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Subpart J - Construction

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1 Subpart J - Construction
Alaska Provider’s Conference Public Law , as Amended Subpart J - Construction

2 Frank Larson Bureau of Indian Affairs Division of Self-Determination
Special Projects Coordinator Bureau of Indian Affairs Division of Self-Determination Tele: (715) Fax: (715) Cell: (715)

3 ACRONYMS GASB-34 GAAP GPRA PART OIG FBI NBC OMB DOI - BIA DHHS - IHS
GAO - Comptroller General GASB-34 GAAP GPRA PART OIG FBI NBC OMB Section Non Construction Contract Subpart J - Construction Contract

4 AUTHORITY What is it? Who has it? Where does it come from?

5 Authorization Appropriation 31 USC: Money and Finance

6 Cooperative Agreement
31 USC: Money & Finance 1301: Purpose Statute "Funds appropriated for a purpose can ONLY be expended for that purpose." 6301: Contract Grant Cooperative Agreement 7501: Single Audit P.L OMB Circular A-133

7 What is a CONTRACT? A contract is a legally enforceable agreement, in writing, between two or more persons (individuals, businesses, organizations, or government agencies) to do, or to refrain from doing, a particular thing in exchange for something of value. A written agreement between two or more parties for the doing of something in exchange for something else.

8 What is a “Self‑Determination Contract”
Pub. Law 93‑638, as Amended, Section 4(j) “Self‑Determination Contract” means a contract (or grant or cooperative agreement utilized under section 9 [450e-l] of this act) entered into under title I of this Act between a tribal organization and the appropriate Secretary for the planning, conduct and administration of programs or services which are otherwise provided to Indian tribes and their members pursuant to Federal law: Provided, That except as provided [in] the last proviso in section 105(a) of this Act, no contract (or grant or cooperative agreement under section 9 [450e-l] of this act) entered into under title I of this Act shall be construed to be a procurement contract.

9 Section 900.113 - Definitions Construction Contract
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 HIP or Road Maintenance Program of the BIA; or 3. For Health Facility Maintenance and Improvement Program of the IHS.

10 History of P.L 1975: No Construction without a waiver Non-construction procurement contract 1988: Non-construction, non-procurement Construction procurement contract, unless waived 1994: Construction non-traditional procurement contract 1996: Regulations published - 25 CFR Part 900

11 Section 900.112 - Phases of Construction
PREPLANNING Initial assessment and determination of project need and preparation of project application PLANNING Conducting and preparing detailed needs assessment Conducting pre-design site investigation Develop budget cost estimates Conduct feasibility study Develop Program of Requirements (POR) DESIGN Licensed professionals using POR prepare project plans, specification and other documents CONSTRUCTION Project is constructed in accordance with the construction documents Includes labor, materials, equipment and services necessary to complete the work

12 Section 900.113 - Definitions Construction Programs Programs for:
Planning Design Construction Repair Improvement Expansion

13 Contractual Agreements
Section 108 Agreement Construction Subpart J Grant or Cooperative

14 Contractual Agreements
Section 108 Agreement Pre-planning, planning, and Construction Management Services Proposal - 25 CFR 900.8 Subpart J Construction Agreement All phases of Construction Proposal - 25 CFR Grant/Cooperative Agreement (in lieu of a contract)

15 Section 900.115 - Construction Contract
A Self-Determination Construction Contract: Government-to-Government Agreement Transfers control to the Tribe Facilitates effective and meaningful participation by the Tribe in planning, conducting and administering the construction project

16 Section 900.115 - Construction Contract
A Self-Determination Construction Contract: Is not a traditional procurement contract. Is subject to the provisions and regulations of the Office of Federal Procurement Policy Act if PL requires it, if the Federal Procurement law or regulation mentions Indians, if they meet the test of three. Is to contain a listing of Federal requirements that meet the test of three.

17 Section 900.115 - Construction Contract
TEST OF THREE: Use Office of Federal Procurement Policy Act provisions and regulations only when they are: 1. Necessary to ensure that the contract may be carried out in a satisfactory manner; 2. Directly related to the construction activity; and 3. Not inconsistent with the Act.

18 Section 900.115 - Construction Contract
Shall be LIBERALLY CONSTRUED in favor of the Tribe

19 Section Days Days mean Calendar Days; except where the last day of any time period specified in these regulations falls on a Saturday, Sunday, or a Federal holiday, the period shall carry over to the next business day unless otherwise prohibited by law.

20 Section 900.113 - Definitions Program of Requirements (POR):
Planning document developed during the planning phase of an individual project. It provides: Background about the project Site information Programmatic needs Other information and design criteria on which to base the construction project documents

21 Section 900.117 - Secretary’s response to Program Of Requirements (POR)
Any failure of the Secretary to act on a POR within the required time frames will be deemed as a REJECTION OF THE POR. The Tribe can then file an appeal as provided in Section 110 of the Act, or the disputes provisions of the contract. The parties to the contract are encouraged to CONSULT: During the development of the POR; After submission of the POR to the Secretary.

22 Section 900.113 - Definitions Construction Management Services:
Activities limited to: Administrative support services Coordination and Monitoring Oversight of the planning, design and construction process. These activities will be performed by an ITOTO employee or a CMS consultant.

23 Section 900.118 - Construction Management Services
Section 108 Contract Subpart J - Construction Contract Tribal Employee or Consultant Employees or Consultant: Assist and advise ITOTO No authority over construction activities

24 Section 900.119 – 900.123 Contract Phases for Construction
Pre-Planning Planning Design Construction NOTIFICATION PRECONTRACT NEGOTIATION DECLINE/APPROVE AWARD ADMINISTRATION

25 Put forth a good faith effort!

26 Section 900.22 - Reasons to Decline
a. The services to be rendered will not be satisfactory. b. Adequate protection of trust resources is not assured. c. The proposed project cannot be properly completed or maintained. d. The amount of funds proposed is in excess of the applicable funding level for the contract. e. The activity (or portion thereof) is beyond the scope of activities covered under Section 102(a)(1) of the Act.

27 Section 900.123 - Declination Procedures:
1. State any objections to the contract proposal in writing and provide all documents relied on in making the declination decision within 20 days. 2. Provide assistance to the ITOTO to overcome stated objections. 3. Provide the ITOTO with a hearing on the record with the right to engage in full discovery relevant to any issue raised in the matter. 4. The opportunity for an appeal on the objections raised following Subpart L or initiate an action in a Federal District Court and proceed directly under Section 110(a) of the Act.

28 Section 900.153 - Actions in Response to Declination
1. Appeal to the Interior Board of Indian Appeals (IBIA). Civilian Board of Contract Appeals (CBCA) Federal Register, Vol. 72, No. 128, July 5, 2007 Effective January 6, 2007 Sec. 847 of P.L National Defense Authorization Act for F.Y. 2006

29 Section 900.153 - Actions in Response to Declination
2. Request an informal conference. 3. Sue in U.S. Federal District Court

30 COOPERATION

31 Section 9 of P.L The provisions of this Act shall not be subject to the requirements of Chapter 63 of Title 31, U.S.C.: Provided that, a grant agreement or a cooperative agreement may be used in lieu of a contract under Section 102 and 103 of this Act, when mutually agreed to by the appropriate Secretary and the tribal government.

32 Section 900.124 Contractor will:
Use FEDERAL CONSTRUCTION GUIDELINES and MANUALS applicable for the appropriate construction activity. Government SHALL ACCEPT tribal proposals for alternatives which are consistent with or exceed Federal guidelines or manuals.

33 Section 900.124 Contractor will:
Assume full responsibility and accountability for design and construction performance. Manage and administer the work with minimal involvement by the Government. Have acceptable Management Systems (Finance, Property, and Procurement).

34 CONTRACT PROPOSAL STANDARDS STATEMENTS ASSURANCES

35 Section 102(a)(2) Contractor shall include in the proposal:
Non-Construction Standards Construction Provisions regarding use of licensed and qualified architects Applicable health and safety standards Adherence to applicable Federal, State, local or tribal building codes and engineering standards.

36 Section 102(a)(2) Standards shall ensure: Structural Integrity
Accountability of funds Adequate competition for subcontracting Commencement, performance and contract completion Adherence to project plans and specifications (including Federal construction guidelines and manuals) Proper materials and workmanship Inspection and testing Changes, modifications, stop work, and termination of work.

37 Section 900.127 Construction Contract Budget
Reasonable Costs: Preparing contract proposal and supporting data Auditing Costs Fixed Price: General Administration Profit Administrative Costs Personnel - Administrative Oversight Travel Costs - Local and Remote Community Meeting - Develop project Documents Consultant Fees

38 Section 900.127 Construction Contract Budget
Reasonable Costs: Fees to Architects and Engineers Fees to develop surveys Fees to provide part-time or full-time on-site inspector Project site development cost Project construction cost Cost of securing and installing: Moveable Equipment Telecommunications Data processing equipment Special purpose equipment Other Costs

39 Section 900.127 Construction Contract Budget
Contingency Funds: Unanticipated conditions of the construction phase of cost- reimbursable contracts. 3% of activities being contracted; or 50% of available contingency funds, whichever is greater. If contingency funds will cause the project to exceed available project funds, the discrepancy shall be reconciled in accordance with Section (e). Additional contingency funds will be negotiated on an as- needed basis subject to availability of funds and nature, scope, and complexity of the project.

40 Section 900.127 Construction Contract Budget
Contingency Funds: Contingency funds for other phases will be negotiated on a contract-by-contract basis. Unused contingency funds obligated to the contract and remaining at the end of the contract will be considered savings.

41 Section 900.129 - Fair and Reasonable Price Government Cost Estimate
Independent Estimate Detail appropriate to nature and phase of work to be performed. Reflect contract type. Reflect contract pricing arrangement. Should not reflect budget amount. Be accurate.

42 Section 900.129 - Fair and Reasonable Price Government Cost Estimate
Will be basis for negotiation. Provide sufficient detail to allow comparison with the ITOTO estimate. Format coordinated with ITOTO. Include cost elements in Section 105(m)(4). Changes will be made throughout negotiation phase.

43 Section 900.129 - Fair and Reasonable Price Government Cost Estimate
Prior costs for similar projects adjusted for comparison to the target location. Actual costs previously incurred by ITOTO on similar projects. Published price lists, to include regional adjustment factors, for materials, equipment, and labor. Projections of inflation and cost trends, including projected changes such as labor, materials, and transportation costs.

44 Section 900.129 - Fair and Reasonable Price Exceeds Amount Available
1. ITOTO submits FINAL Proposal. (a) Federal Government has 30 Days to act! (b) Decline under Section 105(m)(4)(C)(v); or (c) Contract awarded, dispute matter under Contract Disputes Act; or 2. If requested by ITOTO: (a) ITOTO and Secretary may jointly explore methods of expanding the available funds through use of: Contingency Funds Advance Payments Rebudgeting Seek additional appropriations (b) ITOTO may propose reduction in project scope. (c) ITOTO and Secretary agree to do project in phases.

45 SHARE

46 Section 900.131 Secretary Responsibility
Construction Management Services: Limited to administrative support services. When contracted alone - under Section 108. Responsible for successful completion of project. Consult with ITOTO on regular basis - information exchange. ITOTO reviews project documents at concept, schematic, design and final construction phases or as negotiated. ITOTO has 21 Days to make comments or objections. Disputes subject to CDA. ITOTO has right to monitor Secretary’s work monthly, critical milestone, or on-site visits, or as negotiated.

47 Section 900.131 Secretary Responsibility
Design and Construction Contracts: Full tribal participation. Prompt tribal notification of concerns and issues. Environmental Determinations. Review and Approval of Planning Documents. Review and Approval of Designs.

48 Section 900.131 Secretary Responsibility
Design and Construction Contracts: Right to Copyrights Changes to the Contract Review of Shop Drawings Monitoring Suspension Final Inspection

49 Section 900.131 Secretary Responsibility
Suspension of Work: 30 Days, unless: ITOTO fails to correct reason for suspension. Cause for suspension cannot be resolved. Reason for Suspension: Differing Site Condition that: Impacts Health safety concerns Requires increase in negotiated budget Discovery of materially non-compliant work. Funds rescinded by Congressional action. Other Congressional action that materially affects the subject matter of the contract.

50 Section 900.131 Secretary Responsibility
Suspension of Work: To suspend the Secretary must: Provide written notice that describes the performance deficiencies or imminent safety, health or environmental issues. Give ITOTO minimum of 5 Days working days advance notice. Give ITOTO an opportunity to correct the problem. Compensate ITOTO for reasonable costs during suspension, if it is determined the suspension occurred through no fault of ITOTO. Disputes subject to CDA.

51 Section 900.131 Secretary Responsibility
Terminate for Cause or Convenience: Termination for cause: Non-compliant work not corrected during suspension. Termination for Convenience: Requested by ITOTO. Requested by Secretary and ITOTO agrees. Funds are rescinded. Other Congressional action occurs that materially affects contract. ITOTO must be given 21 days advance notice or ITOTO must be compensated for reasonable costs incurred due to termination.

52 Section 900.215 -230 Contract Dispute Procedures
Civilian Board of Contract Appeals Office of the Clerk of the Board 1800 F Street, NW Washington, DC 20405 Telephone: (202) Facsimile: (202) Website:

53 PARTNERSHIP Federal Government Tribal Government

54 Section 105(b) Contract Payment
Payments of any grants or under any contracts pursuant to sections 102 and 103 of this Act may be made in advance or by way of reimbursement and in such installments and on such conditions as the appropriate Secretary deems necessary to carry out the purposes of this title.

55 Section 105(b) Contract Payment
The transfer of funds shall be scheduled consistent with program requirements and applicable Treasury regulations, so as to minimize the time elapsing between the transfer of such funds from the United States Treasury and the disbursement thereof by the tribal organization, whether such disbursement occurs prior to or subsequent to such transfer of funds.

56 Section 105(b) Contract Payment
Tribal organizations shall not be held accountable for interest earned on such funds, pending their disbursement by such organization.

57 PAYMENTS Cost Reimbursement Contracts:
Upon presentation of an Invoice the Tribe will be reimbursed for its allowable and allocable direct and indirect costs not to exceed the amount of the contract unless modified.

58 PAYMENTS Fixed Price Contracts:
Upon presentation of an invoice the Tribe will be paid based on the actual quantities of work completed and accepted or materials furnished in accordance with the contract. The scheduled quantities of work to be done and materials to be furnished may be increased, decreased or deleted as determined necessary through contract modification.

59 Section 900.132 Payment Schedule
Advance Payment: (a) Part of Contract proposal. (b) Based on need, progress and other applicable law. (c) Based on time or phase of project. (d) Becomes part of the Contract. (e) May be adjusted during the course of the project based on a change in progress or need.

60 Section 900.132 Payment Schedule
Advance Payment: (f) Payments made per Payment Schedule. (g) Payments made quarterly, if no allocation period specified. (h) First payment can include costs for mobilization and contingency funds. (i) Any payment can include cost for materials to be used during subsequent periods.

61 Section 900.132 Payment Schedule
Advance Payment: (j) First payment within 21 Days of Contract award. (k) Second payment not later than 7 Days before end of first period. (l) Payment for remaining periods shall be made not later than 7 days before the end of the previous period, unless: (a) Tribe delinquent in progress and financial reports. (b) Contract terminated per sections (b)(12) or (b)(13).

62 Section 8 Carryover of Funds
Notwithstanding any other provision of law, any funds appropriated pursuant to the Act of November 2, 1921 (42 Stat. 208) [25 U.S.C. § 13], for any fiscal year which are not obligated or expended prior to the beginning of the fiscal year succeeding the fiscal year for which such funds were appropriated shall remain available for obligation or expenditure during such succeeding fiscal year.

63 Section 8 Carryover of Funds
… In the case of amounts made available to a tribal organization under a self-determination contract, if the funds are to be expended in the succeeding fiscal year for the purpose for which they were originally appropriated, contracted, or granted, or for which they are authorized to be used pursuant to the provisions of section 106(a)(3), no additional justification or documentation of such purposes need be provided by the tribal organization to the Secretary as a condition of receiving and expending such funds.

64 Section 106(a)(4) Excess Funds - Savings
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.

65 Public Law 105-277 Div. A, § 101(e), October 21, 1988
[H]ereafter funds made available to tribes and tribal organizations through contracts, compact agreements, or grants, as authorized by the Indian Self-Determination Act of 1975 [Pub. L , Title I, January 4, 1975, 88 Stat. 2206; 25 U.S.C.A. § 450f et seq.] or grants authorized by the Indian Education Amendments of 1988 (25 U.S.C and 2008A) shall remain available until expended by the contractor or grantee. NOTE: This language was included at the end of 25 U.S.C.A. 450j (Pub. L , as amended, section 105).

66 Use of Funds [25 USC 450e-2] Pub. Law 105‑83, Title III, Sec. 310, Nov. 14, 1997: Beginning in fiscal year 1998 and thereafter, where actual costs of construction projects under self‑determination contracts, compacts, or grants, pursuant to Public Law 93‑638, 103‑413, or 100‑297, are less than the estimated costs thereof, use of the resulting excess funds shall be determined by the appropriate Secretary after consultation with the tribes. NOTE: This section (25 USC 450e-2) was enacted as part of the Department of the Interior and related Agencies Appropriations Act, 1998 (Pub. L , Title III, § 310), and not as part of the Indian Self‑Determination and Education Assistance Act (Pub. L , as amended). It provides limitations on the use of excess construction project costs.

67 WAGE AND LABOR STANDARDS [25 USC 450e]
Sec. 7(a) Similar construction in locality: All laborers and mechanics employed by contractors or subcontractors (excluding tribes and tribal organizations) in the construction, alteration, or repair, including painting or decorating of buildings or other facilities in connection with contracts or grants entered into pursuant to this Act, shall be paid wages at not less than those prevailing on similar construction in the locality, as determined by the Secretary of Labor in accordance with the Davis‑Bacon Act of March 3, 1931 (46 Stat. 1494), as amended [40 U.S.C. §§ 276a et seq.].

68 WAGE AND LABOR STANDARDS [25 USC 450e]
Section 7(b) Preference requirements for wages and grants: Any contract, subcontract, grant, or subgrant pursuant to this Act, the Act of April 16, 1934 (48 Stat. 596), as amended [25 U.S.C. §§ 452 et seq.], or any other Act authorizing Federal contracts with or grants to Indian organizations or for the benefit of Indians, shall require that to the greatest extent feasible ‑ (1) preferences and opportunities for training and employment in connection with the administration of such contracts or grants shall be given to Indians; and (2) preference in the award of subcontracts and subgrants in connection with the administration of such contracts or grants shall be given to Indian organizations and to Indian‑owned economic enterprises as defined in section 3 of the Indian Financing Act of 1974 (88 Stat. 77) [25 U.S.C. § 1452].

69 WAGE AND LABOR STANDARDS [25 USC 450e]
Section 7(c) Self-Determination contract: 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.

70 Section 900.137 What Subparts Do Not Apply to Subpart J
Subpart C - Proposal Content Subpart D - Contract Review and Approval Subpart G - Programmatic Reports and Data Requirements Subpart P - Reassumption Section (d) - Redesign Section (e) - Reassume

71 Section 900.137 What Subparts Do Not Apply to Subpart J
P.L , section 105(m)(1) states: 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(l), 108 and 109;

72 Contract Administration
Contract Performance Initiation Contract Performance Government Acceptance Contract Closeout Post Construction Activity

73 Davis - Bacon Act Coverage: Obligation:
Not applicable to Tribe or Tribal Organization as Contractor or Subcontractor. Applicable to all other Subcontractors. Construction exceeding $2,000.00 Obligation: Wages are to be paid to laborers and mechanics on construction projects in accordance with wage rates determined by Secretary of Labor.

74 Davis - Bacon Act Obligation: Enforcement:
Applicable wage rate should be included in the contract. Wages are to be paid weekly. Workers must be given Fringe Benefits. Enforcement: Wage rates to be included as part of Contract. Wage rates to be posted at the work site. Submission of certified payrolls on a weekly basis.

75 Davis - Bacon Act Violations:
Subject to contract termination and reprocurement costs. Subject to debarment for up to 3 years. Contract payments may be withheld.

76 Section 110 CONTRACT DISPUTES AND CLAIMS [25 USC 450m-1]
(a) Civil actions; concurrent jurisdiction; relief: The United States district courts shall have original jurisdiction over any civil action or claim against the appropriate Secretary arising under this Act and, subject to the provisions of subsection (d) of this section and concurrent with the United States Court of Claims, over any civil action or claim against the Secretary for money damages arising under contracts authorized by this Act. In an action brought under this paragraph, the district courts may order appropriate relief including money damages, injunctive relief against any action by an officer of the United States or any agency thereof contrary to this Act or regulations promulgated thereunder, or mandamus to compel an officer or employee of the United States, or any agency thereof, to perform a duty provided under this Act or regulations promulgated hereunder (including immediate injunctive relief to reverse a declination finding under section 102(a)(2) [25 U.S.C.A. 450f(a)(2)] or to compel the Secretary to award and fund an approved self‑determination contract).

77 Section 110 CONTRACT DISPUTES AND CLAIMS [25 USC 450m-1]
(b) Revision of contracts: The Secretary shall not revise or amend a self‑determination contract with a tribal organization without the tribal organization's consent.

78 Section 110 CONTRACT DISPUTES AND CLAIMS [25 USC 450m-1]
(c) Application of laws to administrative appeals: The Equal Access to Justice Act (Pub. Law 96‑481, Act of October 1, 1980; 92 Stat. 2325, as amended), section 504 of title 5, United States Code, and section 2412 of title 28, United States Code shall apply to administrative appeals pending on or filed after the date of enactment of the Indian Self‑Determination and Education Assistance Act Amendments of 1988 by tribal organizations regarding self‑determination contracts.

79 Section 110 CONTRACT DISPUTES AND CLAIMS [25 USC 450m-1]
(d) Application of Contract Disputes Act: The Contract Disputes Act (Pub. Law 95‑563, Act of November 1, 1978; 92 Stat. 2383, as amended) shall apply to self‑determination contracts, except that all administrative appeals relating to such contracts shall be heard by the Interior Board of Contract Appeals established pursuant to section 8 of such Act (41 U.S.C. 607).

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