How do the Secretary and Indian tribe or tribal organization arrive at an overall fair and reasonable price for the performance of a construction contract?

25 C.F.R. § 900.129
in effectEffective: 2024-07-01
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(a) Throughout the contract award process, the Secretary and Indian tribe or tribal organization shall share all construction project cost information available to them in order to facilitate reaching agreement on an overall fair and reasonable price for the project or part thereof. In order to enhance this communication, the government's estimate of an overall fair and reasonable price shall: (1) Contain a level of detail appropriate to the nature and phase of the work and sufficient to allow comparisons to the Indian tribe or tribal organization's estimate; (2) Be prepared in a format coordinated with the Indian tribe or tribal organization; and (3) Include the cost elements contained in section 105(m)(4) of the Act. (b) The government's cost estimate shall be an independent cost estimate based on such information as the following: (1) Prior costs to the government for similar projects adjusted for comparison to the target location, typically in unit costs, such as dollars per pound, square meter cost of building, or other unit cost that can be used to make a comparison; (2) Actual costs previously incurred by the Indian tribe or tribal organization for similar projects; (3) Published price lists, to include regional adjustment factors, for materials, equipment, and labor; and (4) Projections of inflation and cost trends, including projected changes such as labor, material, and transportation costs. (c) The Secretary shall provide the initial government cost estimate to the Indian tribe or tribal organization and make appropriate revisions based on concerns raised or information provided by the Indian tribe or tribal organization. The Secretary and the Indian tribe or tribal organization shall continue to revise, as appropriate, their respective cost estimates based on changed or additional information such as the following: (1) Actual subcontract bids; (2) Changes in inflation rates and market conditions, including local market conditions; (3) Cost and price analyses conducted by the Secretary and the Indian tribe or tribal organization during negotiations; (4) Agreed-upon changes in the size, scope and schedule of the construction project; and (5) Agreed-upon changes in project plans and specifications. (d) Considering all of the information available, the Secretary and the Indian tribe or tribal organization shall negotiate the amount of the construction contract. The objective of the negotiations is to arrive at an amount that is fair under current market conditions and reasonable to both the government and the Indian tribe or tribal organization. As a result, the agreement does not necessarily have to be in strict conformance with either party's cost estimate nor does agreement have to be reached on every element of cost, but only on the overall fair and reasonable price of each phase of the work included in the contract. (e) If the fair and reasonable price arrived at under paragraph (d) of this section would exceed the amount available to the Secretary, then: (1) If the Indian tribe or tribal organization elects to submit a final proposal, the Secretary may decline the proposal under section 105(m)(4)(C)(v) of the Act or if the contract has been awarded, dispute the matter under the Contract Disputes Act; or (2) If requested by the Indian tribe or tribal organization: (i) The Indian tribe or tribal organization and the Secretary may jointly explore methods of expanding the available funds through the use of contingency funds, advance payments in accordance with § 900.132, rebudgeting, or seeking additional appropriations; or (ii) The Indian tribe or tribal organization may elect to propose a reduction in project scope to bring the project price within available funds; or (iii) The Secretary and Indian tribe or tribal organization may agree that the project be executed in phases.

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