§ 14H-70.005 Applicability.

The provisions of this Part 14H-70 apply only to those contracts between the Bureau and Indian organizations entered into pursuant to the Act. They do not apply to contracts with individuals, partnerships, corporations or other Indian organizations that do not fall under the purview of the Act.

§ 14H-70.006 Changes of regulations.

(a) To the extent that a change of the regulations issued under this Part 14H-70 may—

(1) Impose additional requirements on the contractor;

(2) Have an adverse effect on the contractor's operations; or,

(3) Delay or impede the contracting process, such changes shall be made only after consultation, to the maximum extent practicable, with Indian tribes and national and regional Indian organizations. Further those changes shall be presented to the Committees on Interior and Insular Affairs of the United States Senate and House of Representatives before publication in the FEDERAL REGISTER for comments.

(b) To the extent that changes of the regulations issued under this Part 14H-70 affect only the internal operation of the Bureau's contracting offices, the changes may be made without consultation.

For the purpose of this part, unless otherwise indicated in 25 CFR 271.2, the terms given in this subpart have the meanings set forth in this subpart. The definitions in 25 CFR 271.2 also apply to this part.

§ 14H-70.102 Contract.

"Contract" means any promissory arrangement between a tribal organization and the Federal government which is reduced to writing and signed by duly authorized agents of the parties. The term "contract" will also mean a transaction authorized by a purchase order signed in behalf of the Federal government by a duly author

(a) Profit is not allowable on contracts entered into pursuant to the Act.

(b) Profit may be allowed when a contract is entered into pursuant to the Act of June 25, 1910 (36 Stat. 861; 25 U.S.C. 47), commonly referred to as the "Buy Indian Act" and its implementing regulations and when all of the following conditions are met:

(1) The contract is for the procurement of goods, materials, supplies, etc., or, if for services, the services are for a specific project rather than for the operation of a Bureau program or part of a program.

(2) The materials to be supplied or the services to be provided are normally supplied or provided by a private

contractor rather than by Bureau personnel or, in the case of services traditionally performed by Bureau personnel, a contract for such services does not involve "tribal governmental functions" or "business related functions" as defined in 25 CFR 271.2 or contractable trust resources programs as set forth in 25 CFR 271.32.

(3) Definitive specifications are used which permit rejection by the Bureau of defective material and workmanship and replacement at the contractor's expense as may be required.

(4) The price to be paid can be demonstrated to be fair and reasonable in terms of the price prevailing in the locality for similar materials or services, including profit.

(5) All requirements of applicable procurement laws and regulations are followed.

§ 14H-70.203 Payment of interest on contractor's claim.

(a) Payment of interest on contractor's claims is allowable under the conditions set forth in § 1-1.322 of this title.

(b) Payment of interest is allowable whether the clause set forth in § 14H70.628-28 is or is not included in the contract.

§ 14H-70.204 Protests to Comptroller General.

Contracting officers will process protests to the Comptroller General in accordance with the procedures set forth in §§ 1-2.407-8 and 14-2.407-8 of this title.

§ 14H-70.205 Rights in data.

(a) It is the Bureau's policy that tribal contractors are eligible to retain copyright privileges on all copyrightable materials produced as a result of work performed under a program contract funded by the Bureau as long as it is found that (1) the retention of the copyright is not precluded by statute; and (2) equity or the public interest is best served by doing so because of special circumstances. If it is found that the public interest is best served by limiting the term of any copyright to be obtained, such limits shall be set forth in the contract. "Developmental" copyrights may be requested

during the development, testing, or evaluation of copyrightable materials in order to prevent them from prematurely falling into the public domain. The copyright will be in accordance with copyright laws. However, the Government shall obtain a royaltyfree, nonexclusive and irrevocable license to reproduce, publish or otherwise use, and to authorize others to use the work for Government purposes. A copy of any copyright obtained by a contractor shall be provided to the Bureau.

(b) Royalties received by tribal contractors from copyrights obtained on materials produced under a program contract are the property of the contractor and may be used for any purpose. However, any income derived from such property shall be considered as an applicable credit in determining the net expense items allocable to a program contract as direct or indirect costs. Applicable credits are explained in section C.3., Part I, Appendix A to 25 CFR Part 276.

[43 FR 37449, Aug. 23, 1978]

§ 14H-70.206 Printing.

As permitted by paragraph 35-2 of the Joint Committee on Printing (JCP) Printing and Binding Regulations (October 1974, No. 23), it is the Bureau's policy that printing required by a tribal contractor in performing work under a program contract is considered "incidental printing” (e.g., material which the contractor needs to use to respond to the terms of contract). Whenever the incidental printing is likely to exceed the exclusions contained in paragraphs 35-3 and 35-4 of the Joint Committee on Printing (JCP) Printing and Binding Regulations, specific provisions on printing as may be required will be included in the contract. Tribal contractors shall be given the option of using sources other than the Government Printing Office for incidental printing.

[43 FR 37449, Aug. 23, 1978]

Contracts for the performance of programs or parts of programs located on or near an Indian reservation can be performed successfully only by the Indian tribe which represents such Indian reservation or by a tribal organization approved by the Indian tribe. Such contracts will be negotiated on a non-competitive basis with the tribal organization designated by

such Indian tribe in its request. Contracts for programs and parts of programs which are not located on or near an Indian reservation may be negotiated with a tribal organization approved by the Indian tribe or tribes served by such program or parts of programs.

§ 14H-70.403 Determinations, findings and authorities.

A tribe's request that a contract be entered into with a designated tribal organization will be entered into the contract file and will serve as the contracting officer's justification for negotiating the contract on a non-competitive basis.

§ 14H-70.404 Types of contract.

Cost-reimbursement type contracts provide for payment to the contractor of allowable costs incurred in the performance of the contract, to the extent prescribed in the contract. This type of contract establishes an estimate of total cost to obligate the funds, and a monetary ceiling which the contractor may not exceed. Cost reimbursement type contracts will be

used for all contracts made pursuant to this Part.

§ 14H-70.405 Negotiated overhead rates.

Overhead (indirect costs) is allowable on contracts entered into pursuant to the Act under the conditions set forth in Subpart 14H-70.10 of this part.

§ 14H-70.406 Price negotiation policies.

(a) When costs reflected in a program proposal submitted by a tribal organization essentially conform with the Bureau budget for that program and do not exceed the amount programed for and allocated to the operating level, the proposal may be accepted without price negotiation.

(b) When costs reflected in a program proposal differ from the Bureau budget with respect to certain budget items, the contracting officer may request the tribal organization to submit cost and pricing data in sufficient detail to determine the validity and reasonableness of costs.

(c) When a program proposal is not based on a Bureau budget which has previously been established in the budget process for that program, unit costs and total costs will be subject to negotiation.

(d) Nothing in this section is to be construed to mean that contracting officers and cognizant program officials are relieved from responsibility for assuring that elements of total contract amounts are reasonable as to unit prices, salary scales, and program requirements. Recognition will be given to the special and unique relationship between the Bureau and tribal organizations under this Act; however, acceptance of proposals, without review, discussion and resolution of differences by negotiation will not be made, except as provided in § 14H-70.408. Files will be properly documented to reflect the negotiation process, including the basis for final determination of the scope of work and price.

§ 14H-70.407 Requirements for price or

cost analysis and cost or pricing data. Except for initial contracts or other agreements, the requirements of §§ 1

3.807-2 and 1-3.807-3 of this title are optional with the contracting officer.

§ 14H-70.408 Audit as a pricing aid.

(a) In instances in which a basis for price determination does not exist in sufficient detail and form and the contract amount is expected to exceed $100,000, the contracting officer may request a pre-award audit; or if time does not permit, a clause may be inserted in the contract providing for adjustment of allowable costs when determined necessary or advisable by a post-award audit.

(b) When the contracting officer determines that there is sufficient information to award a contract without a pre-award audit the audit may be waived. However, the waiver of a preaward audit shall be supported by a written statement in the contract files setting forth the reason for the waiver as prescribed by § 14-63.103(a)(1) of this title.

§ 14H-70.409 Subcontracting.

Any contract proposal or plan of operations submitted by a tribal organization which proposes to do a portion of the work by subcontract shall identify the purpose and scope of the proposed subcontract, the manner in which the subcontractor will be selected, and the estimated cost of the subcontract. In those cases where a subcontractor has already been identified, the contract proposal or plan of operations submitted by the tribal organization will identify the subcontractor, the amount and purpose of the subcontract, the manner in which the subcontractor was selected, and the basis for the cost of the subcontract. Subcontracts shall be awarded in accordance with the following:

(a) Preference shall be given to qualified Indian business concerns as defined in 25 CFR 14H-70.610 in awarding subcontracts, and the contractor shall comply with any preference requirements established by the tribe(s) receiving services under the contract when the requirements have been concurred in by the Bureau of Indian Affairs.

(b) If no Indian business concerns are available under the conditions in paragraph (a) of this section, the con

tractor shall accomplish the maximum amount of subcontracting, as is consistent with efficient performance of the contract, with small business concerns, labor surplus area concerns, and minority business enterprises. The definitions of small business concerns, labor surplus area concerns and minority business enterprises are contained in Subparts 1-1.7, 1-1.8, and 1-1.13 of the Federal Procurement Regulations (41 CFR 1), respectively.

(c) Subcontract opportunities shall be advertised or negotiated in a manner which provides free and open competition to the maximum extent practicable and subcontracts shall be awarded in accordance with sound business practices and the preference requirements in paragraphs (a) and (b) of this section.

[43 FR 37449, Aug. 23, 1978]

Subpart 14H-70.5-Special and Directed Sources of Supply

§ 14H-70.501 General Services Administration supply sources.

Tribal organizations performing services under cost reimbursement contracts pursuant to the Act are entitled to use General Services Administration supply sources in accordance with Subpart 1-5.9 of this title.

§ 14H-70.502 Inter-agency motor pool vehicles.

Tribal organizations performing services under cost reimbursement contracts pursuant to the Act are entitled to use General Services Administration interagency motor pool vehicles in accordance with Subpart 1-5.5 of this title.

§ 14H-70.503 Purchase of passenger carrying vehicles.

Purchase of passenger carrying vehicles is prohibited. If allowed under the contract, purchase of other vehicles shall be through Federal buying channels unless a waiver by the General Services Administration is obtained.

Subpart 14H-70.6-Contract Clauses

§ 14H-70.601 Scope of subpart.

This subpart sets forth the clauses to be included in the contracts entered into with tribal organizations pursuant to the Act.

§ 14H-70.602 Required clauses.

The clauses set forth in this subpart shall be included in all contracts entered into pursuant to the Act unless otherwise indicated.

§ 14H-70.603 Definitions.

DEFINITIONS

The following terms shall have the meanings set forth below throughout this contract:

(a) The term "head of the agency" or "Secretary" as used herein means the Secretary, the Under Secretary, and Assistant Secretary, or any other head or assistant head of the Department of the Interior; and the term "his duly authorized representative" means any person or persons or board (other than the contracting officer) authorized to act for the head of the agency or the Secretary.

(b) The term "contracting officer" means the person executing this contract on behalf of the Government, and any other officer or civilian employee who is properly designated as a contracting officer; and the term includes, except as otherwise provided in this contract, the authorized representative of a contracting officer acting within the limits of his authority.

§ 14H-70.604 Effect on existing rights.

EFFECT ON EXISTING RIGHTS

(a) Nothing in this contract shall be construed as

(1) Affecting, modifying, diminishing, or otherwise impairing the sovereign immunity from suit enjoyed by an Indian tribe; or,

(2) Authorizing or requiring the termination of any existing trust responsibility of the United States with respect to the Indian people.

§ 14H-70.605 Retrocession.

RETROCESSION

The contractor agrees to comply with the procedures and requirements in 25 CFR 271.71 and 271.72 in the event of retrocession.

§ 14H-70.606 Examination of records. (a) The following clause shall be included in all negotiated contracts which do not exceed $10,000:

EXAMINATION OF RECORDS

(a)(1) The contractor agrees to maintain books, records, documents and other evidence pertaining to the costs and expense of this contract (hereinafter collectively called records) to the extent and in such detail as will properly reflect all net costs, direct and indirect, of labor, materials, equipment, supplies and services, and other costs of whatever nature for which reimbursement is claimed under the provisions of this contract.

(2) The contractor agrees to make available at the office of the contractor at all reasonable times during a period of three years, after final payment under this contract all records specified in paragraph (1) above for examination and audit by designated representative of the Comptroller General, the Secretary of Interior or the contracting officer.

(3) The contractor further agrees that records which relate to claims, litigation, or to any costs or expenses of this contract to which exception has been taken by the Comptroller General, the Secretary of Interior or the contracting officer or any of their duly authorized representatives shall be retained by the contractor until such appeals, litigation or exceptions have been disposed of.

(4) The provisions of this clause shall be applicable to and included in any negotiated subcontract.

(b) The following clause shall be included in all negotiated contracts which exceed $10,000:

EXAMINATION OF RECORDS

(a)(1) The contractor agrees to maintain books, records, documents, and other evidence pertaining to the costs and expenses of this contract (hereinafter collectively called "records") to the extent and in such detail as will properly reflect all net costs, direct and indirect, of labor, materials, equipment, supplies and services, and other costs and expenses of whatever nature for which reimbursement is claimed under the provisions of this contract.

(2) The contractor agrees to make available at the office of the contractor at all reasonable times during the period set forth in subparagraph (4) below any of the records for inspection, audit or reproduction by any authorized representative of the Comptroller General, Secretary of the Interior, and the contracting officer.