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aHowable costs for the period covered by the contract or grant. Negotiated rates shall not result in an amount which will exceed actual costs.

(b) Where cost experience and accounting data are not available to support a negotiated rate and where the estimated amount of the contract is less than $10,000, a lump sum over head amount may be negotiated. Such an amount will be based on reasonable projection of estimated costs to be in curred by the tribal organization and shall take into consideration all costs which can be applied as direct costs, and shall not exceed 10 percent of the direct labor costs.

(1) The amount of the contract is less than $100,000.

(2) The contract is not the initial contract with the particular tribal organization, an overhead rate was previously established, and the overhead rate currently requested does not exceed that previously established one by more than one percentage point.

(3) Current overhead rates have been established by another Federal agency.

Subpart 14H-70.11-Procurement

Forms

8 14H-70.1101 Applicability of standard

forms. The standard forms prescribed in Part 1-16 of this title may be used in connection with contracts entered into pursuant to the Act when applicable and may be modified when deemed necessary. However, standard forms other than SF 147 that contain clauses not prescribed by this Part 14H-70 shall not be used.

Subpart 14H-70.12—Procurement of

Construction

$ 14H-70.1003 Procedures.

(a) When a tribal organization desires overhead rates to be established and where no other Federal agency has established a rate nor will be expected to do so, the tribal organization may request through the contracting officer that a rate be established. The request shall be supported by, as a minimum:

(1) A schedule of common costs which cannot be feasibly charged as direct costs of a program and are costs benefiting more than one program.

(2) The nature and extent of services provided and their relevance to the specific program.

(3) Methods and manner of distribution of costs.

(4) Total business of all programs to which indirect costs will be distributed.

(b) The contracting officer shall, after review and if indicated, further consultations with the tribal organization, forward the request to the Department of Interior, Office of Audit and Investigation, for review and audit as determined necessary. In the event a rate is approved without audit, the contract shall contain a clause to the effect that upon audit the rate may be changed retroactively to the beginning of the contract period.

(c) An audit by the Department's Office of Audit and Investigation will not be required prior to contract award and overhead rates may be approved by the Contracting Officer when:

& 14H-70.1201 Scope of subpart.

This subpart sets forth procedures and requirements peculiar to construction contracts. The terms and condi. tions of construction contracts when negotiated with an Indian organization pursuant to the Act shall to the extent applicable be in accordance with the requirements set forth in Part 1-18 of this title. However, if there is a conflict between Part 1-18 of this title and any provision of the Act or 25 CFR Part 271, the Act or 25 CFR Part 271 shall govern. 8 14H-70.1202 Exceptions.

(a) Subpart 1-18.10 of this title is not applicable.

(b) The contract clauses required by $ 1-18.703-1 of this title shall be inserted in construction contracts with an Indian tribe or an Indian organization which serves as a governmental instrumentality of an Indian tribe, but shall be prefaced by the provision contained in § 1-18.703-2 of this title.

(c) In all cases, the contracting offi- and shall be supported by a schedule cer shall obtain and insert the Wage of estimated expenditures. Determination Decision issued by the (c) An initial advance will be limited Secretary of Labor in the contract to the amount of estimated expendiprior to award of any contract for con- tures for a period of time required to struction that falls within the purview effect payment, based on experience in of the Davis-Bacon Act. The Wage De the locality. The initial advance may termination Decision should be fur be made in amounts at times deternished sufficiently in advance of the mined suitable to satisfy the minimum contract award date to permit full con essential needs of the contractor. sideration by the tribal organization (d) Subsequent advances may be and any prospective subcontractors made at times and in amounts deterprior to contract award.

mined necessary to insure availability

of funds for timely payment of the Subpart 14H-70.13—Retention Re contractor's obligations and to miniquirements for Contractor and Sub mize the time between withdrawal contractor Records

from the Treasury and expenditure.

For advance payment methods other $ 14H-70.1301 General.

than the Letter of Credit method, reThe record retention requirements quests for advances made after an iniin Subpart 1-20.2 and Subpart 1-20.3

tial advance shall be accompanied and of this title are applicable to contracts

supported by a report of expenditures under the Act.

to date, the amount of funds on hand,

and the anticipated needs until receipt Subpart 14H-70.14—Contract

of payment. Financing

(40 FR 51332, Nov. 14, 1975, as amended at

43 FR 37450, Aug. 23, 1978] $ 14H-70.1401 General.

8 14H-70.1404 Advance payments when This subpart sets forth the methods

special bank account required. of making payments to tribal organizations performing contracts under the (a) Contracts authorizing the Act.

making of advance payments shall,

except as provided in 25 CFR $14H-70.1402 Reimbursement.

271.41(a)(2)(i), require that the check This method will be used when a be mailed to a bank to be deposited in tribal organization does not request an a special bank account in the name of advance payment. Payment will be

the contractor. No part of the funds made on receipt of a SF-1034 or other

deposited in the special bank account approved invoice form supported by

shall be mingled with other funds of documentation required by the con

the contractor prior to withdrawal to tract after completion of the contract

meet obligations accruing under the or such portions thereof as provided in

contract. the contract for partial payments.

(b) For all advance payments requir

ing the use of a special bank account, 814H-70.1403 Advance payments by the form of Agreement for Special Treasury check.

Bank Account prescribed in § 14H(a) At the request of a tribal contrac

70.1410 shall be used. tor, and subject to the conditions here

(c) All contracts requiring the use of inafter set forth, and Chapter 2000 of a special bank account shall contain the Treasury Fiscal Requirements the contract clause prescribed in Manual as modified or supplemented,

$ 14H-70.612(b). the Government will make advance payments to tribal organizations as

8 14H-70.1405 Letter of credit. prescribed in 25 CFR 271.41.

When a contract authorizes advance (b) Any request for advance pay payments totaling $120,000 or more ment by a tribal contractor shall speci- and the contract period is one year or fy the amount(s) required and the more, advance payments will normally dates such advance(s) will be required be made by Letter of Credit in accord

ance with the policies and procedures contained in Treasury Fiscal Requirements Manual, Chapter 2000, as modi. fied or supplemented.

§ 14H-70.1406 Approval of advance pay.

ments. (a) Area Directors may approve advance payments which do not exceed $250,000 in the aggregate. When the contract term is for more than one year, Area Directors may approve advance payments which do not exceed $250,000 in the aggregate for each succeeding year of the contract.

(b) Requests for advance payments exceeding $250,000 in the aggregate for the term of the contract, or one year if a multi-year contract, shall be forwarded to the Commissioner of Indian Affairs by Area Director for submission to the Department in accordance with § 14-30.406 of this title. However, this limitation does not apply when the advance payment(s) is made through a Letter-of-Credit. (40 FR 51332, Nov. 14, 1975, as amended at 43 FR 37450, Aug. 23, 1978)

& 14H-70.1409 Automatic advances.

When periodic payments under a contract will be essentially uniform and predictable, automatic advance payments may be authorized by the contracting officer to avoid delay inherent in payments based on formal request by the contractor. In such cases, reports of expenditures will be required and payments will be adjusted as necessary to prevent withdrawal of funds over and above that needed for efficient operation, and to insu adequate funds for timely settlement of the contractor's obligations. Adjustments to automatic advances shall be made after consultation with the contractor.

8 14H-70.1410 Agreement for special bank

account. (a) In all instances where deposit of an advance payment in a special bank account is required, the following form of agreement will be used:

8 14H-70.1407 Sub-advances.

Sub-advances may be made when predetermined as a part of a contracted program or when specifically authorized in writing by the contracting officer. Subadvances will not be made to individuals except for approved travel and in such cases shall not exceed the minimum required for one trip and shall be settled by voucher or repayment within 30 days. 8 14H-70.1408 Interest.

(a) Contractors shall not be held accountable for interest earned on funds advanced pending disbursement. However, it is required that bank balances be maintained at the minimum level consistent with program requirements, and requests for advances shall be reviewed to insure that excess funds are not advanced.

(b) Contractors shall not be charged interest by the Bureau for funds advanced under contracts entered into pursuant to the Act.

AGREEMENT FOR SPECIAL BANK ACCOUNT (1) This agreement entered into between the United States of America, hereinafter called the “Government,” contractor, and Bank, each represented by the officials executing this agreement.

(2) The Government and the contractor entered into the contract(s) or Supplemental Agreement(s) thereto, providing for the making of advance payment(s) to the contractor. Copy of the advance payment clause included in the contract is attached to and made a part of this agreement.

(1) The advance payment clause requires that amounts advanced to the contractor be deposited in a Special Bank Account at a member bank or banks of the Federal Reserve System or any “insured” bank within the meaning of the Act creating the Federal Deposit Insurance Corporation (Act of August 23, 1935; 49 Stat. 684, as amended; 12 U.S.C. 264), separate from the contractors general or other funds; and, the Bank being such a bank, the parties are agreeable to so depositing said amounts with the Bank.

(11) This Special Bank Account shall be designated as indicated in paragraph (7) of this agreement.

(3) In consideration of the foregoing, and for other good and valuable considerations, it is agreed that:

(1) The Government shall have a lien upon the credit balance in said account to secure the repayment of all advance pay. ments made to the contractor, which lien

Name and title of representative: -----

Complete mailing address: ----

BANK Name:

Name and title of representative: --

Complete mailing address:

UNITED STATES OF AMERICA DE

PARTMENT OF THE INTERIOR Bureau of Indian Affairs:

shall be superior to any lien or claim of the bank with respect to such account.

(ii) The Bank will be bound by the provisions of the advance payment clause relating to the deposit in and withdrawl of funds from the Special Bank Account, but shall not be responsible for the use of funds withdrawn from said account. Upon receipt by the Bank of written directions of any kind from the contracting officer, or from the duly authorized representative of the contracting office, pertaining to the use of the funds in the Special Bank Account upon Department of the Interior, Bureau of Indian Affairs stationery and purporting to be signed by the contracting officer or the contracting officer's authorized representative, the Bank shall act thereon and insofar as the rights, duties, and liabilities of the Bank are concerned, the written directions shall be conclusively deemed to have been properly issued and filed with the Bank by the Department of the Interior, Bureau of Indian Affairs.

(iii) The Government, or its authorized representatives, shall have access to the books and records maintained by the Bank with respect to the Special Bank Account at all reasonable times and for all reasonable purposes, including (but without limiting the generality thereof) the inspection or copying of such books and records and any and all memoranda, checks, correspondence or documents appertaining thereto. Such books and records shall be preserved by the Bank for a period of six (6) years after the closing of the Special Bank Account.

(4) In the event of the service of any writ of attachment, levy of execution, or commencement of garnishment proceedings with respect to the Special Bank Account, the Bank will promptly notify the contracting officer.

(5) The Bank, contractor, and Government by executing this agreement are bound by all of the provisions contained in the advance payment clause attached which is made a part of the contract.

(6) The contract number and purpose of the Contract(s) or supplemental agreement(s) referred to above are as follows:

Complete Mailing Address:

Name and Title of Contracting Officer: -

(b) The following instructions apply to the form of agreement shown in paragraph (a) of this section:

(1) Under paragraph (6) of the agreement, state the contract number and describe the purpose of the contract in brief but sufficient detail to convey a general understanding of its nature. If the contract uses a descriptive title to designate its purpose, that description should be used.

(2) Insert, in the blank space in paragraph (7) of the agreement, the number assigned by the Bank as the Account Number for the “Special Bank Account."

(3) The agreement should be dated on the date it is signed by the contracting officer.

(4) The complete mailing address of the Bank is necessary as the advance payment check and all progress payment checks will be mailed to the Bank. The zip code is required.

(5) The contracting officer should not sign the agreement until authority to make the advance payment has been obtained.

(c) The following is the form of modification of an agreement for a

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(4) The Special Bank Account number is indicated as follows:-

IN WITNESS WHEREOF, the parties hereto have caused this modification to be executed as of the date and year written below: Date

--- 19Name of contractor (Signature) -----

§ 14H-70.1601 General.

This subpart sets forth the require ments for reporting procurement actions under the Act. $ 14H-70.1602 Standard Form 37, Report

on Procurement by Civilian Executive

Agencies. Procurements under the Act shall be reported on SF-37, in accordance with $ $ 1-16.804-3 and 14-16.804-3 of this title. However, the number and dollar amount of such procurements shall be entered in the "remarks” section of SF-37, and shall be clearly identified as having been entered into with tribal organizations pursuant to the Act.

By (Name and title of contractor's repre

sentative)

ECCE

Name of bank (Signature)

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