Presentation on theme: "The Indian Self-Determination and Education Assistance Act of 1975"— Presentation transcript:
1The Indian Self-Determination and Education Assistance Act of 1975 Public Law , as AmendedThe Indian Self-DeterminationandEducation Assistance Actof 1975REVIEW
2In 638, what is the Tribes intent? In 638, what is the Federal Governments main purpose?In 638, what is the Tribes intent?
3Public Law 93-638, as Amended Intent To assure maximum participation by Indian Tribes in the planning and administration of Federal services, programs and activities for Indian communities.Page 6 of “the Act”900.3 Policy Statements-RegulationsThe Secretary’s commitment to Indian self- determination requires that these regulations be liberally construed for the benefit of Indian tribes…Public Law , as Amended
4Negotiation The federal responsibility is therefore Technical AssistanceCentered on negotiating workable administrative processes.
5Key Principles Contracting of Bureau Programs The act provides tribes with 4 flexible and innovative tools to help them respond to their own critical needs and priorities.Contracting of Bureau ProgramsPlanning and Designing Programs that the Bureau continues to operate.Tribal Management Systems that secure their financial operations, particularly in regard to Federal funding of contracts and grantsGrants to tribal governing bodies.
6Key PrinciplesTribal operation and direction of Bureau Programs for Indians is intended to increase:Tribal governments will increase their responsibilities.Federal involvement will shift to technical assistance, evaluation, and monitoring.
7P.L. 93-638, the Law Public Law 93-638, as Amended January 4, 1975 Codified by: to systematizePromulgated –(published, make known)Regulations:25 CFR, Ch. I, Subchapter M,Parts 273, 275 and 27625 CFR, Ch. V, Part 900, Subparts A – P25 CFR, Ch. VI, Parts 1000 and 1001Public Law , as Amended
8Contract Administration Public Law 93‑638, as Amended25 CFR – Indians Part 900
9Contract Administration What is it We Do?The Act: The Law, Paragraph 1To provide maximum Indian participation in the Government and education of the Indian people; to provide for the full participation of Indian tribes in programs and services conducted by the Federal Government for Indians…The Regulations: CFR Part 900, Subpart A(b) Secretarial Policy (11)The Secretary’s commitment to Indian self-determination requires that these regulations be liberally construed for the benefit of Indian tribes and tribal organizations to effectuate the strong Federal policy of self-determination and, further, that any ambiguities herein be construed in favor of the Indian tribe or tribal organization so as to facilitate…Contract Administration
10900.3 (9)Policy Statements-Regulations It is the Secretary’s policy that no later than upon receipt of a contract proposal under the Act (or written notification of an Indian tribe or tribal organization’s intention to contract), the Secretary shall commence planning such administrative actions, including but not limited to transfers or reductions in force, transfers of contractible functions, as my be necessary to ensure a timely transfer of responsibilities and funding to Indian tribes and tribal organizations
11Contract Administration (definition) What is Contract Administration?“Those measures each party to the contract should take to assure that the promises exchanged or the agreements achieved in the contract are carried out.”Procurement is the Acquisition of goods, services or works from an external source. It is favourable that the goods, services or works are appropriate and that they are procured at the best possible cost to meet the needs of the purchaser in terms of quality and quantity, time, and location. Corporations and public bodies often define processes intended to promote fair and open competition for their business while minimizing exposure to fraud and collusion.Contract Administration (definition)
12Legal and Binding – Elements of a Contract Competent Parties: There must be at least two persons, each of whom has the legal capacity to act.AdultsHave AuthorityOffer and Acceptance: The parties must agree to the terms of the contract.Mutual AgreementMutual Consideration: There must be sufficient consideration to enforce the promise. Consideration is the price bargained for and paid for a promise.Obligations must be reciprocalLawful Purpose: The agreement must not require the performance of an illegal act by either party.Prohibited or not authorized by law
13Contract Administration READKnow:What is supposed to be done.When it is supposed to be done.Where it should be done.How it is supposed to be done.Who is supposed to do it.How often should it be done.How will you know when it is done.Plan for:ModificationsDisputes and AppealsRetrocessionReassumptionTHE CONTRACT!!Contract Administration
15Cost-Reimbursement Characteristics: Cost to the Government varies according to the Contractor’s actual costs.The negotiated cost that appears in the contract is the amount that the Contractor must not exceed without the Awarding Official’s approval.The burden for both performance and cost control is borne by the Government, not by the Contractor.Cost-Reimbursement
16Cost-Reimbursement General - Goods/Services acquired and Reimbursed: The Contractor is entitled to recover his actual costs, subject to the Limitation of Costs clause (if included) and applicable Cost Principles (OMB Circular A‑87), regardless of his progress toward fulfilling the SOW.General - Goods/Services acquired and Reimbursed:Cost Reimbursement generally covers:Research and Development ServicesStudiesServices for which there is no definitive SOW.All Non‑Construction Self‑Determination Contracts.
17Characteristics: Fixed Price Contract price cannot be changed unless a provision for contract price adjustment is included in the contract (i.e., the Changes clause or a provision for exercise of an option).The burden of both performance (meeting the specifications or statement of work) and cost control is on the Contractor.
18Characteristics - continued The Contractor is entitled to payment of the fixed price only if he delivers the product or performs the services in accordance with the contract specifications or statement of work.General - Goods/Services acquired:Supplies (Standard commercial items.)Architectural and Engineering ServicesConstructionServices for which the SOW has few unknowns.Fixed Price
19Administrative Guidelines Federal AcquisitionWhat the Federal Government DoesWhat is waived? What is adhered to?CommercialFederal Acquisition Regulations (FAR)48 CFR (Code of Federal Regulations)Chapter Department of Health and Human ServicesChapter 14 - Department of the InteriorAdministrative Guidelines
20Administrative Guidelines Self‑determination AcquisitionPublic Law , as Amended, Title I, Sections 25 CFR (Code of Federal Regulations)Chapter M, Parts 273, 275 and 276Chapter V, Part 900, Subparts A – PChapter VI, Parts 1000 and 1001Regional Implementation PlanInternal Agency Procedures Handbook for Non-ConstructionContract Support PolicyIndian Affairs Manual –(Includes Designation of Authority)The ContractAdministrative Guidelines
21P.L. 93-638, as Amended REMEMBER… Waived applicability of the Davis‑Bacon Act. [Section 7(a)]Waived applicability of 31 USC 63. [Section 9]Changed Normal Federal Acquisition Relationship.[ Sec (a)(1)]Government Decision to Contract"The Secretary is directed, upon the request of any Indian tribe by tribal resolution, to enter into a self-determination contract or contracts...”Waived Federal Procurement Laws and Regulations [Sec. 105(a)]Negotiation without advertisingNo Bid or Performance Bond RequirementAuthorized Self-Determination Contracts to include provisions for the performance of Personal Services. [Sec. 105(g)]P.L , as Amended
22Contract Administration DEFINITIONS - Section 4(j)“Self‑Determination Contract” means a contract (or grant or cooperative agreement utilized under Section 9(Act, pg 15)…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 …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.Contract Administration
23Contract Administration DEFINITIONS - Section 4(m)“Construction Contract”means a fixed‑price or cost‑reimbursement self‑determination contract for a construction project, except that such term does not include any contract:That is limited to providing planning services and construction management services (or a combination of such services);For the housing Improvement Program or Roads Maintenance Program of the Bureau of Indian Affairs administered by the Secretary of the Interior; orFor the Health Facility Maintenance and Improvement Program administered by the Secretary of Health and Human Services.ProjectsPrograms Sect. 108Contract Administration
24Contract Administration “Section 108 Agreement” =Contractual AgreementTHE Contract – “Programs”Sec. 108(a) Each Self‑determination contract entered into under this Act shall:(1) contain, or incorporate by reference, the provisions of the model agreement described in subsection (c), and(2) contain such other provisions as are agreed to by the parties.“Subpart J Contract”Sec. 105(m)(1) Each construction contract requested, approved, or awarded under this Act, shall be subject to:the provisions of this Act, other than sections 102(a)(2) [time frame], 106(l) [withholding payment], 108 [Model Agreement], and 109 [reassumption]Contract Administration
25Contract Administration Contract or Grant Provisions and AdministrationSection 105(a)(1) Notwithstanding any other provision of law, subject to paragraph (3), the contracts and cooperative agreements entered into with tribal organizations …shall not be subject to Federal contracting or cooperative agreement laws (including any regulations), except …that such laws expressly apply to Indian tribes. FAR (Federal Acquisition Regulations)(2) Program standards applicable to a non-construction Self‑determination contract shall be set forth in the contract proposal and the final contract of the tribe or tribal organization.Contract Administration
26Contract Administration Section 105 (c-o) pgPowerPointRead and discussContract Administration
27CONTRACT FUNDING AND INDIRECT COSTS (1) Secretarial Funding Level Section106 (a)Amount of funds provided:(1) Secretarial Funding Level(2) Contract Support Cost (Defined) “Policy”(3) Contract Support Cost (Examples)Direct Contract Support CostIndirect Cost(4) Savings(5) Start-Up Cost(6)Pre-Award Cost
2825 CFR, Chapter V, Part 900, Subparts A – P Regulations25 CFR, Chapter V, Part 900, Subparts A – PSubpart A: General ProvisionsSubpart B: DefinitionsSubpart C: Contract Proposal ContentsSubpart D: Review and Approval of Contract ProposalsSubpart E: Declination ProceduresSubpart F: Standards for Tribal or Tribal Organization Management SystemsSubpart G: Programmatic Reports and Data RequirementsSubpart H: Lease of Tribally‑Owned Buildings by the SecretarySubpart I: Property Donation ProceduresSubpart J: ConstructionSubpart K: Waiver ProceduresSubpart L: AppealsSubpart M: Federal Tort Claims Act Coverage - General ProvisionsSubpart N: Post‑Award Contract DisputesSubpart O: Conflicts of InterestSubpart P: Retrocession and Reassumption Procedures
29Contract Administration Purpose and Scope of the RegulationsThese regulations codify uniform and consistent rules for contracts by the Department of Health and Human Services and the Department of the Interior in implementation…Programs funded by other departments and agencies. Included under this part are programs administered by the DHHS and DOI for the benefit of Indians for which appropriations are to other Federal Agencies.The Part included in contracts by reference…Freedom of Information Act does not apply to records kept solely by Indian Tribes and tribal organizations.Privacy Act – Tribal government records shall not be considered Federal Records.Information Collection is required by the Secretary to safeguard Federal funds and resources.Contract Administration
30Contract Administration Personnel in the Contracting ProcessBureau Representatives (See Tools Tab)Regional OfficeRegional DirectorSuperintendant, Finance Officer, etc.Awarding OfficialAOTR/SAOTRAgency OfficeSuperintendent, Line Officer, Finance638 CoordinatorTribal RepresentativesTribal GovernmentTribal Council - Tribal ChairpersonTribal Program ManagerTribal Contract ManagerContract Administration
31Contract Administration Rights and ResponsibilitiesGeneral:Each party has a RIGHT to expect the performance agreed to by the otherEach party has the RESPONSIBILITY to perform what was agreed to.Contractor:Periodic/Annual Progress ReportsPeriodic Financial Status Reports (SF‑425)Single AuditAllow Bureau MonitoringContract Administration
32Contract Administration Responsiblities AOTR/SAOTR:Review and recommend acceptance/rejection of reports (progress and financial).Review and recommend approval/declination of payment requests.Monitor Contractor performance.Provide Program specific technical assistance.Conduct periodic on‑site Monitoring Visits.Report to Awarding Official.Review Delegation of AuthorityContract Administration Responsiblities
33Contract Administration Planning Activities:Character of SOWComplexityProgramRedesignType of ContractMature vs Non‑MatureMaster ContractMulti‑Program (CTGP/OATG)Contractor Reporting RequirementsMonthly, Quarterly, Semi‑Annual, Annual ProgressTechnicalFinancialContract Administration
34Contract Administration PropertyGovernment Furnished PropertyContractor Acquired PropertyGSA and “Other” PropertyDeliverablesWhat are they?What is the procedure for delivery?Unusual FeaturesIs there some unique aspect of the contract that requires special attention?Contract Administration
35Contract Administration Legal Nature of Contracts• Mutual promises.• Binding legal agreement.• Describes service or program to be delivered.• Administrative requirements that the parties must perform.Authority to Contract• Federal Government• Indian Tribe (Tribal Government)Contract Administration• Internal Administration (Contractor Actions)• External Administration (Federal Actions)Contract Administration
37Contract Administration Contract Administration File PlanBasic Contract File:Copy of contract and all modifications.Copy of any and all documents referenced in the contract.Indirect Cost Negotiation AgreementSingle Audit Report (if applicable)List of all items the Contractor is required to submit.List of all information or documents provided to theContractor.Monitoring PlanContract Administration
38Contract Administration AOTR File:Copy of AOTR/SAOTR Designation Letter.Copy of transmittal letter to Contractor.Specialized functions delegated to AOTR/SAOTR.Internal Correspondence File:Record of communications betweenAOTR/SAOTR and Contractor or other personnel.Copies of all correspondence between the AOTR/SAOTR and the Awarding Official.Copies of correspondence between AOTR/SAOTR and others regarding the contract.Contract Administration
39Contract Administration Contractor Correspondence File:Copies of all general correspondence related to the contract.Original copies of all Contractor submittals (i.e.: reports, data, etc.)Copies of all letters of approval (or denial), voucher schedule, payment schedule, etc.Payment File:Copies of payment requests.Copies of vouchers.Back‑up documents, if needed.Contract Administration
40Contract Administration AOTR/SAOTR Reports:Copies of Trip Reports (AOTR/SAOTR, AwardingOfficial, etc.)Copies of Monitoring Reports.Copies of Quarterly/Semi‑Annual AOTR Reports.Contract Administration
41Reports and StandardsProgram Assessment Rating Tool (PART)Generally Accepted Accounting Principles –GAAPGASB-34 Government Accounting Standards BoardGovernment Performance and Results Act (GPRA)
42Indicate Partners Name an Awarding Official An Awarding Official’s Technical/Tribal Chair Representative/Tribal Program DirectorA Finance/Property Manager
43Central Office West Your Source for Self-Determination / P.L. 93-638 Serving Indian Country
44Our MissionTo provide technical assistance in all aspects of Self-Determination Contracting and Administration;and P.L , as Amended;including the Single Audit Act where required.
45Training and Presentations Roll-playingWith the Civilian Board of Contract AppealsTraining and Presentations
46Central Office WestTraining is located in the Division of Self-Determination Services, Offices of Indian Services, Albuquerque, NM. COW provides training and technical assistance for both Tribal and Bureau personnel working in this field.The Training Division develops an annual training schedule, maintains class records, develops curriculum and administers tests to Federal employees to maintain their training requirements.
47Networking for Best Results With Directors like – Leroy Gishi (Transportation)
48Interfacing with Bureau Directors and a Variety of Expertise
50Finance and Accounting We assist in implementing Indian Self-Determination initiatives.Assist to resolve OMB Circular A-133, Single Audit Act IssuesAssist in OMB A-123, Internal Controls resolutionAssist in OMB A-87, Cost Principles difficultiesPersonnel work on-site with Tribes and Tribal Organizations, Bureau Agencies and Personnel.
51FinanceWe advise in Self-Determination management decisions with: Office of Finance Management, National Business Center, Inspector General, Office of Audit and Evaluation, in reviewing and responding to internal and external Audit requests within established time frames.
52Finance assist in preparing summary GPRA, PART, Single Audit and other reports identifying deficiencies and training needs and requirements; reviews and analyzes the reports to ascertain methods and level of training needed and/or develop a training plan with courses to address deficiencies identified.Finance
53Assist, Review and Monitor Review Single Audit ReportsAssisting in resolving “Findings”Develop Corrective Action PlansMonitoring Bureau ContractsCoordinate efforts with various Federal Agencies, Tribal Personnel and Bureau of Indian Affairs’ Offices.
54Education Support in Contracts and Grants Work closely with the Awarding Officials to conduct pre-award, award, administration and closeout, negotiation, technical assistance and appeal activities including any audit resolution that might arise.Education Grants or Contracts in coordination with Education Approving Officials (the BIE Education Line Officer), the Bureau Awarding Official, will negotiate and award the contract, or provide assistance working with a 297 Education Grant according to the BIA/BIE MOU.Mary Dupris Lead Education Awarding OfficialCheryl Lewis Education SpecialistEducation Support in Contracts and Grants