(a) The insurance provided by the contractor shall provide coverage to the contractor. the United States, their agents, and their employees within minimum amounts that are at least comparable to the minimum insurance coverage carried by other organizations in the same general area performing similar activities. (b) The Insurance shall provide for a waiver by the insurance carrier of any right it may have to raise as a defense the tribe's sovereign immunity from suit when a claim is within the limits of the policy. Further, the insurance shall not empower the insurance carrier to waive or otherwise limit the tribe's sovereign immunity outside or beyond the coverage and limits of the policy of insurance. § 14H-70.807 Exceptions. (a) In those cases where the contracting officer determines that the risk of death, personal injury or property damage under the contract is small and that the time and cost of procuring the insurance is great in relation to the risk, he may exempt such contracts from the requirements of this Subpart. (b) Some of the factors which the contracting officer shall consider in determining the magnitude of the risk involved are: (1) The nature of the program contracted for. (2) The number of persons involved in performing the contract. (3) The contract period. (4) The number of persons likely to come in contact with or be affected by the performance of the contract. (5) The nature and value of any property which might be affected by the contract. 14H-70.808 Motor vehicle insurance. Notwithstanding the provisions of $14H-70.807, any contract which requires or authorizes, either expressly or by implication, the use of motor vehicles must contain a provision requiring the tribal contractors to provide motor vehicle insurance, regardless of how small the risk may seem. The provisions of Subpart 1-12.4 of this title are applicable to construction contracts entered into pursuant to the Act, except when the contractor is the recognized governing body of an Indian tribe or a non-profit Indian organization serving as a governmental instrumentality of an Indian tribe. § 14H-70.902 Labor standards in sub contracts. Subcontracts shall include and subcontractors shall comply with the provisions of Part 1-12 of the Federal Procurement Regulations (41 CFR 1-12) to the extent that the provisions are applicable to the subcontract requirements. Questions concerning the applicability of the provisions of Part 1-12 of the Federal Procurement Regulations should be addressed to the contracting officer. Subpart 14H-70.10-Contract Cost § 14H-70.1001 Principles for determining costs. The principles for determining costs applicable to contracts under the Act are contained in Appendix A to 25 CFR 406. Predetermined § 14H-70.1002 fixed rates. (a) Indirect cost or overhead rates may be negotiated annually where cost experience, reliable accounting data and other pertinent facts are available to support the projection of allowable costs for the period covered by the contract or grant. Negotiated rates shall not result in an amount which will exceed actual costs. (b) Where cost experience and accounting data are not available to support a negotiated rate and where the estimated amount of the contract is less than $10,000, a lump sum overhead amount may be negotiated. Such an amount will be based on reasonable projection of estimated costs to be incurred by the tribal organization and shall take into consideration all costs which can be applied as direct costs, and shall not exceed 10 percent of the direct labor costs. rate be established. The request shall be supported by, as a minimum: (1) A schedule of common costs which cannot be feasibly charged as direct costs of a program and are costs benefiting more than one program. (2) The nature and extent of services provided and their relevance to the specific program. (3) Methods and manner of distribution of costs. (4) Total business of all programs to which indirect costs will be distributed. (b) The contracting officer shall, after review and if indicated, further consultations with the tribal organization, forward the request to the Department of Interior, Office of Audit and Investigation, for review and audit as determined necessary. In the event a rate is approved without audit, the contract shall contain a clause to the effect that upon audit the rate may be changed retroactively to the beginning of the contract period. (c) An audit by the Department's Office of Audit and Investigation will not be required prior to contract award and overhead rates may be approved by the Contracting Officer when: (1) The amount of the contract is less than $100,000. (2) The contract is not the initial contract with the particular tribal organization, an overhead rate was previously established, and the overhead rate currently requested does not exceed that previously established one by more than one percentage point. (3) Current overhead rates have been established by another Federal agency. Subpart 14H-70.11-Procurement Forms § 14H-70.1101 Applicability of standard forms. The standard forms prescribed in Part 1-16 of this title may be used in connection with contracts entered into pursuant to the Act when applicable and may be modified when deemed necessary. However, standard forms other than SF 147 that contain clauses not prescribed by this Part 14H-70 shall not be used. Subpart 14H-70.12-Procurement of § 14H-70.1201 Scope of subpart. This subpart sets forth procedures and requirements peculiar to construction contracts. The terms and conditions of construction contracts when negotiated with an Indian organization pursuant to the Act shall to the extent applicable be in accordance with the requirements set forth in Part 1-18 of this title. However, if there is a conflict between Part 1-18 of this title and any provision of the Act or 25 CFR 401, the Act or 25 CFR 401 shall govern. FEDERAL REGISTER, VOL. 40, NO. 172-THURSDAY, SEPTEMBER 4, 1975 PROPOSED RULES of an Indian tribe, but shall be prefaced § 14H-70.1-404 Advance payments when special bank account required. (a) Contracts authorizing the making of advance payments shall, except as provided in 25 CFR 401.41 (a) (2) (1), require that the check be mailed to a bank to be deposited in a special bank account in the name of the contractor. No part of the funds deposited in the special bank account other funds of the contractor prior to withdrawal to meet obligations accruing under the contract. (b) For all advance payments requiring the use of a special bank account, the form of Agreement for Special Bank Account prescribed in § 14H-70.1410 shall be used. (c) All contracts requiring the use of a special bank account shall contain the contract clause prescribed in 14H-70.6. § 14H-70.1405 Letter of credit. When a contract authorizes advance payments totaling $250,000 or more and the contract period is one year or more, advance payments will normally be made by Letter of Credit in accordance with the policies and procedures contained in Treasury Fiscal Requirements Manual, Chapter 2000. § 14H-70.1406 Approval of advance pay. ments. 41037 dictable, automatic advance payments may be authorized by the contracting officer to avoid delay inherent in payments based on formal request by the contractor. In such cases, reports of expenditures will be required and payments will be adjusted as necessary to prevent withdrawal of funds over and above that needed for efficient operation, and to insure adequate funds for timely settlement of the contractor's obligations. Adjustments to automatic advances shall be made after consultation with the contractor. § 14H-70.1410 Agreement for special bank account. (a) In all instances where deposit of an advance payment in a special bank account is required, the following form of agreement will be used: AGREEMENT FOR SPECIAL BANK ACCOUNT (1) This agreement entered into between the United States of America, hereinafter called the "Government," contractor, and Bank, each represented by the officials executing this agreement. (2) The Government and the contractor entered into the contract(s) or Supplemental Agreement(s) thereto, providing for the making of advance payment(s) to the contractor. Copy of the advance payment clause included in the contract is attached to and made a part of this agreement. (1) The advance payment clause requires that amounts advanced to the contractor be (a) Area Directors may approve advance payments which do not exceed $250,000. When the contract term is for deposited in a Special Bank Account at a more than one year, Area Directors may approve advance payments which do not exceed $250,000 each succeeding year of the contract. (b) Requests for advance payments exceeding $250,000 in the aggregate for the term of the contract, or one year if a § 14H-70.1403 Advance payments by multi-year contract, shall be forwarded Treasury check. (a) At the request of a tribal contractor, and subject to the conditions hereinafter set forth, and Chapter 2000 of the Treasury Fiscal Requirements Manual, the Government will make advance payments to tribal organizations as prescribed in 25 CFR 401.41. (b) Any request for advance payment by a tribal contractor shall specify the amount(s) required and the dates such advance(s) will be required and shall be supported by a schedule of estimated expenditures. (c) An initial advance will be limited to the amount of estimated expenditures for a period of time required to effect payment, based on experience in the locality. The initial advance may be made in amounts at times determined suitable to satisfy the minimum essential needs of the contractor. (d) Subsequent advances may be made at times and in amounts determined necessary to insure availability of funds for timely payment of the contractor's obligations and to minimize the time between withdrawal from the Treasury and expenditure. Requests for advances subsequent to an initial advance shall be accompanied and supported by a report of expenditures to date and the amount of funds on hand. to the Commissioner of Indian Affairs by Area Director for submission to the Department in accordance with § 14-30.406 of this title. Sub-advances may be made when predetermined as a part of a contracted program or when specifically authorized in writing by the contracting officer. Subadvances will not be made to individuals except for approved travel and in such cases shall not exceed the minimum re quired for one trip and shall be settled by voucher or repayment within 30 days. Interest. § 14H-70.1408 (a) Contractors shall not be held accountable for interest earned on funds advanced pending disbursement. However, it is required that bank balances be maintained at the minimum level consistent with program requirements, and requests for advances shall be reviewed to insure that excess funds are not advanced. (b) Contractors shall not be charged interest by the Bureau for funds advanced under contracts entered into pursuant to the Act. member bank or banks of the Federal Reserve System or any "insured" bank within the meaning of the Act creating the Federal Deposit Insurance Corporation (Act of August 23, 1935; 49 Stat. 684, as amended; 12 U.S.C. 264), separate from the contractor's general or other funds; and, the Bank being such a bank, the parties are agreeable to so depositing said amounts with the Bank. (1) This Special Bank Account shall be designated as indicated in paragraph (7) of this agreement. (3) In consideration of the foregoing, and for other good and valuable considerations, it is agreed that: (1) The Government shall have a lien upon the credit balance in said account to secure the repayment of all advance payments made to the contractor, which lien shall be superior to any lien or claim of the bank with respect to such account. (11) The Bank will be bound by the provi sions of the advance payment clause relating to the deposit in and withdrawal of funds from the Special Bank Account, but shall not be responsible for the use of funds withdrawn from said account. Upon receipt by the Bank of written directions of any kind from the contracting officer, or from the duly authorized representative of the contracting office, pertaining to the use of the funds in the Special Bank Account upon Department of the Interior, Bureau of Indian Affairs stationery and purporting to be signed by the contracting officer or the contracting officer's authorized representative, the Bank shall act thereon and insofar as the rights, duties, and liabilities of the Bank are concerned, the written directions shall be conclusively deemed to have been properly issued and filed with the Bank by the Department of the Interior, Bureau of Indian Affairs. (111) The Government, or its authorized to the representatives, shall have access books and records maintained by the Bank with respect to the Special Bank Account at all reasonable times and for all reasonable FEDERAL REGISTER, VOL. 40, NO. 172-THURSDAY, SEPTEMBER 4, 1975 41038 purposes, including (but without limiting the generality thereof) the Inspection or copying of such books and records and any and all memoranda, checks, correspondence or documents appertaining thereto. Such books and records shall be preserved by the Bank for a period of six (6) years after the closing of the Special Bank Account. (4) In the event of the service of any writ of attachment, levy of execution, or commencement of garnishment proceedings with respect to the Special Bank Account, the Bank will promptly notify the contracting PROPOSED RULES Name and Title of Contracting Officer: (b) The following instructions apply to the form of agreement shown in paragraph (a) of this section: (1) Under paragraph (6) of the agreement, state the contract number and describe the purpose of the contract in brief but sufficient detall to convey a general understanding of Its nature. If the contract uses a descriptive title to designate its purpose, that description should be used. (2) Insert, in the blank space in paragraph (7) of the agreement, the number assigned by the Bank as the Account Number for the Subpart 14H-70.15-Novation and Change "Special Bank Account." (3) The agreement should be dated on the date It is signed by the contracting officer. (4) The complete mailing address of the Bank is necessary as the advance payment check and all progress payment checks will be mailed to the Bank. The zip code is required. (5) The contracting officer should not sign the agreement until authority to make the advance payment has been obtained. (c) The following is the form of modification of an agreement for a special bank account for advance payments: AGREEMENT FOR SPECIAL BANK ACCOUNT Modification Number (1) The Agreement for Special Bank Account dated 19., is modified as follows: (2) The contract number and the purpose of the contract is as follows: (4) The Special Bank Account number is indicated as follows: IN WITNESS WHEREOF, the parties hereto have caused this modification to be executed as of the date and year written below: of Name Agreements § 14H-70.1501 General. The provisions of Subpart 1-26.4 of this title are applicable to contracts under the Act. Subpart 14H-70.16-Procurement Reports § 14H-70.1601 General. This subpart sets forth the requirements for reporting procurement actions under the Act. FEDERAL REGISTER, VOL. 40, NO. 172-THURSDAY, SEPTEMBER 4, 1975 42658 DEPARTMENT OF HEALTH, Public Health Service [42 CFR Part 36] MENT, CONSTRUCTION AND OPERA Notice of Proposed Rulemaking On August 14, 1975, the Secretary of the Department of Health, Education, and Welfare published in the FEDERAL REGISTER. 40 FR 34292, an Advance Notice of Proposed Rule Making inviting public participation in the development of proposed regulations with respect to contracts and grants pursuant to sections 103 and 104(b) of the Indian Self-Determination and Education Assistance Act, Pub. L. 93-638. As of August 30, 1975, no comments were received. The Indian Self-Determination Act, Title I of Pub. L. 93-638 (January 4, 1975), authorizes the Secretary of Health. Education, and Welfare to enter into contracts with any tribal organization pursuant to section 103 of the Act to carry out any or all of the Secretary's functions, authorities and responsibilities under the Act of August 5, 1954 (68 Stat. 674), 42 U.S.C. 2001, as amended, and to make grants to Indian Tribes or Tribal organizations pursuant to section 104(b) of the Act for the development, construction, and operations of facilities and services and for planning, training, and evaluation projects to improve the capacity of tribal organizations to contract. The proposed grant and contract regulations have been drafted in a manner calculated not only to implement the specific provisions of the Act but also to give meaning to the Declaration of Policy set forth in section 3 of the Act and to reflect the commitment of the Secretary of Health, Education, and Welfare to the achievement of those goals. Nothing in the proposed regulations is intended to impair the Secretary's trust responsibilities to any Indian tribe or individuals, Nor are the regulations intended to affect, modify diminish or otherwise impair the sovereign immunity from suit enjoyed by an Indian tribe or to authorize or require the termination of any existing trust responsibility of the United States with respect to the Indian people. The proposed grant and contract regulations are also designed, to the extent feasible, to make available to Indian tribes and tribal organizations funds appropriated by Congress to meet the health needs of Indians and Alaska Natives in accordance with the spirit of the Indian Self-Determination and Education Assistance Act, Pub. L. 93-638. Accordingly, the proposed regulations have been drafted in general language so as to provide the Department and eligible applicants the greatest flexibility in developing programs and projects to be conducted by tribes and tribal organizations. Nevertheless, the funds appropriated by Congress to meet the health needs of the Indians are finite and not sufficient to pay for all the health needs of the Indian people. Therefore, in ap PROPOSED RULES propriating funds Congress has in effect It is the intention of the Secretary While there have been no major changes in the proposed grant regulations set forth in subpart H, the contract substantially altered. The general conregulations proposed herein have been tract provisions which had been set out as Appendix A and Appendix B to subpart I have been deleted from these proposed regulations. The general contract clauses and procurement provisions are to be published concurrent with these regulations, as a Notice of Proposed partment's basic Procurement RegulaRulemaking amending 41 CFR (the Detions) by the addition of a new subpart .60 to Part 3-4. In the proposed regulations, the word Secretary is defined as the Secretary of Health, Education, and Welfare and any other officer or employee of the Department of Health, Education, and Welfare to whom the authority involved has been delegated. On July 3, 1975, the Secretary delegated his authority under Title I of the Act to the Assistant Secretary for Health who in turn delegated his authority to the Administrator of the Health Services Administration. Those delegations of authority were published in the FEDERAL REGISTER, 40 FR 29319, on July 11, 1975. The Administrator, Health Services Administration has delegated his authority under Title I of the Act to the Director of the Indian Health Service contemporaneously with this Notice. A Notice reflecting such delegations appears elsewhere in this issue of the FEDERAL REGISTER. It is the intention of the Director of the Indian Health Service to redelegate his authority to Area and Program Directors and measures have already been taken to effectuate such further delegations. Interested persons are invited to participate in the rulemaking process by submitting such written data, views and arguments as they may desire. Inquirles may be addressed and data, views and arguments related to the proposed regulations may be presented in writing to the Director, Indian Health Service, Health Services Administration, Public Health Service, Room 5A-55, Parklawn Building. 5600 Fishers Lane. Rockville, Maryland 20852. Section 107(b) (4) of the Act requires publication of rules and regulations to implement the provisions of this title by November 4, 1975. All relevant material received within 30 days will be considered in the promulgation of such rules and regulations. All comments received in response to this notice will be available for public inspection in such office on weekdays (Federal holldays excepted) between 9 a.m. and 5 p.m. It is therefore proposed to amend 42 CFR Part 36 by adding a new subpart H-Grants for Development, Construction, and Operations of Facilities and Services and a new subpart I-Contracts under the Indian Self-Determination Act as set forth below. Issued in Washington, D.C. in September 1975. Dated: September 10, 1975. DAVID MATHEWS, Secretary. Subpart H-Grants for Development, Construction, and Operations of Facilities and Services Sec. 36.101 Applicability. 36.103 Eligibility. Application. Project elements. 36.105 36.106 Grant award and evaluation. 36.107 Use of project funds. 36.108 Funding duration. 36.109 Availability of appropriations. 36.110 Facilities construction. 36.111 Interest. |