Appeal from the Civilian Board of Contract Appeals in No. 3519-ISDA, Administrative Judge Stephen M. Daniels.
NATHANIEL NESBITT, Hogan Lovells U.S. LLP, Washington, DC, argued for appellant. Also represented by CATHERINE EMILY STETSON, LACY RENEE LOGSDON.
JOSEPH ASHMAN, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for appellee. Also represented by JOYCE R. BRANDA, ROBERT E. KIRSCHMAN, JR., DONALD E. KINNER.
Before LOURIE, MOORE, and REYNA, Circuit Judges.
Moore, Circuit Judge.
The Yurok Tribe (Tribe) appeals from the Civilian Board of Contracting Appeals' (Board) dismissal for failure to state a claim upon which relief may be granted. J.A. 2-3. Because the Tribe has not been awarded a contract, we affirm.
In 1975, Congress enacted the Indian Self-Determination and Education Assistance Act (ISDA), 25 U.S.C. § § 450-450n. The ISDA encourages Indian tribes to manage federally-funded programs by authorizing the government to enter into " self-determination contracts" with tribes under which a tribe agrees to administer a program and the government agrees to fund the program. Arctic Slope Native Ass'n, Ltd. v. Sebelius, 583 F.3d 785, 788 (Fed. Cir. 2009). The statute directs the Secretary of the Interior, upon a tribe's request, to enter into a self-determination contract for programs that the Secretary is authorized to administer. 25 U.S.C. § 450f(a)(1). When a tribe wishes to enter into a self-determination contract, also
known as a Title I contract, it submits a proposal to the Secretary. Id. § 450f(a)(2). The Bureau of Indian Affairs receives and reviews proposals for the Secretary. The statute mandates that " the Secretary shall, within ninety days after receipt of the proposal, approve the proposal and award the contract unless the Secretary provides written notification to the applicant" that the proposal does not meet certain statutory criteria. Id. Regulations governing the Bureau state that " [a] proposal that is not declined within 90 days . . . is deemed approved and the Secretary shall award the contract . . . within that 90-day period." 25 C.F.R. § 900.18. In effect, if the Secretary does not timely respond to a Title I proposal, the proposal is deemed approved and the Secretary is directed to award a contract based on the terms of the proposal.
This case presents a request for a contract by the Tribe and a lack of response by the government. On October 12, 2011, the Tribe wrote a letter to the director of the Bureau's Office of Self Governance stating that it was " submitting this letter of interest for program inclusion and funding under title I of the [ISDA]." J.A. 18. The letter set forth a request for approximately $5.5M in annual funding to support the Tribe's Department of Public Safety, a request for $2M to fund facilities and infrastructure for the Department of Public Safety, a request for approximately $1.5M in annual funding to support the Tribe's Tribal Court, and a request for approximately $7.6M to fund facilities and infrastructure for the Tribal Court. J.A. 18-19. Attached to the 15-page letter was a Tribal Resolution authorizing the submission of a " Title I Compact Request." J.A. 33.
On October 17, the Office of Self Governance sent an email to the Tribe stating that it did not " have authority to manage a Title I agreement." J.A. 36. The email copied individuals in the Bureau's Office of Justice Services and stated that those individuals would need to be the primary contacts for a self-determination contract. Id. On October 28, the Office of Justice Services asked the Tribe " to clarify whether the Tribe is seeking a self-determination contract under Title I of the [IDSA] or, inclusion of programs and funding in a self-governance annual funding agreement under Title IV." J.A. 41. The Office further stated that if the Tribe was " interested in submitting a proposal to enter into a self-determination contract, then [it should] contact the Office." J.A. 41. On November 2, the Tribe wrote an email to the Office of Justice Services, regarding " availability tomorrow to meet . . . regarding our recent Title 1 request." J.A. 42. The Tribe then wrote emails requesting to " follow up regarding the Yurok Tribe's Title 1 request" on December 27, 2011, and January 30, 2012. J.A. 46.
It is undisputed that the Bureau did not decline the proposal in the Tribe's October letter within 90 days of receiving the letter. On February 1, 2012, the Tribe wrote a letter to the Office of Justice Services, stating that because the Bureau did not respond to the proposal set forth in the Tribe's October letter, " the contract is deemed approved and the Tribe seeks to receive the requisite contract documents." J.A. 49. On February 8, the Office of Justice Services wrote a letter to the Tribe stating that the intent of the Tribe's October letter was unclear and did not meet the requirements of a self-determination contract proposal. J.A. 50-51. On February 15, the Tribe responded that because the Bureau did not timely decline the proposal, " [t]he Yurok Tribe demands the Secretary award forthwith the formal contract as required by section 900.18 and according to the terms of the Title I funding request." J.A. 55.
A year later, in March 2013, the Office of Justice Services received a letter from the Tribe titled " Claim for performance of Title I justice services contract pursuant to Contract Disputes Act." J.A. 65. The letter referenced the Tribe's October letter, the Secretary's failure to respond to the Tribe's proposal within 90 days, and the deemed approval of the contract. J.A. 65. In response, the Office of Justice Services stated that the October letter was not a complete proposal, and that even if it were a proposal, the Secretary would have declined it. J.A. 67-73.
The Tribe then filed the present appeal. J.A. 79. It alleged that because the Secretary did not decline the Tribe's October 12 and February 15 letters, contracts with the terms set forth in the letters arose by operation of law and that the Bureau had not performed under these " deemed contract[s]." Id. Accordingly, the Tribe requested that the Board " [o]rder the Bureau to enter into a Title I contract as ...