[Code of Federal Regulations]

[Title 24, Volume 4]

[Revised as of April 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 24CFR954.4]



[Page 407-413]

 

                 TITLE 24--HOUSING AND URBAN DEVELOPMENT

 

CHAPTER IX--OFFICE OF ASSISTANT SECRETARY FOR PUBLIC AND INDIAN HOUSING, 

               DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

 

PART 954_INDIAN HOME PROGRAM--Table of Contents

 

                      Subpart A_General Provisions

 

Sec.  954.4  Other Federal requirements.



    (a) Equal opportunity--(1) Section 282. Pursuant to the requirements 

of Section 282 of the Cranston-Gonzales National Affordable Housing Act 

(42 U.S.C. 12832), no person in the United States shall on the grounds 

of race, color, national origin, religion, or sex be excluded from 

participation in, be denied the benefits of, or be subjected to 

discrimination under any program or activity funded in whole or in part 

with HOME funds. In addition, HOME funds must be made available in 

accordance with the prohibitions against discrimination on the basis of 

age under the Age Discrimination Act of 1975 (42 U.S.C. 6101-6107) and 

implementing regulations at 24 CFR part 146, and the prohibitions 

against discrimination against handicapped individuals under section 504 

of the Rehabilitation Act of 1973 (29 U.S.C. 794) and implementing 

regulations at 24 CFR part 8.

    (2) Civil Rights Act. Title VI of the Civil Rights Act of 1964 (42 

U.S.C. 2000d-2000d-4), which prohibits discrimination on the basis of 

race, color or national origin in federally assisted programs, the Fair 

Housing Act (42 U.S.C. 3601-3620), which prohibits discrimination based 

on race, color, religion, sex, or national origin in the sale or rental 

of housing, and Executive Order 11063 (27 FR 11527, 3 CFR 1959-1963 

Comp., p. 652), which provides for equal opportunity in housing, do not 

apply to grantees exercising recognized powers of self-government. 

Indian tribes and tribal organizations applying on behalf of Indian 

tribes that do not exercise recognized powers of self-government must 

make HOME funds available in accordance with Title VI of the Civil 

Rights Act of 1964, the Fair Housing Act, and Executive Order 11063.

    (b) Indian Civil Rights Act. The Indian Civil Rights Act (title II 

of the Civil Rights Act of 1968, 25 U.S.C. 1301-1303) provides, among 

other things, that ``no Indian tribe in exercising powers of self-

government shall. . . deny to any person within its jurisdiction the 

equal protection of its laws or deprive any person of liberty or 

property without due process of law.'' The Indian Civil Rights Act 

(ICRA) applies to any tribe, band, or other group of Indians subject to 

the jurisdiction of the United States in the exercise of recognized 

powers of self-government.

    (c) Indian preference requirements--(1) Applicability. HUD has 

determined that grants under this part are subject to Section 7(b) of 

the Indian Self-Determination and Education Assistance Act (25 U.S.C. 

450e(b)). Section 7(b) provides that any contract, subcontract, grant or 

subgrant pursuant to an act authorizing grants to Indian organizations 

or for the benefit of Indians shall require that, to the greatest extent 

feasible:

    (i) Preference and opportunities for training and employment shall 

be given to Indians; and

    (ii) Preference in the award of contracts and subcontracts shall be 

given to Indian organizations and Indian-owned economic enterprises as 

defined in section 3 of the Indian Financing Act of 1974 (25 U.S.C. 

1452).

    (2) Definitions. (i) The Indian Self-Determination and Education 

Assistance Act (25 U.S.C. 450e(b)) defines ``Indian'' to mean a person 

who is a member of an Indian tribe and defines ``Indian tribe'' to mean 

any Indian tribe, band, nation, or other organized group or community 

including any Alaska native village or regional or village corporation 

as defined or established pursuant to the Alaska Native Claims 

Settlement Act, which is recognized as eligible for the special programs 

and services provided by the United States to Indians because of their 

status as Indians.



[[Page 408]]



    (ii) In section 3 of the Indian Financing Act of 1974 (25 U.S.C. 

1452) ``economic enterprise'' is defined as any Indian-owned commercial, 

industrial, or business activity established or organized for the 

purpose of profit, except that Indian ownership must constitute not less 

than 51 percent of the enterprise. This act defines ``Indian 

organization'' to mean the governing body of any Indian tribe or entity 

established or recognized by such governing body.

    (3) Preference in administration of grant. To the greatest extent 

feasible, preference and opportunities for training and employment in 

connection with the administration of grants awarded under this part 

shall be given to Indians.

    (4) Preference in contracting. To the greatest extent feasible, 

grantees shall give preference in the award of contracts for projects 

funded under this part to Indian organizations and Indian-owned economic 

enterprises.

    (i) Each grantee shall:

    (A) Advertise for bids or proposals limited to qualified Indian 

organizations and Indian-owned enterprises; or

    (B) Use a two-stage preference procedure, as follows:

    (1) Stage 1. Invite or otherwise solicit Indian-owned economic 

enterprises to submit a statement of intent to respond to a bid or 

proposal announcement limited to Indian-owned firms.

    (2) Stage 2. If responses are received from more than one Indian 

enterprise found to be qualified, advertise for bids or proposals 

limited to Indian organizations and Indian-owned economic enterprises; 

or

    (C) Develop, subject to area ONAP one-time approval, the grantee's 

own method of providing preference.

    (ii) If the grantee selects a method of providing preference that 

results in fewer than two responsible qualified organizations or 

enterprises submitting a statement of intent, a bid or a proposal to 

perform the contract at a reasonable cost, then the grantee shall:

    (A) Re-bid the contract, using any of the methods described in 

paragraph (d)(1) of this section; or

    (B) Re-bid the contract without limiting the advertisement for bids 

or proposals to Indian organizations and Indian-owned economic 

enterprises; or

    (C) If one approvable bid is received, request area ONAP review and 

approval of the proposed contract and related procurement documents, in 

accordance with 24 CFR 85.36, in order to award the contract to the 

single bidder.

    (iii) Procurements that are within the dollar limitations 

established for small purchases under 24 CFR 85.36 need not follow the 

formal bid procedures of paragraph (d) of this section, since these 

procurements are governed by the small purchase procedures of 24 CFR 

85.36. However, a grantee's small purchase procurement shall, to the 

greatest extent feasible, provide Indian preference in the award of 

contracts.

    (iv) All preferences shall be publicly announced in the 

advertisement and bidding or proposal solicitation and the bidding or 

proposal documents.

    (v) A grantee, at its discretion, may require information of 

prospective contractors seeking to qualify as Indian organizations or 

Indian-owned economic enterprises. Grantees may require prospective 

contractors to include the following information prior to submitting a 

bid or proposal, or at the time of submission:

    (A) Evidence showing fully the extent of Indian ownership and 

interest;

    (B) Evidence of structure, management and financing affecting the 

Indian character of the enterprise, including major subcontracts and 

purchase agreements; materials or equipment supply arrangements; and 

management salary or profit-sharing arrangements; and evidence showing 

the effect of these on the extent of Indian ownership and interest; and

    (C) Evidence sufficient to demonstrate to the satisfaction of the 

grantee that the prospective contractor has the technical, 

administrative, and financial capability to perform contract work of the 

size and type involved.

    (vi) The grantee shall incorporate the following clause (referred to 

as the Section 7(b) clause) in each contract awarded in connection with 

a project funded under this part:

    (A) The work to be performed under this contract is on a project 

subject to Section 7(b) of the Indian Self-Determination and Education 

Assistance



[[Page 409]]



Act (25 U.S.C. 450e(b)) (Indian Act). Section 7(b) requires that to the 

greatest extent feasible preferences and opportunities for training and 

employment shall be given to Indians, and preferences in the award of 

contracts and subcontracts shall be given to Indian organizations and 

Indian-owned economic enterprises.

    (B) The parties to this contract shall comply with the provisions of 

Section 7(b) of the Indian Act.

    (C) In connection with this contract, the contractor shall, to the 

greatest extent feasible, give preference in the award of any 

subcontracts to Indian organizations and Indian-owned economic 

enterprises, and preferences and opportunities for training and 

employment to Indians.

    (D) The contractor shall include this Section 7(b) clause in every 

subcontract in connection with the project, and shall, at the direction 

of the grantee, take appropriate action pursuant to the subcontract upon 

a finding by the grantee or HUD that the subcontractor has violated the 

Section 7(b) clause of the Indian Act.

    (5) Complaint procedures. The following complaint procedures are 

applicable to complaints arising out of any of the methods of providing 

for Indian preference contained in this part, including alternate 

methods enacted and approved in a manner described in this section.

    (i) Each complaint shall be in writing, signed, and filed with the 

grantee.

    (ii) A complaint must be filed with the grantee no later than 20 

calendar days from the date of the action (or omission) upon which the 

complaint is based.

    (iii) Upon receipt of a complaint, the grantee shall promptly stamp 

the date and time of receipt upon the complaint, and immediately 

acknowledge its receipt.

    (iv) Within 20 calendar days of receipt of a complaint, the grantee 

shall either meet, or communicate by mail or telephone, with the 

complainant in an effort to resolve the matter. The grantee shall make a 

determination on a complaint and notify the complainant, in writing, 

within 30 calendar days of the submittal of the complaint to the 

grantee. The decision of the grantee shall constitute final 

administrative action on the complaint.

    (d) Environmental review. The Indian tribe must assume 

responsibility for environmental review, decisionmaking, and action for 

each activity that it carries out with HOME funds, in accordance with 

the requirements imposed on a recipient under 24 CFR part 58. The 

grantee shall also be responsible for compliance with flood insurance, 

coastal barrier resource and airport clear zone requirements under 24 

CFR 58.6.

    (e) Displacement, relocation, and acquisition--(1) Minimizing 

displacement. Consistent with the other goals and objectives of this 

part, the grantee must ensure that it has taken all reasonable steps to 

minimize the displacement of persons (families, individuals, businesses, 

nonprofit organizations, and farms) as a result of a project assisted 

with HOME funds. To the extent feasible, residential tenants must be 

provided a reasonable opportunity to lease and occupy a suitable, 

decent, safe, sanitary, and affordable dwelling unit in the building/

complex upon completion of the project.

    (2) Temporary relocation. The following policies cover residential 

tenants who will not be required to move permanently but who must 

relocate temporarily for the project. Such tenants must be provided:

    (i) Reimbursement for all reasonable out-of-pocket expenses incurred 

in connection with the temporary relocation, including the cost of 

moving to and from the temporarily occupied housing and any increase in 

monthly rent/utility costs.

    (ii) Appropriate advisory services, including reasonable advance 

written notice of--

    (A) The date and approximate duration of the temporary relocation;

    (B) The location of the suitable, decent, safe, and sanitary 

dwelling to be made available for the temporary period;

    (C) The terms and conditions under which the tenant may lease and 

occupy a suitable, decent, safe, and sanitary dwelling in the building/

complex upon completion of the project; and

    (D) The provisions of paragraph (e)(2)(i) of this section.



[[Page 410]]



    (3) Relocation assistance for displaced persons. (i) General. A 

displaced person (defined in paragraph (e)(3)(ii) of this section) must 

be provided relocation assistance at the levels described in, and in 

accordance with the requirements of, the Uniform Relocation Assistance 

and Real Property Acquisition Policies Act of 1970 (URA) (42 U.S.C. 

4201-4655) and 49 CFR part 24.

    (ii) Displaced Person. (A) For purposes of paragraph (c) of this 

section, the term displaced person means a person (family individual, 

business, private nonprofit organization, or farm, including any 

corporation, partnership or association) that moves from real property 

or moves personal property from real property, permanently, as a direct 

result of acquisition, rehabilitation, or demolition for a project 

assisted with HOME funds. This includes any permanent, involuntary move 

for an assisted project, including any permanent move from the real 

property that is made:

    (1) After notice by the owner to move permanently from the property, 

if the move occurs on or after:

    (i) The date of the submission of an application to the grantee or 

HUD, if the applicant has site control and the application is later 

approved; or

    (ii) The date the grantee approves the applicable site, if the 

applicant does not have site control at the time of the application; or

    (2) Before the date described in paragraph (e)(3)(ii)(A)(1) of this 

section, if the grantee or HUD determines that the displacement resulted 

directly from acquisition, rehabilitation, or demolition for the 

project; or

    (3) By a tenant-occupant of a dwelling unit, if any one of the 

following three situations occurs:

    (i) The tenant moves after execution of the agreement covering the 

acquisition, rehabilitation, or demolition and the move occurs before 

the tenant is provided written notice offering the tenant the 

opportunity to lease and occupy a suitable, decent, safe, and sanitary 

dwelling in the same building/complex upon completion of the project 

under reasonable terms and conditions. Such reasonable terms and 

conditions must include a term of at least one year at a monthly rent 

and estimated average monthly utility costs that do not exceed the 

greater of: the tenant's monthly rent before such agreement and 

estimated average monthly utility costs; or the total tenant payment, as 

determined under 24 CFR part 5, if the tenant is low-income, or 30 

percent of gross household income, if the tenant is not low-income; or

    (ii) The tenant is required to relocate temporarily, does not return 

to the building/complex, and either: the tenant is not offered payment 

for all reasonable out-of-pocket expenses incurred in connection with 

the temporary relocation; or other conditions of the temporary 

relocation are not reasonable; or

    (iii) The tenant is required to move to another dwelling unit in the 

same building/complex but is not offered reimbursement for all 

reasonable out-of-pocket expenses incurred in connection with the move, 

or other conditions of the move are not reasonable.

    (B) Notwithstanding paragraph (e)(3)(ii)(A) of this section, a 

person does not qualify as a displaced person if:

    (1) The person has been evicted for cause based upon a serious or 

repeated violation of the terms and conditions of the lease or occupancy 

agreement, violation of applicable Federal or tribal law (or state law, 

which may apply if the grantee is not exercising recognized powers of 

self-government), or other good cause, and the grantee determines that 

the eviction was not undertaken for the purpose of evading the 

obligation to provide relocation assistance. The effective date of any 

termination or refusal to renew must be preceded by at least 30 days 

advance written notice to the tenant specifying the grounds for the 

action.

    (2) The person moved into the property after the submission of the 

application but, before signing a lease and commencing occupancy, was 

provided written notice of the project, its possible impact on the 

person (e.g., the person may be displaced, temporarily relocated, incur 

a rent increase), and the fact that the person would not qualify as a 

``displaced person'' (or for any assistance under this section) as a 

result of the project;

    (3) The person is ineligible under 49 CFR 24.2(g)(2); or



[[Page 411]]



    (4) HUD determines that the person was not displaced as a direct 

result of acquisition, rehabilitation, or demolition for the project.

    (C) The grantee may, at any time, ask HUD to determine whether a 

displacement is or would be covered by this part.

    (iii) Initiation of negotiations. For purposes of determining the 

formula for computing replacement housing assistance to be provided 

under paragraph (e)(3) of this section to a tenant displaced from a 

dwelling as a direct result of private-owner rehabilitation, demolition 

or acquisition of the real property, the term initiation of negotiations 

means the execution of the agreement covering the acquisition, 

rehabilitation, or demolition.

    (4) Optional relocation assistance. The grantee may provide 

relocation payments and other relocation assistance to families, 

individuals, businesses, nonprofit organizations, and farms displaced by 

a project assisted with HOME funds where the displacement is not subject 

to paragraph (e)(3) of this section. The grantee may also provide 

relocation assistance to persons covered under paragraph (e)(3) of this 

section beyond that required. For any such assistance that is not 

required by tribal law (or state law, which may apply if the grantee is 

not exercising recognized powers of self-government), the grantee must 

adopt a written policy available to the public that describes the 

optional relocation assistance that it has elected to furnish and 

provides for equal relocation assistance within each class of displaced 

persons.

    (5) Real property acquisition requirements. The acquisition of real 

property for a project is subject to the URA and the requirements of 49 

CFR part 24, subpart B.

    (6) Appeals. A person who disagrees with the grantee's determination 

concerning whether the person qualifies as a displaced person, or the 

amount of relocation assistance for which the person may be eligible, 

may file a written appeal of that determination with the grantee.

    (7) Responsibility of grantee. (i) The grantee must certify that it 

will comply with the URA, the regulations at 49 CFR part 24, and the 

requirements of this section, and must ensure such compliance 

notwithstanding any third party's contractual obligation to the grantee 

to comply.

    (ii) The cost of required relocation assistance is an eligible 

project cost. This cost also may be paid from tribal funds, or funds 

available from other sources.

    (f) Labor--(1) General. (i) Every contract for the construction 

(rehabilitation or new construction) of housing that includes 12 or more 

units assisted with HOME funds must contain a provision requiring the 

payment of not less than the wages prevailing in the locality, as 

predetermined by the Secretary of Labor pursuant to the Davis-Bacon Act 

(40 U.S.C. 276a-276a-5), to all laborers and mechanics employed in the 

development of any part of the housing. Such contracts must also be 

subject to the overtime provisions, as applicable, of the Contract Work 

Hours and Safety Standards Act (42 CFR 327-332).

    (ii) The contract for construction must contain these wage 

provisions if HOME funds are used for any project costs (as defined in 

subpart C of this part), including construction or non-construction 

costs, of housing with 12 or more HOME-assisted units. When HOME funds 

are only used to assist homebuyers to acquire single-family housing, and 

not for any other project costs, the wage provisions apply to the 

construction of the housing if there is a written agreement with the 

owner or developer of the housing that HOME funds will be used to assist 

homebuyers to buy the housing and the construction contract covers 12 or 

more housing units to be purchased with HOME assistance. The wage 

provisions apply to any construction contract that includes a total of 

12 or more HOME-assisted units, whether one or more than one project 

phase is covered by the construction contract. Once they are determined 

to be applicable, the wage provisions must be contained in the 

construction contract so as to cover all laborers and mechanics employed 

in the development of the entire project, including portions other than 

the assisted units. Arranging multiple construction contracts within a 

single



[[Page 412]]



project for the purpose of avoiding the wage provisions is not 

permitted.

    (iii) Grantees, contractors, subcontractors, and other participants 

must comply with regulations issued under these Acts and with other 

Federal laws and regulations pertaining to labor standards and HUD 

Handbook 1344.1 (Federal Labor Standards Compliance in Housing and 

Community Development programs), as applicable. Grantees must require 

certification as to compliance with the provisions of this section 

before making any payment under such contract.

    (2) Volunteers. The prevailing wage provisions of paragraph (f)(1) 

of this section do not apply to an individual who receives no 

compensation or is paid expenses, reasonable benefits, or a nominal fee 

to perform the services for which the individual volunteered and who is 

not otherwise employed at any time in the construction work. See 24 CFR 

part 70.

    (3) Sweat equity. The prevailing wage provisions of paragraph (f)(1) 

of this section do not apply to members of an eligible family who 

provide labor in exchange for acquisition of a property for 

homeownership or provide labor in lieu of, or as a supplement to, rent 

payments.

    (4) Force account. (i) The grantee is responsible for compliance 

with regulatory requirements in the use of grantee work forces for 

construction or renovation activities performed as part of the 

activities funded under this part. The grantee must provide for its 

files the following:

    (A) Documentation to indicate that it has carried out or can carry 

out successfully a project of the size and scope of the proposal;

    (B) Documentation to indicate that it has obtained or can obtain 

adequate supervision for the workers to be used;

    (C) Information showing that the workers to be used are, or will be, 

listed on the grantee payroll and are employed directly by the grantee.

    (ii) Any and all excess funds derived from the force account 

construction or renovation activities shall accrue to the grantee and 

shall be reprogrammed for other activities eligible under this part or 

returned to HUD promptly.

    (iii) Insurance coverage for force account workers and activities 

shall, where applicable, include worker's compensation, public 

liability, property damage, builder's risk, and vehicular liability.

    (iv) The grantee shall specify and apply reasonable labor 

performance, construction, or renovation standards to work performed 

under the force account.

    (v) The contracting and procurement standards set forth in 24 CFR 

85.36 apply to material, equipment, and supply procurement from outside 

vendors under this section.

    (vi) In force account there is no contract. If the grantee which has 

received the HOME grant to construct the housing units performs the 

construction work using force account, i.e., with its own employees, the 

work is not covered by Davis-Bacon and related Acts. If the grantee 

contracts out the work or part of the work, that work is covered.

    (g) Lead-based paint. Housing assisted with HOME funds constitutes 

HUD-associated housing for the purpose of the Lead-Based Paint Poisoning 

Prevention Act (42 U.S.C. 4821, et seq.) and is, therefore, subject to 

24 CFR part 35. Grantees are responsible for testing and abatement 

activities.

    (h) Conflict of interest--(1) Applicability. (i) The conflict of 

interest provisions in 24 CFR part 84 and 24 CFR 85.36 apply to the 

procurement of supplies, equipment, construction, and services by 

grantees and their subgrantees.

    (ii) The provisions of this section apply to all cases not governed 

by 24 CFR part 84 and 24 CFR 85.36. These cases include the acquisition 

and disposition of real property and the provision of assistance by the 

grantee, by subgrantees, or to individuals, housing developers, and 

other private entities under eligible activities which authorize such 

assistance (e.g., rehabilitation of housing).

    (2) Conflicts prohibited. The general rule is that no persons 

described in paragraph (h)(3) of this section who have or had any 

functions or responsibilities with respect to activities assisted under 

this part, or who are in a position to participate in a decision, or



[[Page 413]]



gain inside information about such activities, may obtain a financial 

interest or benefit from these activities. Further, these persons may 

not have an interest in any contract, subcontract, or agreement 

concerning such activities; and these persons may not, during their 

employment or tenure in office and for one year thereafter, have an 

interest in the proceeds from these activities, either for themselves or 

for those with whom they have family or business ties. This paragraph 

does not apply to approved eligible administrative or personnel costs.

    (3) Persons covered. The conflict of interest provisions of 

paragraph (h)(2) of this section apply to any person who is an employee, 

agent, consultant, officer, or elected or appointed official of the 

grantee or subgrantee receiving HOME funds.

    (4) Exceptions requiring HUD approval. (i) Threshold requirements. 

Upon the written request of a grantee, HUD may grant an exception to the 

provisions of paragraph (h)(2) of this section on a case-by-case basis, 

when it determines that such an exception will serve to further the 

purposes of the HOME program and the effective and efficient 

administration of the grantee's project. An exception may be considered 

only after the grantee has provided the following:

    (A) A disclosure of the nature of the possible conflict, accompanied 

by an assurance that there has been public disclosure of the conflict 

and a description of how the public disclosure was made; and

    (B) An opinion of the grantee's attorney that the interest for which 

the exception is sought would not violate tribal laws on conflict of 

interest (or State law on conflict of interest, which may apply if the 

grantee is not exercising recognized powers of self-government).

    (ii) Factors to be considered for exceptions. In determining whether 

to grant a requested exception after the grantee has satisfactorily met 

the requirements of paragraph (h)(4)(i) of this section, HUD shall 

consider the cumulative effect of the following factors, where 

applicable:

    (A) Whether the exception would provide a significant cost benefit 

or essential expert knowledge to the project which would otherwise not 

be available;

    (B) Whether the affected person has withdrawn from his or her 

functions or responsibilities, or from the decision-making process, with 

reference to the specific assisted activity in question;

    (C) Whether the interest or benefit was present before the affected 

person was in a position as described in paragraph (h)(2) of this 

section;

    (D) Whether undue hardship will result, either to the grantee or to 

the person affected, when weighed against the public interest served by 

avoiding the prohibited conflict; and

    (E) Any other relevant considerations.

    (5) Circumstances under which the conflict prohibition does not 

apply. (i) In instances where a person who might otherwise be deemed to 

be included under the conflict prohibition is a member of a group or 

class of beneficiaries of the assisted activity and receives generally 

the same interest or benefits as are being made available or provided to 

the group or class, the prohibition does not apply, except that if, by 

not applying the prohibition against conflict of interest, a violation 

of tribal (or State) laws on conflict of interest would result, the 

prohibition does apply.

    (ii) A public disclosure of the nature of the grant assistance to be 

provided and the specific basis for the selection of the proposed 

beneficiaries must be made prior to the submission of an application to 

HUD. Evidence of this disclosure must be provided as a component of the 

application.

    (i) Debarment and suspension. As required by 24 CFR part 24, each 

grantee must require participants in lower tier covered transactions 

(e.g., sub-contractors) to include a certification that neither it nor 

its principals are currently debarred, suspended, proposed for 

debarment, declared ineligible, or voluntarily excluded from 

participation in the covered transaction, in any proposal submitted in 

connection with the lower tier covered transactions. A participant may 

rely on the certification unless it knows the certification is 

erroneous.



[61 FR 32223, June 21, 1996, as amended at 67 FR 15112, Mar. 29, 2002]



[[Page 414]]