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(c) The Indian Self-Determination Contract Proposal shall be executed by a person or persons authorized to act on behalf of the tribal organization and shall be accompanied by evidence that such person or persons are authorized to bind the tribal organization.

(d) The Indian Self-Determination Contract Proposal should be addressed to the Area Director of the appropriate Indian Health Service Area. Such proposals should be submitted, in 5 copies, well in advance of the desired beginning of support.

(e) Tribal organizations may obtain assistance in preparing Indian Self-Determination contract proposals from the IHS Area Offices. The Area Directors shall make any information available to the tribal organization which is needed in the preparation of its proposal except as may be exempt from disclosure by the Freedom of Information Act, 5 U.S.C. 552(b) and the Department of Health and Human Services regulations thereunder, 45 CFR, part 5.

§36.206 Tribal clearances initial contracts.

(a) Before the IHS may enter into a contract with a tribal organization, it must be requested to do so by the tribe. The tribe's request shall be in the form of a resolution by the tribal governing body. If the tribal organization is applying for a contract to perform services benefiting more than one tribe, an authorizing resolution from each tribal governing body must be obtained before submitting the application to IHS for approval. A tribal governing body may pass a single resolution authorizing a tribal organization to apply for, negotiate, and execute more than one contract if the resolution specifies for each contract the same information required in paragraphs (b) and (c) of this section.

(b) The resolution of the tribal governing body shall authorize the applicant tribal organization to apply for, negotiate and contract with the IHS subject to the specific terms, conditions and limitations of the resolution and applicable tribal laws, codes, and regulations and custom. The resolution shall include the date the resolution was approved, and signature of the per

son authorized to certify the accuracy of the information contained in the resolution.

(c) The tribal governing body's request (resolution) should include the following:

(1) When the tribal organization is the tribal governing body:

(i) A brief statement of the contract scope.

(ii) The tribal official authorized to negotiate the contract and any amendments thereto.

(iii) The tribal official authorized to execute the contract and any amendments thereof.

(iv) The expiration date of the authorities granted by the resolution.

(v) The extent and procedure, if any, for review of the contract and any amendments thereto by the tribal governing body before execution.

(vi) The proposed date for contract commencement.

(vii) The proposed term of the contract.

(2) When the tribal organization is other than the tribal governing body: (i) The name of the tribal organization.

(ii) A brief statement of the contract scope.

(iii) The extent and procedure, if any, for review by the tribal governing body of the contract and any amendments thereto prior to execution by the tribal organization.

(iv) The tribal office or official to which the IHS should send copies of contract documents and correspond

ence.

(v) The proposed term of the contract.

(vi) The proposed date for contract commencement.

(vii) Any limitations on authorities granted the tribal organization.

(d) Any procedures specified in this section concerning the manner in which a tribal governing body passes a tribal resolution shall apply except where inconsistent with tribal constitution, law, code, ordinance, or custom. In such cases, the tribal law or procedures shall be cited in the resolution and shall take precedence.

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The Secretary may renew a contract for the same function(s) or programs as the original contract at the written request of the tribal organization designated in the tribal resolution. Requests for contract renewals shall be made as follows:

(a) If the original contract provided services to only one Indian tribe, written applications for renewal shall be sent by the tribal organization to the Area Office as follows:

(1) Directly, when the tribal organization involved is the governing body of the tribe.

(2) Through the governing body of the tribe for review when the tribal organization is not the governing body of the tribe. Submission shall be made to the governing body at least 75 calendar days before the original contract expires. The tribal organization shall promptly notify the IHS Area Office in writing of the date the tribal governing body received the application. If, within 45 calendar days after receiving the application, the tribal governing body does not provide the IHS Area Director with a formal resolution objecting to the application for renewal, the absence of receipt of such a resolution shall constitute the tribe's request for renewal of the contract.

(b) If the original contract provided services to more than one Indian tribe, the tribal organization must give a copy of the written application for renewal to each tribal governing body at least 75 calendar days before the original contract expires. The tribal organization shall promptly notify the IHS Area Office where the application is to be submitted in writing, of the date the tribal governing bodies received copies of the application. If, within 45 calendar days after receiving copies of the application none of the tribal governing bodies provide the appropriate IHS Area Office with a formal resolution objecting to the application for renewal, the absence of receipt of such resolutions shall constitute the tribes' request for renewal of the contract. If one or more of the tribal governing bodies involved object to the renewal, the contract will not be made until all the tribal governing bodies have ap

proved the request or the matter is otherwise resolved.

§36.208 Evaluation criteria.

(a) Indian Self-Determination Contract Proposals will be evaluated to determine:

(1) If the service to be rendered to Indian people by the proposed contract will be satisfactory;

(2) If the proposed contract will assure that trust resources are protected; and

(3) If the proposed contract will ensure proper completion and maintenance of the project or function involved. Failure to meet any of the above, may be cause for declination of the Indian Self-Determination tract Proposal. However, the burden of proof to show cause for declination lies with the approving official.

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(b) To determine if an Indian Self-Determination Contract Proposal meets the above criteria, the Area Director and his staff will consider whether the tribal organization would be deficient in performance under the contract with respect to the factors listed in this paragraph.

(1) Equipment, buildings and facilities. No higher standards with regard to buildings, facilities, or equipment shall be applied to tribal organizations than have previously been applied to IHS. The Indian Health Service shall make available the use of all equipment which has been allocated to the operation of the program by the IHS in the past, unless the IHS determines that the provision of such equipment will seriously interfere with the IHS's ability to provide services to Indian people in noncontracted programs. Where equipment is shared by the programs to be contracted and other non-contracted programs, equipment-sharing or other suitable arrangements will be reflected in the contract.

(2) Bookkeeping and accounting procedures. It must be clearly established by the Indian Health Service that the tribal organization which will undertake the contract does have an adequate accounting and bookkeeping system. IHS may assist the contractor in establishing an acceptable bookkeeping and accounting system.

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(3) Substantive knowledge of the program to be contracted. The tribal organization shall be presumed to have substantive knowledge of the program to be contracted if it meets one or more of the following conditions:

(i) The tribal organization has successfully managed a similar program before through grant or contract for which standards have been established.

(ii) The members of the tribal organization have been consumers of such services in the past and have developed an understanding of the program sufficient to enable the tribal organization to effectively carry out the contract operation.

(iii) The tribal organization has made arrangements to obtain and to develop its knowledge of the program.

(4) Community support. Before the IHS can enter into a contract there must be a request made in accordance with §36.206. The tribal governing body's resolution under §36.206 shall be presumed to demonstrate that there is community support for the proposed contract. Any assertion of a lack of community support by persons to be served under the contract, is subject to exhaustion of tribal remedies by those making such assertions.

(5) Adequacy of trained personnel. The adequacy of trained personnel available to the tribal organization to carry out the proposed contract will be presumed if any of the following conditions exists:

(i) If the tribal organization has a personnel system that prescribes minimum occupational qualification standards, which shall be not less than minimum Civil Service standards where applicable and procedures for the selection of personnel on the basis of such qualifications, and the personnel to be used under the proposed contract are to be employed under the personnel system.

(ii) If there is no tribal personnel system, it will be assumed that the personnel to be employed under the proposed contract are adequately trained if the tribal organization has established position descriptions for key personnel to be employed under the contract and will establish within a reasonable time a personnel system

similar to the one described in paragraph (c)(5)(i) of this section.

(6) Other necessary components of contract performance. (i) The contractor's proposal must demonstrate the capacity to meet minimum health program and professional standards established by IHS for each major health service activity of the IHS. The Director will establish and make available to any prospective contractor the minimum standards for each major health service activity of the Indian Health Service. In evaluating the contractor's proposal, the IHS will take into account the prevailing health program and professional standards of IHS for the health service activity in the location concerned.

(ii) The contractor's proposal will be evaluated to determine the contractor's ability to meet the Uniform Administrative Standards published as a Notice of Proposed Rulemaking in February 10, 1975, 40 FR 6304.

(iii) The ability of the contractor to carry out the contract in accordance with IHS policy, the applicable regulations of this part, and the Act.

(iv) No other components shall be prescribed as a basis for declination unless such components are added to the regulations in this subpart by revision or amendment of regulations.

(7) IHS officials may not decline to enter into a contract with a tribal organization because of any objection that would be overcome through the contract.

§36.209 Government property.

(a) In carrying out a contract made under this part, the Director will wherever possible, permit a tribal contractor to use buildings, facilities, and related equipment and other personal property owned by the IHS within his jurisdiction. Arrangements on the use of IHS property shall be provided for in the contract or other agreement as appropriate. In determining whether real or personal property can be provided, he shall determine whether the IHS can provide comparable services for any of the uncontracted part of the program.

(b) Requests for the use of IHS property which arise after signing of the

contract shall be submitted to the relevant IHS official by the tribal organization. Such requests should be granted unless such a use would seriously interfere with the administration of existing IHS programs. The property must conform to the minimum standards established pursuant to the Occupational Safety and Health Act of 1970 (29 U.S.C. 651).

§36.210 Submitting contract proposals.

(a) When services under the proposed contract will be provided to one or more tribes within the jurisdiction of a single Area Office, the completed contract proposal with documentation of the tribal request(s) and approvals of each such tribe effected shall be delivered or mailed to the Area Director of that Area Office.

(b) When services will be provided to tribes within the jurisdiction of more than one IHS Area Office, a copy of such proposals and documentation shall be forwarded to each of the Area Offices affected.

§36.211 Contract proposal approval officials.

The Director or his delegate is authorized to approve proposals for contract under this subpart.

$36.212 Review.

Upon receiving a contract application, Indian Health Service will:

(a) Notify the tribal organization in writing that the proposal has been received. This notice will be made within five (5) calendar days after receipt of the proposal.

(b) Review the proposal for completeness and promptly request additional information from the tribal organization or from the requesting tribe which will be needed to reach a decision.

(c) Notify Area Office subordinate activities serving the tribe(s) which will receive services under the contract and obtain any needed information and/or relevant recommendations on the contract.

(d) Assess the contract proposal to determine if it is feasible and if it complies with the appropriate requirements of the Act and of the regulations in this subpart.

(e) Meet with representatives of the tribal governing body and contract applicant to resolve any declination issues.

(f) Whenever declination issues cannot be resolved as in paragraph (e) of this section, notify the tribal organization of deficiencies in the proposal and provide to the extent practicable technical assistance, as requested, to overcome such deficiencies.

(g) Approve or disapprove the proposal after fully reviewing and assessing it and any additional information submitted by the tribal organization provided, however, that no action to disapprove shall be taken during the period of provision of technical assist

ance.

(h) Promptly notify the tribal organization in writing of the decision to approve or disapprove the proposal. If the proposal is disapproved, the notice shall contain but need not be limited to the following:

(i) Specific objections, which are based on failures to meet applicable program or administrative standards or fund restrictions, which preclude acceptance of the Indian Self-Determination Contract Proposal;

(ii) Guidance to the tribe regarding the steps which need to be taken to overcome the stated objections;

(iii) Identification of assistance which can practicably be made available to the tribe upon request to overcome the stated objections;

(iv) Notification to the tribal organization of its right to appeal and to request an informal or formal hearing in accordance with §36.214 of this subpart.

§ 36.213 Processing time.

The approving official will approve or disapprove a contract proposal within sixty (60) calendar days after receipt. The sixty (60) calendar day deadline may be extended only after obtaining the written consent of the tribal organization.

§36.214 Tribal appeals to proposal declinations.

(a) On being advised that an Indian Self-Determination Contract Proposal has been disapproved by the appropriate approving official, and having

been informed of the basis of such decision, the tribal organization may file a written appeal to the Contract Proposal Declination Appeals Board within thirty (30) days after receipt of the Declination Notice and may request an informal or formal hearing. The written appeal should either refute or overcome the objections stated as a basis for disapproval. The Contract Proposal Declination Appeals Board shall consider such an appeal, conduct any requested hearing thereon, and recommend a decision to the Director, Indian Health Service, or his representative whose decision shall be final.

(b)(1) The tribal organization and the Indian tribe or tribes affected shall be notified, in writing, of the date, time, place, and purpose of the hearing. The hearing will be conducted within 30 calendar days of written request for a hearing or at such later time as may be agreed upon. The IHS will authorize payment of transportation costs and per diem to allow adequate representation of the applicant, if the meeting is more than 50 miles from the office of the applicant.

(2) The hearing may be held under such rules as may be agreed upon.

(c) If formal hearing is requested, it will be conducted within thirty (30) calendar days from receipt of the written request for a hearing or at such later time as may be agreed upon, and the notice of hearing shall specify in writing the date, time, place, and purpose of the hearing and shall afford the tribe or tribal organization the right:

(1) To written notice of the issues to be considered;

(2) To be represented by counsel; (3) To written record of the hearing; (4) To present and cross-examine witnesses;

(5) To file written statements prior to the hearing;

(6) To compel the appearance of Indian Health Service personnel or to take depositions of such persons at reasonable times and places.

(d) The decision of the Director, IHS, or his representative on the appeals will be rendered within 15 calendar days from the date of receipt by the Director of the IHS of the Board's recommendation.

(e) The Contract Proposal Declination Appeals Board shall be composed of 5 members appointed by the Director, Indian Health Service, one of whom shall be designated to serve as Chairman.

PROCUREMENT

§36.215 Applicability of regulations.

Contracts with tribal organizations resulting from the submission of Indian Self-Determination Contract Proposals as authorized in Pub. L. 93-638 shall be in accordance with chapters 1 and 3 of 41 CFR.

§36.216 Waivers.

(a) The Secretary may, for good cause shown, waive for the purposes of a specific contract any federal contracting laws and regulations which he determines are not appropriate for the purposes of the contract involved or are inconsistent with the Act.

(b) Requests for waivers may be initiated by tribal organizations or IHS contracting officers. Such requests will be forwarded to the Director, IHS for decision or further processing to the Secretary as required.

(c) A waiver request shall set forth clearly and precisely the following:

(1) The nature and basis of the needed waiver;

(2) Identification of the procurement regulation provision from which the waiver is needed;

(3) The circumstances under which the waiver would be used;

(4) The intended effect of the waiver; (5) The length of time for which it can be anticipated that the waiver will be required;

(6) Reasons which will contribute to complete understanding and support of the requested waiver;

(7) Copies of pertinent background papers such as forms, contractor requests, etc.

(d) Whenever a waiver is requested by a tribal organization and such request is denied, the tribal organization will be notified of the reasons for denial.

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