Transcript FEDERAL CONTRACTING MECHANISMS

IMPLEMENTING THE TRIBAL FOREST
PROTECTION ACT THROUGH
CONTRACTS, AGREEMENTS AND
GRANTS
The Forest Service
and Tribes
Objectives
 Familiarize participants with the Tribal Forest
Protection Act (TFPA) and its importance to the FS
and Tribes.
 Review examples of successful TFPA projects and
implementing instruments.
 Examine how to implement TFPA projects through
contracts, agreements, and grants.
Key Terms
 “Tribes”- recognized by the US government.
 “Trust Responsibility”- the federal government’s
legal responsibility to protect the rights and interests
federally recognized Tribes and their members.
 “Land in trust”- the US holds the legal title and the
Tribe or Indian individuals hold the beneficial
interest.
 “Allotment” - land in trust assigned by the federal
government to an individual Indian person.
TFPA Basics
TFPA is an important tool for Tribes and the
Forest Service (FS) to:
 Reduce current and future threats to tribal
trust resources,
 Contribute to landscape scale treatments to
restore and sustain forest health and
resiliency.
Achieve the agency’s “all lands, all hands”
initiative.
TFPA Basics
 TFPA is an authority consistent with the
government-to-government relationship.
 The law recognizes Tribes’ historic and cultural
rights and interests in national forest
management.
TFPA Basics
 The TFPA also acknowledges that
Tribes have relevant knowledge and
skills needed for national forest
management.
TFPA Background
 Resulted in part from the catastrophic fires
coming onto reservations from federal lands
with devastating results.
 Passed in 2004 with bilateral support.
 Authorized the Secretary of Agriculture to give
special consideration to tribally-proposed
projects on FS administered lands .
TFPA Elements
 To qualify, the Indian land (either tribal or
allotted) must be in trust or restricted status and
must be forested or have a grass, brush, or other
vegetative cover.
 Burned-over land capable of regenerating
vegetative cover also qualifies.
TFPA Elements
The Tribe must propose its project to take place on FS or
BLM administered land which:
 Borders or is adjacent to Indian trust land and
 Poses a risk, e.g., disease, erosion, fire, or other
threat to the Indian trust land, resources or
community, or
 Is land in need of restoration.
TFPA Elements
The proposal area:
 Should involve a feature or circumstance
unique to the proposing Tribe (i.e., legal,
cultural, archaeological, historic, or biological)
and
 Should not be subject to some other
conflicting agreement or contract.
TFPA Elements
 TFPA provides for consideration of tribally related
factors.
 These factors are also relevant for contract
awards.
TFPA Elements
TFPA Factors:
 A. the status of the Indian tribe as an Indian tribe;
B. the trust status of the Indian forest land or rangeland
of the Indian tribe;
C. the cultural, traditional, and historical affiliation of the
Indian tribe with the land subject to the proposal;
D. the treaty rights or other reserved rights of the Indian
tribe relating to the land subject to the proposal;
TFPA Elements
 E. the indigenous knowledge and skills of members of
the Indian tribe;
 F. the features of the landscape of the land subject to
the proposal, including watersheds and vegetation types;
 G. the working relationships between the Indian
tribe and Federal agencies in coordinating activities
affecting the land subject to the proposal; and
 H. the access by members of the Indian tribe to the land
subject to the proposal.
TFPA Elements
 Collaboration prior to the submission of a formal
proposal leads to more success.
 Tribes and Forests should consider formal
protocol agreements to facilitate
communications and collaboration.
 FS may respond within 120 days to tribal
proposals.
TFPA Elements
Agencies can deny a proposal and may:
 Provide the reasons for the denial,
 Identify corrective courses of action, and
 Consult with the Tribe on how to protect the
Indian trust land and tribal interests.
TFPA
TFPA can be an important tool for Tribes to
engage with the FS and influence land
management to reduce current and future
threats while restoring forest resiliency.
Collaboration on TFPA projects can
support landscapes managed by Tribes, FS
and others. How has TFPA been
implemented?
TFPA Success Stories
 The McGinnis Cabin Fuels Reduction Project
between the Confederated Salish-Kootenai Tribes
and Lolo NF in west-central Montana: thinning, fuels
reduction, biomass utilization, road construction,
maintenance (utilizing a stewardship contract);
 The Mill Creek Fuels Reduction Project between the
Hoopa Tribe and Six Rivers NF in northwestern
California: fuels reduction next to a wilderness and
reservation, over 300 acres (tiered to a master
agreement);
TFPA Success Stories
 The Parry Pinyon Pine Protection Project between
the Ramona Band of Cahuilla Indians, the Santa Rosa
Band of Cahuilla Indians and the San Bernardino NF
in southern California: 90 acres of limbing and brush
reduction to protect this culturally important tree;
 The Lake Quinault Water Treatment Plant between
the Quinault Indian Nation and Olympic NF in
Washington State: to protect water quality at Lake
Quinault on over 3700 acres (through a yearly
service contract);
TFPA Success Stories
 The 16 Springs Stewardship Project between the
Mescalero Tribe and Lincoln NF in New Mexico:
thinning, fuels reduction as protection from insect
and disease, over 6,000 acres (utilizing a stewardship
contract, and economic stimulus funding);
 This is the 1st TFPA Stewardship Project in the nation.
TFPA Success Stories
Project objectives are to:
 Reduce reduce the threat of damaging wildfire.
 Develop coordinated treatment activities across
ownerships.
 Restore natural ecological processes.
 Provide forest products to the local community.
 Establish a fuel break around Ruidoso, New Mexico
TFPA Success Stories
The Los Burros Project between the White Mountain
Apache Tribe and the Apache-Sitgreaves National
Forest, located in east central Arizona: designed to
reduce the threat to the Fort Apache Reservation.
TFPA Success Stories
The Los Burros Project consisted of 3 phases:
Phase 1 - sale preparation and layout on
approximately 4,500 acres, including training for tribal
crews;
Phase 2 - mechanized treatment by third party under
a pre-existing stewardship contract; and
Phase 3 - tree thinning conducted by the Tribe.
TFPA Sucess Stories
Photo Courtesy
of WMAT
Lessons Learned From Other Projects
The 2012 Wallow fire revealed the benefit of risk
reduction treatments.
The Apache-Sitgreaves National Forest took the brunt
of this fire.
The Wallow Fire killed fewer trees on the Fort Apache
Reservation and the San Carlos Apache Reservation due
to tribal management treatments.
The Maverick Fuel Treatment Area
Photo by Kim Kelly October 2011
TFPA Study
Why only 6 successful TFPA
projects?
TFPA Study
 Many Tribes and Forests do not know about
TFPA.
 If they do know about TFPA, they were not sure
how to implement it, e.g., Contract? Agreement?
 This training is intended to assist in implementing
TFPA through the appropriate contract,
agreement, or grant instrument.
TFPA Implementation
Finding the right instrument.
Consult with the Tribes on how best to meet
tribal rights & interests in implementation.
Examine together the strengths and
weaknesses of options as applied to the
particular project.
Implementation Considerations
Contracts provide more specificity, but can be
difficult to change in response to new
information or changes in field conditions.
Agreements are more flexible than contracts,
but can require a match.
Grants can provide funding, but still need to
be executed in an agreement.
SBA Programs
SMALL BUSINESS SET-ASIDES
Socio-Economic Groups:
 Small Business (SB): must be independently owned & operated, and
qualified as a SB under the criteria and size standards set by Small
Business Administration (SBA)
www.sba.gov
 8(a) Program: authorizes SBA to enter all types of contracts with
other agencies. Projects may be competed among 8(a) contractors or
may be a sole source award. Contractors must be certified and in the
SBA database.
https://sba8a.symplicity.com/applicants/guide
SBA Programs
 Historically Under-Utilized Zone (HUBZone): Only small business
concern that appears on the Qualified HUBZone List maintained
by the SBA. Its purpose is to increase employment
opportunities, investment and economic development in
underutilized areas.
https://eweb1.sba.gov/hubzone/internet/
 Service-Disabled Veteran-Owned (SDVO): can be competed
among SDVO contractors or sole source award
http://www.sba.gov/VETS/
Contracting and Purchasing
Supplies,, such as:
Printer paper, equipment, tree seedlings, native plants.
Services
Performance of an identifiable task, e.g., hazard fuel
treatments, tree planting and thinning, trail
maintenance.
Construction
Alteration or repair of the built environment or other real
property, e.g., road construction, culvert installation,
facility repair or demolition.
Contract Types
Firm Fixed-Price (FFP)
 Contract provides for a price that is not subject to
any adjustments based on contractor's cost
experience.
 Places risk & responsibility on contractor for all
costs & or loss.
 Gives the contractor the incentive to control costs
and perform effectively.
Contract Types
Indefinite Delivery Indefinite Quantity (IDIQ)
 Exact times or quantities/services of future
deliveries are not known.
 Government is obligated to order a minimum
quantity/services.
 A task order is issued whenever services are
needed.
Common Terms
Performance-Based Service
Government specifies the results that a contractor
must produce instead of the processes that a
contractor must use when performing.
Stewardship
A blend of service & timber sales contracts.
Goods (timber sales) for services.
Services: fuel treatment, erosion control, noxious
weed treatment, tree planting, growth surveys.
http://www.fs.fed.us/forestmanagement/projects/s
tewardship/index.shtml
Stewardship Contracting and Agreements
Stewardship Contracting is being used used to
implement TFPA.
TFPA specifically acknowledges that the agency
entering into a stewardship or another type of
agreement or contract in response to a proposal, may
use a best-value basis.
Best Value
Forest Service Handbook (FSH) 60.5
notes regarding Best Value :
“It is the process of selecting a contractor
based on price and non-price criteria.
Evaluation factors may include, but are
not limited to, past performance, work
quality, experience, and benefits to the
local community.”
.
Best Value
 While best value is mandatory in Stewardship
Contracting, it is discretionary for TFPA projects
(that do not involve stewardship contracts).
 Not only does the TFPA state that the Secretary
may use a best value basis, it also provides for
specific consideration to tribally related factors
(mentioned before) in responding to a tribal
proposal, including, but not limited to:
Best Value & TFPA Factors
Factors:
 A. the status of the Indian tribe as an Indian tribe;
B. the trust status of the Indian forest land or
rangeland of the Indian tribe;
C. the cultural, traditional, and historical affiliation of the
Indian tribe with the land subject to the proposal;
D. the treaty rights or other reserved rights of the Indian
tribe relating to the land subject to the proposal;
Best Value and TFPA Factors
 E. the indigenous knowledge and skills of members of the
Indian tribe;
 F. the features of the landscape of the land subject to the
proposal, including watersheds and vegetation types;
 G. the working relationships between the Indian tribe and
Federal agencies in coordinating activities affecting the land
subject to the proposal; and
 H. the access by members of the Indian tribe to the land
subject to the proposal.
These factors also contribute to a Tribe’s eligibility for a sole
source contract (stewardship or other type of contract).
Sole Source Contracts & TFPA
The FS guidance for TFPA also acknowledges the
option for sole source contracts. According to the
Forest Service Renewable Resources Handbook,
Chapter 60, Stewardship Contracting (FSH 2409.10):
“[P]roposals submitted under the Tribal Forest
Protection Act, may be eligible for consideration under
applicable sole source contracting authorities
(emphasis added). Follow the procedural direction for
the application, development, execution and
administration of contracts and agreements in FSH
1509.11 and FSH 6309.32.”
Sole Source Contract
The TFPA references tribal-related factors that
could be used to support the choice of a sole
source contract.
A Tribe can be uniquely qualified to provide
knowledge or perform a necessary service (for
example, reducing risk to trust resources) that no
one else could provide.
Sole Source Contract
The sole source selection for a TFPA
contract can be made when the criteria
are met.
TFPA can be a sole source authority.
.
Agreements
Agreements are developed and awarded
for mutual benefit.
Both the Forest Service and the partner
(including Tribes) contribute toward the
shared goals, and both will benefit.
Contributions may include cash and/or inkind services.
Agreements
Some of the most commonly used mutual benefit
agreements include:
Challenge Cost Share
Participating
Watershed Restoration and Enhancement
(Wyden Amendment)
Challenge Cost Share Agreements
The Interior and Related Agencies Appropriations
Act of 1992 (Public Law 102-154) authorizes the
Forest Service to cooperate with other parties to
develop, plan, and implement projects that are
mutually beneficial to all parties and enhance
Forest Service activities.
Challenge Cost Share Agreements
Requirements in Challenge Cost Share Agreements include:
Forest Service expenditures are commensurate with the
value received.
The Forest Service may reimburse a partner for part of the
actual costs of materials and/or labor.
No advance payments are allowed.
Forest Service funds cannot be used for improvements on
non-federal lands.
Challenge Cost Share Agreements
 The match can be cash, real or personal property,
services, and/or in-kind contributions.
 Financial plans are required.
 Income resulting from the project must be shown
on a financial plan.
Challenge Cost Share Agreements
Modifications do not need to retain the cost
share ratio.
Do need to be commensurate with the level of
effort or funding provided.
Federal Acquisition Regulations may apply.
Participating Agreements
The Cooperative Funds and Deposits Act of 1975
(16 United States Code (USC) 565a1-a3, Public Law
94- 148) authorizes the Forest Service to enter into
cooperatively-performed, mutually beneficial
projects with public and private agencies,
organizations, institutions, or persons in four
specific areas.
Participating Agreements
 Cooperative Pollution Abatement
 Cooperative Manpower, Job Training, and
Development Programs
 Cooperative Environmental Education and Forest
History Materials
 Forestry Protection
Wyden Amendment
This law allows the Forest Service to partner with
other entities for projects that benefit resources on
both public and private lands.
The project’s goals must be to restore and enhance
watersheds.
Wyden Amendment
Benefits can include:
Improving, maintaining, or protecting ecosystem
conditions through collaborative administration
and/or implementation of a project.
Increasing operational effectiveness and
efficiency through the coordination of efforts,
services, and products.
Wyden Amendment
 Various agreement instruments can be used.
 Various funds can be used.
 No requirement for contributions.
 Must protect public investment.
 Liability and long-term maintenance must be
addressed.
Grants
 An example of a major grant that Tribes could
participate in is the Collaborative Forest
Landscape Restoration Program (CFLRP)
established under Title IV of the Omnibus Public
Land Management Act of 2009.
 The purpose of the CFLRP is to encourage the
collaborative, science-based ecosystem
restoration of priority forest landscapes.
Grants
The CFLRP provides for up to:
 $40,000,000/yr. for fiscal years 2009 - 2019;
 50 percent of the cost of ecological restoration
treatments on National Forests;
 $4 million annually for any one project;
 Two projects per year in any one FS region; and
 Ten projects per year nationally.
he Agreements’ Decision
Tree & Agreements
Decision Tree for TContracts,
Grants
Does the agreement
Include the exchange or
expenditure of something YES
of value (for example,
funds or services)?
NO
SELECT APPROPRIATE
QUESTIONS/RESPONSES
Does the FS procure goods
and/or services for the
direct benefit of the
agency?
Memorandum
of Understanding
With another Federal agency?
Interagency Agreement
(outgoing funds)
Cost Reimbursable
Agreement
1.
2.
3.
4.
5.
6.
7.
Is there a mutual benefit,
mutual interest,
and cost sharing?
Will the FS perform a
or provide
erator
Does the project deal with
Law Enforcement, Fire
Pollution abatement?
Manpower/job training?
Publication of forestry
history materials?
Interpretive associations?
Forest protection?
Prescribed fire?
Watershed restoration
and enhancement?
Will the FS cooperatively
develop, plan, and implement
a project with a cooperator
that is mutually beneficial
and enhances FS activities?
Does the FS transfer
anything of value, such
as funds, to a recipient to
accomplish a public purpose
as authorized by law?
Note: This is a tool.
Contract (non-FSM 1580)
Does the project cover
one of the following:
NO
A non-FSM 1580
instrument.
Seek advice from
appropriate staff
area (for example,
property transfers).
With a private vendor?
With a college for training
and teaching activities?
Is it a non-binding agreement?
YES
PRIMARY
INSTRUMENT TYPE
ANSWER PRIMARY
FOLLOW-UP QUESTIONS
Is the FS substantially
involved?
?
Is the cooperator a
Federal agency?
aw ?
Participating Agreement
Challenge Cost Share
Agreement
NO
YES
NO
YES
Grant
Cooperative Agreement
Collection Agreement
Interagency Agreement
(incoming funds)
Cooperative Law
Enforcement Agreement
Consultation and Collaboration
Consultation and Collaboration are essential to ensure
that:
 Tribal trust resources are protected,
 The right implementing instrument is selected, and
 The project is effective and mutually beneficial.
TFPA Implementation
As the examples of TFPA demonstrate, there are
mutual benefits to collaboration between Tribes and
the FS to work across boundaries and reduce the threat
of risks to tribal trust lands and other lands.
TFPA project development is consistent with FS
emphasis on “all lands, all hands”, contributes to
restoring and sustaining forest resiliency on a landscape
scale, and the Administration’s emphasis on
collaboration with Tribes.
Consultation, Collaboration and Consent
 There is an international context.
 Policy direction is going beyond unilateral
consultation to
 Bilateral, interest based collaboration and
coordination, leading to
 Consensus and consent.
Consultation, Collaboration and Consent
“Consent” is a principle that has been incorporated
explicitly in the UN Declaration on the Rights
Indigenous Peoples (UNDRIP), adopted in 2007 and
signed by the United States.
Consultation, Collaboration and Consent
The UNDRIP establishes a universal framework of
minimum standards for the survival, dignity, well
being, and rights of indigenous peoples around the
world.
“Consult”, Coordinate and Consent” are
repeatedly evoked in the UNDRIP in Articles 18,
19, and 32.
Consultation, Collaboration and Consent
Article 32:
States shall consult and cooperate in good faith
with the indigenous peoples concerned through
their own representative institutions in order to
obtain their free and informed consent prior to the
approval of any project affecting their lands or
territories and other resources, particularly in
connection with the development, utilization or
exploitation of mineral, water or other resources.
Implementation
Consult and collaborate to achieve agreement
on:
 Where to reduce threats, risks and restore
tribal and national forest lands.
How to best to meet tribal rights & interests
in forest management.
What kind of contract or agreement is best
for the Tribe and Forest.
Collaboration is essential
for success.
Dee Randall, San Carlos Apache Tribe
and Rick Reitz, Tonto NF
Photo Courtesy of Sonia Tamez
Questions or comments?