25 U.S.C. § 5390 — Federal procurement laws and regula-

Page 784 TITLE 25—INDIANS § 5390 (b) Negotiations Construction project proposals shall be nego- tiated pursuant to the statutory process in sec- tion 5324(m) of this title and resulting construc- tion project agreements shall be incorporated into funding agreements as addenda. (c) Codes and standards The Indian tribe and the Secretary shall agree upon and specify appropriate building codes and architectural and engineering standards (includ- ing health and safety) which shall be in con- formity with nationally recognized standards for comparable projects. (d) Responsibility for completion The Indian tribe shall assume responsibility for the successful completion of the construc- tion project in accordance with the negotiated construction project agreement. (e) Funding Funding for construction projects carried out under this subchapter shall be included in fund- ing agreements as annual advance payments, with semiannual payments at the option of the Indian tribe. Annual advance and semiannual payment amounts shall be determined based on mutually agreeable project schedules reflecting work to be accomplished within the advance payment period, work accomplished and funds expended in previous payment periods, and the total prior payments. The Secretary shall in- clude associated project contingency funds with each advance payment installment. The Indian tribe shall be responsible for the management of the contingency funds included in funding agree- ments. (f) Approval The Secretary shall have at least one oppor- tunity to approve project planning and design documents prepared by the Indian tribe in ad- vance of construction of the facilities specified in the scope of work for each negotiated con- struction project agreement or amendment thereof which results in a significant change in the original scope of work. The Indian tribe shall provide the Secretary with project progress and financial reports not less than semiannually. The Secretary may conduct on- site project oversight visits semiannually or on an alternate schedule agreed to by the Secretary and the Indian tribe. (g) Wages All laborers and mechanics employed by con- tractors and subcontractors (excluding tribes and tribal organizations) in the construction, al- teration, or repair, including painting or deco- rating of a building or other facilities in connec- tion with construction projects funded by the United States under this chapter shall be paid wages at not less than those prevailing wages on similar construction in the locality as deter- mined by the Secretary of Labor in accordance with sections 3141–3144, 3146, and 3147 of title 40. With respect to construction alteration, or re- pair work to which sections 3141–3144, 3146, and 3147 of title 40 are applicable under this section, the Secretary of Labor shall have the authority and functions set forth in the Reorganization Plan numbered 14, of 1950, and section 3145 of title 40. (h) Application of other laws Unless otherwise agreed to by the Indian tribe, no provision of division B (except sections 1123, 2303, 2304, and 2313) of subtitle I of title 41, the Federal Acquisition Regulations issued pursuant thereto, or any other law or regulation per- taining to Federal procurement (including Exec- utive orders) shall apply to any construction project conducted under this subchapter. (Pub. L. 93–638, title V, § 509, as added Pub. L. 106–260, § 4, Aug. 18, 2000, 114 Stat. 724; amended Pub. L. 113–287, § 5(g), Dec. 19, 2014, 128 Stat. 3269.) Editorial Notes REFERENCES IN TEXT The National Environmental Policy Act of 1969, re- ferred to in subsec. (a), is Pub. L. 91–190, Jan. 1, 1970, 83 Stat. 852, which is classified generally to chapter 55 (§ 4321 et seq.) of Title 42, The Public Health and Wel- fare. For complete classification of this Act to the Code, see Short Title note set out under section 4321 of Title 42 and Tables. This chapter, referred to in subsec. (g), was in the original ‘‘this Act’’, meaning Pub. L. 93–638, Jan. 4, 1975, 88 Stat. 2203, known as the Indian Self-Determina- tion and Education Assistance Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 5301 of this title and Tables. Reorganization Plan numbered 14, of 1950, referred to in subsec. (g), is set out in the Appendix to Title 5, Gov- ernment Organization and Employees. CODIFICATION Section was formerly classified to section 458aaa–8 of this title prior to editorial reclassification and renum- bering as this section. In subsec. (g), ‘‘sections 3141–3144, 3146, and 3147 of title 40’’ substituted for ‘‘the Davis-Bacon Act of March 3, 1931 (46 Stat. 1494)’’, ‘‘sections 3141–3144, 3146, and 3147 of title 40 are’’ substituted for ‘‘the Act of March 3, 1931, is’’, and ‘‘section 3145 of title 40’’ substituted for ‘‘section 2 of the Act of June 13, 1934 (48 Stat. 948)’’ on authority of Pub. L. 107–217, § 5(c), Aug. 21, 2002, 116 Stat. 1303, the first section of which enacted Title 40, Public Buildings, Property, and Works. In subsec. (h), ‘‘division B (except sections 1123, 2303, 2304, and 2313) of subtitle I of title 41’’ substituted for ‘‘the Office of Federal Procurement Policy Act’’ on au- thority of Pub. L. 111–350, § 6(c), Jan. 4, 2011, 124 Stat. 3854, which Act enacted Title 41, Public Contracts. AMENDMENTS 2014—Subsec. (a). Pub. L. 113–287, which directed sub- stitution of ‘‘division A of subtitle III of title 54’’ for ‘‘the National Historic Preservation Act (16 U.S.C. 470et seq.)’’, was executed by making the substitution for ‘‘the National Historic Preservation Act (16 U.S.C. 470 et seq.)’’ in introductory provisions to reflect the probable intent of Congress. § 5390. Federal procurement laws and regula- tions Regarding construction programs or projects, the Secretary and Indian tribes may negotiate for the inclusion of specific provisions of divi- sion B (except sections 1123, 2303, 2304, and 2313) of subtitle I of title 41 and Federal acquisition regulations in any funding agreement entered into under this subchapter. Absent a negotiated Page 785 TITLE 25—INDIANS § 5392 1 See References in Text note below. agreement, such provisions and regulatory re- quirements shall not apply. (Pub. L. 93–638, title V, § 510, as added Pub. L. 106–260, § 4, Aug. 18, 2000, 114 Stat. 726.) Editorial Notes CODIFICATION Section was formerly classified to section 458aaa–9 of this title prior to editorial reclassification and renum- bering as this section. In text, ‘‘division B (except sections 1123, 2303, 2304, and 2313) of subtitle I of title 41’’ substituted for ‘‘the Office of Federal Procurement and Policy Act (41 U.S.C. 401 et seq.)’’ on authority of Pub. L. 111–350, § 6(c), Jan. 4, 2011, 124 Stat. 3854, which Act enacted Title 41, Public Contracts. § 5391. Civil actions (a) Contract defined For the purposes of section 5331 of this title, the term ‘‘contract’’ shall include compacts and funding agreements entered into under this sub- chapter. (b) Applicability of certain laws Section 81 of this title and section 5123 of this title, shall not apply to attorney and other pro- fessional contracts entered into by Indian tribes participating in self-governance under this sub- chapter. (c) References All references in this chapter to section 5201 of this title are hereby deemed to include section 82a of this title. (Pub. L. 93–638, title V, § 511, as added Pub. L. 106–260, § 4, Aug. 18, 2000, 114 Stat. 726.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsec. (c), was in the original ‘‘this Act’’, meaning Pub. L. 93–638, Jan. 4, 1975, 88 Stat. 2203, known as the Indian Self-Determina- tion and Education Assistance Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 5301 of this title and Tables. CODIFICATION Section was formerly classified to section 458aaa–10 of this title prior to editorial reclassification and re- numbering as this section. § 5392. Facilitation (a) Secretarial interpretation Except as otherwise provided by law, the Sec- retary shall interpret all Federal laws, Execu- tive orders, and regulations in a manner that will facilitate— (1) the inclusion of programs, services, func- tions, and activities (or portions thereof) and funds associated therewith, in the agreements entered into under this section; (2) the implementation of compacts and funding agreements entered into under this subchapter; and (3) the achievement of tribal health goals and objectives. (b) Regulation waiver (1) In general An Indian tribe may submit a written re- quest to waive application of a regulation pro- mulgated under section 5397 of this title or the authorities specified in section 5385(b) of this title for a compact or funding agreement en- tered into with the Indian Health Service under this subchapter, to the Secretary identi- fying the applicable Federal regulation sought to be waived and the basis for the request. (2) Approval Not later than 90 days after receipt by the Secretary of a written request by an Indian tribe to waive application of a regulation for a compact or funding agreement entered into under this subchapter, the Secretary shall ei- ther approve or deny the requested waiver in writing. A denial may be made only upon a specific finding by the Secretary that identi- fied language in the regulation may not be waived because such waiver is prohibited by Federal law. A failure to approve or deny a waiver request not later than 90 days after re- ceipt shall be deemed an approval of such re- quest. The Secretary’s decision shall be final for the Department. (c) Access to Federal property In connection with any compact or funding agreement executed pursuant to this subchapter or an agreement negotiated under the Tribal Self-Governance Demonstration Project estab- lished under title III,1 as in effect before August 18, 2000, upon the request of an Indian tribe, the Secretary— (1) shall permit an Indian tribe to use exist- ing school buildings, hospitals, and other fa- cilities and all equipment therein or apper- taining thereto and other personal property owned by the Government within the Sec- retary’s jurisdiction under such terms and conditions as may be agreed upon by the Sec- retary and the Indian tribe for their use and maintenance; (2) may donate to an Indian tribe title to any personal or real property found to be ex- cess to the needs of any agency of the Depart- ment, or the General Services Administration, except that— (A) subject to the provisions of subpara- graph (B), title to property and equipment furnished by the Federal Government for use in the performance of the compact or fund- ing agreement or purchased with funds under any compact or funding agreement shall, unless otherwise requested by the In- dian tribe, vest in the appropriate Indian tribe; (B) if property described in subparagraph (A) has a value in excess of $5,000 at the time of retrocession, withdrawal, or reassump- tion, at the option of the Secretary upon the retrocession, withdrawal, or reassumption, title to such property and equipment shall revert to the Department of Health and Human Services; and (C) all property referred to in subpara- graph (A) shall remain eligible for replace- ment, maintenance, and improvement on the same basis as if title to such property were vested in the United States; and (3) shall acquire excess or surplus Govern- ment personal or real property for donation to