Tribal Contract Provisions

PIQT-21-01

Publication Date: May 26, 2021

POLICY INTERPRETATION QUESTIONS - TRIBAL

PIQT-21-01

DATE:  May 26, 2021

TO:  Tribal IV-D Agencies

FROM:  Linda Boyer, Acting Commissioner, Office of Child Support Enforcement

SUBJECT:  Tribal Contract Provisions

Tribal child support programs enter into various contracts for services, computerized tribal IV-D systems, and office automation.  This guidance describes the terms and clauses tribes and tribal organizations must include in their child support program contracts.  The contract type and amount will determine which terms and clauses must be included.  This guidance does not address all the procurement standards in 45 CFR 75 Subpart D or every provision a tribal child support program may include in a contract, such as clauses on governing laws or tribal sovereignty.

Please note the safeguards and processes for ensuring security and privacy of computerized tribal IV-D systems and office automation in the tribal IV-D regulations.  45 CFR 310.15 includes several requirements for information integrity and security; monitoring of access; training and information; and penalties.  Section 310.15 references other applicable federal laws, like the Privacy Act.  Also note the acquisition requirements for computerized tribal IV-D systems in 45 CFR 310.25.  Tribal child support programs must address these regulatory requirements in their contracts as indicated in the responses to the questions below.

OCSE strongly encourages tribal child support programs to cite the federal laws and regulations in their contracts.  This will adequately inform contractors and reduce the risk of noncompliance.  Tribes and tribal organizations are responsible and accountable for operating the tribal child support program.  This includes monitoring contracts to ensure they are performed properly, efficiently, and effectively pursuant to 45 CFR 309.60(b) and (c).

For information and resources about tribal budgets, see the Tribal Child Support Budget Toolbox.

Question 1:  What are some provisions that tribal child support programs must include in their tribal IV-D attorney contracts?

Answer 1:  If the tribal IV-D attorney will access IV-D data, represent the tribal child support program in legal matters and hearings, or research and develop policies or legal documents for the tribe, the contract must contain provisions that address the following:

  • Confidentiality and safeguarding child support information pursuant to 45 CFR 309.80 and 310.15
  • Safeguarding federal tax information, when applicable, in accordance with IRS Publication 1075 and Internal Revenue Code 26 USC 6103
  • Ownership and, when applicable, copyright of products created under the contract pursuant to 45 CFR 75.322 and paragraph F of Appendix II to Part 75
  • Termination for cause and for convenience for contracts in excess of $10,000, pursuant to paragraph B of Appendix II to Part 75

OCSE also recommends including a contract provision on record retention in accordance with 45 CFR 309.85(b).  We strongly recommend citing the federal regulations mentioned above for safeguarding child support data and federal tax information.

Question 2:  What are some provisions that tribal child support programs must include in their contracts for computerized tribal IV-D systems and office automation?

Answer 2:  All tribal contracts regarding computerized tribal IV-D systems and office automation must include provisions that address the following:

  • Access to system records and record retention pursuant to 45 CFR 75.329, 75.361, 95.615, and 310.40
  • Administrative, contractual, or legal remedies in instances where contractors violate or breach contract terms, and provide for such sanctions and penalties as appropriate when over the simple acquisition threshold of $250,000 in accordance with paragraph A of Appendix II of Part 75
  • Confidentiality and safeguarding IV-D information in accordance with 45 CFR 309.80 and 310.15, the Federal Information Security Management Act, and the Privacy Act
  • Safeguarding federal tax information, when applicable, in accordance with IRS Publication 1075 and Internal Revenue Code 26 USC 6103
  • Software and ownership rights pursuant to 45 CFR 95.617 and 310.25(c)
  • Copyright pursuant to 45 CFR 75.322(b)
  • Termination for cause and for convenience for contracts in excess of $10,000, pursuant to paragraph B of Appendix II to Part 75

OCSE strongly recommends citing the federal requirements mentioned above to adequately inform contractors and ensure compliance with the regulations.  Please submit contract questions about computerized tribal IV-D systems or office automation to the Division of State and Tribal Systems at OCSE.DSTS@acf.hhs.gov.

Question 3:  What are the requirements for tribal contracts regarding cloud computing?

Answer 3:  Contracts for cloud computing must include the provisions listed in question 2.  Additionally, for tribal child support programs using the Model Tribal System or any computerized system that houses government information, the cloud service provider (CSP) must be Federal Risk and Authorization Management Program (FedRAMP) Visit disclaimer page certified at least at a moderate level.  The contract or service agreement must specify the location where the CSP houses the data.  OCSE will evaluate third parties providing cloud services on a case-by-case basis and may request additional information.  A tribe or tribal organization must comply with FedRAMP if they want to implement their own custom cloud or use a private cloud.

For the purposes of cloud computing, government information means information created, collected, processed, disseminated, or disposed of by or for the federal government.

Please submit contract questions about cloud computing to the Division of State and Tribal Systems at OCSE.DSTS@acf.hhs.gov.

Question 4:  What should the tribal child support program include in their genetic testing contracts submitted to OCSE?

Answer 4:  Tribal child support programs must include the confidentiality addendums that address safeguarding information of individuals receiving genetic testing services for paternity establishment.  Additionally, the genetic testing contracts should include an ownership clause.

Question 5:  What are some provisions that tribal child support programs must include in their contracts for debit card services?

Answer 5:  Tribal contracts for debit card services must include provisions that address the following:

  • Confidentiality and safeguarding IV-D information pursuant to 45 CFR 309.80
  • Termination for cause and for convenience for contracts in excess of $10,000, pursuant to paragraph B of Appendix II to Part 75

Additionally, OCSE recommends including a record retention provision in accordance with 45 CFR 309.85(b).

Question 6:  What are some provisions that tribal child support programs must include in a service contract that does not involve intangible property or access to IV-D data, the tribal system, or office automation?

Answer 6:  Tribal contracts for services, such as copier maintenance and repair, must include a termination for cause and for convenience for contracts in excess of $10,000, pursuant to paragraph B of Appendix II to Part 75.

Question 7:  What are some provisions that tribal child support programs must include in contracts for full or partial in-kind donated services?

Answer 7:  Contracts for donated in-kind services, such as legal services, must include the established price and reduced price or the complete level of effort and donated fair market value in accordance with 45 CFR 75.306(j).  The tribal child support program must have adequate documentation for all claimed costs, pursuant to 45 CFR 309.145(o)(1).

INQUIRIES: ACF OCSE Regional Program Managers

REFERENCES: 45 CFR Parts 75 Visit disclaimer page , 95 Visit disclaimer page , 309 Visit disclaimer page , and 310 Visit disclaimer page ; IRS Publication 1075 (PDF) Visit disclaimer page and Internal Revenue Code 26 USC 6103; IM-20-05; PIQT-16-01; PIQT-13-01

Current as of: