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ceive services under the contract or from the Bureau by other means: Provided further. That in any case where a contract or services will affect more than one Indian tribe, the approval of each such Indian tribe shall be prerequisite to the approval of the application for the contract or services. § 404.4

Effect on existing Indian rights. Nothing in these regulations shall be construed as:

(a) Affecting, modifying, diminishing, or otherwise impairing the sovereign immunity from suit enjoyed by an Indian tribe:

(b) Authorizing or requiring the termination of any existing trust responsibility of the United States with respect

to the Indian people; or

(c) Permitting significant reduction in services to Indian people as a result of this Part.

§ 404.13

PROPOSED RULES

Contents of application.

An application for funding under this tain the following information: Part shall be in writing and shall con

(a) Full name, address and telephone number of the tribal organization which is applying for the contract.

(b) Full name of tribe(s) with which the tribal organization is affiliated.

(c) Full name of tribe (s) directly benefiting or receiving services from the proposed contract or from the Bureau by other means.

(d) Documentation of the tribal request in the form of a resolution as out

lined in § 404.15.

(e) Date of submission to the Bureau and the name of the office where the application was submitted.

(f) Signature by the authorized representative of the tribal organization and the date thereof.

(g) Outline of the educational program

ulations.

Before revising or amending the regulations in this Part, the Commissioner shall take the following actions:

(a) Consult with Indian tribes and national and regional Indian organizations to the extent practicable about the need for revision or amendment and consider their views in preparing the proposed revision or amendment.

(b) Publish the proposed revisions or amendments in the Federal Register as proposed rulemaking to provide adequate notice to, and receive comments from, all interested parties.

(c) After consideration of all comments received, publish the regulations in the FEDERAL REGISTER in final form not less than 30 days before the date they are made effective.

Subpart B-Application Process

Any tribal organization which meets all of the following criteria is eligible to apply for a contract with or services from the Bureau for school construction:

(a) The tribal organization must control and manage the previously private school for which the organization is applying for a contract or services under this Part.

(b) Title to the land on which the construction for the previously private school will be located must be vested in the tribe or the United States.

(c) The previously private school controlled and managed by the tribal organization must have a minimum current enrollment or projection of 25 students in early childhood through grade 8 and/or 50 students in grades 9 through 12. § 404.12 Obtaining application forms. Application forms, instructions and related application materials are available from Area Directors and the Commissioner. Use of standard application forms will facilitate processing of applications. However, they are not required if the information contained in § 404.13 is stated in the applicant tribe's request for a contract or services.

(1) Narrative description of elementary programs with educational philosophy.

(2) Narrative description of secondary programs with educational philosophy. If application is for secondary facility, include course offering with each course outlining enrollment. class size, class meetings per week, minutes per class and fraction of year taught.

(3) What will happen to the education of the students now, in 1 to 3 years and in 4 to 10 years if the proposed facilities are not constructed? Discuss all available options, including but not limited to:

(i) Off-reservation boarding schools. (ii) On-reservation boarding schools. (iii) Public, Bureau ог other day schools.

(iv) Temporary facilities.

(h) Outline geographic attendance boundaries and include:

(1) Map of attendance area with description.

(2) Description of other Federal, public and/or private schools within the above attendance boundary.

(3) Discussion of impact the project will have on the schools listed in parafeeder schools. graph (h) (2) of this section and on

(4) Bus routes and/or change in bus routes caused by construction of facilities.

(j) Outline project description and justification data including:

(1) Function of proposed new facility, i.e., kitchen dining building for 300 students grades K-8, etc.

(2) Data such as capacity, date constructed, square footage and condition of existing facility described in paragraph (1)(1) of this section which needs to be replaced.

(3) Problems which may be encountered such as lack of adequate construction site, disputed jurisdiction, flood plain, soil conditions, archeological clearance, lack of electric power or water.

(4) Justification for project (Choose one and explain):

(i) The facility has been destroyed by a natural disaster.

(ii) The facility is unsafe or unsanitary. Documentation in the form of an engineering and/or safety report must be included for facilities that are unsafe or unsanitary. Also, there are no local educational facilities available that can provide seats for the unhoused students.

(iii) The same conditions exist as given in paragraph (j) (4) (11) of this section for unsafe or unsanitary facilities except that other facilities can be used to seat the unhoused students temporarily.

(iv) Unhoused pupils due to enrollment and population changes.

(v) The facility is functionally obsolete. It will not meet the education program or other requirements such as poor arrangement of rooms. inadequate spaces, structural and utility changes.

(vi) The facility is functionally obsolete due to age. Operation and maintenance is costly and the facility is impractical to maintain.

(vii) The facility will make it possible for children to attend school nearer their home.

(5) A current overall plan for constructing Bureau facilities, prepared by the Bureau and approved by the tribes affected.

(6) Attendance area school construction plans and memoranda of agreements. Attach any school construction plans for the applicable attendance area for all Federal, public or private schools and any memoranda of agreement concerning such plans. If there are none, a current status report shall be submitted. Assistance in completing ap

plications.

An applicant may obtain assistance in completing the application forms from the Agency or Area Offices. The Superintendent, Area Director, or Commissioner shall make any information available to the applicant needed to prepare the application except as restricted from disclosure by the Freedom of Information Act (5 U.S.C. 552), as amended by the Act of November 21, 1974 (P.L. 93502; 88 Stat. 1561).

§ 404.15 Tribal request.

(a) Before the Bureau can approve a tribal organization's application for a contract or services, it must be requested to do so by the Indian tribe to be affected by the contract or services. The Indian

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 or services which will affect more than one tribe, an authorizing resolution from each tribal governing body must be obtained before submitting the application to the Bureau for approval.

(b) The resolution of the tribal governing body shall also specify the tribal organization which is to operate the school. The resolution shall include the results of the vote (the number for and against), the date the resolution was approved, and signature of the person 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, the expiration date of the authorities granted by the resolution.

(2) When the tribal organization is other than the tribal governing body: (1) The name of the tribal organization.

(i) The tribal office or official to which the Bureau should send copies of documents and correspondence.

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

(3) The tribal governing body's approval or disapproval of the Bureau's current overall educational facilities construction plan which includes the new construction proposed by this project to

ensure:

(1) Coordination of facility construction with public school projects.

(i) Coordination of facility construction with other agencies.

(iii) Approval and support of the proposed project.

(d) Any procedures given in this section concerning the manner in which a tribal governing body passes a tribal constitution, law, code, ordinance, or other written document. In such cases, the tribal law or procedures shall be cited in the resolution and shall take precedence. § 404.16 Where to submit application. (a) The completed application with documentation of the tribal request(s) shall be delivered or mailed to the Superintendent having jurisdiction over the tribe(s) requesting the contract or services.

(b) When the contract or services requested in the application will benefit more than one tribe under the jurisdiction of more than one Agency Office within one Area, the application and documentation of the tribal requests shall be delivered or mailed to the Area Director involved.

(c) When the contract or services requested in the application will benefit more than one tribe under the jurisdiction of more than one Area Office, the application and documentation of the tribal requests shall be delivered or mailed to the Commissioner.

PROPOSED RULES

§ 404.17 When to submit application.

Applications may be submitted by a tribal organization to the Bureau at any time to be placed on the Bureau's priority listing.

§ 404.18 Agency Office review and action.

(a) The Superintendent has 30 days from receipt of an application to notify the applicant in writing of its receipt, review the application for completeness, and request any needed information from the applicant.

(b) When the Superintendent has determined that the application is complete, he will forward the completed application with documentation of the tribal request(s) to the Area Director having jurisdiction over that Agency Office with a written statement that the application is complete.

$404.19

Area Office review and action. Within 30 days after receiving an application directly or from the Superintendent, the Area Director will take the following actions:

(a) Notify the applicant in writing that the application was received in the Area Office.

(b) Review each application submitted directly to the Area Office as provided in 404.16(b) for completeness and obtain any needed information from the applicant.

(c) Assign each proposed project an Area Office priority. The Area Office will include an updated priority index with each application or group of applications transmitted to the Commissioner for applicable action.

(d) Forward each application and documentation of tribal request(s) to the Commissioner.

§ 404.20 Priorities for funding construc.

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(c) Update the Bureauwide priority listing of all approved projects in order of priority with the project with the highest priority listed first. As new applications are received, they will be added to the priority listing according to their ranking.

(d) Notify each applicant in writing of the project's priority ranking on the Bureauwide list. The applicant will be notified of any subsequent changes to that ranking if new applications were received with a higher ranking.

§ 404.22 On-site inspection and cost esti

mate.

(a) Three months before the new fiscal year begins, the Commissioner or his representative shall conduct an on-site inspection for projects high on the priority listing, beginning with the project ranked highest on the Bureauwide priority listing. The on-site inspection is to determine which buildings are to be retained, demolished or remodeled and to gather initial information required for development of the planning document.

(b) From this information, a tentative cost estimate for design, construction and equipment will be made for budget purposes in cooperation with the tribal organization.

$404.23 Preparing a

fund listing.

commitment-to

As each high priority project is given an on-site inspection and a tentative cost estimate is made, the project will be placed on a commitment-to-fund listing. Projects will be added as long as the total of the tentative cost estimates is less than the amount of funds appropriated for previously private school construction for the new fiscal year. Each applicant will be notified in writing when the project has been placed on the commitment-to-fund listing.

§ 404.24 Performing construction work.

When a project has been placed on plicant will be given the following opthe commitment-to-fund listing, the aptions, subject to approval by the requesting tribe(s):

(a) To negotiate a contract with the Bureau to perform all of the work or part of the work needed for the project with the Bureau performing the rest. Such contracts shall comply with the requirements in Subpart C of this Part and with 41 CFR Part 14H-70.

(b) To have the Bureau perform or arrange for the performance of all the work needed.

$404.25 Reapplication.

Once an applicant has applied for a contract or services and the project has been placed on the Bureauwide priority listing, there is no need to reapply. The project will be carried on the priority listing until placed on the commitmentto-fund list. However, if changes occur which would affect the project's rank and, thus, its priority, the applicant must submit a new application.

(a) No funds from any contract under this Part shall be made available by the Bureau directly to other than Indian tribes and tribal organizations. However, Indian tribes and tribal organizations assisted under this Part may use, funds provided to subcontract for necessary services.

(b) Twenty-five (25) per cent of all funds appropriated under Title II, Part B. section 204 of the Act shall be expended for construction of previously private schools controlled and managed by a tribal organization. Any unobligated funds will be retained until completion of the project and unexpended funds returned to the Bureau. Projects which are partially funded shall be given first consideration for the additional funding necessary to complete such projects.

Subpart C-General Contract
Requirements

PROPOSED RULES

services to the contractor in connection with the construction of school facilities. When appropriate, such services will provide assistance with periodic inspection of construction progress and determine the propriety of making partial payments as construction progresses.

§ 404.34 Selecting initial equipment.

The Commissioner or his representative may, upon, request, provide technical assistance in the selection of initial equipment.

§ 404.35 Payment to contractors.

(a) At the request of a contractor, the Bureau contracting officer may make advance payments under contracts made under this Part. The requirements given in this section and in Chapter 2000 of the Treasury Fiscal Requirements Manual apply to making the advance pay

ments.

(b) Any request for advance payment by В 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 shall 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 shall be made in amounts and at times determined suitable to satisfy the minimum essential needs of the contractor.

(d) Later advances shall 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. Requests for advances after an initial advance shall be accompanied and supported by a report of expenditures to date and the amount of funds on hand.

(b) An Architect/Engineer shall be selected by the contractor subject to the advice and assistance of the Commissioner who shall counsel the contractor with respect to professional qualifications and performance history of firms so the best qualified firm for the work is selected. No Architect/Engineer agreement shall be entered into by the contractor until the Commissioner has reviewed the agreement and consented in § 404.36 writing to its provisions.

(c) Plans and specifications must conform to the project description, with approved revisions. Such plans and specifications must be forwarded for the approval of the Commissioner including schematic design, design development, and final construction document. §404.33 Facilities construction.

(a) The Commissioner may assist in preconstruction and construction activities to assure conformity with the requirements of the Act. Approval of all proposed preconstruction documents will be obtained from the Commissioner. Assistance prior to the preparation of these and similar documents will be provided, upon request, by the Commissioner or his representative. A preliminary conference may be suggested with the project architect and others if that seems desirable. The Commissioner will provide sufficient copies of all forms used to prepare the documents required for the project.

(b) The Commissioner will provide, upon request, technical supervision and

Use and transfer of Government property.

(a) The use of Government-owned facilities for tribal purposes may be authorized when not needed for Government activities. Transfer of title to such facilities may be arranged under the provisions of the Act of June 4, 1953 (67 Stat. 41).

(b) In carrying out a contract made under this Part, the Commissioner may permit a contractor to use existing buildings, facilities, and related equipment and other personal property owned by the Bureau within his jurisdiction under terms and conditions agreed upon for their use and maintenance. The property must conform to the minimum standards established by the Occupational Safety and Health Act of 1970 (84 Stat. 1590), as amended (29 U.S.C. 651).

(c) Use of Government property is subJect to the following conditions:

(1) When nonexpendable Government property is turned over to the tribal organization under a use permit, the permittee shall insure the property against damage by flood, fire, rain, windstorm,

vandalism, snow and tornado in amounts and with companies satisfactory to the Federal officer in charge of the property. In case of damage or destruction of the property by flood, fire, rain, windstormn, vandalism, snow or tornado, the insurance money collected shall be expended only for repair or replacement of the property. Otherwise, insurance proceeds shall be paid to the Bureau.

(2) If the tribal organization is selfinsured and can present evidence of that fact to the Commissioner, insurance for lost or damaged property will not be required. However, the tribal organization will be responsible for replacement of such lost or damaged property at no cost to the Government or for paying the Government enough to replace the property.

(3) The permittee shall maintain the property in a reasonable state of repair consistent with the intended use and educational purposes.

(d) The contractor may have access to existing Bureau records needed to carry out 8 contract under this Part, as follows:

(1) The Bureau will make the records available subject to the provisions of the Freedom of Information Act (5 U.S.C. 552), as amended by the Act of November 21, 1974 (Pub. L. 93-502, 88 Stat. 1561).

(2) The contractors may have access to needed Bureau records at the appropriate Bureau office for review and making copies of selected records.

(3) If the contractor neds a small volume of identifiable Bureau records, the Bureau will furnish the copies to the contractor.

§ 404.37 Wage and labor standards.

All laborers and mechanics employed by contractors or subcontractors in constructing, altering, or repairing buildings or other facilties in connection with contracts under this Part shall be paid wages not less than those 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. However, this requirement does not apply where the contractor is the recognized governing body of the tribe and the construction, alteration or repair work is being performed by the tribal organization or the tribe with its own employees. § 404.38 Indian preference.

(a) Any contract made by the Bureau with a tribal organization shall provide that the contractor shall, to the greatest extent feasible, give preference in and opportunties for employment and training to Indians.

(b) Any contract made by the Bureau with a tribal organization shall provide that the contractor shall, to the greatest extent feasible, give preference in the award of subcontracts to Indian organizations and Indian-owned economic enterprises.

(c) All subcontractors employed by the contractor shall, to the extent possible, give preference to Indians for em

64-882 O 76-4

ployment and training and shall be required to include in their bid submission a plan to achieve maximum use of Indian personnel.

§ 404.39 Liability and motor vehicle in

surance.

(a) Tribal organizations shall obtain public liability and motor vehicle insurance under contracts entered into with the Bureau under this Part. However, where the Bureau 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, the contract may be exempted from this requirement.

(b) Notwithstanding paragraph (a) of this section, any contract which requires or authorizes, either expressly or by implication, the use of motor vehicles must contain a provision requiring the tribal organization to provide liability insurance, regardless of how small the risk.

§ 404.40 Recordkeeping.

A contractor will be required to develop and maintain a record-keeping system which will:

(a) Pully reflect all financial transactions involving the receipt and expenditure of funds provide under the contract in a manner which will provide accurate, current and complete disclosure of financial status; correlation with budget or allowable cost schedules; and clear audit facilitating data.

(b) Reflect the amounts and sources of funds other than Bureau contract funds which may be included in the construction project.

(e) Provide for the creation, maintenance and safeguarding of records of lasting value. § 404.41

Audit and inspection.

(a) During the term of a contract under this Part and for three years after the project or undertaking is completed, the Comptroller General and the Secretary, or any of their duly authorized representatives, shall have access for audit and examination purposes to any of the contractor's books, documents, papers, and records which, in their opinion, may be related or pertinent to the contract or any subcontract.

(b) The contractor will be responsible for maintaining all documents such as invoices, purchase orders, cancelled checks, balance sheets and all other records relating to financial transactions in a manner which will facilitate auditing. The contractor will be responsible for maintaining files of correspondence and other documents relating to the administration of the program under the contract properly separated from general records or cross-referenced to general filles.

(c) The contractor receiving funds under this Part shall be primarily responsible for contract compliance.

(d) The records involved in any claim or expenditure that has been questioned shall be further maintained until final

PROPOSED RULES

determination has been made on the questioned expenditure.

(e) All contracts, reports, budgets, budget estimates, plans, and other documents pertaining to administration of the contract shall be made available by the contractor. The contractor shall provide, free of charge, single copies of such documents upon request.

§ 404.42 Freedom of information.

(a) Unless otherwise required by law, the Bureau shall not place restrictions on contractors which will limit public access to the contractor's records except when records must remain confidential.

(b) A contractor under this Part shall make all reports and information concerning the contract available to the Indian people which the contractor serves or represents. Reports and information may be withheld from disclosure only when both of the following conditions exist:

(1) The reports and information fall within one of the following exempt categories:

(1) Specifically required by statute or Executive Order to be kept secret.

(1) Commercial or financial information obtained from a person or firm on a privileged or confidential basis.

(ii) Personnel, medical, and similar files where disclosure would be a clearly unwarranted invasion of personal pri

vacy.

(iv) Geological and geophysical information and data concerning wells.

(2) Disclosure is prohibited by statute or Executive Order or sound grounds exist for using the exemption given in paragraph (b) (1) of this section.

(c) A request to inspect or copy reports and information shall be in writing and must reasonably describe the reports and information requested. The request may be delivered or mailed to the contractor within 10 working days after receiving the request, the contractor shall determine whether to grant or deny the request. The requester shall be notified immediately of the determination.

(d) The time limit for making a determination may be extended up to an additional ten (10) working days for good reason. The requester shall be notified in writing of the extension, reasons for the extension, and the date on which the determination is expected to be made. § 404.43 Reporting.

(a) A contractor under this Part shall make a detailed report to the Commissioner after construction is completed. The report shall include, but not be limited to, an accounting of the amounts and purposes for which the contract funds were expended.

(b) The contractor shall furnish other reports when and as required by the Commissioner.

(c) A contractor under this Part shall send copies of the reports required by paragraphs (a) and (b) of this section to the tribal governing body (s) who re

quested the contract at the same time as the reports are sent to the Bureau.

§ 404.44 Repayment of funds.

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Any funds paid under a contract entered into under this Part which are not expended, obligated or used for the purposes of the contract during its term shall be returned to the Bureau.

§ 404.45 Penalties.

If any officer, director, agent, or employee of, or connected with, any contractor or subcontractor under this Part embezzles, willfully misapplies, steals, or obtains by fraud any of the funds or property connected with the contract or subcontract, he shall be subject to the following penalties:

(a) If the amount involved does not exceed $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both.

(b) If the amount involved exceeds $100, he shall be fined not more than $10,000 or imprisoned for not more than two years, or both.

§ 404.46 Applicable procurement regu. lations.

41 CFR Part 14H-70 provides the contract clauses which shall be included in contracts made with tribal organizations under this Part and places some requirements on them in addition to those given in this Subpart. § 404.47

ment.

Contract revision or amend

(a) Any contract made under this Part may be revised or amended as deemed necessary to carry out the purposes of the contract. No revision or amendment shall be made without the consent of the contractor. A contractor may make a written request for a revision or amendment of a contract to the Bureau contracting officer.

(b) If the contracting officer disapproves the proposed revision or amendment of the contract, he will notify the contractor in writing within 30 days after receiving the request. The notice shall state:

(1) The objections to the requested revision or amendment.

(2) The right of the contractor to appeal as provided in Subpart C of 43 CFR Part 4.

§ 404.48

Cancelling a contract for cause.

(a) Any contract entered into under this Part may be cancelled for cause when the contractor fails to perform the work called for under the contract.

(b) Before cancelling the contract, the Bureau will advise the contractor in writing of the following:

(1) The reasons why the Bureau is considering cancelling the contract.

(2) That the contractor will be given an opportunity to bring its work up to an acceptable level.

(3) That the Bureau may furnish technical advice and assistance to help overcome the deficiencies in the contract performance, when requested.

(c) If the contractor does not overcome the deficiencies in its contract performance, the Bureau will cancel the contract for cause. The Bureau will noti