Indian self-determination contracting
Section 102 of the Amended Act directs the secretary, upon the request of any Indian tribe by tribal resolution, to enter into a self-determination contract with a tribal organization to plan, conduct and administer programs or portions thereof, including construction programs. What’s important to understand is that the relationship of “638” contracting is government-to-government. Indian self-determination contracts are, in general, not procurement contracts.
Once a resolution and self-determination contract is presented, the secretary has 90 days in which to approve the proposed contract. A disapproval must be made within 60 days and must be based on one or more of the following findings:
- The service or function to be contracted is unsatisfactory
- There is inadequate protection of trust resources
- The project or function cannot be completed or maintained as proposed in the contract
When the secretary declines to enter into a self-determination contract, the secretary must:
- Provide written reasons for rejection
- Provide technical assistance to overcome the objections
- Provide a hearing on the record with appeal procedures according to the rules to be developed later by the secretary
The following, Section 103, authorizes the secretary to contract with or make grants or cooperative agreements to Indian tribes upon request. The authorized purposes for these contracts, grants and cooperative agreements include:
- Strengthening or improving tribal government, which includes planning, financial management, personnel management, development, construction, maintenance or preservation of facilities
- Planning, training and evaluation activities to improve the capacity of a tribe to contract and manage activities
- Land acquisitions in connection with the activities described above
- This section also includes a mandatory technical assistance requirement
When a technical assistance request is made, the secretary must provide the services on a no-cost basis unless there are no federal appropriations. The secretary is required to provide technical assistance to:
- Develop any new self-determination contract
- Help a tribe assume responsibility for any complete or partial program authorized by Section 102(a)(1) of the amended Indian Self-Determination Act
- Modify a proposed self-determination contract previously rejected by the secretary
- Technical assistance grants are also available to tribes, who, in turn, seek assistance from other tribal organizations operating mature “638” contracts
The next section of importance for our purpose is Section 105 of the amended act. Section 105 specifically excludes all self-determination contracts except construction contracts from the Office of Federal Procurement Policy Act and the Federal Acquisition Act. Because a construction contract is still regarded as a procurement contract, the Federal Acquisition Regulations apply, in part, to these contracts.
To determine the extent of the applicable regulations, the interim internal regulations of BIA must be consulted. Section 271.51(b) of those regulations states that the commissioner of BIA may waive any federal contracting laws, executive orders, regulations, rules and other administrative requirements which he determines are not appropriate for the purposes of the contract involved or are inconsistent with the act (see attached regulations).
Section 271.5(c) of the BIA regulations directs that the contracts will be negotiated on a non-competitive basis without advertising when the contracts are requested by a tribal governing body.
Public Law 93-638 provides a contracting process by which an Indian Tribe or Native corporation can obtain government-contracting opportunities without the necessity of a competitive bid process. The result of the amended act is to create a “partnering” relationship between the agency and the Indian tribe.
The United States Congress, as well as the courts have given the act’s provisions broad interpretation. This has enabled the agencies and tribes to identify and engage in creative and innovative methods of expanding Native contracting opportunities.