GENERAL AMENDMENTS.

SEC. 102. GENERAL AMENDMENTS. The Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.) is amended— (1) in section 4— (A) in subsection (g), by striking “indirect costs rate” and inserting “indirect cost rate”; (B) by striking “and” at the end of subsection (k); (C) by striking the period at the end of subsection (l) and inserting “;and”; and (D) by adding at the end the following new subsection: “(m) ‘construction contract’ means a fixed-price or cost-reimbursement self-determination contract for a construction project, except that such term does not include any contract— “(1) that is limited to providing planning services and construction management services (or a combination of such services); “(2) for the Housing Improvement Program or roads maintenance program of the Bureau of Indian Affairs administered by the Secretary of the Interior; or “(3) for the health facility maintenance and improvement program administered by the Secretary of Health and Human Services.”; (2) by striking subsection (f) of section 5 and inserting the following new subsection: “(f)(1) For each fiscal year during which an Indian tribal organization receives or expends funds pursuant to a contract 108 STAT. 4251entered into, or grant made, under this Act, the tribal organization that requested such contract or grant shall submit to the appropriate Secretary a single-agency audit report required by chapter 75 of title 31, United States Code. “(2) In addition to submitting a single-agency audit report pursuant to paragraph (1), a tribal organization referred to in such paragraph shall submit such additional information concerning the conduct of the program, function, service, or activity carried out pursuant to the contract or grant that is the subject of the report as the tribal organization may negotiate with the Secretary. “(3) Any disagreement over reporting requirements shall be subject to the declination criteria and procedures set forth in section 102.”; (3) in section 7(a), by striking “of subcontractors” and inserting in lieu thereof “or subcontractors (excluding tribes and tribal organizations)”; (4) at the end of section 7, add the following new subsection: “(c) Notwithstanding subsections (a) and (b), with respect to any self-determination contract, or portion of a self-determination contract, that is intended to benefit one tribe, the tribal employment or contract preference laws adopted by such tribe shall govern with respect to the administration of the contract or portion of the contract.”; (5) at the end of section 102(a)(1) add the following new flush sentence: “The programs, functions, services, or activities that are contracted under this paragraph shall include administrative functions of the Department of the Interior and the Department of Health and Human Services (whichever is applicable) that support the delivery of services to Indians, including those administrative activities supportive of, but not included as part of, the service delivery programs described in this paragraph that are otherwise contractable. The administrative functions referred to in the preceding sentence shall be contractable without regard to the organizational level within the Department that carries out such functions.”; (6) in section 102(a)— (A) in paragraph (2)— (i) in the first sentence, by inserting “, or a proposal to amend or renew a self-determination contract,” before “to the Secretary for review”; (ii) in the second sentence— (I) by striking “The” and inserting “Subject to the provisions of paragraph (4), the”; (II) by inserting “and award the contract” after “approve the proposal”; (III) by striking “, within sixty days of receipt of the proposal,”; and (IV) by striking “a specific finding is made that” and inserting “the Secretary provides written notification to the applicant that contains a specific finding that clearly demonstrates that, or that is supported by a controlling legal authority that”; (iii) in subparagraph (B), by striking “or” after the semicolon; (iv) in subparagraph (C), by striking the period at the end and inserting a semicolon; 108 STAT. 4252 (v) by adding at the end the following new subparagraphs: “(D) the amount of funds proposed under the contract is in excess of the applicable funding level for the contract, as determined under section 106(a); or “(E) the program, function, service, or activity (or portion thereof) that is the subject of the proposal is beyond the scope of programs, functions, services, or activities covered under paragraph (1) because the proposal includes activities that cannot lawfully be carried out by the contractor.”; and (vi) by adding at the end of the paragraph the following new flush material: “Notwithstanding any other provision of law, the Secretary may extend or otherwise alter the 90-day period specified in the second sentence of this subsection, if before the expiration of such period, the Secretary obtains the voluntary and express written consent of the tribe or tribal organization to extend or otherwise alter such period. The contractor shall include in the proposal of the contractor the standards under which the tribal organization will operate the contracted program, service, function, or activity, including in the area of construction, provisions regarding the use of licensed and qualified architects, applicable health and safety standards, adherence to applicable Federal, State, local, or tribal building codes and engineering standards. The standards referred to in the preceding sentence shall ensure structural integrity, account-ability of funds, adequate competition for subcontracting under tribal or other applicable law, the commencement, performance, and completion of the contract, adherence to project plans and specifications (including any applicable Federal construction guide-lines and manuals), the use of proper materials and workmanship, necessary inspection and testing, and changes, modifications, stop work, and termination of the work when warranted.”; and (B) by adding at the end the following new paragraph: “(4) The Secretary shall approve any severable portion of a contract proposal that does not support a declination finding described in paragraph (2). If the Secretary determines under such paragraph that a contract proposal— “(A) proposes in part to plan, conduct, or administer a program, function, service, or activity that is beyond the scope of programs covered under paragraph (1), or “(B) proposes a level of funding that is in excess of the applicable level determined under section 106(a), subject to any alteration in the scope of the proposal that the Secretary and the tribal organization agree to, the Secretary shall, as appropriate, approve such portion of the program, function, service, or activity as is authorized under paragraph (1) or approve a level of funding authorized under section 106(a). If a tribal organization elects to carry out a severable portion of a contract proposal pursuant to this paragraph, subsection (b) shall only apply to the portion of the contract that is declined by the Secretary pursuant to this subsection.”; (7) in section 102(b)(3)— (A) by inserting after “record” the following: “with the right to engage in full discovery relevant to any issue raised in the matter”; and 108 STAT. 4253 (B) by inserting before the period the following: “,except that the tribe or tribal organization may, in lieu of filing such appeal, exercise the option to initiate an action in a Federal district court and proceed directly to such court pursuant to section 110(a)”; (8) in section 102(d), by striking “as provided in section 2671 of title 28)” and inserting “as provided in section 2671 of title 28, United States Code, and including an individual who provides health care services pursuant to a personal services contract with a tribal organization for the provision of services in any facility owned, operated, or constructed under the jurisdiction of the Indian Health Service)”; (9) by adding at the end of section 102 the following new subsection: “(e)(1) With respect to any hearing or appeal conducted pursuant to subsection (b)(3), the Secretary shall have the burden of proof to establish by clearly demonstrating the validity of the grounds for declining the contract proposal (or portion thereof). “(2) Notwithstanding any other provision of law, a decision by an official of the Department of the Interior or the Department of Health and Human Services, as appropriate (referred to in this paragraph as the ‘Department’) that constitutes final agency action and that relates to an appeal within the Department that is conducted under subsection (b)(3) shall be made either— “(A) by an official of the Department who holds a position at a higher organizational level within the Department than the level of the departmental agency (such as the Indian Health Service or the Bureau of Indian Affairs) in which the decision that is the subject of the appeal was made; or “(B) by an administrative judge.”; (10) by striking subsection (a) of section 105 and inserting the following new subsection: “(a)(1) Notwithstanding any other provision of law, subject to paragraph (3), the contracts and cooperative agreements entered into with tribal organizations pursuant to section 102 shall not be subject to Federal contracting or cooperative agreement laws (including any regulations), except to the extent that such laws expressly apply to Indian tribes. “(2) Program standards applicable to a nonconstruction self-determination contract shall be set forth in the contract proposal and the final contract of the tribe or tribal organization. “(3) (A) With respect to a construction contract (or a subcontract of such a construction contract), the provisions of the Office of Federal Procurement Policy Act (41 U.S.C. 401 et seq.) and the regulations relating to acquisitions promulgated under such Act shall apply only to the extent that the application of such provision to the construction contract (or subcontract) is— “(i) necessary to ensure that the contract may be carried out in a satisfactory manner; “(ii) directly related to the construction activity; and “(iii) not inconsistent with this Act. “(B) A list of the Federal requirements that meet the requirements of clauses (i) through (iii) of subparagraph (A) shall be included in an attachment to the contract pursuant to negotiations between the Secretary and the tribal organization. “(C) (i) Except as provided in subparagraph (B), no Federal law listed in clause (ii) or any other provision of Federal law 108 STAT. 4254(including an Executive order) relating to acquisition by the Federal Government shall apply to a construction contract that a tribe or tribal organization enters into under this Act, unless expressly provided in such law. “(ii) The laws listed in this paragraph are as follows: “(I) The Federal Property and Administrative Services Act of 1949 (40 U.S.C. 471 et seq.). “(II) Section 3709 of the Revised Statutes. “(III) Section 9(c) of the Act of Aug. 2, 1946 (60 Stat. 809, chapter 744). “(IV) Title III of the Federal Property and Administrative Services Act of 1949 (63 Stat. 393 et seq., chapter 288). “(V) Section 13 of the Act of Oct. 3, 1944 (58 Stat. 770; chapter 479) “(VI) Chapters 21, 25, 27, 29, and 31 of title 44, United States Code. “(VII) Section 2 of the Act of June 13, 1934 (48 Stat 948, chapter 483). “(VIII) Sections 1 through 12 of the Act of June 30, 1936 (49 Stat. 2036 et seq. chapter 881). “(IX) The Service Control Act of 1965 (41 U.S.C. 351 et seq.). “(X) The Small Business Act (15 U.S.C. 631 et seq.). “(XI) Executive Order Nos. 12138, 11246, 11701 and 11758.”; (11) by striking subsection (e) and inserting the following new subsection: “(e) If an Indian tribe, or a tribal organization authorized by a tribe, requests retrocession of the appropriate Secretary for any contract or portion of a contract entered into pursuant to this Act, unless the tribe or tribal organization rescinds the request for retrocession, such retrocession shall become effective on— “(1) the earlier of— “(A) the date that is 1 year after the date the Indian tribe or tribal organization submits such request; or “(B) the date on which the contract expires; or “(2) such date as may be mutually agreed by the Secretary and the Indian tribe.”; (12) by striking paragraph (2) of section 105(f) and inserting the following new paragraph: “(2) donate to an Indian tribe or tribal organization title to any personal or real property found to be excess to the needs of the Bureau of Indian Affairs, the Indian Health Service, or the General Services Administration, except that— “(A) subject to the provisions of subparagraph (B), title to property and equipment furnished by the Federal Government for use in the performance of the contract or purchased with funds under any self-determination con-tract or grant agreement shall, unless otherwise requested by the tribe or tribal organization, vest in the appropriate tribe or tribal organization; “(B) if property described in subparagraph (A) has a value in excess of $5,000 at the time of the retrocession, rescission, or termination of the self-determination contract or grant agreement, at the option of the Secretary, upon the retrocession, rescission, or termination, title to such property and equipment shall revert to the Department 108 STAT. 4255of the Interior or the Department of Health and Human Services, as appropriate; and “(C) all property referred to in subparagraph (A) shall remain eligible for replacement on the same basis as if title to such property were vested in the United States; and”; (13) by adding at the end of section 105 the following new subsections: “(i)(1) If a self-determination contract requires the Secretary to divide the administration of a program that has previously been administered for the benefit of a greater number of tribes than are represented by the tribal organization that is a party to the contract, the Secretary shall take such action as may be necessary to ensure that services are provided to the tribes not served by a self-determination contract, including program redesign in consultation with the tribal organization and all affected tribes. “(2) Nothing in this title shall be construed to limit or reduce in any way the funding for any program, project, or activity serving a tribe under this or other applicable Federal law. Any tribe or tribal organization that alleges that a self-determination contract is in violation of this section may apply the provisions of section 110. “(j) Upon providing notice to the Secretary, a tribal organization that carries out a nonconstruction self-determination contract may propose a redesign of a program, activity, function, or service carried out by the tribal organization under the contract, including any nonstatutory program standard, in such manner as to best meet the local geographic, demographic, economic, cultural, health, and institutional needs of the Indian people and tribes served under the contract. The Secretary shall evaluate any proposal to redesign any program, activity, function, or service provided under the con-tract. With respect to declining to approve a redesigned program, activity, function, or service under this subsection, the Secretary shall apply the criteria and procedures set forth in section 102. “(k) For purposes of section 201(a) of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 481(a)) (relating to Federal sources of supply, including lodging providers, airlines and other transportation providers), a tribal organization carrying out a contract, grant, or cooperative agreement under this Act shall be deemed an executive agency when carrying out such con-tract, grant, or agreement and the employees of the tribal organization shall be eligible to have access to such sources of supply on the same basis as employees of an executive agency have such access. “(l) (1) Upon the request of an Indian tribe or tribal organization, the Secretary shall enter into a lease with the Indian tribe or tribal organization that holds title to, a leasehold interest in, or a trust interest in, a facility used by the Indian tribe or tribal organization for the administration and delivery of services under this Act. “(2) The Secretary shall compensate each Indian tribe or tribal organization that enters into a lease under paragraph (1) for the use of the facility leased for the purposes specified in such paragraph. Such compensation may include rent, depreciation based on the useful life of the facility, principal and interest paid or accrued, operation and maintenance expenses, and such other 108 STAT. 4256reasonable expenses that the Secretary determines, by regulation, to be allowable. “(m) (1) Each construction contract requested, approved, or awarded under this Act shall be subject to— “(A) except as otherwise provided in this Act, the provisions of this Act, other than sections 102(a)(2), 106(1), 108 and 109; and “(B) section 314 of the Department of the Interior and Related Agencies Appropriations Act, 1991 (104 Stat. 1959). “(2) In providing technical assistance to tribes and tribal organizations in the development of construction contract proposals, the Secretary shall provide, not later than 30 days after receiving a request from a tribe or tribal organization, all information available to the Secretary regarding the construction project, including construction drawings, maps, engineering reports, design reports, plans of requirements, cost estimates, environmental assessments or environmental impact reports, and archaeological reports. “(3) Prior to finalizing a construction contract proposal pursuant to section 102(a), and upon request of the tribe or tribal organization that submits the proposal, the Secretary shall provide for a precontract negotiation phase in the development of a contract proposal. Such phase shall include, at a minimum, the following elements: “(A) The provision of technical assistance pursuant to section 103 and paragraph (2). “(B) A joint scoping session between the Secretary and the tribe or tribal organization to review all plans, specifications, engineering reports, cost estimates, and other information available to the parties, for the purpose of identifying all areas of agreement and disagreement. “(C) An opportunity for the Secretary to revise the plans, designs, or cost estimates of the Secretary in response to concerns raised, or information provided by, the tribe or tribal organization. “(D) A negotiation session during which the Secretary and the tribe or tribal organization shall seek to develop a mutually agreeable contract proposal. “(E) Upon the request of the tribe or tribal organization, the use of an alternative dispute resolution mechanism to seek resolution of all remaining areas of disagreement pursuant to the dispute resolution provisions under subchapter IV of chapter 5 of title 5, United States Code. “(F) The submission to the Secretary by the tribe or tribal organization of a final contract proposal pursuant to section 102(a). “(4) (A) Subject to subparagraph (B), in funding a fixed-price construction contract pursuant to section 106(a), the Secretary shall provide for the following: “(i) The reasonable costs to the tribe or tribal organization for general administration incurred in connection with the project that is the subject of the contract. “(ii) The ability of the contractor that carries out the construction contract to make a reasonable profit, taking into consideration the risks associated with carrying out the contract and other relevant considerations. 108 STAT. 4257 “(B) In establishing a contract budget for a construction project, the Secretary shall not be required to separately identify the components described in clauses (i) and (ii) of subparagraph (A). “(C) The total amount awarded under a construction contract shall reflect an overall fair and reasonable price to the parties, including the following costs: “(i) The reasonable costs to the tribal organization of performing the contract, taking into consideration the terms of the contract and the requirements of this Act and any other applicable law. “(ii) The costs of preparing the contract proposal and supporting cost data. “(iii) The costs associated with auditing the general and administrative costs of the tribal organization associated with the management of the construction contract. “(iv) In the case of a fixed-price contract, a fair profit determined by taking into consideration the relevant risks and local market conditions. “(v) If the Secretary and the tribe or tribal organization are unable to develop a mutually agreeable construction con-tract proposal pursuant to the procedures set forth in this subsection, the tribe or tribal organization may submit a final contract proposal to the Secretary. Not later than 30 days after receiving such final contract proposal, the Secretary shall approve the contract proposal and award the contract, unless, during such period the Secretary declines the proposal pursuant to sections 102(a)(2) and 102(b) of section 102 (including providing opportunity for an appeal pursuant to section 102(b)). “(n) Notwithstanding any other provision of law, the rental rates for housing provided to an employee by the Federal Government in Alaska pursuant to a self-determination contract shall be determined on the basis of— “(1) the reasonable value of the quarters and facilities (as such terms are defined under section 5911 of title 5, United States Code) to such employee, and “(2) the circumstances under which such quarters and facilities are provided to such employee, as based on the cost of comparable private rental housing in the nearest established community with a year-round population of 1,500 or more individuals.”; (14) in section 106(a)— (A) in paragraph (1), by inserting before the period at the end the following: “, without regard to any organizational level within the Department of the Interior or the Department of Health and Human Services, as appropriate, at which the program, function, service, or activity or portion thereof, including supportive administrative functions that are otherwise contractable, is operated”; (B) in paragraph (2), by inserting after “consist of” the following: “an amount for”; and (C) by striking paragraph (3) and inserting the following new paragraphs: “(3) (A) The contract support costs that are eligible costs for the purposes of receiving funding under this Act shall include the costs of reimbursing each tribal contractor for reasonable and allowable costs of— 108 STAT. 4258 “(i) direct program expenses for the operation of the Federal program that is the subject of the contract, and “(ii) any additional administrative or other expense related to the overhead incurred by the tribal contractor in connection with the operation of the Federal program, function, service, or activity pursuant to the contract, except that such funding shall not duplicate any funding provided under section 106(a)(1). “(B) On an annual basis, during such period as a tribe or tribal organization operates a Federal program, function, service, or activity pursuant to a contract entered into under this Act, the tribe or tribal organization shall have the option to negotiate with the Secretary the amount of funds that the tribe or tribal organization is entitled to receive under such contract pursuant to this paragraph. “(4) For each fiscal year during which a self-determination contract is in effect, any savings attributable to the operation of a Federal program, function, service, or activity under a self-determination contract by a tribe or tribal organization (including a cost reimbursement construction contract) shall— “(A) be used to provide additional services or benefits under the contract; or “(B) be expended by the tribe or tribal organization in the succeeding fiscal year, as provided in section 8. “(5) Subject to paragraph (6), during the initial year that a self-determination contract is in effect, the amount required to be paid under paragraph (2) shall include startup costs consisting of the reasonable costs that have been incurred or will be incurred on a one-time basis pursuant to the contract necessary— “(A) to plan, prepare for, and assume operation of the program, function, service, or activity that is the subject of the contract; and “(B) to ensure compliance with the terms of the contract and prudent management. “(6) Costs incurred before the initial year that a self-determination contract is in effect may not be included in the amount required to be paid under paragraph (2) if the Secretary does not receive a written notification of the nature and extent of the costs prior to the date on which such costs are incurred.”; (15) in section 106(c)— (A) by striking “March 15” and inserting “May 15”; (B) in paragraphs (1) and (2), by striking “indirect costs” each place it appears and inserting “contract support costs”; (C) in paragraph (4), by striking “and” at the end; (D) in paragraph (5), by striking the period at the end and inserting “; and”; and (E) by adding at the end the following new paragraph: “(6) an accounting of any deficiency of funds needed to maintain the preexisting level of services to any tribes affected by contracting activities under this Act, and a statement of the amount of funds needed for transitional purposes to enable contractors to convert from a Federal fiscal year accounting cycle to a different accounting cycle, as authorized by section 105(d).”; (16) in section 106(f), by inserting immediately after the second sentence the following new sentence: “For the purpose 108 STAT. 4259of determining the 365-day period specified in this paragraph, an audit report shall be deemed to have been received on the date of actual receipt by the Secretary, if, within 60 days after receiving the report, the Secretary does not give notice of a determination by the Secretary to reject the single-agency report as insufficient due to noncompliance with chapter 75 of title 31, United States Code, or noncompliance with any other applicable law.”; (17) by striking subsection (g) of section 106 and inserting the following new subsection: “(g) Upon the approval of a self-determination contract, the Secretary shall add to the contract the full amount of funds to which the contractor is entitled under section 106(a), subject to adjustments for each subsequent year that such tribe or tribal organization administers a Federal program, function, service, or activity under such contract.”; (18) by striking subsection (i) of section 106 and inserting the following new subsection: “(i) On an annual basis, the Secretary shall consult with, and solicit the participation of, Indian tribes and tribal organizations in the development of the budget for the Indian Health Service and the Bureau of Indian Affairs (including participation of Indian tribes and tribal organizations in formulating annual budget requests that the Secretary submits to the President for submission to Congress pursuant to section 1105 of title 31, United States Code).”; and (19) by adding at the end of section 106 the following new subsections: “(j) Notwithstanding any other provision of law, a tribal organization may use funds provided under a self-determination contract to meet matching or cost participation requirements under other Federal and non-Federal programs. “(k) Without intending any limitation, a tribal organization may, without the approval of the Secretary, expend funds provided under a self-determination contract for the following purposes, to the extent that the expenditure of the funds is supportive of a contracted program: “(1) Depreciation and use allowances not otherwise specifically prohibited by law, including the depreciation of facilities owned by the tribe or tribal organization. “(2) Publication and printing costs. “(3) Building, realty, and facilities costs, including rental costs or mortgage expenses. “(4) Automated data processing and similar equipment or services. “(5) Costs for capital assets and repairs. “(6) Management studies. “(7) Professional services, other than services provided in connection with judicial proceedings by or against the United States. “(8) Insurance and indemnification, including insurance covering the risk of loss of or damage to property used in connection with the contract without regard to the ownership of such property. “(9) Costs incurred to raise funds or contributions from non-Federal sources for the purpose of furthering the goals and objectives of the self-determination contract. 108 STAT. 4260 “(10) Interest expenses paid on capital expenditures such as buildings, building renovation, or acquisition or fabrication of capital equipment, and interest expenses on loans necessitated due to delays by the Secretary in providing funds under a contract. “(11) Expenses of a governing body of a tribal organization that are attributable to the management or operation of programs under this Act. “(12) Costs associated with the management of pension funds, self-insurance funds, and other funds of the tribal organization that provide for participation by the Federal Government. “(l) (1) The Secretary may only suspend, withhold, or delay the payment of funds for a period of 30 days beginning on the date the Secretary makes a determination under this paragraph to a tribal organization under a self-determination contract, if the Secretary determines that the tribal organization has failed to substantially carry out the contract without good cause. In any such case, the Secretary shall provide the tribal organization with reasonable advance written notice, technical assistance (subject to available resources) to assist the tribal organization, a hearing on the record not later than 10 days after the date of such determination or such later date as the tribal organization shall approve, and promptly release any funds withheld upon subsequent compliance. “(2) With respect to any hearing or appeal conducted pursuant to this subsection, the Secretary shall have the burden of proof to establish by clearly demonstrating the validity of the grounds for suspending, withholding, or delaying payment of funds. “(m) The program income earned by a tribal organization in the course of carrying out a self-determination contract— “(1) shall be used by the tribal organization to further the general purposes of the contract; and “(2) shall not be a basis for reducing the amount of funds otherwise obligated to the contract. “(n) To the extent that programs, functions, services, or activities carried out by tribal organizations pursuant to contracts entered into under this Act reduce the administrative or other responsibilities of the Secretary with respect to the operation of Indian pro-grams and result in savings that have not otherwise been included in the amount of contract funds determined under subsection (a), the Secretary shall make such savings available for the provision of additional services to program beneficiaries, either directly or through contractors, in a manner equitable to both direct and contracted programs. “(o) Notwithstanding any other provision of law (including any regulation), a tribal organization that carries out a self-determination contract may, with respect to allocations within the approved budget of the contract, rebudget to meet contract requirements, if such rebudgeting would not have an adverse effect on the performance of the contract.”.