with the 1834 Act (25 U.S.C.
§ 276.1 Purpose and scope.
(b) "Area Director" means the official
48) may be made in connection with con-
(a) The purpose of the regulations in
in charge of a Bureau of Indian Affairs
tracts under section 102 of. the Act.
this Part is to give the uniform adminis-
Area Office.
(i) The agreement may provide for the
trative requirements for grants awarded
(c) "Bureau" means the Bureau of
tribal government to direct the day-to-
by the Bureau of Indian Affairs.
Indian Affairs.
day activities of Bureau employees. Trib-
(b) The regulations in this Part shall
(d) "Commissioner" means the Com-
al government direction of Bureau em-
apply to all grants awarded by the Bu-
missioner of Indian Affairs.
ployees means the tribal chairman or
reau of Indian Affairs unless the Part
(e) "Days" means calendar days.
other tribal official, as designated by the
which gives the application process and
(f) "Indian tribe" means any Indian
tribal governing body, is responsible for
special requirements for the specific type
Tribe, Band, Nation, Rancheria, Pueblo,
the planning, coordination, and comple-
of grant states otherwise.
Colony, or Community, including any
tion of the daily on-the-job assignments
Alaska Native village or regional or vil-
of Bureau employees. The daily assign-
§ 276.2 Definitions.
lage corporation as defined in or estab-
ments of each such Bureau employee are
As used in this part:
lished pursuant to the Alaska Native
limited to those that fall within the gen-
(a) "Advance by Treasury check"
Claims Settlement Act (85 Stat. 688)
eral range of duties prescribed in the
means a payment made by a Treasury
which is federally recognized as eligible
employee's Bureau position.
check to a grantee upon its request or
by the United States Government
(ii) The agreement to direct day-to-
through the use of predetermined pay-
through the Secretary for the special
day activities of Bureau employees shall
ment schedules before payments are
programs and services provided by the
include all employees:
made by the grantee.
FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
RULES AND REGULATIONS
51317
(b) "Date of completion" means the
quest for reimbursement from the
commitment such-as a bid bond, certified
date when all work under a grant is com-
grantee.
check, or other negotiable instrument
pleted or the date in the grant award
(o) "Suspension of a grant" means an
accompanying a bid as assurance that
document, or any supplement or amend-
action by the Bureau which temporarily
the bidder will, upon acceptance of his
ment thereto, on which Federal assist-
suspends assistance under the grant
bid, execute such contractual documents
ance ends.
pending corrective action by the grantee
as may be required within the time
(c) "Disallowed costs" means those
or pending decision to terminate the
specified.
charges to a grant which the Bureau or
grant by the Bureau.
(2) A performance bond on the part
its representative determines to be unal-
(p) "Termination of a grant" means
of the contractor for 100 percent of the
lowable.
the cancellation of Federal assistance,
contract price. A performance bond is
(d) "Economic enterprise" means any
in whole or in part, under a grant at any
one executed in connection with a con-
commercial, industrial, agricultural or
time prior to the date of completion.
tract to secure fulfillment of all the con-
business activity that is at least 51 per-
(q) "Tribal government", "tribal gov-
tractor's obligations under the contract.
cent Indian owned, established or or-
erning body" and "tribal council" means
(3) A payment bond on the part of
ganized for the purpose of profit.
the recognized governing body of an
the contractor for 100 per cent of the
(e) "Excess property" means property
Indian tribe.
contract price. payment bond is one
under the control of the Bureau which,
(r) "Tribal organization" means the
executed in connection with a contract
as determined by the Commissioner, is no
recognized governing body of any Indian
to assure payment as required by law of
longer required for its needs.
tribe or any legally established organiza-
all persons supplying labor and material
(f) "Expendable personal property"
tion of Indians which is controlled, sanc-
in the execution of the work provided for
means all tangible personal* property
tioned, or chartered by such governing
in the contract.
other than nonexpendable property.
body or bodies of which is democratically
(b) Where, in connection with a Bu-
(g) "Grant closeout" means the proc-
elected by the adult members of the In-
reau grant, the Bureau also guarantees
ess by which the Bureau determines that
dian community to be served by such
the payment of money borrowed by the
all applicable administrative actions and
organization and which includes. the
grantee, the Bureau may at its discretion
all required work of the grant have been
maximum participation of Indians in all
require adequate bonding and insur-
completed by the grantee and the Bureau.
phases of its activities.
ance if the bonding and insurance re-
(h) "Grantee" means the entity which
is responsible for administration of the
§ 276.3 Cash depositories.
quirements of the grantee are not deemed
to be sufficient to protect adequately the
grant.
(a) Except for situations described in
interests of the Federal Government.
(i) "Indian tribe" means any Indian
paragraphs (b) and (c) of this section,
Tribe, Band, Nation, Rancheria, Pueblo,
the Bureau will not:
§ 276.5 Recordkeeping.
Colony or Community, including any
(1) Require physical segregation of
(a) The Bureau shall not impose rec-
Alaska Native village or regional or vil-
cash depositories for Bureau grant funds
ord retention requirements over and
lage corporation as defined in or estab-
provided to a grantee.
above those established by the grantee
lished pursuant to the Alaska Native
(2) Establish any eligibility require-
except that financial records, supporting
Claims Settlement Act (85 Stat. 688)
ments for cash depositories. in which
documents, statistical records, and all
which is federally recognized as eli-
Bureau grant funds are deposited by
other records pertinent to a Bureau
gible by the United States Government
grantees or their subgrantees.
grant, or to any subgrant (or negotiated
through the Secretary for the special
(b) A separate bank account shall be
contract exceeding $2500) under a grant,
programs and services provided by the
used when payments under letter of
shall be retained for a period of three
Secretary to Indians because of their
credit are made on a "check-paid" basis
years, with the following qualifications:
status as Indians.
in accordance with agreements entered
(1) The records shall be retained be-
(j) "Letter of credit" means an instru-
into by a grantee, the Bureau, and the
yond the three year period if audit find-
ment certified by an authorized official
banking institutions involved. A check-
ings have not been resolved.
of the Bureau which authorizes a grantee
paid basis letter of credit is one under
(2) Records for nonexpendable prop-
to draw funds when needed from the
which funds are not drawn from the
erty which was acquired with Bureau
Treasury, through a Regional Disburs-
Treasury until the grantee's checks have
grant funds shall be retained for three
ing Office, in accordance with the pro-
been presented to its bank for payment.
years after its final disposition.
visions of Treasury Circular No. 1075 as
(c) Consistent with the national goal
(3) When grant records are trans-
modified and supplemented by a memo-
of expanding the opportunities for mi-
ferred to or maintained by the Bureau,
randum of understanding between the
nority business enterprises, grantees are
the three-year retention requirement is
Bureau of Government Financial Opera--
encouraged to use minority banks.
not applicable to the grantee.
tion, Department of the Treasury and
§ 276.4 Bondings and insurance.
(b) The retention period starts from
the Department of the Interior.
the date of submission of the final ex-.
(k) "Nonexpendable personal prop-
In administering Bureau grants,
penditure report or, for grants which are
erty" means tangible personal property
grantees shall observe their regular re-
renewed annually, from the date of the
having useful life of more than one year
quirements and practices with respect to
submission of the annual expenditure re-
and an acquisition cost of $300 or more
bonding and insurance. The Bureau will
port.
per unit. A grantee may use its own defi-
not impose additional bonding and in-
(c) Grantees are authorized, if they
nition of nonexpendable personal prop-
surance requirements, including fidelity
desire, to substitute microfilm copies in
erty provided that such definition would
bonds, except as provided in paragraphs
lieu of original records.
at least include all tangible personal
(a) and (b) of this section.
(d) The Bureau shall request transfer
property as defined above.
(a) The recipient of a Bureau grant
of certain records to its custody from
(1) "Personal property" means prop-
which requires contracting for construc-
grantees when it determines that the rec-
erty of any kind except real property.
tion or facility improvement (including
ords possess long-term retention value.
It may be tangible-having physical
any Bureau grant which provides for al-
However, in order to avoid duplicate rec-
existence, or intangible-having no phys-
terations or renovations of real property)
ordkeeping the Bureau may make ar-
ical existence, such as patents, inven-
shall follow its own requirements and
rangements with the grantee for the
tions, and copyrights.
practices relating to bid guarantees, per-
grantee to retain any records which are
(m) "Real property" means land, land
formance bonds, and payment bonds ex-
continuously needed for joint use.
improvements, structures and appurte-
cept for contracts exceeding $100,000.
nances thereto, excluding removable per-
(e) The Secretary of the Interior and
For contracts exceeding $100,000, the
sonal property; machinery and equip-
the Comptroller General of the United
minimum requirements shall be as
ment.
States, or any of their duly authorized
follows:
(n) "Reimbursement by Treasury
representatives shall have access to any
(1) A bid guarantee from each bidder
books, documents, papers, and records
check" means a payment made to a
equivalent to five percent of the bid price.
of the grantees and their subgrantees
grantee with a Treasury check upon re-
The bid guarantee shall consist of a firm
which are pertinent to a specific grant
FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
51318
RULES AND REGULATIONS
program for the purpose of making audit,
grantees' requirements. Except when
ported activities to assure that adequate
examination, excerpts, transcripts and
specifically required by law, the Bureau
progress is being made toward achieving
copies at government expense.
will not require financial reporting on
the goals of the grant. This review shall
(f) Unless otherwise required by law,
the accrual basis from tribal organiza-
be made for each program, function, or
the Bureau shall not place restrictions on
tions whose records are not maintained
activity of each grant as set forth in the
grantees which will limit public access
on that basis. However, when accrual re-
approved grant application.
to the grantee's records created as part
porting is required by law, tribal organi-
(b) Grantees shall submit a perform-
of the grant except when records must
zations whose records are not maintained
ance report for each grant which briefly
remain confidential. Following are some
on that basis will not be required to con-
presents the following for each program,
of the reasons for withholding records:
vert their accounting systems to the ac-
function, or activity involved:
(1) Prevent a clearly unwarranted in-
crual basis; they may develop the accrual
(1) A comparison of actual accom-
vasion of personal privacy;
information through an analysis of the
plishments to the goals established for
(2) Specifically required by statute or
documentation on hand or on the basis
the period. Where the output of grant
Executive Order to be kept secret;
of best estimates.
programs can be readily quantified. such
(3) Commercial or financial informa-
(2) Records which identify adequately
quantitative data should be related to
tion obtained from a person or firm on a
the source and application of funds for
cost data for computation of unit costs.
privileged or confidential basis.
grant-or subgrant-supported activi-
(2) Reasons for slippage in those cases
ties. These records shall contain infor-
where established goals were not met.
§ 276.6 Program income.
mation pertaining to grant or subgrant
(3) Other pertinent information in-
(a) No grantee receiving a grant shall
awards and authorizations, obligations,
cluding, when appropriate, analysis and_
be held accountable for interest earned
unobligated balances, assets, liabilities,
explanation of cost overruns or high
on grant funds, pending their disburse-
outlays, and income.
unit costs.
ment for program purposes.
(3) Effective control over and account-
(c) Grantees shall submit the perform-
(b) Proceeds from the sale of real or
ability for all grant or subgrant funds,
ance reports to the Bureau with the F1-
personal property. either provided by the
and real and personal property acquired
nancial Status Reports (prescribed in-
Federal Government or purchased in
with grant or subgrant funds. Grantees
Appendix B of this Part) in the fre-
whole or in part with Federal funds, shall
and subgrantees shall adequately safe-
quency established by Appendix B. The
be handled in accordance with 276.11.
guard all such property and shall assure
Bureau shall prescribe the frequency
(c) Royalties received from copyrights
that it is used solely for authorized
with which the performance reports will
and patents produced under the grant
purposes.
be submitted with the Request for Ad-
during the grant period shall be retained
(4) Comparison of actual with budg-
vance or Reimbursement (prescribed in
by the grantee and, in accordance with
eted amounts for each grant or sub-
Appendix B) when that form is used in
the grant agreement, be either added to
grant, and, when specifically required by
lieu of the Financial Status Report. In
the funds already committed to the pro-
the performance reporting requirements
no case shall the performance reports
gram or deducted from total allowable
of the grant or subgrant, relation of fi-
be required more frequently than quar-
project costs for the purpose of deter-
nancial information with performance
terly or less frequently than annually.
mining the net costs on which the Bureau
or productivity data, including the pro-
(d) Between the required performance
share of costs will be based. After termi-
duction of unit cost information.
reporting dates, events may occur which
nation or completion of the grant, the
(5) Procedures to minimize the time
have significant impact upon the proj-
Bureau share of royalties in excess of
elapsing between the transfer of funds
ect or program. In such cases, the
$200 received annually shall be returned
from the U.S. Treasury and the disburse-
grantee shall inform the Bureau as soon
to the Bureau in the absence of other
ment by the grantee, whenever funds
as the following types of conditions be-
specific agreements between the Bureau
are advanced by the Federal Govern-
come known:
and the grantee. The Bureau share of
ment. When advances are made by a
(1) Problems, delays, or adverse con-
royalties shall be computed on the same
letter-of-credit method, the grantee shall
ditions which will materially affect the
ratio basis as the Bureau share of the
make drawdowns from the U.S. Treasury
ability to attain program objectives, pre-
total project cost.
as close as possible to the time of making
vent the meeting of time schedules and
(d) All other program income earned
the disbursements. Subgrantees shall in-
goals, or preclude the attainment of proj-
during the grant period shall be retained
stitute similar procedures when funds
ect work units by established time pe-
by the grantee and, in accordance with
are advanced by the grantee.
riods. This disclosure shall be accom-
the grant agreement, shall be either:
(6) Procedures for determining the
plished by a statement of the action
(1) Added to funds committed to the
allowability and allocability of costs shall
taken, or contemplated, and any Bureau
project by the Bureau and the grantee
be in accordance with the applicable cost
assistance needed to resolve the situa-
and be used to further eligible program
principles prescribed in Appendix A of
tion.
this Part.
(2) Favorable developments or events
objectives, or
(7) Accounting records which are sup-
which enable meeting time schedules
(2) Deducted from the total project
ported by source documentation.
and goals sooner than anticipated or
costs for the purpose of determining the
(8) A systematic method to assure
producing more work units than orig-
net costs on which the Bureau share of
timely and appropriate resolution of au-
inally projected.
costs will be based.
(e) Grantees shall record the receipt
dit findings and recommendations.
(e) If any performance review con-
ducted by the grantee discloses the need
and expenditures of revenues (such as
(b) Grantees shall require subgrantees
for change in the budget estimates in
taxes, special assessments, levies, fines,
(recipients of grants which are passed
accordance with the criteria established
etc.) as a part of grant project transac-
through by the grantee) to adopt all of
in § 276.14, the grantee shall submit a
tions when such revenues are specifically
the standards in paragraph (a) of this
request for budget revision.
earmarked for a grant project in accord-
section.
(f) The Bureau shall make site visits
ance with grant agreements.
§ 276.8 Financial reporting require-
as frequently as practicable to:
S 276.7 Standards for grantee financial
ments.
(1) Review program accomplishments
and management control systems.
management systems.
Requirements for grantees to report
(2) Provide such technical assistance
(a) Grantee financial management
financial information to the Bureau, and
as may be required, or requested.
systems for grants and subgrantee fi-
to request advances and reimbursement
nancial management systems for sub-
when a letter of credit method is not
§ 276.10 Grant payment requirements.
grants shall provide for:
used, are prescribed in Appendix B of
(a) Except for construction grants for
(1) Accurate, current, and complete
this Part.
which the letter-of-credit method is op-
tional, the letter-of-credit funding meth-
disclosure of the financial results of each
§ 276.9 Monitoring and reporting pro-
od shall be used by the Bureau where all
grant program in accordance with Fed-
gram performances.
of the following conditions exist:
eral reporting requirements and for each
(a) Grantees shall constantly moni-
(1) When there is or will be a con-
subgrant in accordance with the
tor the performance under grant-sup-
tinuing relationship between a grantee
FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
RULES AND REGULATIONS
51319
and the Bureau for at least a 12-month
reservation boundaries or adjoins on at
(2) The grantee shall obtain approval
period and the total amount of advances
least two sides other trust or restricted
by the Bureau for the use of the real
to be received within that period from
lands as prescribed in Part 272 of this
property in other projects when the
the Bureau is $250,000. or more, as pre-
chapter.
grantee determines that the property is
scribed by Treasury Circular No. 1075.
(2) Fee title to the acquired real prop-
no longer needed for the original grant
(2) When the grantee has established
erty shall vest in the Indian tribe when-
purposes. Use in other projects shall be
or demonstrated to the Bureau the will-
ever the acquisition does not meet the
limited to those under other Federal
ingness and ability to establish proce-
criteria in paragraph (b) (1) of this sec-
grant programs, or programs that have
dures that will minimize the time elaps-
tion or unless for other reasons a tribe re-
purposes consistent with those author-
ing between the transfer of funds and
quests title to be taken in the name of
ized for support by the grantor.
their disbursement by the grantee.
the United States. In the absence of-ap-
(3) When the real property is no
(3) When the grantee's financial man-
plicable statutory authority governing
longer needed as provided in paragraphs
agement system meets the standards for
the disposition of real property acquired
(c) (1) and (2) of this section, the
fund control and accountability pre-
by a tribe, the tribe shall use the real
grantee shall return all real property
scribed in § 276.7.
property for the authorized purposes
furnished or purchased wholly with Bu-
(b) The method of advancing funds
and in accordance with any other re-
reau grant funds to the control of the
by Treasury check shall be used, in ac-
quirements imposed by the terms and
Bureau. In the case of property pur-
cordance with the provisions of Treasury
conditions of the original grant.
chased in part with Bureau grant funds,
Circular No. 1075, when the grantee
Changes in use compatible to other trib-
the grantee may be permitted to take
meets all of the requirements specified in
al programs may be authorized by the
title to the Federal interest therein upon
paragraphs (a) (2) and (3) of this sec-
Bureau. When no longer needed for the
compensating the Federal Government
tion.
authorized purposes, the real property
for its fair share of the property. The
(c) The reimbursement by Treasury
shall be used in accordance with the
Federal share of the property shall be
check method shall be the preferred
standards set forth in § 276.11(d) (1) for
the amount computed by applying the
method when the grantee does not meet
non-expendable personal property. Ac-
percentage of the Federal participation
the requirements specified in either para-
cordingly, the following priority order
in the total cost of the grant program
graph (a) (2) or (a) (3) or both. This
for use of such property shall be:
for which the property was acquired to
method may also be used when the ma-
(1) Other grants from the Bureau.
the current fair market value of the
jor portion of the program is accom-
(ii) Grants from other Federal agen-
property.
plished through private market financing
cies.
(d) Standards and procedures govern-
or Federal loans, and when the Bureau
(iii) Tribal purposes consistent with
ing ownership, use, and disposition of
grant assistance constitutes a minor por-
those authorized for support by Bureau
nonexpendable personal property fur-
tion of the program.
grants.
nished by the Bureau or acquired with
(d) Unless otherwise required by law,
(iv) Tribal official activities.
Bureau funds are set forth below:
the Bureau shall not withhold payments
(3) In those instances where the In-
(1) Nonexpendable personal property
for proper charges made by grantees at
dian tribe requests, title may be acquired
acquired with Bureau funds. When non-
any time during the grant period unless:
by the United States. Use of these ac-
expendable personal property is acquired
(1) A grantee has failed to comply
quired real property interests will be
by a grantee wholly or in part with Bu-
with the program objectives, grant award
subject to the authorized purposes and
reau funds, title will not be taken by the
conditions, or Bureau reporting require-
in accordance with the provisions of the
Bureau except as provided in paragraph
ments; or
original grant. Upon a determination
(d) (1) (iv) of this section but shall be
(2) The grantee is indebted to the
that the real property is no longer
vested in the grantee subject to the fol-
United States and collection of the in-
needed for the authorized purposes, dis-
lowing restrictions on use and disposi-
debtedness will not impair accomplish-
position may be made by declaring it
tion of the property:
ment of the objectives of any grant pro-
excess under provisions of the Act of
(i) The grantee shall retain the prop-
gram sponsored by the United States.
January 2, 1975 (88 Stat. 1954) and title
erty acquired with Bureau funds in the
Under such conditions, the Bureau may,
transferred to the Secretary to be held
grant program as long as there is a need
upon reasonable notice, inform the
by the United States in trust for the
for the property to accomplish the pur-
grantee that payments will not be made
tribe. Where real property does not meet
pose of the grant program whether or
for obligations incurred after a specified
the requirements under the Act of Jan-
not the program continues to be sup-
date until the conditions are corrected
uary 2, 1975 (88 Stat. 1954), the tribe
ported by Bureau funds. When there is
or the indebtedness to the Federal gov-
may elect to acquire title under appli-
no longer a need for the property to
ernment is liquidated.
cable enabling statutory authorities, or
accomplish the purpose of the grant pro-
(e) Appendix B of this Part provides
in the absence of statutory authority,
gram, the grantee shall use the property
the procedures for requesting advances
request withholding disposition in aid
in connection with the other Federal
or reimbursements.
of legislation, or authorize disposal un-
grants it has received in the following
der the General Services Administra-
order of priority:
§ 276.11 Property management stand-
tion procedures.
(A) Other grants from the Bureau
ards.
(c) The provisions of paragraph (b)
needing the property.
(a) Grantees may follow their own
(2) and (3) of this section shall also ap-
(B) Grants of other Federal agencies
property management policies and pro-
ply when real property is acquired in
needing the property.
cedures if they observe the require-
whole or in part by a Bureau grant other
(ii) When the grantee no longer has
ments of this section. With respect to
than that provided under Part 272 of
need for the property in any of its Fed-
property covered by this section, the Bu-
this Chapter. However, when such prop-
eral grant programs, or programs that
reau may not impose on grantees any
erty is acquired by a grantee other than
have purposes consistent with those au-
requirements (including property report-
an Indian tribe, or a tribal governing
thorized for support by the grantor, the
mg requirements) not authorized by this
body, fee simple title to the property
property may be used for its own official
Part unless specifically required by Fed-
shall vest in the grantee upon acquisi-
activities in accordance with the follow-
eral law.
tion. In the absence of applicable stat-
ing standards:
(b) Title to real property to be ac-
utory provisions governing the use or
(A) Nonexpendable property with an
quired in whole or in part from a Bureau
disposition of such property, it shall be
acquisition cost of less than $500 and
grant under Part 272 of this Chapter
subject to the following requirements,
used four years or more. The grantee
shall vest in one of the following man-
in addition to any other requirements
may use the property for its own official
ners:
imposed by the terms and conditions of
activities without reimbursement to the
(1) Title may be taken by the United
the grant:
Federal Government or sell the property
States in trust for the Indian tribe upon
(1) The grantee shall use the real
and retain the proceeds.
the request of the tribe and when the
property for the authorized purpose of
real property to be acquired is within the
(B) All other nonexpendable property.
the original grant as long as needed.
The grantee may retain the property for
FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
51320
RULES AND REGULATIONS
its own use if a fair compensation is made
thority to transfer title has been granted
and administered in order to protect the
to the Bureau for the latter's share of
to an agency, title to Federally-owned
public interest consistent with "Govern-
the property. The amount of compensa-
property (property to which the Federal
ment Patent Policy" (President's memo-
tion shall be computed by applying the
Government retains title including ex-
randum for heads of executive depart-
percentage of Bureau participation in the
cess property made available by the Bu-
ments and agencies), dated August 23,
grant program to the current fair market
reau to grantees) remains vested by law
1971, and Statement of Government
value of the property.
in the Federal Government. Upon ter-
Patent Policy as printed in 36 FR 16889.
(iii) If the grantee has no need for the
mination of the grant or need for the
(2) Where the grant results in a book
property, disposition of the property
property, such property shall be re-
or other copyrightable material, the au-
shall be made as follows:
ported to the Bureau for further Bureau
thor or grantee is free to copyright the
(A) Nonexpendable property with an
use or, if appropriate. for reporting to the
work, but the Bureau reserves a royalty-
acquisition cost of $1,000 or less. Except
General Services Administration for
free nonexclusive and irrevocable license
for that property which meets the cri-
other Federal agency use. Appropriate
to reproduce, publish, or otherwise use,
teria of paragraph (d) (1) (ii) (A) of this
disposition instructions will be issued to
and to authorize others to use the work
section, the grantee shall sell the prop-
the grantee after completion of Bureau
for Government purposes.
erty and reimburse the Bureau an
review.
(h) The use of Bureau-owned facili-
amount which is computed in accordance
(e) The grantee's property manage-
ties under the jurisdiction of the Com-
with paragraph (d) (1) (iii) of this sec-
ment standards for nonexpendable per-
missioner by a grantee for purposes of
tion.
sonal property shall also include the fol-
carrying out a grant may be authorized
(B) Nonexpendable property with an
lowing procedural requirements:
when the facilities are not needed for
acquisition cost of over $1,000. The
(1) Property records shall be main-
Bureau purposes.
grantee shall request disposition instruc-
tained accurately and provide for a de-
tions from the Bureau. The Bureau shall
scription of the property; manufacturer's
§ 276.12 Procurement standards.
determine whether the property can be
serial number or other identification
(a) The standards contained tn this
used to meet the Bureau's requirement.
number; acquisition date and cost;
section do not relieve the grantee of the
If no requirement exists within the Bu-
source of the property: percentage of
contractual responsibilities arising under
reau, the availability of the property
Federal funds used in the purchase of
its contracts. The grantee is the respon-
shall be reported to the General Serv-
property; location, use, and condition of
sible authority, without recourse to the
ices Administration (GSA) by the Bu-
the property; and ultimate disposition
Bureau regarding the settlement and
reau to determine whether a requirement
data including sales price or the method
satisfaction of all contractual and ad-
for the property exists in other Federal
used to determine current fair market
ministrative issues arising out of pro-
agencies. The Bureau shall issue instruc-
value if the grantee reimburses the Bu-
curements entered into, in support of a
tions to the grantee within 120 days and
reau for its share.
grant. This includes but is not limited to:
the following procedures shall govern:
(2) A physical inventory of property
disputes, claims, protests of award,
(1) If the grantee is instructed to ship
shall be taken and the results reconciled
source evaluation or other matters of a
the property elsewhere, the grantee shall
with the property records at least once
contractual nature. Matters concerning
be reimbursed by the benefiting Federal
every two years to verify the existence,
violation of law are to be referred to the
agency with an amount which is com-
current use, and-continued need for the
tribal, Federal or other authority which
puted by applying the percentage of the
property.
has proper jurisdiction.
grantee's participation in the grant pro-
(3) A control system shall be in effect
(b) Grantees may use their own pro-
gram to the current fair market value
to insure adequate safeguards to prevent
curement regulations provided that pro-
of the property, plus any shipping or in-
loss, damage, or theft to the property.
curements made with Bureau grant
terim storage costs incurred.
Any loss, damage, or theft of nonex-
funds adhere to the standards set forth
(2) If the grantee is instructed to
pendable property shall be investigated
as follows:
otherwise dispose of the property, he
and fully documented.
(1) The grantee shall maintain a code
shall be reimbursed by the Bureau of
(4) Adequate maintenance procedures
or standards of conduct which shall gov-
such costs incurred in its disposition.
shall be implemented to keep the prop-
ern the performance of its officers, em-
(3) If disposition instructions are not
erty in good condition.
ployees, or agents in contracting with
issued within 120 days after reporting.
(5) Proper sales procedures shall be
and expending Bureau grant funds.
the grantee shall sell the property and
established for unneeded property which
Grantee's officers, employees or agents,
reimburse the Bureau an amount which
would provide for competition to the ex-
shall neither solicit nor accept gratui-
is computed by applying the percentage
tent practicable and result in the highest
ties, favors, or anything of nionetary
of Bureau participation in the grant pro-
possible return.
value from contractors or potential con-
gram to the sales proceeds. Further, the
(f) When the total inventory value of
tractors. To the extent permissible by
grantee shall be permitted to retain $100
any unused expendable personal proper-
law, rules or regulations, such standards
or 10 percent of the proceeds, whichever
ty exceeds $500 at the expiration of need
shall provide for penalties, sanctions, or
is greater, for the grantee's selling and
for any grant purposes, the grantee may
other disciplinary actions to be applied
handling expenses.
retain the property or sell the property
for violations of such standards by either
(iv) Where the Bureau determines
as long as he compensates the Bureau
the grantee officers, employees, or agents,
that property with an acquisition cost of
for its share in the cost. The amount
or by contractors or their agents.
$1,000 or more and financed solely with
of compensation shall be computed in
(2) All procurement transactions re-
Bureau funds is unique, different, or
accordance with paragraph (d) (1) (ii)
gardless of whether negotiated or adver-
costly to replace, it may reserve title to
(B) of this section.
tised and without regard to dollar value
such property, subject to the following
(g) Specific standards for control of
shall be conducted in a manner so as to
provisions:
intangible property are provided as fol-
provide maximum open and free compe-
(A) The property shall be appropriate-
lows:
tition. The grantee should be alert to
ly identified in the grant agreement or
(1) If any program produces patent-
organizational conflicts of interest or
otherwise made known to the grantee.
able items, patent rights, processes, or
non-competitive practices among con-
(B) The Bureau shall issue disposition
inventions, in the course of work aided
tractors which may restrict or eliminate
instructions within 120 days after the
by a Bureau grant, such fact shall be
competition or otherwise restrain trade.
completion of the need for the property
promptly and fully reported to the Bu-
However, this provision will apply only
under the grant for which it was ac-
reau. Unless there is prior agreement
after the Indian preference requirements
quired. If the Bureau fails to issue dis-
between the grantee and Bureau on dis-
prescribed in § 276.13 have been met.
position instructions within 120 days, the
position of such items, the Bureau shall
(3) The grantee shall establish pro-
grantee shall apply the standards of par-
determine whether protection on such in-
curement procedures which provide for,
agraphs (d) (1) (i), (d) (1) (ii) (B), and
vention or discovery shall be sought and
as a minimum, the following procedural
(d) (1) (iii) (B) of this section.
how the rights in the invention or dis-
requirements:
(2) Federally-owned nonexpendable
covery-including rights under any pat-
(i) Proposed procurement actions
personal property. Unless statutory au-
ent issued on it-shall be allocated
shall be reviewed by grantee officials to
FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
RULES AND REGULATIONS
51321
avoid purchasing unnecessary or dupli-
to be rendered by a university, college, or
11246, entitled "Equal Employment Op-
cative items. Where appropriate, an
other educational institutions;
portunity," as amended by Labor Regu-
analysis shall be made of lease and pur-
(E) No acceptable bids have been re-
lations (41 CFR Part 60). However, this
chase alternatives to determine which
received after formal advertising;
Equal Employment Opportunity provi-
would be the most economical, practical
(F) The purchases are for highly
sion will apply only after the Indian
procurement.
perishable materials or medical supplies;
preference requirements prescribed in
(ii) Invitations for bids or requests for
for material or services where the prices
§ 276.13 have been met.
proposals shall be based upon a clear
are established by law; for technical
(5) All contracts and subgrants for
and accurate description of the techni-
items or equipment requiring standard-
construction or repair shall include a
cal requirements for the material, prod-
ization and interchangeability of parts
provision for compliance with the Cope-
uct, or service to be procured. In com-
with existing equipment; for experimen-
land "Anti-Kick Back" Act (18 U.S.C.
petitive procurements, such description
tal, developmental or research work; for
874) as supplemented in Department of
shall not contain features which unduly
supplies purchased for authorized resale;
Labor regulations (29 CFR Part 3). This
restrict- competition. "Brand name or
and for technical or specialized supplies
Act provides that each contractor or sub-
equal" description may be used as a
requiring substantial initial investment
grantee shall be prohibited from induc-
means to define the performance or other
for manufacture;
ing, by any means, any person employed
salient requirements of a procurement.
(G) Otherwise authorized by law,
in the construction, completion, or repair
When so used, the specific features of
rules or regulations. Notwithstanding the
of public work, to give up any part of the
the named brand which must be met by
existence of circumstances justifying
compensation to which he is otherwise
offerors should be clearly specified.
negotiation, competition shall be ob-
entitled. The grantee shall report all
(iii) Positive efforts shall be made by
tained to the maximum extent practi-
suspected or reported violations to -the
the grantees to use small business and
cable.
Bureau.
minority-owned business sources of sup-
(vii) Contracts shall be made only
(6) When required by the Federal
plies and services. Such efforts should al-
with responsible contractors who possess
grant program legislation, all construc-
low these sources the maximum feasible
the potential ability to perform success-
tion contracts awarded by grantees and
opportunity to compete for contracts to
fully under the terms and conditions of
subgrantees over $2,000 shall include a
be performed using Bureau grant funds.
a proposed procurement. Consideration
provision for compliance with the Davis-
However, this. provision will apply only
shall be given to such matters as con-
Bacon Act (40 U.S.C. 276a to a-7) and
after the Indian preference requirements
tractor integrity, record of past per-
as supplemented by Department of La-
prescribed in § 276.13 have been met.
formance, financial and technical re-
bor regulations (29 CFR Part 5). Under
(iv) The type of procuring instru-
sources, or accessibility to other neces-
this Act, contractors shall be required to
ments used (i.e., fixed price contracts,
sary resources.
pay wages to laborers and mechanics at
cost reimbursable contracts, etc.) shall
(viii) Procurement records or files for
a rate not less than the minimum wages
be appropriate for the particular pro-
purchases in amounts over $10,000 shall
specified in a wage determination made
curement and for promoting the best in-
provide at least the following pertinent
by the Secretary of Labor. In addition,
terest of the grant program involved, The
information: Justification for the use of
contractors shall be required to pay
"cost-plus-a-percentage-of-cost". method
negotiation in lieu of advertising, con-
wages not less often than once a week.
of contracting shall not be used.
tractor selection, and the basis for the
The grantee shall place a copy of the
(v) Formal advertising, with adequate
cost or price negotiation
current prevailing wage determination
purchase description. sealed bids, and
(ix): A system for contract adminis-
issued by the Department of Labor in
public openings shall be the required
tration shall be maintained to assure
each solicitation and the award of a con-
method of procurement unless negotia-
tion pursuant to paragraph (b) (3) (vi) of
contractor conformance with terms, con-
tract shall be conditioned upon the ac-
ditions, and specifications of the contract
ceptance of the wage determination. The
this section is necessary to accomplish
or order, and to assure adequate and
grantee shall report all suspected or re-
sound procurement. However, precure-
timely followup of all purchases.
ported violations to the Bureau.
ment of $10,000 or less need not be so ad-
vertised. Where such advertised bids are
(c) In addition to provisions to define
(7) Where applicable, all contracts
obtained the awards shall be made to the
a sound and complete agreement, the
awarded by grantees and subgrantees
grantee shall include the following pro-
over $2,000 for construction contracts
responsible bidder whose bid is respon-
visions in all contracts and subgrants:
and over $2,500 for other contracts
sive to the invitation and is most advan-
(1) Contracts shall contain such con-
which involve the employment of me-
tageous to the grantee, price and other
factors considered. (Factors such as dis-
tractual provisions or conditions which
chanics or laborers shall include a provi-
will allow for administrative, contractual,
sion for compliance with sections 103
counts, transportation costs, taxes may
be considered in determining the lowest
or legal remedies in instances where con-
and 107 of the Contract Work Hours and
bid.) Invitations for bids shall clearly
tractors violate or breach contract terms,
Safety Standards Act. (40 U.S.C. 327-
set forth all requirements which the bid-
and provide for such sanctions and pen-
330) as supplemented by Department of
der must fulfill in order for his bid to be
alties as may be appropriate.
Labor regulations (29 CFR Part 5). Un-
evaluated by the grantee. Any or all bids
(2) All contracts, amounts for which
der Section 103 of the Act, each contrac-
may be rejected when it is in the
are over $10,000 shall contain suitable
tor shall be required to compute the
grantee's interest to do so.
provisions for termination by the grantee
wages of every mechanic and laborer on
(vi) Procurements may be negotiated
including the manner by which it will
the basis of a standard work day of 8
if it is impracticable and unfeasible to
be effected and the basis for settlement.
hours and a standard work week of 40
use formal advertising. Generally, pro-
In addition, such contracts shall describe
hours. Work in excess of the standard
curements may be negotiated by the
conditions where the contract may be
workday or workweek is permissible if
grantee if:
terminated for default as well as con-
the worker is compensated at a rate of
(A) The public exigency will not per-
ditions where the contract may be ter-
not less than 1½ times the basic rate of
mit the delay incident to advertising;
minated because of circumstances be-
pay for all hours worked over 8 hours in
(B) The material or service to be pro-
yond the control of the contractor.
any calendar day or 40 hours in the work
cured is available from only one person
week. Section 107 of the Act applies to
(3) In all contracts for construction
or firm; (all contemplated sole source
construction work and provides that no
or facility improvement awarded over
procurements where the aggregate ex-
laborer or mechanic shall be required to
$100,000, grantees shall observe the
penditure is expected to exceed $5,000
work in surroundings or under working
bonding requirements provided in
shall be referred to the Bureau for prior
conditions which are unsanitary, haz-
§ 276.4.
approval).
ardous, or dangerous to his health and
(4) All construction contracts awarded
(C) The total amount involved does
safety as determined under construction,
by recipients and their contractors or
not exceed $10,000;
safety, and health standards promul-
subgrantees having a value of more than
gated by the Secretary of Labor. These
(D) The contract is for personal or
$10,000, shall contain a provision requir-
requirements do not apply to the pur-
professional services, or for any service
ing compliance with Executive Order No.
chases of supplies or materials or articles
FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
51322
RULES AND REGULATIONS
ordinarily available on the open market,
(3) The grant budget is over $100,000
or contracts for transportation or trans-
grant application. However, grantees
and the cumulative amount of transfers
mission of intelligence.
may request by letter the approvals re-
among direct cost object class budget
(8) Contracts or agreements, the prin-
quired by the provisions of Appendix A
categories exceeds or is expected to ex-
of this Part.
cipal purpose of which is to create, de-
ceed $10,000, or five percent of the grant
velop, or improve products, processes or
(g) Within 30 days from the date of
budget, whichever is greater. The same
methods: or for exploration into fields
receipt of the request for budget revi-
criteria apply to cumulative amount of
which directly concern public health,
sions, the Bureau shall review the request
transfers among programs, functions,
and notify the grantee whether or not the
safety, or welfare; or constraints in the
and activities when budgeted separately
field of science or technology in which
budget revisions have been approved. If
for a grant, except that the Bureau shall
the Bureau does not reach a decision
there has been little significant experi-
permit no transfer which would cause
ence outside of work funded by Federal
prior to the end of the 30 day period or
any Federal appropriation, or part
should the grantee not be notified of the
assistance, shall contain a notice to the
thereof, to be used for purposes other
effect that matters regarding rights to
Bureau's decision by the end of the 30 day
than those intended.
inventions, and materials generated un-
period the grantee may appeal directly to
(4) The grant budget is $100,000, or
the Commissioner.
der the contract or agreement are sub-
less, and the cumulative amount of trans-
ject to the regulations issued by the
fers among direct cost object class budg-
§ 276.15 Grant closeout.
Bureau. The contractor shall be advised
et categories exceeds or is expected to
(a) In closing out Bureau grants, the
as to the source of additional informa-
exceed five percent of the grant budget.
following shall be observed:
tion regarding these matters.
The same critèria apply to the cumula-
(1) Upon request, the Bureau shall
(9) All negotiated contracts (except
tive amount of transfers among pro-
make prompt payments to a grantee for
those of $10,000 or less) awarded by
grams, functions, and activities when
allowable reimbursable costs under the
grantees shall include a provision to the
budgeted separately for a grant, except
grant being closed out.
effect that the grantee, the Bureau, the
that the Bureau shall permit no trans-
(2) The grantee shall immediately re-
Comptroller General of the United
fer which would cause any Federal ap-
fund to the Bureau any unencumbered
States, or any of their duly authorized
propriation, or part thereof, to be used
balance of cash advanced to the grantee.
representatives, shall have access to any
for purposes other than those intended.
(3) The Bureau shall obtain from the
books, documents, papers, and records
(5) The revisions involve the transfer
grantee within 90 days after the date of
of the contractor which are directly per-
of amounts budgeted for indirect costs
completion of the grant all financial, per-
tinent to a specific grant program for
to absorb increases in direct costs.
formance, and other reports required as a
the purpose of making audit, examina-
(6) The revisions pertain to the addi-
condition of the grant. The Bureau may
tion, excerpts, and transcriptions.
tion of items requiring approval in ac-
grant extensions when requested by the
(10) Contracts and subgrants of
cordance with the provisions of Appendix
grantee.
amounts over $100,000 shall contain a
A of this Part.
(4) The Bureau shall make a settle-
provision which requires the recipient to
(b) All other changes to nonconstruc-
ment for any upward or downward ad-
agree to comply with all applicable
tion grant budgets, except for the
justments to the Federal share of costs
standards, orders, or regulations issued
changes described in paragraph (d) of
after these reports are received.
pursuant to the Clean Air Act of 1970 (42
this section do not require approval.
(5) The grantee shall account for any
U.S.C. 1251 et seq.) as amended. Viola-
These changes include (1) the use of
property acquired with grant funds, or
tions shall be reported to the Bureau and
grantee funds in furtherance of program
received fom the Government in accord-
the Regional Office of the Environmen-
objectives over and above the grantee
ance with the provisions of $ 276.11.
tal Protection Agency.
minimum share included in the approved
(6) If a final audit has not been per-
§ 276.13 Indian preference in grant ad-
grant budget and (2) the transfer of
formed before the closeout of the grant,
ministration.
amounts budgeted for direct costs to ab-
the Bureau shall retain the right to re-
sorb authorized increases in indirect
Any grant or subgrant shall require
cover an appropriate amount after fully
costs.
that to the greatest extent feasible:
considering the recommendations on dis-
(c) For construction grants, grantees
(a) Preferences and opportunities for
allowed costs resulting from the final
shall request prior approval promptly.
audit.
training and employment in connection
from the Bureau for budget revisions
with the administration of such a grant
(b) Suspension. When a grantee has
whenever:
or subgrant shall be given to Indians.
materially failed to comply with the
(1) The revision results from changes
(b) Preference in the award of a sub-
terms and conditions of a grant, the Bu-
in the scope or the objective of the grant-
grant, contract or subcontract in con-
reau may after reasonable notice to the
supported programs.
grantee, suspend the grant. The notice
nection with administration of a grant
(2) The revision increases the budg-
shall be given to Indian organizations
preceding suspension shall include the
eted amounts of Bureau funds needed
and economic enterprises.
effective date of the suspension, the rea-
to complete the project.
sons for the suspension, the corrective
(c) A tribal governing body may de-
(d) When the Bureau awards a grant
measures necessary for reinstatement of
velop its own Indian preference require-
which provides support for both con-
the grant, and, if there is no immediate
ments to the extent that such require-
struction and nonconstruction work, the
threat to safety, a reasonable time frame
ments are not inconsistent with the
Bureau may require, in the grant agree-
for corrective action prior to actual sus-
purpose and intent of paragraphs (a)
ment, the grantee to request prior ap-
and (b) of this section for grants exe-
pension. No obligations incurred by the
proval before making any fund or budg-
cuted under this Part.
grantee during the period of suspension
et transfers between the two types of
shall be allowable under the suspended
§ 276.14 Budget revision.
work supported.
grant, except that the Bureau may at its
(e) For both construction and non-
Criteria and procedures to be followed
discretion allow necessary and proper
construction grants, the Bureau shall
by grantees in reporting deviations from
costs which the grantee could not reason-
require tribal grantees to notify the Bu-
grant budgets and requesting approval
ably avoid during the period of suspen-
reau promptly whenever the amount of
for budget revisions are as follows:
sions if such costs would otherwise be al-
Bureau authorized funds is expected to
(a) For nonconstruction grants, grant-
lowable under the applicable cost prin-
exceed the needs of the grantee by more
ciples specified in Appendix A of this
ees shall request prior approvals prompt-
than $5,000 or 5 percent of the Bureau
Part. Appropriate adjustments to the
ly from the Bureau for budget revisions
grant, whichever is greater. This noti-
whenever:
payments under the suspended grant will
fication will not be required when appli-
(1) The revision results from changes
be made, either by withholding the pay-
cations for additional funding are sub-
in the scope or the objective of the
ments or by not allowing the grantee
mitted for continuing grants.
grant-supported program.
credit for disbursements which he may
(f) When requesting approval for
(2) The revision indicates the need for
make in liquidation of unauthorized ob-
budget revisions, grantees shall use the
additional Bureau funding.
ligations he incurs during the period of
budget forms which were used in the
suspension. Suspensions shall remain in
FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
RULES AND REGULATIONS
51323
effect until the grantee has taken correc-
incurred by the grantee before cancel-
the executive branch of the Federal Govern-
tive action to the satisfaction of the Bu-
lation.
ment which makes grants to grantees.
reau or given assurances satisfactory to
6. Grant means an agreement between the
the Bureau that corrective action will be
§ 276.16 Subgrants and subcontracts to
Bureau and a grantee whereby the Bureau
taken, or until the Bureau cancels the
non-profit organizations.
provides funds or aid in kind to carry out
grant.
The uniform administrative require-
specified programs, services, or activities. The
(c) (1) Cancellation for cause. The Bu-
ments in this part, including the cost
principles and policies stated in this Appen-
dix as applicable to grants in general also
reau may cancel any grant in whole, or
principles in Appendix A, to this part, are
apply to any Federally sponsored cost reim-
in part, at any time before the date of
applicable to all subgrants or subcon-
bursement type of agreement performed by a
completion, whenever it is determined
tracts made by a grantee in accordance
grantee, including contracts, subcontracts
that the grantee has:
with the provisions of this chapter. How-
and subgrants.
(1) Materially failed to comply with
ever, these requirements and cost
7. Grant program means those activities
the terms and conditions of the grant;
principles are applicable as minimum
and operations of the grantee which are nec-
(ii) Violated the rights or endangered
standards for subgrants or subcontracts
essary to carry out the purposes of the grant,
the health, safety, or welfare of any
made to nonprofit organizations. Ac-
including any portion of the program fi-
nanced by the grantee.
persons;
cordingly, the grantee may prescribe
8. Grantee means the entity which is re-
(iii) Been grossly negligent in or has
additional or more stringent require-
sponsible for administration of the grant.
mismanaged the handling or use of
ments with regard to subgrants or sub-
9. Services, as used herein, means goods
funds provided under the grant.
contracts made to non-profit organiza-
and facilities, as well as services.
(2) When it appears that cancellation
tions.
10. Supporting services means auxiliary
of a grant shall become necessary, the
functions necessary to sustain the direct
APPENDIX A-PRINCIPLES FOR DETERMINING
Bureau shall promptly notify the grantee
effort involved in administering a grant pro-
COSTS APPLICABLE TO GRANTS
gram or an activity providing service to the
in writing of this possibility. This writ-
PART I-GENERAL
grant program. These services may be cen-
ten notice shall advise the grantee of
tralized in the grantee department or in some
the reason for the possible cancellation
A. Purpose and scope. 1. Objectives. This at-
other agency, and include procurement, pay-
and the corrective action necessary to
tachment sets forth principles for determin-
roll, personnel functions, maintenance and
avoid cancellation. The Bureau shall also
ing the allowable costs of programs adminis-
operation of space, data processing, account-
tered by grantees under grants from the
offer, and provide if requested by the
tng, budgeting, auditing, mail and messenger
Bureau. The principles are for the purpose of
service, and the like.
grantee, any technical assistance which
cost determination and are not intended to
may be required to effect the corrective
C. Basic guidelines. 1. Factors affecting al-
identify the circumstances or dictate the ex-
lowability of costs. To be allowable under a
action. The grantee shall have 60 days
tent of Bureau and tribal participation in the
grant program. costs must meet the follow-
in which to effect this corrective action
financing of a particular grant. They are de-
ing general criteria:
before the Bureau provides notice of
signed to provide that Bureau assisted pro-
a. Be necessary and reasonable for proper
intent to cancel the grant as provided in
grams bear their fair share of costs recog-
and efficient administration of the grant pro-
paragraph (c) (3) of this section.
nized under these principles, except where
gram, be allocable thereto under these prin-
restricted or prohibited by law. No provision
(3) Upon deciding to cancel for cause,
ciples, and, except as specifically provided
for profit or other increment above cost is
the Bureau shall promptly notify the
herein, not be a general expense required to
intended.
carry out the overall responsibilities of a
grantee in writing of that decision, the
2. Policy guides. The application of these
grantee.
reasons for the cancellation, and the ef-
principles is based on the fundamental prem-
b. Be authorized or not prohibited under
fective date. The Bureau shall also pro-
ises that:
applicable laws or regulations.
vide a hearing for the grantee before
a. Grantees are responsible for the efficient
c. Conform to any limitations or exclu-
cancellation. However, the Bureau may
and effective administration of grant pro-
sions set forth in these principles, Federal
immediately cancel the grant, upon no-
grams through the application of sound man-
laws, or other governing limitations as to
agement practices.
tice to the grantee, if the Bureau deter-
types or amounts 0: cost items.
b. The grantee assumes the responsibility
mines that continuance of the grant
d. Be consistent with policies, regulations,
for seeing that Bureau assisted program
and procedures that apply uniformly to both
poses an immediate threat to safety. In
funds have been expended and accounted for
Federally assisted and other activities of
this event, the Bureau shall provide a
consistent with underlying agreements and
which the grantee is a part.
hearing for the grantee within ten (10)
program objectives.
e. Be accorded consistent treatment
days of cancellation.
c. Each grantee organization, in recogni-
through application of generally accepted ac-
(4) Payments made to grantees or re-
tion of its own unique combination of staff
counting principles appropriate to the cir-
coveries- by. the Bureau under grants
facilities and experience, will have the pri-
cumstances.
mary responsibility for employing whatever
cancelled for cause shall be in accord-
1. Not be allocable to er included as a cost
form of organization and management tech-
ance with the legal rights and obliga-
of any other Federally financed program in
niques may be necessary to assure proper and
either the current or a prior period.
tions of the parties.
efficient administration.
g. Be net of all applicable credits.
(d) (1) Cancellation on other grounds.
3. Application. These principles will be ap-
2. Allocable costs. a. A cost is allocable to
Except as provided in paragraph (c) of
plied by the Bureau in determining costs in-
a particular cost objective to the extent of
this section, grants may be cancelled in
curred by grantees under Bureau grants (in-
benefits received by such objective.
whole or in part only as follows:
cluding subgrants, contracts by grantees and
b. Any cost allocable to a particular grant
subcontracts).
(i) By the Bureau with the consent of
or cost objective under the principles pro-
B. Definitions. 1. Approval or authorization
the grantee, in which case the two
vided for in this Appendix may not be shifted
of the Bureau means documentation evidenc-
to other Federal grant programs to overcome
parties shall agree upon the cancellation
ing consent prior to incurring specific cost.
funds deficiencies, avoid restrictions imposed
conditions, including the effective date,
2. Cost allocation plan means the docu-
by law or grant agreements, or for other
and in the case of partial cancellation,
mentation identifying, accumulating, and
reasons.
the portion to be cancelled; or
distributing allowable costs under grants and
(ii) By the grantee, upon written
contracts together with the allocation meth-
c. Where an allocation of joint cost will
ods used.
ultimately result in charges to a grant pro-
notice to the Bureau, setting forth the
3. Cost, as used herein, means cost as de-
gram, an allocation plan will be required as
reasons for the cancellation, the effective
prescribed in Section I.
termined on a cash, accrual, or other basis
date, and, in the case of partial cancel-
acceptable to the Bureau as & discharge of
3. Applicable credits. a. Applicable credits
lation, the portion to be cancelled.
the grantee's accountability for Bureau
refer to those receipts or reduction of ex-
(2) When a grant is cancelled in ac-
funds.
penditure-type transactions which offset or
cordance with paragraph (d) of this
4. Cost objective means a pool, center, or
reduce expense items allocable to grants as
section. the grantee shall not incur new
area established for the accumulation of cost.
direct or indirect costs. Examples of such
obligations for the cancelled portion
Such areas include organizational units,
transactions are: purchase discounts; rebates
after the effective date, and shall cancel
functions, objects or items of expense as well
or allowances; recoveries or indentities on
losses; sale of publications, equipment, and
as many outstanding obligations as pos-
as ultimate cost objectives including specific
scrap; income from personal or incidental
sible. The Bureau shall allow full credit
grants, projects, contracts, and other activi-
ties.
services; and adjustments of overpayments
to the grantee for the Bureau share of
or erroneous charges.
5. Federal agency means any department,
the noncancellable obligations properly
b. Applicable credits may also arise when
agency, commission, or instrumentality in
Bureau funds are received or are available
FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
51324
RULES AND REGULATIONS
from sources other than the grant program
may be negotiated annually in situations
in the plan will be supported by formal ac-
involved to finance operations or capital
where the cost experience and other perti-
counting records which will substantiate the
items of the grantee. This includes costs
nent facts available are deemed sufficient to
propriety of eventual charges.
arising from the use of depreciation of items
enable the contracting parties to reach an in-
2. Requirements. The allocation plan of
donated or financed by the Bureau to fulfill
formed judgment (1) as to the probable level
the grantee should cover all joint costs of the
matching requirements under another grant
of indirect costs in the grantee department
grantees as well as costs to be allocated un-
program. These types of credits should like-
during the period to be covered by the nego-
der plans of other agencies or organizational
wise be used to reduce related expenditures
tiated rate, and (2) that the amount allow-
units which are to be included in the costs
in determining the rates or amounts appli-
able under the predetermined rate would
of federally sponsored programs. The cost
cable to a given grant.
not exceed actual indirect cost.
allocation plans of all the agencies rendering
D. Composition of cost. 1. Total cost. The
b. Negotiated lump sum for overhead. A
services to the grantee, to the extent feasible,
total cost of a grant program is comprised
negotiated fixed amount in lieu of indirect
should be presented in a single document.
of the allowable direct cost incident to its
costs may be appropriate under circum-
The allocation plan should contain but not
performance, plus its allocable portion of
stances where the benefits derived from a
necessarily be limited to, the following:
allowable indirect costs, less applicable
grantee department's indirect services can-
a. The nature and extent of services pro-
credits.
not be readily determined as in the case of
vided and their relevance to the Federally
2. Classification of costs. There is no uni-
small, self-contained or isolated activity.
sponsored programs.
versal rule for classifying certain costs as
When this method is used, a determination
b. The items of expense to be included.
either direct or indirect under every ac-
should be made that the amount negotiated
c. The methods to be used in distributing
counting system. A cost may be direct with
will be approximately the same as the actual
cost.
respect to some specific service or function,
indirect cost that may be incurred. Such
3. Instructions for preparation of cost al-
but indirect with respect to the grant or
amounts negotiated in lieu of indirect costs
location plans. The Bureau, in consultation
other ultimate cost objective. It is essential,
will be treated as an offset to total indirect
with the other Federal agencies concerned,
therefore, that each item of cost be, treated
expenses of the grantee department before
will be responsible for developing and issu-
consistently either as a direct or an indirect
allocation to remaining activities. The base
ing the instructions for use by grantees in
cost. Specific guides for determining direct
on which such remaining expenses are allo-
preparation of cost allocation plans.
and indirect costs allocable under grant pro-
cated should be appropriately adjusted.
4. Negotiation and approval of indirect cost
grams are provided in the sections which
3. Limitation on indirect costs. a. Bureau
proposals for grantees. a. The Bureau, in col-
follow.
grants may be subject to laws that limit the
laboration with the other Federal agencies
E. Direct costs. 1. General. Direct costs are
amount of indirect costs that may be al-
and offices concerned, will be responsible for
those that can be identified specifically with
lowed. In this event, the Bureau will establish
negotiation, approval, and audit of cost al-
a particular cost objective. These costs may
procedures which will assure that the amount
location plans, which will be submitted to it
be charged directly to grants, contracts, or
actually allowed for indirect costs under
by the grantees. These plans will cover cen-
to other programs against which costs are
each such grant does not exceed the maxi-
tral support service costs of the grantees.
finally lodged. Direct costs may also be
mum allowable under the statutory limita-
b. The Department of the Interior Office of
charged to cost objectives used for the other
tion or the amount otherwise allowable under
Audit and Investigation will have responsibil-
ultimate cost objective.
this Appendix, whichever is the smaller.
ity similar to that set forth in a., above, for
2. Application. Typical direct costs charge-
b. When the amount allowable under a
the negotiation, approval, and audit of the
able to grant programs are:
statutory limitation is less than the amount
indirect cost proposal.
a. Compensation of employees for the time
otherwise allocable as indirect costs under
c. Questions concerning the cost allocation
and effort devoted specifically to the execu-
this Appendix the amount not recoverable
plans approved under a. and b., above, should
tion of grant programs.
as indirect costs under a grant may not be
be directed to the Bureau.
b. Cost of materials acquired, consumed,
shifted to another Federally sponsored grant
or expended specifically for the purpose of
program or contract.
PART II-STANDARDS FOR SELECTED ITEMS OF
the grant.
G. Cost incurred by organizations other
COST
c. Equipment and other approved capital
than the grantee. 1. General. The cost of
A. Purpose and applicability. 1. Objective.
expenditures.
service provided by other organizations may
This attachment provides standards for de-
d. Other items of expense incurred spe-
only include allowable direct costs of the
termining the allowability of selected items
cifically to carry out the grant agreement.
service plus a prorata share of allowable sup-
of cost.
e. Services furnished specifically for the
porting costs and supervision directly re-
2. Application. These standards will apply
grant program by other agencies, provided
quired in performing the service, but not
irrespective of whether a particular item of
supervision of a general nature such as that
such charges are consistent with criteria
cost is treated as direct or indirect cost. Fail-
outlined in Section G of these principles.
provided by the head of an organization and
ure to mention a particular item of cost in
his staff assistants not directly involved in
F. Indirect costs. 1. General. Indirect costs
the standards is not intended to imply that it
operations. However, supervision-by the head
are those (a) incurred for a common or joint
is either allowable or unallowable, rather
of an organization whose sole function is pro-
purpose benefiting more than one cost ob-
determination of allowability in each case
viding the service furnished would be an
fective, and (b) not readily assignable to
should be based on the treatment of stand-
eligible cost. Supporting costs include those
the cost objectives specifically benefited,
ards provided for similar or related items of
furnished by other units of the supplying
without effort disproportionate to the re-
cost. The allowability of the selected items of
organizations.
sults achieved. The term "indirect costs,"
cost is subject to the general policies and
2. Alternative methods of determining
as used herein, applies to costs of this type
principles stated in Part I of this Appendix.
indirect cost. In lieu of determining actual
originating in the grantee department, as
B. Allowable costs. 1. Accounting. The cost
indirect cost related to a particular service
well as those incurred by other departments
of establishing and maintaining accounting
furnished by another organization, either of
in supplying goods, services, and facilities.
and other information systems required for
the following alternative methods may be
to the grantee department. To facilitate
the management of grant programs is allow-
used provided only one method is used for
equitable distribution of indirect expenses
able. This includes cost incurred by central
a specific service during the fiscal year
to the cost objectives served, it may be nec-
involved.
service agencies for these purposes. The cost
essary to establish a number of pools of in-
a. Standard indirect rate. An amount equal
of maintaining central accounting records
direct cost within a grantee department or
to ten percent of direct labor cost in pro-
required for overall tribal government pur-
in other agencies providing services to a
poses, such as appropriation and fund ac-
viding the service performed by another orga-
grantee department. Indirect cost pools
counts by the Treasurer, Comptroller, or sim-
nization (excluding overtime, shift, or holi-
should be distributed to benefiting cost ob-
day premiums and fringe benefits) may be
ilar officials, is considered to be a general ex-
jectives on bases which will produce an
allowed in lieu of actual allowable indirect
pense of government and is not allowable.
equitable result in consideration or relative
cost for that service.
2. Advertising. Advertising media includes
benefits derived.
b. Predetermined fixed rate. A predeter-
newspapers, magazines, radio and television
2. Grantee departmental indirect costs. All
mined fixed rate for indirect cost of the unit
programs, direct mail, trade papers, and the
grantee departmental indirect costs, includ-
or activity providing service may be nego-
like. The advertising costs allowable are those
ing the various levels of supervision, are
tiated as set forth in Section F.2.a.
which are solely for:
eligible for allocation to grant programs
H. Cost incurred by grantee for others. 1.
a. Recruitment of personnel required for
provided they meet the conditions set forth in
General. The principles provided in Section
the grant program.
this Part. In lieu of determining the actual
G will also be used in determining the cost
b. Solicitation of bids for the procurement
amount of grantee departmental indirect cost
of services provided by the grantee to another
of goods and services required.
allocable to a grant program, the following
agency.
C. Disposal of scrap or surplus materials
methods may be used:
I. Cost allocation plan. 1. General. A plan
acquired in the performance of the grant
a. Predetermined fixed rates for indirect
for allocation of costs will be required to sup-
agreement.
costs. A predetermined fixed rate for com-
port the distribution of any joint costs re-
d. Other purposes specifically provided for
puting indirect costs applicable to a grant
lated to the grant program. All costs included
in the grant agreement.
FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
RULES AND REGULATIONS
3. Advisory councils. Costs incurred by
and equipment through use allowances or
employees' counseling services, employee in-
grantee advisory councils or committees es-
depreciation. Use allowances are the means
formation publications, and any related ex-
tablished pursuant to Bureau requirements
of providing compensation in lieu of depreci-
penses incurred, are allowable. Income gen-
to carry out grant programs are allowable.
ation or other equivalent costs. However, a
erated from any of these activities will be
The cost of like organizations is allowable
combination of the two methods may not be
offset against expenses.
when provided for in the grant agreement.
used in connection with a single class of
15. Exhibits. Costs of exhibits relating
4. Audit service. The cost of audits nec-
fixed assets.
specifically to the grant programs are allow-
essary for the administration and manage-
b. The computation of depreciation or use
able.
ment of functions related to grant programs
allowance will be based on acquisition cost.
16. Legal expenses. The cost of legal ex-
is allowable.
Where actual cost records have not been
penses required in the administration of
5. Bonding. Costs of premiums on bonds
maintained, a reasonable estimate of the or-
grant programs is allowable. Legal services
covering employees who handle grantee
iginal acquisition cost may be used in the
furnished by the chief legal officer of a tribal
funds are allowable.
computation. The computation will exclude
government or his staff solely for the purpose
6. Budgeting. Costs incurred for the de-
the cost or any portion of the cost of build-
of discharging his general responsibilities as
velopment, preparation, presentation, and
ings and equipment donated or borne di-
legal officer are unallowable. Legal expenses
execution of budgets are allowable. Costs for
rectly or indirectly by the Bureau through
for the prosecution of claims against the
services of a central budget office are gen-
charges to Bureau grant programs or other-
Federal Government are unallowable.
erally not allowable since these are costs of
wise, irrespective of whether title was origi-
17. Maintenance and repair. Costs incurred
general government. However, where em-
nally vested or where it presently resides. In
for necessary maintenance, repair, or upkeep
ployees of the central budget office activity
addition, the computation will also exclude
of property which neither add to the per-
participate in the grantee budget process,
the cost of land. Depreciation or a use allow-
manent value of the property nor appreciably
the cost of identifiable services is allowable.
ance on idle or excess facilities is not allow-
prolong its intended life, but keep it in an
7. Building lease management. The ad-
able, except when specifically authorized by
efficient operating condition, are allowable.
ministrative cost for lease management
the Bureau.
18. Materials and supplies. The cost of
which includes review of lease proposals,
c. Where the depreciation method is fol-
materials and supplies necessary to carry out
maintenance of a list of available property
lowed, adequate property records must be
the grant programs is allowable. Purchases
for lease, and related activities is allowable.
maintained, and any generally accepted
made specifically for the grant program
8. Central stores. The cost of maintaining
method of computing depreciation must be
should be charged thereto at their actual
and operating a central e's-organization
consistently applied for any specific asset or
prices after deducting all cash discounts,
for supplies, equipment, and materials used
class of assets for all affected Federally spon-
trade discounts, rebates, and allowances re-
either directly or indirectly for grant pro-
sored programs and must result in equitable
ceived by the grantee. Withdrawals from gen-
grams is allowable.
charges considering the extent of the use of
eral stores or stockrooms should be charged
9. Communications. Communication costs
the assets for benefit of such programs.
at cost under any recognized method of pric-
incurred for telephone calls or service, tele-
d. In lieu of depreciation, a use allowance
ing consistently applied. Incoming transpor-
graph, teletype service, wide area telephone
for buildings and improvements may be
tation charges are a proper part of material
service (WATS), centrex, telpak (tie lines),
computed at an annual rate not exceeding
cost.
postage, messenger service and similar ex-
two percent of acquisition cost. The use al-
19. Memberships, subscriptions and profes-
penses are allowable.
lowance for equipment (excluding items
sional activities. 2. Memberships. The cost
10. Compensation for personal services. a.
properly capitalized as building cost) will be
of membership in civic, business, technical
General Compensation for personal services
computed at an annual rate not exceeding
and professional organizations is allowable
includes all remuneration, paid currently or
six and two-thirds percent of acquisition
provided: (1) the benefit from the member-
accrued, for services rendered during the
cost of usable equipment.
period of performance under the grant agree-
ship is related to the grant program, (2) the
e. No depreciation or use charge may be
ment, including but not necessarily limited
expenditure is for agency membership, (3)
allowed on any assets that would be con-
to wages, salaries, and supplementary com-
the cost of the membership is reasonably
sidered as fully depreciated, provided, how-
pensation and benefits. The costs of such
related to the value of the services or bene-
ever, that reasonable use charges may be ne-
compensation are allowable to the extent
fits received, and (4) the expenditure is not
gotiated for any such assets if warranted af-
that total compensation for individual em-
for membership in an organization which de-
ter taking into consideration the cost of the
ployees: (1) is responsible for the services
votes a substantial part of its activities to
facility or item involved, the estimated use-
rendered, (2) follows an appointment made
influencing legislation.
ful life remaining at time of negotiation, the
in accordance with tribal government ordi-
b. Reference material. The cost of books,
effect of any increased maintenance charges
nances and rules and which meets Federal
and subscriptions to civic, business, profes-
or decreased efficiency due to age, and any
merit system or other requirements, where
sional, and technical periodicals is allowable
other factors pertinent to utilization of the
applicable; and (3) is determined and sup-
when related to the grant program.
facility or item for the purpose contemplated.
ported as provided in b., below. Compensa-
12. Disbursing service. The cost of disburs-
c. Meetings and conferences. Costs are al-
tion for employees engaged in federally as-
ing grant program funds by the Treasurer or
lowable when the purpose of the meeting is
sisted activities will be considered reasonable
to the extent that it is consistent with that
other designated officer is allowable. Disburs-
the dissemination of technical information
ing services cover the processing of checks or
relating to the grant program and they are
paid for similar work in other activities of
warrants, from preparation to redemption,
consistent with regular practices followed
the tribal government. In cases where the
kinds of employees required for the feder-
including the necessary records of accounta-
for other activities of the grantee.
ally assisted activities are not found in the
bility and reconciliation of such records with
20. Motor pools. The costs of a service or-
related cash accounts.
ganization which provides automobiles to
other activities of the tribal government,
13. Employee fringe benefits. Costs iden-
grantees at a mileage or fixed rate and/or
compensation will be considered reasonable
to the extent that it is comparable to that
tifled under a. and b. below are allowable to
provides vehicle maintenance, inspection and
the extent that total compensation for em-
repair services are allowable.
paid for similar work in the labor market in
which the employing government competes
ployees is reasonable as defined in Section
21. Payroll preparation. The cost of pre-
for the kind of employees involved. Compen-
B.10.
paring payrolls and maintaining necessary
sation surveys providing data representative
a. Employee benefits in the form of regular
related wage records is allowable.
of the labor market involved will be an ac-
compensation paid to employees during pe-
22. Personnel administration. Costs for the
ceptable basis for evaluating reasonableness.
riods of authorized absences from the job,
recruitment, examination, certification, clas-
b. Payroll and distribution of time.
such as for annual leave, sick leave, court
sification, training, establishment of pay
Amounts charged to grant programs for per-
leave, military leave, and the like, if they
standards, and related activities for grant
sonal services, regardless of whether treated
are: (1) provided pursuant to an approved
programs, are allowable.
as direct or indirect costs, will be based on
leave system, and (2) the cost thereof is
23. Printing and reproduction. Cost for
payrolls documented and approved in ac-
equitably allocated to all related activities,
printing and reproduction services necessary
cordance with generally accepted practice of
including grant programs.
for grant administration, including but not
the tribal government. Payrolls must be sup-
b. Employee benefits in the form of em-
limited to forms, reports, manuals, and in-
ported by time and attendance or equivalent
ployers' contribution or expenses for social
formational literature, are allowable. Pub-
records for individual employees. Salaries
security, employees' life and health insur-
lication costs of reports or other media re-
and wages of employees chargeable to more
ance plans, unemployment insurance COV-
lating to grant program accomplishments or
than one grant program or other cost objec-
erage, workmen's compensation insurance,
results are allowable when provided for in
tive will be supported by appropriate time
pension plans, severance pay, and the like,
the grant agreement.
distribution records. The method used should
provided such benefits are granted under ap-
produce an equitable distribution of time
proved plans and are distributed equitably
24. Procurement service. The cost of pro-
and effort.
curement service, including solicitation of
to grant programs and in other activities.
11. Depreciation and use allowance. a.
bids, preparation and award of contracts,
14. Employee morale, health and welfare
Grantees may be compensated for the use of
and all phases of contract administration in
costs. The costs of health or first-aid clinics
their own buildings, capital improvements,
providing goods, facilities and services for
and/or infirmaries, recreational facilities,
grant programs, is allowable.
FEDERAL REGISTER, VOL 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
51326
RULES AND REGULATIONS
25. Tares. In general, taxes or payments in
no longer available for use in a Federally
4. Entertainments. Costs of amusements,
lieu of taxes which the grantee is legally re-
sponsored program or (c) used for purposes
social activities, and incidental costs relat-
quired to pay are allowable.
not authorized by the Bureau, the Bureau's
ing thereto, such as meals, beverages, lodg-
26. Training and education. The cost of
equity in the asset will be refunded in the
ings, rentals, transportation, and gratuities,
in-service training, customarily provided for
same proportion as Bureau participation in
are unallowable.
employee development which directly or in-
its cost. In case any assets are traded on new
5. Fines and penalties. Costs resulting
directly benefits grant programs is allowable.
items, only the net cost of the newly
from violations of, or failure to comply with
Out-of-service training involving extended
acquired assets is allowable.
Federal, State and local laws and regulations
periods of time is allowable only when spe-
4. Insurance and indemnification. a. Costs
are unallowable.
cifically authorized by the Bureau.
of insurance required. or approved and main-
6. Tribal officer salaries and expenses. The
27. Transportation. Costs incurred for
tained pursuant to the grant agreement, is
salaries and expenses of tribal government
freight. cartage, express, postage and other
allowable.
officers are considered a cost of general tribal
transportation costs relating either to goods
b. Costs of other insurance in connection
government and are unallowable except as
purchased. delivered, or moved from one
with the general conduct of activities is al-
prescribed in Section C.9.
location to another are allowable.
lowable subject to the following limitations:
7. Interest and other financial costs. Inter-
28. Travel. Travel costs are allowable for
(1) Types and extent and cost of coverage
est on borrowing (however requested),
expenses for transportation, lodging. sub-
will be in accordance with sound business
bond discounts, cost of financing and refi-
sistence, and related items incurred by em-
practice.
nancing operations, and legal and profes-
ployees who are in travel status on official
(2) Costs of insurance or of contributions
sional fees paid in connection therewith, are
business incident to a grant program. Such
to any reserve covering the risk of loss of, or
unallowable except when authorized by Fed-
costs may be charged on an actual basis, on a
damage to, Federal Government property is
eral legislation.
per diem or mileage basis in lieu of actual
unallowable except to the extent that the
8. Underrecovery of costs under grant
costs incurred, or on a combination of the
Bureau has specifically required or approved
agreements. Any excess of cost over the Fed-
two, provided the method used is applied to
such costs.
eral contribution under one grant agreement
an entire trip, and results in charges con-
c. Contributions to a reserve for a self-
is unallowable under other grant agreements.
sistent with those normally allowed in like
insurance program approved by the Bureau
circumstances in non-Federally sponsored
are allowable to the extent that. the type of
APPENDIX B-FINANCIAL REPORTING
activities. The difference in cost between
coverage, extent of coverage, and the rates
REQUIREMENTS
first-class air accommodations and less-
and premiums would have been allowed had
A. Purpose and scope. This appendix pre-
than-first-class. air accommodations is un-
insurance-been purchased to cover the risks.
scribes requirements for grantees to report
allowable except when less-than-first-class
d. Actual losses which could have been
financial information to-the Bureau and to
air accommodations are not reasonably
covered by permissible insurance (through
request advances and reimbursement when
available.
an approved self-insurance program or other-
a letter-of-credit method is not used.
C. Costs. allowable with approval of the
wise) are unallowable unless expressly pro-
B. Definitions. 1. Accrued expenditures. Ac-
Bureau. 1. Automatic data processing. The
vided for in the grant agreement. However,
crued expenditures are the charges incurred
cost of data processing services to grant
costs incurred because of losses not covered
programs is allowable. This cost may include
under nominal deductible insurance cover-
by the grantee during a given period requir-
age provided in keeping with sound man-
ing the provision of funds for: (1) goods
rental of equipment or. depreciation on
and other tangible property received; (2)
grantee-owned equipment. The acquisition
agement practice, and minor losses not cov-
of equipment, whether by outright purchase,
ered by insurance, such as spoilage, break-
services performed by employees, contractors,
rental-purchase agreement OF other method
age and disappearance of small hand tools
subgrantees, and other payees; and (3)
which occur in the ordinary course of opera-
amounts becoming owed under programs for
of purchase, is allowable only upon specific
tions, are allowable.
which no current services or performance are
prior approval of the Bureau as provided
e.. Indemnification includes securing the
required.
under the selected item for capital
2. Accrued income. Accrued income is the
expeditures.
grantee against liabilities to third. persons
2. Building space and related facilities
and other losses not compensated by insur-
earnings during a, given period which is a
The cost of space in privately or publicly
ance or otherwise. The Bureau is obligated
source of funds resulting from: (1) services
owned buildings used for the benefit of the
to indemnify the grantee only to the extent
performed by the grantee; (2) goods and
grant program is allowable subject to the
expressly provided for in the grant agree-
other tangible property delivered to pur-
conditions stated below. The total cost. of
ment, except as provided in d. above.
chasers; and (3) amounts becoming owed to
space, whether in a privately or publicly
5. Management studies. The cost of man-
the grantee for which no current services or
owned building. may not exceed the rental
agement studies to improve the effectiveness
performance are required by the grantee.
cost of comparable space and facilities. in a
and efficiency of grant management for on-
3. Disbursements. Disbursements are pay-
privately owned building in the same
going programs is allowable except that the
ments in cash or by check.
locality. The cost of space procured for
cost of studies performed by agencies other
4. Bureau funds authorized. Funds author-
grant program usage may not be charged to
than the grantee or outside consultants is
ized represent the total amount of the Bu-
the program for periods of nonoccupancy,
allowable only when. authorized by the Bu-
reau funds authorized for obligations and
without authorization of the Bureau.
reau.
establish the cellings for obligation of
a. Rental cost. The rental cost of space in
6. Preagreement costs. Costs incurred prior
Bureau funds. This amount may include any
a privately owned building is allowable.
to the effective date of the grant, whether or
authorized carryover of unobligated funds
not they would have been allowable there-
from prior fiscal years.
b. Maintenance and operation. The cost of
utilities, insurance, security, janitorial serv-
under if incurred after such date, are allow-
5. Obligations. Obligations are the
ices, elevator service, upkeep of grounds,
able when specifically provided for in the
amounts of orders placed, contracts and
normal repairs and alterations and the like,
grant agreement.
grants awarded, services received, and similar
are allowable to the extent they are not
7. Professional services. Cost of professional
transactions during a given period, which will
otherwise included in rental or other charges
services rendered by individuals or organiza-
require payment during the same or a future
for space.
tions not a part of the grantee is allowable
period.
subject to such prior authorization as may
6. Outlays. Outlays represent charges made
c. Rearrangements and alterations. Cost
be required by the Bureau.
to the grant project or program. Outlays can
incurred for rearrangement and alteration
8. Proposal costs. Costs of preparing propo-
be reported on a cash or accrued expendi-
of facilities required specifically for the grant
sals on potential Federal Government grant
ture basis.
program or those that materially increase the
agreements are allowable when specifically
7. Program income. Program income rep-
value or useful life of the facilities (Section
provided for in the grant agreement.
resents earnings by the grantee realized from-
C.3.) are allowable when specifically ap-
9. Tribal government officer salaries and ex-
the grant-supported activities. Such earnings
proved by the Bureau
penses. Identifiable salary and expense costs
exclude interest income and may include,
d. Depreciation and use allowances on
incurred as a direct result of a tribal gov-
but will not be limited to, income from serv-
publicly owned buildings. These costs are
ernment officer's service to a grant program
ice fees, sale of commodities, usage or rental
allowable as provided in Section B.11.
provided under this chapter are allowable
fees, sale of assets purchased with grant
e. Occupancy of space under rental-pur-
subject to advance agreement with and ap-
funds, and royalties on patents and copy-
chase or a lease with option-to-purchase
proval by the Bureau. A general limitation
rights. Program income can be reported on a
agreement. The cost of space procured under
in this regard is prescribed in section D.6.
cash OF accrued income basis.
such arrangements is allowable when spe-
D. Unallowable costs. 1. Bad debts. Any
8. Unobligated balance. The unobligated
cifically approved by the Bureau.
losses arising from uncollectible accounts
balance is the portion of the funds author-
3. Capital expenditures. The cost of facili-
and other claims, and related costs, are un-
ized by the Bureau which has not been obli-
ties, equipment, other capital assets, and
allowable.
gated by the grantee and is determined by
repairs which materially increase the value
2. Contingencies. Contributions to a con-
deducting the cumulative obligations from
or useful life of capital assets is allowable
tingency reserve or any similar provision for
the funds authorized.
when such procurement is specifically ap-
unforeseen events are unallowable.
9. Unpaid obligations. Unpaid obligations
proved by the Bureau. When assets acquired
3. Contributions and donations. Unallow-
represent the amount of obligations incurred
with Bureau grant funds are (a) sold, (b)
able.
by the grantee which have not been paid.
FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
RULES AND REGULATIONS
51327
C. Standard forms. 1. Only the follow-
construction grant programs when letters
Sec.
ing forms will be authorized for obtaining fi-
of credit or predetermined automatic ad-
277.33
Reporting.
nancial information from grantees for grant
vance methods are not used. The Bureau,
277.34
Repayment of funds.
programs:
however, has the option of using this form
277.35
Penalties.
a. Financial Status Report. (1) The Bu-
for construction programs in lieu of an "Out-
277.36 Applicable procurement regulations.
reau shall require grantees to use a standard
lay Report and Request for Reimbursement
Financial Status Report to report the status
for Construction Programs" (paragraph 2b)
Subpart D-Contract Revision or Cancellation
of funds for all nonconstruction grant pro-
and shall specify in the grant agreement.
277.41 Contract revision or amendment.
grams. The Bureau may, however, have the
(2) Grantees shall be authorized to sub-
277.42 Cancelling a contract for cause.
bursement (paragraph 2a) is determined to
mit requests for advances or reimbursement
provide adequate information to meet their
Subpart E-Appeals
at least monthly when letters of credit are
needs, except that a final Financial Status
not used. Grantees shall submit the original
277.51
Contract appeal.
Report shall be required at the completion of
and two copies of a Request for Advance or
277.52 Appeal from decision to cancel con-
the grant when the Request for Advance or
Reimbursement.
tract for cause.
Reimbursement form is used only for ad-
b. Outlay Report and Request for Reim-
277.53 Other appeals.
vances.
bursement for Construction Program. (1)
(2) The Bureau shall prescribe whether
AUTHORITY: Sec. 204, Pub. L. 93-638, 88
The "Outlay Report and Request for Reim-
Stat. 2203, unless otherwise noted.
the report shall be on a cash or accrual basis.
bursement for Construction Programs" form
If the Bureau requires accrual information
is the standard format to be used for re-
Subpart A-General Provisions
and the grantee's accounting records are
questing reimbursement for construction
not normally kept on the accrual basis, the
programs. The Bureau may, however, have
§ 277.1 Purpose.
grantee should develop such information
the option of substituting a "Request for
The purpose of the regulations in this
through an analysis of the documentation on
Advance or Reimbursement" form (para-
hand or on the basis of best estimates.
Part is to give the application and ap-
graph 2a) in lieu of this form when the
(3) The grant agreement shall determine
Bureau determines that the former provides
proval process for a State or local edu-
the frequency of the Financial Status Re-
adequate information to meet its needs as
cation agency to obtain school construc-
port for each grant program considering the
stated in the grant agreement.
tion contracts from the Bureau under
size and complexity of the particular pro-
(2) Grantees shall be authorized to submit
Section 204 of Title II of the Indian
gram. However, the report shall not be re-
requests for reimbursement at least monthly
Self-Determination and Education As-
quired more frequently than quarterly or
when letters of credit are not used. Grantees
sistance Act (Pub. L 93-638, 88 Stat.
less frequently than annually. Also, a final
shall submit the original and two copies of
2203), to assist in the education of
report shall be required at the completion of
an "Outlay Report and Request for Reim-
Indians.
the grant.
bursement for Construction Programs" form.
(4) The original and two copies of the F1-
3. When the Bureau needs additional in-
§ 277.2 Scope.
nancial Status Report shall be submitted 30
formation in using these forms, the follow-
days after the end of each specified reporting
ing shall be observed:
(a) The application process for public
period. In addition. final reports shall be sub-
a. When necessary to comply with future
school construction contracts under Sec-
mitted 90 days after the end of the grant
legislative requirements, the Bureau shall
tion 204 of Pub. L 93-638 is given in
period or the completion of the project or
issue instructions to require grantees to
20 U.S.C. 631-645 and 45 CFR 114. The
program. Extensions to reporting due dates
submit such information under the Re-
application process is administered by
may be approved when requested' by the
marks section of the reports.
and is the responsibility of the Commis-
grantee.
b. When necessary to meet specific pro-
b. Report of federal cash transactions. (1)
gram needs, the Bureau shall submit the pro-
sioner of Education. The Commissioner
When funds are advanced to grantees
posed reporting requirements to the General
of Indian Affairs participates with the
through letters of credit or with Treasury
Services Administration for approval under
Commissioner of Education in prepara-
checks, each grantee shall submit a report of
the exception provision of this Appendix.
tion of programs, cost estimates and
Federal Cash Transactions. The Bureau shall
c. The Bureau, in obtaining information
other supplemental data which are part
use this report to monitor cash advanced to
as in paragraphs a and b above, must also
of the application and national priority
grantees and to obtain disbursement or out-
comply with report clearance requirements
index. The Commissioner of Education
lay information for each grant or project
of the Office of Management and Budget Cir-
from the grantees.
furnishes the national priority index to
cular No. A-40, as revised.
(2) The grant agreement may require fore-
the Bureau at the start of each fiscal
casts of Federal cash requirements in the Re-
year
marks section of the report.
PART 277-SCHOOL CONSTRUCTION
(b) The Bureau requests and receives
(3) When practical and deemed necessary,
CONTRACTS FOR PUBLIC SCHOOLS
funding for acquisition of sites and for
the Bureau may require grantees to report
Subpart A-General Provisions
architectural-engineering design, facil-
in the Remarks section the amount of cash in
Sec.
excess of three days' requirements in the
ities construction and equipment for the
277.1
Purpose.
hands of subgrantees or other secondary
program. Funds are allocated to proj-
277.2
Scope.
recipients and to provide short narrative ex-
ects by the Bureau on the basis of fund-
277.3
Definitions.
planations of actions taken by the grantees
277.4
Revision or amendment of regula-
ing priorities as established by the Com-
to reduce the excess balances.
tions.
missioner of Education. In accordance
(4) The Bureau shall accept the identical
with the approved program, a contract
information from the grantees in a machine-
Subpart B-Application Process
is negotiated with the applicant by a
usable format in lieu of the Report of Fed-
277.11
Eligible applicants.
Bureau contracting officer, designated
eral Cash Transactions.
277.12
Consultation with Indians.
by the Commissioner, for the acquisition
(5) Grantees shall submit the original and
277.13
Application procedure for placement
of sites and for the design, construction
two copies of the Report of Federal Cash
on priority list.
Transactions no later than 15 working days
277.14
Submitting priority list to Bureau.
and purchase of equipment to provide
following the end of each quarter. For those
277.15
Preparing a commitment-to-fund
educational facilities meeting standards
grantees receiving annual grants totalling
list.
of construction given in Pub. L. 81-815.
one million dollars or more, the Bureau shall
277.16
Negotiating a contract.
require a monthly report.
277.17
Funding provisions.
§ 277.3 Definitions.
(6) The Bureau shall waive the require-
Subpart C-General Contract Requirements
As used in this Part:
ment for submission of a Report of Fed-
277.21
eral Cash Transactions when monthly ad-
Costs included in contracts.
(a) "Bureau" mean the Bureau of
277.22
vances do not exceed $10,000 per grantee
Architectural design.
Indian Affairs.
277.23
Facilities construction.
(b) "Commissioner of Education"
provided that such advances are monitored
277.24
Selecting initial equipment.
means the United States Commissioner
through other forms contained in this Ap-
277.25
pendix or the grantee's accounting controls
Advance payments.
of Education, Department of Health,
277.26
are adequate to minimize excessive Federal
Use and transfer of Government
Education, and Welfare.
advances.
property.
277.27
Wage and labor standards.
(c) "Commissioner of Indian Affairs"
2. Except as noted below, only the follow-
277.28
Indian preference.
means the Commissioner of Indian Af-
ing forms will be authorized for the grantees
277.29 Liability and motor vehicle insur-
in requesting advances and reimbursements.
fairs, Department of the Interior.
ance.
a. Request for advance or reimbursement.
277.30
Recordkeeping.
(d) "Contractor" means an applicant
(1) The "Request for Advance or Reimburse-
277.31
Audit and inspection.
who has been awarded a contract under
ment" form is the standard form for all non-
277.32
Freedom of information.
this Part.
FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
51328
RULES AND REGULATIONS
(e) "Days" means calendar days.
vision or amendment, and consider their
each State education agency. All ques-
(f) "Economic enterprise" means any
views in preparing the revision or
tions pertaining to the preparation and
ommercial, industrial, agricultural, or
amendment.
filing of preapplications, applications,
business activity that is at least 51 per-
(e) Nothing in this section shall pre-
and request for materials should be di-
cent Indian owned, established or orga-
clude Indian tribes or national or region-
lized for the purpose of profit.
rected to the State Representative for
al Indian organizations from initiating
(g) "Indian tribe" means any Indian
School Assistance, who will respond or
request for revisions or amendments sub-
Cribe, Band, Nation, Rancheria, Pueblo,
may forward the inquiries, where appro-
ject to paragraphs (a), (b) and (c) of
'olony, or Community, including any
priate, to the Commissioner of Education.
this section.
Vlaska Native village or regional or vil-
(b) Section 204(b) of Pub. L. 93-638
age corporation as defined in or estab-
Subpart B-Application Process
assigns responsibility for the application
shed pursuant to the Alaska Native
processing, determination of eligibility
Taims Settlement Act (85 Stat. 688)
§ 277.11 Eligible applicants.
and establishment of project priority to
hich is federally recognized as eligible
(a) Any school district may apply for
the Commissioner of Education. Such ap-
the United States Government
a contract with the Bureau to assist the
plication and review and determination
hrough the Secretary for the special
agency or district in acquiring sites for,
processes includes the following:
wograms and services provided by the
or in constructing, acquiring, or reno-
(1) Field and site review by the Com-
Secretary to Indians because of their
vating, facilities (including all necessary
missioner of Education assisted by the
tatus as Indians.
equipment) in school districts on or
Commissioner of Indian Affairs to
(h) "Indian" means a person who is a
adjacent to or in close proximity to any
determine:
member of an Indian tribe.
Indian reservation or other lands held in
(1) Tentative cost estimate for budget
(i) "PL 81-815" means the Act of
trust by the United States for Indians.
purposes. The Commissioner of Indian
September 23, 1950 (P.A. 81-815, 72 Stat
(b) The project for which the appli-
Affairs or his representative will assist
548), as amended. :
cant is requesting funding must meet
the Commissioner of Education in con-
(j) "P.L. 93-638" means the Indian
the eligibility requirements under sub-
ducting the on-site inspection to deter-
Self-Determination and Education As-
sections (a) and (b) of section 14 of
mine which buildings need to be retained,
sistance Act (PL 93-638,188 Stat. 2203)
Pub. L 81-815.
demolished or remodeled and to gather
(k) "School district" or "local educa-
initial information required for develop-
tion agency" means that subdivision of
§ 277.12 Consultation with Indians.
ment of the planning document. From
the State which contains the public ele-
(a) Except where there is a majority
this information, a tentative cost esti-
mentary and secondary educational in-
of Indians on an elected public school
mate for design, construction, and
stitutions providing educational services
board, the Commissioner of Indian Af-
equipment will be made for budget pur-
and is controlled by a duly elected board,
fairs shall consult with the local Indian
poses.
commission or similarly constituted as-
Education Committee and the tribal gov-
(ii) Equal quality and standard of edu-
sembly.
erning body(s) of the local Indian
cation. While assisting in the on-site in-
(1) "Secretary" means the Secretary
tribe(s) affected before the application
spection, the Commissioner of Indian Af-
of the Interior.
for funding public school construction is
fairs or his representative must deter-
(m) "State" means a State of the
submitted to the Commissioner of
mine whether the quality and standard
United States of America or any political
Education.
of education (including facilities and
ubdivision of a State.
(b) This requirement will be deemed
auxiliary services) for Indian students
(n) "State education agency" means
to be met unless the official tribal gov-
enrolled in the school are at least equal
the State Board of Education or other
erning body(s) of the Indian tribe(s)
to that provided all other students from
gency or office primarily responsible for
to be benefited by the application notify
resources, other than resources provided
upervision by the State of public ele-
the Commissioner of Education, in writ-
under this Part, which are available to
mentary and secondary schools or, if
ing. within 60 days after the date of the
the local school district. If it is deter-
here is no such office or agency, an office
consultation that the tribe(s) disapprove
mined that the quality and standard of
agency designated by the Governor or
the application. The notice of disap-
education for Indian students is not at
by State law.
proval must give specific stated objec-
least equal to that given all other stu-
(o) "Tribal government", "tribal gov-
tions to the application. A copy of the
dents enrolled in the schools, the Com-
erning body" and "tribal council" means
notice of disapproval shall be delivered
missioner of Indian Affairs or his repre-
the recognized governing body of an
or mailed to the Commissioner of Indian
sentative shall recommend that the proj-
Indian tribe.
Affairs at the same time as the notice
ect not be placed on the priority list.
is delivered or mailed to the Commis-
Such a project will not be placed on the
277.4 Revision or amendment of reg-
sioner of Education.
Bureau's commitment-to-fund list which
ulations.
(c) After being notified that the
is prepared under $ 277.15.
In order to make any substantive re-
tribe(s) disapproved a proposed appli-
(2) Discussion and consultation with
isions or amendments to regulations in
cation, the Commissioner of Indian Af-
State and local education agencies to de-
his Part, the Secretary shall take the
fairs or his designated representatives
shall meet with tribal, public school
termine the exact nature of the project
ollowing actions:
to be constructed, including existing
(a) Consult with Indian tribes and
officials and the Indian Education Com-
structure renovation or replacement.
national and regional Indian organiza-
mittee to provide assistance in resolving
ions to the extent practicable about the
the stated objectives to the application.
(3) Presentation of program develop-
need for revision or amendment and con-
The Commissioner of Indian Affairs shall
ment for review and approval by the
notify the Commissioner of Education 15
State and/or local education representa-
ider their views in preparing the pro-
bosed revision or amendment.
days in advance of the date, place, and
tives and a current and updated project
(b) Publish any proposed revisions or
time of such meetings and shall invite the
cost estimate.
mendments in the FEDERAL REGISTER as
Commissioner of Education or his rep-
(c) The Commissioner of Indian Af-
roposed rulemaking to provide adequate
resentatives to attend.
fairs participates in the application proc-
ess by furnishing technical assistance to
otice to, and receive comments from, all
§ 277.13 Application procedure for
iterested parties.
the Commissioner of Education. The
placement on priority list.
Commissioner of Indian Affairs insures
(c) After consideration of all com-
(a) Applications for public school con-
consultation with Indians and assists
nents received, publish the regulations
struction assistance under this Part will
with the preparation of the program,
the FEDERAL REGISTER in final form not
be submitted and processed in accord-
cost estimates, etc. as part of the data
CSS than 30 days before the date they
ance with procedures outlined in 20
needed in order for the Commissioner of
are made effective.
U.S.C. 631-645 and 45 CFR 114. Applica-
Education to prepare the priority listing
(d) Annually consult with Indian
tion forms, instructions, advice, and as-
of eligible applicants.
ribes and national and regional Indian
sistance in accordance with 20 U.S.C. 636
(d) The projects will be ranked by
organizations about the need for re-
and 45 CFR 114 may be obtained from
priority based on criteria established by
FEDERAL REGISTER, VOL 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
RULES AND REGULATIONS
51329
the Commissioner of Education as given
(d) Funds approved for public school
tract. The Commissioner of Indian Af-
in 45 CFR 114.16.
construction under this Part may not
fairs will assist in preconstruction and
exceed the Federal share of the total cost
construction activities to assure con-
§ 277.14 Submitting priority list to
of the proposed school facilities, as such
formity with the requirements of Pub. L.
Bureau.
facilities are defined within the meaning
93-638. Approval of all proposed pre-
Pursuant to Section 204(b) of Pub. L.
of Pub. L 81-815, to serve both Indian
construction documents will be obtained
93-638, a list of public school projects
and non-Indian children, with the def-
from the Commissioner of Indian Affairs.
eligible for funding under this Part shall
inition of children to be as prescribed
Assistance prior to the preparation of
be submitted to the Commissioner of In-
by Pub. L. 81-815.
these and similar documents will be pro-
dian Affairs by the Commissioner of Edu-
(e) When non-Federal funds are in-
vided upon request. In this connection,
cation at the beginning of each fiscal
volved, a local school district shall have
the Commissioner of Indian Affairs may
year.
120 days from receipt of the notice
suggest a preliminary conference with
that the project has been placed on the
the project architect and others if that
§ 277.15 Preparing a commitment-to-
commitment-to-fund list to assemble the
seems desirable. The Bureau shall make
fund list.
funds from local and/or State sources
interim inspections and audits during
(a) When the Commissioner of Indian
before the contract negotiations are com-
construction and participate in the final
Affairs receives the priority list from the
pleted. An extension may be granted by
acceptance inspection.
Commissioner of Education, the Commis-
the Commissioner of Indian Affairs for
sioner of Indian Affairs will place the
unusual circumstances.
§ 277.24 Selecting initial equpment.
project highest on the priority list at
Equipment procured with payments
the top of a commitment-to-fund list.
Subpart C-General Contract
under this part must be approved by the
Projects will be added to the commit-
Requirements
Commissioner before invitations for bids
ment-to-fund list in the same order as
§
277.21 Costs included in contracts.
or requests for proposals as to the
they are on the priority list. Each proj-
A contract with a school district un-
acquisition of such equipment are issued.
ect will be added to the commitment-to-
fund list as long as the total of the
der this Part may include costs for archi-
In order to obtain such approval, a list
tentative cost estimates is less than the
tectural design, site acquisition, facili-
of equipment to be procured (indicating
ties construction (including site de-
quantities, costs, and specifications)
amount of funds appropriated for public
shall be provided to the Commissioner for
school construction under this Part for
velopment and supervision), and equip-
prior approval.
the new fiscal year. However, a project
ment in accordance with the approved
shall not be placed on the commitment-
project description.
§ 277.25 Advance payments.
to-fund list if the Commissioner of In-
§ 277.22 Architectural design.
Advance payments to State education
dian Affairs or his representative has
agencies or school districts will be made
determined under § 277.13 (b) (1) (iii)
(a) Drawings and specifications for a
project shall comply with such Federal,
in accordance with the applicable pro-
that the quality and standard of educa-
State, and local laws, codes, ordinances
visions of 41 CFR 1 as supplemented by
tion-for Indian students enrolled in the
schools are not at least equal to that
and regulations pertaining to standards
41 CFR 14 and 41 CFR 14H, except 41
CFR Part 14H-70.
provided all other students from re-
of construction and safety requirements,
sources, other than resources provided
as may be applicable.
§ 277.26 Use and transfer of Govern-
under this Part, which are available to
[16 Comp. Gen 948 (1937)
ment property.
the local school district.
(b) Local education agencies shall
(a) The use of Government-owned fa-
(b) Each applicant will be notified in
give due consideration to excellence of
cilities for public school purposes may
writing when the project has been placed
architecture and design when construct-
be authorized when not needed for Gov-
on the commitment-to-fund list.
ing minimum school facilities under this
ernment activities. Transfer of title to
Part.
such facilities (except land) may be ar-
§ 277.16 Negotiating a contract.
(c) An Architect/Engineer shall be se-
ranged under the provisions of the Act
When a project has been placed on the
lected by the contractor to prepare the
of June 4, 1953 (67 Stat. 41), subject to
commitment-to-fund list, a contract will
plans and specifications with the advice
the approval of the tribal government if
be negotiated by a Bureau contracting of-
and assistance of the Commissioner of
property is located on a reservation.
ficer with the applicant. The contract
Indian Affairs who shall counsel the con-
(b) In carrying out a contract made
will be developed in accordance with the
tractor with respect to professional quali-
under this Part, the Commissioner of
regulations in 41 CFR 1 as supplemented
fications and performance history of
Indian Affairs may, with the approval of
by 41 CFR 14 and 41 CFR 14H, except 41
firms in order that the best qualified
the tribal government, permit a contrac-
CFR Part 14H-70.
firm be selected. No Architect/Engineer
tor to use existing buildings, facilities,
agreement involving the expenditures of
and related equipment and other person-
§ 277.17 Funding provisions.
Federal funds shall be entered into by
al property owned by the Bureau under
(a) The Commissioner of Indian Af-
the contractor until the Commissioner of
terms and conditions agreed upon for
fairs will expend not less than 75 per
Indian Affairs has reviewed such agree-
their use and maintenance. The property
cent of appropriated funds authorized
ment.
at the time of transfer must conform to
pursuant to Title II, Part B, Section 204
(d) The drawings and specifications
the minimum standards established by
of Pub. L. 93-638 on those projects which
will conform to the project description
the Occupational Safety and Health Act
meet the eligibility requirements under
as shown in the completed application,
of 1970 (84 Stat. 1590>, as amended (29
subsections (a) and (b) of section 14 of
or as modified by approved revisions.
U.S.C. 651).
Pub. L. 81-815.
(e) The drawings and specifications
(c) Use of Government property is sub-
(b) Projects which are partially funded
will be sent to the Commissioner of Edu-
ject to the following conditions:
shall be given first consideration for the
cation for review to ensure that the ap-
(1) When nonexpendable Government
additional funding necessary to complete
proved program is followed. The draw-
property is turned over to public school
such projects.
ings and specifications will be reviewed
authorities under a use permit, the per-
(c) No funds from any contract under
with the local education agency.
mittee shall insure such property against
this Part shall be made available by any
damage by flood, fire, rain. windstorm,
After approval by the State and other
vandalism, snow, and tornado in amounts
Federal agency directly to other than
regulatory agencies, the final drawings
and with companies satisfactory to the
public agencies. However, school districts
and specifications will be reviewed and
Bureau officer in charge of the property
and State education agencies assisted by
approved by the Bureau for structural
In case of damage or destruction of the
this Part may use funds provided under
and safety adequacy.
property by flood, fire, rain, windstorm,
this Part to contract for necessary serv-
§ 277.23 Facilities construction.
vandalism, snow or tornado, the insur-
ices with any appropriate individual, or-
The contractor usually bids, awards
ance money collected shall be expended
ganization, or corporation.
and administers the construction con-
only for repair or replacement of prop-
FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
51330
RULES AND REGULATIONS
erty. Otherwise, insurance proceeds shall
must contain a provision requiring the
Indian people which the contract affects.
be paid to the Bureau.
State or school district to provide liabil-
Reports and information may be with-
(2) If the public school authority is
ity insurance, regardless of how small
held from disclosure only when both
self-insured and can present evidence of
the risk.
of the following conditions exist:
hat fact to the Commissioner of Indian
(c) If the State or public school-au-
(1) The reports and information fall
Affairs, insurance for lost or damaged
thority is self-insured and can present
within one of the following exempt cate-
property will not be required. However,
evidence of that fact to the Commissioner
gories:
the public school authority will be re-
of Indian Affairs, liability and motor
(i) Specifically required by statute or
consible for replacement of such lost or
vehicle insurance will not be required.
Executive Order to be kept secret.
damaged property at no cost to the Gov-
§ 277.30 Recordkeeping.
(ii) Commercial or financial informa-
ernment or for paying the Government
tion obtained from a person or firm on
enough to replace the property.
A contractor will be required to de-
a privileged or confidential basis.
(3) The permittee shall maintain the
velop and maintain a recordkeeping sys-
(iii) Personnel, medical, and similar
property in a reasonable state of repair
tem which will:
files where disclosure would be a clearly
consistent with the intended use and
(a) Fully reflect all financial trans-
unwarranted invasion of personal pri-
educational purposes.
actions involving the receipt and ex-
vacy.
penditure of funds provided under the
(iv) Geological and geophysical infor-
$ 277.27 Wage and labor standards.
contract in a manner which will provide
mation and data concerning wells.
All laborers and mechanics employed
accurate, current and complete disclosure
(2) Disclosure is prohibited by statute
by contractors or subcontractors in con-
of financial status; correlation with
or Executive Order or sound grounds
structing, altering, or repairing buildings
budget or allowable cost schedules; and
exist for using the exemption given in
or other facilities in connection with
clear audit facilitating data.
paragraph (b) (1) of this section.
contracts under this Part shall be paid
(b) Reflect the amounts and sources
of funds other than Bureau contract
(c) A request to inspect or copy re-
wages not less than those on similar
construction in the locality as deter-
funds which may be included in the con-
ports and information shall be in writ-
mined by the Secretary of Labor in ac-
struction-project.
ing and must reasonably describe the
cordance with the Davis-Bacon Act of
(c) Provide for the creation, mainte-
reports and information requested. The
nance and safeguarding of records of
request may be delivered or mailed to the
March 3, 1931 (46 Stat. 1494), as
lasting value.
contractor. Within ten (10) working days
amended.
after receiving the request, the contrac-
§ 277.28 Indian preference.
§ 277.31 Audit and inspection.
tor shall determine whether to grant or
deny the request. The requester shall be
(a) Any contract made by the Bureau
(a) During the term of a contract
with a State or school district shall pro-
under this Part and for three years after
notified immediately of the determina-
tion.
vide that the contractor shall, to the
the project or undertaking is completed,
greatest extent feasible, give preference
the Comptroller General and the Sec-
(d) The time limit for making a de-
in employment and training to Indians.
retary, or any of their duly authorized
termination may be extended up to an
(b) Any contract made by the Bureau
representatives, shall have access, for
additional ten (10) working days for
with a State or school district shall pro-
audit and examination purposes, to any
good reason. The requester shall be noti-
vide that the contractor shall,
of the contractor's books, documents,
fied in writing of the extension, reasons
greatest extent feasible, give preference
papers, and records which, in their
for the extension, and the date on which
in the award of subcontracts to Indian
opinion, may be related or pertinent to
the determination is expected to be made.
organizations and to Indian-owned eco-
the contract or any subcontract.
§ 277.33 Reporting.
nomic enterprises.
(b) The contractor will be responsible
for maintaining all documents such as
(a) A contractor under this Part shall
(c) All subcontractors employed by the
contractor shall, to the greatest extent
invoices, purchase orders, cancelled
make a detailed report to the Commis-
feasible, give preference to Indians for
checks, balance sheets and all other rec-
sioner of Indian Affairs after construc-
employment and training and shall be
ords relating to financial transactions in
tion is completed. The report shall in-
a manner which will facilitate auditing.
clude, but not be limited to, an account-
required to include in their bid submis-
The contractor will be responsible for
ing of the amounts and purposes for
sion a plan to achieve maximum use of
Indian personnel.
maintaining files of correspondence and
which the contract funds were expended.
(d) In the performance of contracts
other documents relating to the contract
(b) The contractor shall furnish other
under this Part 277 and subject to the
properly separated from general records
contract-related reports when and as
or cross-referenced to general files.
required by the Commissioner of Indian
provisions of Part 14 H of Title 41, a
tribal governing body may develop its
(c) The contractor receiving funds
Affairs.
own Indian preference requirements to
under this Part shall be primarily re-
(c) A contractor under this Part shall
sponsible for contract compliance.
send copies of the reports required by
the extent that such requirements are
(d) The records involved in any claim
paragraphs (a) and (b) of this section to
not inconsistent with the purpose and
or expenditure that has been questioned
the tribe(s) affected by the construction
intent of paragraphs (a), (b), and (c)
at the same time as the reports are sent
of this section.
shall be further maintained until final
determination has been made on the
to the Bureau.
§ 277.29 Liability and motor vehicle in-
questioned expenditure.
§ 277.34 Repayment of funds.
surance.
(e) All contracts, reports, budgets,
Any funds paid under a contract en-
(a) States and school districts shall
budget estimates, plans, and other docu-
tered into under this Part which are
obtain public liability and motor ve-
ments pertaining to administration of
not expended, obligated or used for the
hicle insurance under contracts entered
the contract shall be made available by
purposes of the contract during its term
into with the Bureau under this Part.
the contractor. The contractor shall pro-
shall be returned to the Bureau.
However, where the Bureau contracting
vide information in accordance with the
officer determines that the risk of death,
Freedom of Information Act.
§ 277.35 Penalties.
personal injury or property damage
If any officer, director, agent, or em-
under the contract is small and that the
§ 277.32 Fredom of information.
ployee of, or connected with, any con-
time and cost of procuring the insurance
(a) Unless otherwise required by law,
tractor or subcontractor under this Part
is great in relation to the risk, the con-
the Bureau shall not place restrictions on
embezzles, willfully misapplies, steals, or
tract may be exempted from this re-
contractors which will limit public ac-
obtains by fraud any of the funds or
quirement.
cess to the contractor's records except
property connected with the contract or
(b) Notwithstanding paragraph (a)
when records must remain confidential.
subcontract, he shall be subject to the
of this section, any contract which re-
(b) A contractor under this Part shall
following penalties:
quires or authorizes, either expressly or
make all reports and information con-
(a) If the amount involved does not
by implication, the use of motor vehicles
cerning the contract available to the
exceed $100, he shall be fined not more
FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
RULES AND REGULATIONS
51331
than $1,000 or imprisoned not more than
(c) If the contractor does not overcome
Commissioner considers such waivers
one year, or both.
the deficiencies in its contract perform-
appropriate.
(b) If the amount involved exceeds
ance, the Bureau shall cancel the con-
The Bureau of Indian Affairs has
$100, he shall be fined not more than
tract for cause. The Bureau will notify
sought to be responsive to the recom-
$10,000 or imprisoned for not more than
the contractor, in writing, of the cancel-
mendations of Indian and Alaska Native
two years, or both.
lation. The notice shall give the reasons
governing bodies who are, or have con-
for the cancellation and the right of the
§ 277.36 Applicable procurement regu-
templated, operating Bureau programs
contractor to appeal under Subpart C of
lations
under contract. For some time, these
43 CFR Part 4.
groups have been critical of the com-
States or school districts wanting to
(d) When a contract is cancelled for
plexities inherent in negotiating con-
contract with the Bureau under this Part
cause, the Bureau will either perform the
tracts under the standard Federal Pro-
must comply with the applicable require-
work with its own forces or by another
curement Regulations. In many m-
ments in the Federal Procurement Regu-
contract, as appropriate.
stances, an unfavorable psychological
lations (41 CFR 1), as supplemented by
climate was created that inhibited local
the Interior Procurement Regulations
Subpart E-Appeals
desires for more meaningful expressions
(41 CFR 14) and the Bureau of Indian
§ 277.51 Contract appeal.
of self-determination based on their own
Affairs Procurement Regulations (41 CFR
needs and goals.
14H), except 41 CFR Part 14H-70.
A contractor may appeal an adverse
decision or action of a Bureau contract-
Through experience, the Bureau of In-
§ 277.37 Privacy Act requirements.
ing officer regarding a contract under this
dian Affairs and its constituents have
(a) When a contractor operates a SYS-
Partas provided in Subpart C of 43 CFR
found the standard procurement regu-
Part 4.
lations to contain numerous require-
tem of records to accomplish a-Bureau
ments that have little if any applicability
function, the contractor shall comply
§ 277.52 Appeal from decision to cancel
to contracts. For this reason, the Bureau
with Subpart D of 43 CFR Part 2 which
contract for cause.
has evolved what, in essence, is a set of
implements the Privacy Act (5 U.S.C.
552a) Examples of the contractor's re-
A contractor may appeal the decision
"Indian" Procurement Regulations for
sponsibilities are:
of a Bureau official to cancel a contract
dealing with tribal and Alaska Native
(1) To continue maintaining those
under this Part for cause. The appeal
groups as the new Part 14H-70.
shall be made sprovided in subpart C of
These regulations reflect the Bureau's
systems of records declared by the Bu-
43 Part 4.
attempt to follow the recommendations
reau to be subject to the Privacy Act as
of Indian and Alaska Native people to
published in the FEDERAL REGISTER.
§ 277.53 Other apeals.
place in one part all pertinent contract-
(2) To make such records available to
individuals involved.
Any decision or action taken by a
ing regulations or references to such reg-
ulations affecting contracts with tribal
(3) To disclose an individual's record
Bureau official under this Part, other
to third parties only after receiving per-
than those given in §§ 277.51 and 277.52,
organizations; to reduce referencing reg-
may be appealed only as provided in Part
ulations contained in other CFR Parts,
mission from the individual to whom
2 of this chapter.
if possible; to make the regulations as
the record pertains. 43 CFR 2.56-lists
comprehensive and clear as possible; to
exceptions to this procedure.
[FR Doc.75-29301 Filed 11-3-75;8:45
assure that both parties to the contract
(4) To establish a procedure to ac-
know their rights, roles and responsi-
count for access, disclosures, denials, and
bilities; and to remove any unnecessary
amendments to records.
Title 41-Public Contracts and Property
Management
or inapplicable requirements found in
(5) To provide safeguards for the pro-
the standard procurement rules which
tection of the records.
CHAPTER 14H-BUREAU OF INDIAN AF-
would not apply to self-determination
(b) The contractor may not:
FAIRS, DEPARTMENT OF THE INTERIOR
contracts with tribal organizations.
(1) Discontinue or alter any estab-
PART 14H-70-CONTRACTING WITH IN-
The contractual approach is one of
lished systems of records without prio-
DIAN ORGANIZATIONS PURSUANT TO
several voluntary options available to
approval of the appropriate Bureau
THE INDIAN SELF-DETERMINATION
Indian and Alaska Native governing
systems manager.
AND EDUCATION ASSISTANCE ACT
bodies to assist them in the self-develop-
(2) Deny request for notification or
ment process. Depending on their basic
access of records without prior approval
OCTOBER 24, 1975.
needs and goals, they may want to use
of the appropriate Bureau systems
Beginning on page 41025 of the Sep-
the contract mechanism in their self-
manager.
tember 4, 1975, FEDERAL REGISTER (40 FR
development process. If so, Part 14H-70
41025), there was published a notice of
Subpart D-Contract Revision or
seeks to simplify the contracting pro-
proposed rulemaking to amend Chapter
cedure for them.
Cancellation
14H of Title 41 of the Code of Federal
The public was given until October 4,
§ 277.41 Contract revision or amend-
Regulations by adding a new Part 14H-
1975, to submit written comments, sug-
ment.
70. This amendment was proposed pur-
gestions, or objections regarding the
Any contract made under this Part
suant to the authority contained in the
proposed amendment. All comments
may be revised or amended as deemed
Indian Self-Determination and Educa-
received with respect to the proposed
necessary to carry out the purposes of
tion Assistance Act (Pub. L. 93-638; 88
amendment were given due considera-
the contract. A contractor may make a
Stat. 2203).
tion.
written request for a revision or amend-
The purpose of the amendment is to
A. Changes made due to comments
ment of a contract to the Bureau con-
consolidate in one Part all of the con-
received. As a result of comments re-
tracting officer.
tracting requirements which Indian
ceived, the following changes in the reg-
tribal and Alaska Native organizations
§ 27.42 Canceling à contract for cause.
ulations are made in addition to lan-
must follow in contracting with the Bu-
guage changes for clarification:
(a) Any contract entered into under
reau of Indian Affairs under the Indian
1. A new § 14H-70.103 is added to de-
this Part may be cancelled for cause
Self-Determination and Education As-
fine what is considered an Indian reser-
when the contractor fails to perform the
sistance Act. In preparing the regula-
vation and the former §§ 14H-70.103 and
work called for under the contract.
tions in new Part 14H-70, waivers were
14H-70.104 are redesignated as §§ 14H-
(b) Before cancelling the contract, the
made of some of the standard Federal
70.104 and 14H-70.105, accordingly.
Bureau will advise the contractor in writ-
Procurement Regulations as authorized
2. Section 14H-70.402 is revised to
ing of the following:
by section 106(a) of the Act. Certain re-
make it clear that an Indian tribe has
(1) The reasons why the Bureau is con-
quirements were waived in an attempt to
sidering cancelling the contract.
simplify contracting procedures for
the right to determine the tribal orga-
nization that will provide services to it
(2) That the contractor will be given
Indian tribal and Alaska Native orga-
under a contract and that, in such in-
an opportunity to bring its work up to
nizations. Additional waivers may be
stances, the tribe's determination con-
an acceptable level.
made on a case-by-case basis as the
stitutes the Bureau's justification for
FEDERAL REGISTER, VOL. 40, NO. 213-TUESDAY, NOVEMBER 4, 1975
FOR IMMEDIATE RELEASE
JANUARY 4, 1975
Office of the White House Press Secretary
THE WHITE HOUSE
STATEMENT BY THE PRESIDENT
I have signed into law S. 1017, the Indian
Self-Determination and Education Assistance Act. My
Administration is committed to furthering the self-
determination of Indian communities without terminating
the special relationships between the Federal Government
and the Indian people.
The Congress is to be congratulated for its passage
of this legislation. It will enhance our efforts to
implement this policy of Indian self-determination.
Title I of this act gives the permanence and stature
of law to the objective of my Administration of allowing -
indeed encouraging -- Indian tribes to operate programs
serving them under contract to the Federal Government.
Furthermore, with the passage of this act, Indian com
munities and their leaders now share with the Federal
Government the responsibility for the full realization
of this objective. It will be through the initiatives
of Indian communities that the authorities provided in
this Act will be implemented. I urge these communities
to make the fullest possible use of them and pledge the
support of this Administration.
In addition to making this kind \of contracting a
right, the act does much to make it feasible and practical.
For example, it authorizes the Bureau of Indian
Affairs to make grants to tribal organizations to help
them develop the abilities of potential workers -- through
training and other means --- to operate these programs. At
FORD LIBRAR.
the request of the tribe, it also allows Federal employees
who work in programs transferred to tribal operation to
continue working without losing Federal fringe benefits,
thus making it possible for the tribe to begin operation
with a nucleus of experienced employees.
The granting authority provided in this act can
also be used to strengthen tribal governments and tribally
funded programs.
Title II, the Indian Education Assistance Act, amends
the Johnson O'Malley Act to give the Indian community a
stronger role in approving or disapproving the use of
funds for children in public schools. It also provides
for better planning in the use of these funds to meet the
educational needs of the Indian students.
The enactment of this legislation marks a milestone
for Indian people. It will enable this Administration to
work more closely and effectively with the tribes for the
betterment of all the Indian people by assisting them in
meeting goals they themselves have set.
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