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tracting officer when he determines such action is warranted.

(40 FR 51332, Nov. 14, 1975, as amended at 43 FR 37450, Aug. 23, 1978)

Subpart 14H-70.9–Labor

ganizations in the same general area performing similar activities.

(b) The insurance shall provide for a waiver by the insurance carrier of any right it may have to raise as a defense the tribe's sovereign immunity from suit when a claim is within the limits of the policy. Further, the insurance shall not empower the insurance carrier to waive or otherwise limit the tribe's sovereign immunity outside or beyond the coverage and limits of the policy of insurance.

8 14H-70.807 Exceptions.

(a) In those cases where the contracting officer determines that the risk of death, personal injury or property damage under the contract is small and that the time and cost of procuring the insurance is great in relation to the risk, he may exempt such contracts from the requirements of this subpart.

(b) Some of the factors which the contracting officer shall consider in determining the magnitude of the risk involved are:

(1) The nature of the program contracted for.

(2) The number of persons involved in performing the contract.

(3) The contract period.

(4) The number of persons likely to come in contact with or be affected by the performance of the contract.

(5) The nature and value of any property which might be affected by the contract.

8 14H-70.901 Labor standards in construc

tion contracts. The provisions of Subpart 1-12.4 of this title are applicable to construction contracts entered into pursuant to the Act, except when the contractor is the recognized governing body an Indian tribe or a non-profit Indian organization serving as a governmental instrumentality of an Indian tribe. 8 14H-70.902 Labor standards in subcon

tracts. Subcontracts shall include and subcontractors shall comply with the provisions of Part 1-12 of the Federal Procurement Regulations (41 CFR Part 1-12) to the extent that the provisions are applicable to the subcontract requirements. Questions concerning the applicability of the provisions of Part 1-12 of the Federal Procurement Regulations should be addressed to the contracting officer.

Subpart 14H-70.10—Contract Cost

Principles and Procedures

§ 14H-70.1001 Principles for determining

costs. The principles for determining costs applicable to contracts under the Act are contained in Appendix A to 25 CFR Part 276.

8 14H-70.808 Motor vehicle insurance.

Notwithstanding the provisions of $ 14H-70.807, any contract which requires or authorizes, either expressly or by implication, the use of motor vehicles must contain a provision requiring the tribal contractors to provide motor vehicle insurance, regardless of how small the risk may seem.

§ 14H-70.809 Insurance clause.

The clause contained in § 14H-70.611 shall be included in all contracts with tribal contractors, unless the contracting officer determines that an exemption is warranted under $ 14H-70.807. The limits of liability prescribed in the clause may be modified by the con

8 14H-70.1002 Predetermined fixed rates.

(a) Indirect cost or overhead rates may be negotiated annually where cost experience, reliable accounting data and other pertinent facts are available to support the projection of allowable 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

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

head amount may be negotiated. Such an amount will be based on reasonable projection of estimated costs to be incurred 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.

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:

(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.

§ 14H-70.1201 Scope of subpart.

This subpart sets forth procedures and requirements peculiar to construction contracts. The terms and conditions 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 officer shall obtain and insert the Wage Determination Decision issued by the Secretary of Labor in the contract prior to award of any contract for construction that falls within the purview of the Davis-Bacon Act. The Wage Determination Decision should be furnished sufficiently in advance of the contract award date to permit full consideration by the tribal organization and any prospective subcontractors prior to contract award.

Subpart 14H-70.13–Retention Re

quirements for Contractor and Subcontractor Records

8 14H-70.1301 General.

The record retention requirements in Subpart 1-20.2 and Subpart 1-20.3 of this title are applicable to contracts under the Act.

mined suitable to satisfy the minimum essential needs of the contractor.

(d) Subsequent advances may be made at times and in amounts determined necessary to insure availability of funds for timely payment of the contractor's obligations and to minimize the time between withdrawal from the Treasury and expenditure. For advance payment methods other than the Letter of Credit method, requests for advances made after an ini. tial advance shall be accompanied and supported by a report of expenditures to date, the amount of funds on hand, and the anticipated needs until receipt of payment. [40 FR 51332, Nov. 14, 1975, as amended at 43 FR 37450, Aug. 23, 1978)

Subpart 14H-70.14—Contract

Financing

8 14H-70.1401 General.

This subpart sets forth the methods of making payments to tribal organizations performing contracts under the Act.

8 14H-70.1402 Reimbursement.

This method will be used when a tribal organization does not request an advance payment. Payment will be made on receipt of a SF-1034 or other approved invoice form supported by documentation required by the contract after completion of the contract or such portions thereof as provided in the contract for partial payments.

8 14H-70.1404 Advance payments when

special bank account required. (a) Contracts authorizing the making of advance payments shall, except as provided in 25 CFR 271.41(a)(2)(i), require that the check be mailed to a bank to be deposited in a special bank account in the name of the contractor. No part of the funds deposited in the special bank account shall be mingled with other funds of the contractor prior to withdrawal to meet obligations accruing under the contract.

(b) For all advance payments requiring the use of a special bank account, the form of Agreement for Special Bank Account prescribed in § 14H70.1410 shall be used.

(c) All contracts requiring the use of a special bank account shall contain the contract clause prescribed in $ 14H-70.612(b).

8 14H-70.1403 Advance payments

by Treasury check. (a) At the request of a tribal contractor, and subject to the conditions hereinafter set forth, and Chapter 2000 of the Treasury Fiscal Requirements Manual as modified or supplemented, the Government will make advance payments to tribal organizations as prescribed in 25 CFR 271.41.

(b) Any request for advance payment by a tribal contractor shall specify the amount(s) required and the dates such advance(s) will be required and shall be supported by a schedule of estimated expenditures.

(c) An initial advance will be limited to the amount of estimated expenditures for a period of time required to effect payment, based on experience in the locality. The initial advance may be made in amounts at times deter

8 14H-70.1405 Letter of credit.

When a contract authorizes advance payments totaling $120 00 or more and the contract period is one year or more, advance payments will normally be made by Letter of Credit in accordance with the policies and procedures contained in Treasury Fiscal Requirements Manual, Chapter 2000, as modified or supplemented.

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 insure adequate funds for timely settlement of the contractor's obligations. Adjustments to automatic advances shall be made after consultation with the contractor.

8 14H-70.1406 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)

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:

$ 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.

$ 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.

(i) 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 contractor's general or other funds; and, the Bank being such a bank, the parties are agreeable to so depositing said amounts with the Bank.

(ii) 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:

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

$ 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

BANK Name:

Name and title of representative:

Complete mailing address:

UNITED STATES OF AMERICA DE

PARTMENT OF THE INTERIOR Bureau of Indian Affairs:

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 suffi. cient 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 special bank account for advance payments:

AGREEMENT FOR SPECIAL BANK ACCOUNT

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:

(7) The Special Bank Account shall be designated as SPECIAL BANK ACCOUNT NUMBER

Bureau of Indian Affairs. IN WITNESS WHEREOF, The parties hereto have caused this agreement to be executed as of the date and year written below:

19–

Date
CONTRACTOR
Name:

Name and title of representative:

Complete mailing address:

Modification Number

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