PUBLIC LAW 103-413—OCT. 25, 1994 108 STAT. 4253 (B) by inserting before the period the following: ", except that the tribe or tribal organization may, in lieu of filing such appeal, exercise the option to initiate an action in a Federal district court and proceed directly to such court pursuant to section 110(a)"; (8) in section 102(d), by striking "as provided in section 25 USC 450f. 2671 of title 28)" and inserting "as provided in section 2671 of title 28, United States Code, and including an individual who provides health care services pursuant to a personal services contract with a tribal organization for the provision of services in any facility owned, operated, or constructed under the jurisdiction of the Indian Health Service)"; (9) by adding at the end of section 102 the following new subsection: "(e)(1) With respect to any hearing or appeal conducted pursuant to subsection (b)(3), the Secretary shall have the burden of proof to establish by clearly demonstrating the validity of the grounds for declining the contract proposal (or portion thereof). "(2) Notwithstanding any other provision of law, a decision by an official of the Department of the Interior or the Department of Health and Human Services, as appropriate (referred to in this paragraph as the 'Department') that constitutes final agency action and that relates to an appeal within the Department that is conducted under subsection (b)(3) shall be made either— "(A) by an official of the Department who holds a position at a higher organizational level within the Department than the level of the departmental agency (such as the Indian Health Service or the Bureau of Indian Affairs) in which the decision that is the subject of the appeal was made; or "(B) by an administrative judge."; (10) by striking subsection (a) of section 105 and inserting 25 USC 450j. the following new subsection: "(a)(1) Notwithstanding any other provision of law, subject to paragraph (3), the contracts and cooperative agreements entered into with tribal organizations pursuant to section 102 shall not be subject to Federal contracting or cooperative agreement laws (including any regulations), except to the extent that such laws expressly apply to Indian tribes. "(2) Program standards applicable to a nonconstruction self- determination contract shall be set forth in the contract proposal and the final contract of the tribe or tribal organization. "(3)(A) With respect to a construction contract (or a subcontract of such a construction contract), the provisions of the Office of Federal Procurement Policy Act (41 U.S.C. 401 et seq.) and the regulations relating to acquisitions promulgated under such Act shall apply only to the extent that the application of such provision to the construction contract (or subcontract) is— "(i) necessary to ensure that the contract may be carried out in a satisfactory manner; "(ii) directly related to the construction activity; and "(iii) not inconsistent with this Act. "(B) A list of the Federal requirements that meet the requirements of clauses (i) through (iii) of subparagraph (A) shall be included in an attachment to the contract pursuant to negotiations between the Secretary and the tribal organization. "(C)(i) Except as provided in subparagraph (B), no Federal law listed in clause (ii) or any other provision of Federal law
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