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8 14H-70.005 Applicability.

ized agent and accepted in behalf of a The provisions of this part 14H-70 tribal organization by beginning perapply only to those contracts between

formance. the Bureau and Indian organizations

8 14H-70.103 Indian reservation. entered into pursuant to the Act. They do not apply to contracts with

"Indian reservation" means any individuals, partnerships, corporations

Indian tribe's reservation, Pueblo, or other Indian organizations that do Colony, · or Rancheria, including not fall under the purview of the Act.

former reservations in Oklahoma,

Alaska native regions established pur§ 14H-70.006 Changes of regulations. suant to the Alaska Native Claims Set(a) To the extent that a change of

tlement Act (85 Stat. 688), and Indian the regulations issued under this part allotments. 14H-70 may

8 14H-70.104 Program. (1) Impose additional requirements on the contractor;

"Program” means a delivery of serv(2) Have an adverse effect on the ice generally of a continuing nature contractor's operations; or,

separated from other similar efforts (3) Delay or impede the contracting by funds, staff or location, except that process, such changes shall be made a program may involve, in certain inonly after consultation, to the maxi stances, more than one location. mum extent practicable, with Indian tribes and national and regional

8 14H-70.105 Project. Indian organizations. Further those “Project” means an effort aimed at a changes shall be presented to the specific objective, not of a continuing Committees on Interior and Insular nature, and having defined paramAffairs of the United States Senate eters. and House of Representatives before publication in the FEDERAL REGISTER Subpart 14H-70.2—General Policies for comments.

(b) To the extent that changes of 814H-70.201 Method of procurement. the regulations issued under this part

It is neither feasible nor practicable 14H-70 affect only the internal operation of the Bureau's contracting of

to obtain competition on contracts enfices, the changes may be made with

tered into under the Act. Therefore,

contracts with tribal organizations enout consultation.

tered into pursuant to the Act will be Subpart 14H-70.1-Definition of

negotiated without competition. Terms

8 14H-70.202 Profit.

(a) Profit is not allowable on con8 14H-70.101 Definitions.

tracts entered into pursuant to the For the purpose of this part, unless Act. otherwise indicated in 25 CFR 271.2. (b) Profit may be allowed when a the terms given in this subpart have contract is entered into pursuant to the meanings set forth in this subpart. the Act of June 25, 1910 (36 Stat. 861; The definitions in 25 CFR 271.2 also 25 U.S.C. 47), commonly referred to as apply to this part.

the “Buy Indian Act” and its imple

menting regulations and when all of 8 14H-70.102 Contract.

the following conditions are met: “Contract" means any promissory (1) The contract is for the procurearrangement between a tribal organi. ment of goods, materials, supplies, zation and the Federal government etc., or, if for services, the services are which is reduced to writing and signed for a specific project rather than for by duly authorized agents of the par- the operation of a Bureau program or ties. The term “contract” will also part of a program. mean a transaction authorized by a (2) The materials to be supplied or purchase order signed in behalf of the the services to be provided are normalFederal government by a duly author- ly supplied or provided by a private

contractor rather than by Bureau per- during the development, testing, or sonnel or, in the case of services tradi- evaluation of copyrightable materials tionally performed by Bureau person in order to prevent them from premanel, a contract for such services does turely falling into the public domain. not involve “tribal governmental func

The copyright will be in accordance tions" or "business related functions"

with copyright laws. However, the as defined in 25 CFR 271.2 or contrac

Government shall obtain a royaltytable trust resources programs as set

free, nonexclusive and irrevocable liforth in 25 CFR 271.32.

cense to reproduce, publish or other(3) Definitive specifications are used

wise use, and to authorize others to which permit rejection by the Bureau

use the work for Government purof defective material and workmanship and replacement at the contrac

poses. A copy of any copyright obtor's expense as may be required.

tained by a contractor shall be pro(4) The price to be paid can be dem vided to the Bureau. onstrated to be fair and reasonable in

(b) Royalties received by tribal conterms of the price prevailing in the lo tractors from copyrights obtained on cality for similar materials or services, materials produced under a program including profit.

contract are the property of the con(5) All requirements of applicable tractor and may be used for any purprocurement laws and regulations are pose. However, any income derived followed.

from such property shall be consid

ered as an applicable credit in deter8 14H-70.203 Payment of interest on con

mining the net expense items allocable tractor's claim.

to a program contract as direct or indi(a) Payment of interest on contrac

rect costs. Applicable credits are extor's claims is allowable under the con

plained in section C.3., Part I, Appenditions set forth in § 1-1.322 of this

dix A to 25 CFR Part 276. title.

(b) Payment of interest is allowable (43 FR 37449, Aug. 23, 1978) whether the clause set forth in § 14H70.628-28 is or is not included in the

8 14H-70.206 Printing. contract.

As permitted by paragraph 35-2 of

the Joint Committee on Printing $ 14H-70.204 Protests to Comptroller Gen

(JCP) Printing and Binding Regulaeral.

tions (October 1974, No. 23), it is the Contracting officers will process pro- Bureau's policy that printing required tests to the Comptroller General in ac

by a tribal contractor in performing cordance with the procedures set forth in 88 1-2.407-8 and 14-2.407-8 of this

work under a program contract is con

sidered “incidental printing” (e.g., matitle.

terial which the contractor needs to 8 14H-70.205 Rights in data.

use to respond to the terms of con(a) It is the Bureau's policy that

tract). Whenever the incidental printtribal contractors are eligible to retain

ing is likely to exceed the exclusions copyright privileges on all copyrighta

contained in paragraphs 35-3 and 35-4 ble materials produced as a result of

of the Joint Committee on Printing work performed under a program con

(JCP) Printing and Binding Regulatract funded by the Bureau as long as

tions, specific provisions on printing as it is found that (1) the retention of may be required.

may be required will be included in the copyright is not precluded by stat. the contract. Tribal contractors shall ute; and (2) equity or the public inter

be given the option of using sources est is best served by doing so because other than the Government Printing of special circumstances. If it is found Office for incidental printing. that the public interest is best served

(43 FR 37449, Aug. 23, 1978) by limiting the term of any copyright to be obtained, such limits shall be set forth in the contract. “Developmental” copyrights may be requested

Subpart 14H-70.3—Procurement Responsibility and Authority

used for all contracts made pursuant to this part.

§ 14H-70.301 General..

The responsibilities of the Bureau under Subparts 1-1.4 and 14-1.4 of this title are not changed by the Act.

8 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.

Subpart 14H-70.4—Procurement by

Negotiation

§ 14H-70.401 Scope of subpart.

This subpart concerns negotiation of contracts entered into pursuant to the Act.

8 14H-70.402 Circumstances permitting

negotiation. 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.

8 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.

8 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.

8 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

8 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. 8 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 de termines 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.

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

8 14H-70.501 General Services Adminis

tration 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-70.409 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

8 14H-70.502 Inter-agency motor pool ve

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

814H-70.503 Purchase of passenger carry.

ing 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.

8 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.

8 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-70.606 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.

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