Petition for Writ of Certiorari — Rosebud Sioux Tribe v. Val-U Construction Co.

’ Supreme Court, U.S.

\) FILED

No. 1.9420 4% JUN 15195

OFFICE OF ine CLERK

In THE

Supreme Court of the United States

OCTOBER TERM, 1994

ROSEBUD SIOUX TRIBE, THE UNITED STATES FOR THE

USE AND BENEFIT OF THE ROSEBUD SIOUX TRIBE,

Petitioner,

Vv.

VAL-U CONSTRUCTION COMPANY OF SOUTH DaKkora, INC.,

FREDERICK L. VALANDRA, and RONALD MCDONALD,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

TERRY L. PECHOTA

Counsel of Record

VIKEN, VIKEN, PECHOTA, LEACH |

& DEWELL |

1617 Sheridan Lake Road

Rapid City, South Dakota 57702

(605) 341-4400

Attorney for Petitioner

AO sa Shan

WI§ILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

y “i

—_

QUESTION PRESENTED

Does an arbitration provision in an agreement involving

an Indian tribe and another party constitute a waiver of

the tribe’s sovereign immunity.

(i)

ii

PARTIES

The parties to the proceedings below in the Eighth

Circuit Court of Appeals were the Rosebud Sioux Tribe,

petitioner, and Val-U Construction and its principals,

Frederick L. Valandra and Ronald McDonald.

The other parties set forth in the caption of the action

in the Eighth Circuit were not parties and did not par-

ticipate in the appeal below.

TABLE OF CONTENTS

Page

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an ns Gna, 1

et EES a ae ae cee San ae eR 2

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SltATemeus OF THE CASE ......................... 2

REASONS FOR GRANTING THE WRIT .......__. 6

I. THE EIGHTH CIRCUIT DECISION IS IN

CONFLICT WITH DECISIONS OF THIS

ASS NE eras SES De 6

II. THE EIGHTH CIRCUIT DECISION IS IN

CONFLICT WITH THE DECISION OF THE

NINTH CIRCUIT COURT OF APPEALS ....... 8

Ill. THE CONFLICT HAS SERIOUS CONSE-

QUENCES TO INDIAN TRIBES AND PER-

SONS DOING BUSINESS WITH THEM AND

INVOLVES AN IMPORTANT ISSUE OF FED-

ERAL LAW THAT SHOULD BE SETTLED... 9

ISSR RE AE Tea a oe 10

APPENDIX A

Eighth Circuit Court of Appeals Decision.....__ la

APPENDIX B

Order Denying Rehearing ......................................... 9a

(iii)

iv

TABLE OF CONTENTS—Continued

APPENDIX C Page

U.S. District Court Order of Dismissal .................. 10a

APPENDIX D

Contract Between Contractor and Rosebud Sioux

sp eee A Lae eM I enna MRD tate re ON = Nene aay re Rp 12a

APPENDIX E

Attachment H, Special Conditions, Bid Package... 15a

APPENDIX F

po ain ceaiceae a RR ee aS Oe OE 34a

Vv

TABLE OF AUTHORITIES

Cases Page

Oklahoma Tax Comm’n v. Citizen Band Potawa-

tomi Indian Tribe, 498 U.S. 505 (1991) ............... 6, 7

Pan American Co. v. Sycuan Band of Mission In-

dians, 884 F.2d 416 (9th Cir. 1989) 6, 7,8

Puyallup Tribe, Inc. v. Department of Game, 433

SAAN SUE CEE Miia eddie 6, 7

Santa Clara Pueblo v. Martinez, 486 U.S. 49

fs” see TREAD Una clasts OO oresetths 2 PTET ae eet ee

Testan v. United States, 424 U.S. 392 (1976) _.......

Turner v. United States, 248 U.S. 354 (1919) .........

U.S. ex rel. Robinson Rancheria v. Borneo, Inc.,

971 F.2d 244 (9th Cir. 1992) ................................ 5

United States Fidelity & Guar. Co. v. United States,

See Sie We CIO ti 6

United States v. Sherwood, 312 U.S. 590 (1940)... 7

Wilko v. Swan, 346 U.S. 427 (1958) ............000. 7

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In THE

Supreme Cont of the United States

OCTOBER TERM, 1994

No. 94 - ——

ROSEBUD Sioux TRIBE, THE UNITED STA’ES FOR THE

USE AND BENEFIT OF THE ROSERUD Sioux TRIBE,

a F’etitioner,

VaL-U CONSTRUCTION COMPANY OF SOUTH DAKOTA, INC.,

FREDERICK L. VALANDRA, and RONALI) MCDONALD,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

The petitioner respectfully prays that Writ of Certiorari

issue to review the Opinion And Order of the United

States Court of Appeals for the Eighth Circuit entered in

this case on March 16, 1995.

OPINIONS BELOW

The Opinion of the Court of Appeals for the Eighth

Circuit is reported at 50 F.3d 560, and is reprinted in the

Appendix to this Petition beginning at page la. The

Order of Dismissal entered by the U.S. District Court of

South Dakota, Central Division, was not reported. It is

reprinted in the Appendix to this Petition beginning at

page 10a.

2

JURISDICTION

This action was initiated by the petitioner, Rosebud

Sioux Tribe, by complaint in the United States District

Court of South Dakota, Central Division on April 9,

1991, which invoked the jurisdiction of the federal court

under a number of federal statutes, including 28 U.S.C.

1331 and 1362. The action was dismissed by the District

Court on March 29, 1994. Notice of Appeal was filed

by respondents on April 25, 1994.

The Opinion and Order of the Court of Appeals, of

which petitioner now seeks review, was issued on March

16, 1995. The Petition for Rehearing was denied on

April 21, 1995. The Mandate was stayed until June

15, 1995, to permit a petition for Writ of Certiorari to

be filed in this Court.

The jurisdiction of this Court is invoked under 28 U.S.C.

1254(1) and Writ of Certiorari is requested under Su-

preme Court Rule 10.1(a) & (c).

STATUTE INVOLVED

The determination of the question presented did not

require the construction or interpretation of any statute

by the Eighth Circuit Court of Appeals.

STATEMENT OF THE CASE

Between late 1987 and early 1988, petitioner, Rosebud

Sioux Tribe, entered into a series of contracts under

Pub. L. 93-638, 25 U.S.C. 450(f), with the Indian Health

Service of the United States Department of Health and

Human Services to construct 76 staff quarter units to

serve the newly completed Indian Health Service Hospital

on the Rosebud Indian Reservation in South Dakota.

The underlying 638 contract between the Department

of Health and Human Services and the Rosebud Sioux

Tribe was nearly 164 pages in length containing specifi-

cations covering virtually every conveivable aspect of the

3

project, including the content and approval of all con-

struction documents. An excerpt of one part of the un-

derlying 638 contract between Health and Human Serv-

ices and the Tribe is set forth at Appendix E at page

15a. This excerpt deals with special conditions. It re-

quired the Tribe to include as part of the construction

bid packages special conditions as set forth in Appendix

E. An addendum to the special conditions at Appendix

E was required by Health and Human Services. This ad-

dendum is set out at Appendix F at page 34a and states

that “(a)ll questions of dispute under this Agreement

shall be decided by aribtration in accordance with the

Construction Industry Arbitration Rules of the American

Arbitration Association.”

In the spring of 1989, the Tribe issued a Request for

Proposal calling for bids on four parts of the proposal:

streets, curb and gutter, water and sewer, and housing.

A fifty percent (50%) performance bond and one hun-

dred percent (100%) payment bond with corporate

surety was required of the entity to whom the bid was

awarded.

Respondent, Val-U Construction, bid on all four parts

of the proposal, but was only awarded the low bid on

that part dealing with housing. Its bid on the first three

parts was high; however, its bid on the housing in the

amount of $3,633,165 was almost $1,000,000 lower than

the next low bidder. The United States Public Health

Service, Office of Engineering Services, recommended that

the bid be awarded to Val-U based on the fact that fed-

eral procurement policy required that the bid be awarded

to the lowest qualified bidder. On July 31, 1989, peti-

tioner, Rosebud Sioux Tribe, and respondent, Val-U, en-

tered into a contract for the above amount. Appendix

D at 12a.

Respondent, Val-U Construction, commenced work in

the last part of August, 1989. Laborers were paid by a

voucher system. Val-U subcontracted the majority of the

4

work. By January, 1990, Val-U had not completed the

first twenty (20) units as required and problems began

to surface on the construction site. Val-U was not paying

its workmen and subcontractors, the work was not being

performed according to specifications, and the work was

not on schedule. Mike Atwell, an employee of the United

States Indian Health Service, took over as project manager

on May 29, 1990. Atwell documented a number of

serious problems with the project. Respondents deny that

their work was deficient.

The Rosebud Sioux Tribal Council passed Resolution

No. 90-124 on September 25, 1990, declaring Val-U to

be in default under the construction contract for: (1) fail-

ure to maintain a sufficient job crew to complete units on

schedule, (2) failure to pay contractors and material sup-

pliers for periods as long as five months despite receiving

continuing payments under the construction contract, (3)

refusal to pay subcontractors and material suppliers de-

spite admissions to the Rosebud Sioux Tribal Counc?!

that there were sufficient funds to do so, and (4) paying

subcontractors and material suppliers with checks drawn

on accounts with insufficient funds. Further work by

Val-U Construction was discontinued and the project was

completed by another company.

On October 16, 1990, respondent, Val-U Construction,

demanded that the Tribe arbitrate the contract termina-

tion. Petitioner Tribe declined, based upon its sovereign

immunity.

On April 9, 1991, petitioner Tribe instituted an action

in the United States District Court of South Dakota

against respondents Val-U Construction, Frederick L.

Valandra, and Ronald McDonald, as well as the persons

who provided the performance and payment bonds sub-

mitted to the Tribe by Val-U Construction to secure its

responsibilities under the bid that it was awarded. Peti-

tioner sought damages on a variety of claims including

5

breach of contract for the additional cost of completing

the project.

Respondent Val-U Construction on May 3, 1991, an-

swered, denied that its work was deficient, and counter-

claimed seeking arbitration or damages for breach of

contract.

On May 6, 1991, an arbitration hearing was held in

Rapid City, South Dakota. A local attorney served as

arbitrator. Petitioner Tribe, relying upon its sovereign

immunity, U.S. ex rel. Robinson Rancheria v. Borneo,

Inc., 971 F.2d 244 (9th Cir. 1992), did not appear at

the arbitration hearing and the arbitrator awarded re-

spondents $793,943.58.

The trial on petitioner’s claims against the parties

responsible on the bonds was bifurcated from the breach

of contract claims between petitioner and respondents. A

trial was held on July 27, 1993. The District Court found

that Harre, who is not a party to these proceedings, did

not sign the bonds that had been submitted by Val-U

Construction and that he was not liable as a surety. The

District Court also found that Anthony, who also is not

a party to these proceedings, also did not sign the bonds

submitted by Val-U Construction but that he was equi-

tably estopped from denying liability on the bonds.

Petitioner Rosebud Sioux Tribe determined that any

judgment that it secured against respondents or any of

the parties liable on the bonding would be uncollectible.

Thus, petitioner Tribe requested the District Court to vol-

untarily dismiss its action, which it did with prejudice on

March 29, 1994. At the same time, the District Court

also dismissed all of the counterclaims made by respond-

ents as being barred by the petitioner Tribe’s sovereign

immunity. Respondents appealed the dismissal of thei

counterclaims to the Eighth Circuit Court of Appeals

which resulted in the opinion of March 16, 1995.

6

Respondents’ position in the Eighth Circuit was that

petitioner Tribe had waived its sovereign immunity by

the language referring to arbitration or by the “sue and

be sued” clause of its corporate charter. The Eighth Cir-

cuit ruled that the language of the arbitration clause,

while spare, waived petitioner’s sovereign immunity as to

any claims under the contract. The Eighth Circuit held

that petitioner had entered into the contract with respond-

ents as a governmental entity so that the “sue and be

sued” provision of its corporate charter did not operate

as a waiver of the petitioner's sovereign immunity. The

Eighth Circuit remanded the case to the District Court to

hear respondents’ counterclaims and to determine the

validity and effect of the arbitration award.

REASONS FOR GRANTING THE WRIT

The decision of the Eighth Circuit Court of Appeals

conflicts with the rulings of this Court on the sovereign

immunity of Indian tribes and the decision of the Ninth

Circuit Court of Appeals in Pan American Company v.

Sycuan Band of Mission Indians, 884 F.2d 416 (1989).

The conflict will have serious consequences for Indian

tribes and parties entering into agreements with them and

involves an important issue of federal law that should be

settled.

I. THE EIGHTH CIRCUIT DECISION IS IN CON-

FLICT WITH DECISIONS OF THIS COURT.

This Court has previously held that Indian tribes enjoy

sovereign immunity from suit the same as that of the

United States. E.g., Oklahoma Tax Comm'n. v. Citizen

Band Potawatomi Indian Tribe, 498 U.S. 505 (1991);

Santa Clara Pueblo vy. Martinez, 436 U.S. 49 (1978);

Puyallup Tribe, Inc. v. Department of Game, 433 US.

165 (1977); United States Fidelity & Guar. Co. v.

United States, 309 U.S. 506 (1940).

A tribe may waive its sovereign immunity, but such a

waiver cannot be implied, it must be unequivocally ex-

| |

7

pressed. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58

(1978); Testan v. United States, 424 U.S. 392 (1976);

Turner v. United States, 248 U.S. 354 (1919). Waivers

of sovereign immunity must be strictly construed. United

States v. Sherwood, 312 U.S. 590 (1940).

When a tribe commences a lawsuit, it does not waive

sovereign immunity from even compulsory counterclaims.

Oklahoma Tax Comm'n. v. Citizen Band Potawatomi

Indian Tribe, 498 U.S. 505 (1991).

The decision of the Eighth Circuit is in conflict with

the principles set out in the above cases. An arbitration

provision is nothing more than a choice of forum and a

form of trial to be utilized in lieu of a trial at law. See

Wilko v. Swan, 346 U.S. 427, 433 (1953). Such a pro-

vision does not necessarily implicate nor does it directly

relate to a waiver of sovereign immunity. While a sov-

ereign may agree to an arbitration forum, that forum,

like any court, can only act and have its award confirmed

if the sovereign has determined that it will waive its sov-

ereign immunity. The consent to an arbitration forum is

less indicative of a waiver of sovereign immunity than is

the act of filing a lawsuit, which has been held not to

constitute a waiver of sovereign immunity as to counter-

claims. The Eighth Circuit in its decision realized that

the arbitration language at issue was spare and that no

decision of this Court has ever held that the presence of

an arbitration provision constituted a waiver of sovereign

immunity.

The Eighth Circuit decision in this case runs directly

contrary to the prohibition against implied waivers of

sovereign immunity. While the Eighth Circuit in its opin-

ion holds that an arbitration provision is a clear expres-

sion of waiver, it could only reach this conclusion if it

implied an intent on the part of the petitioner. “Consent

by implication, whatever its justification, still offends the

clear mandate of Santa Clara Pueblo.” Pan American Co.

8

v. Sycuan Band of Mission Indians, 884 F.2d 416, 419

(9th Cir. 1989).

II. THE EIGHTH CIRCUIT DECISION IS IN CON-

FLICT WITH THE DECISION OF THE NINTH

CIRCUIT COURT OF APPEALS.

In Pan American Company vy. Sycuan Band of Mission

Indians, 884 F.2d 416 (9th Cir. 1989), a written con-

tract between the tribe and the company to manage its

bingo enterprise provided that any dispute between the

tribe and the company would be resolved by arbitration.

The arbitration provision in that case was much broader

and more specific than the one interpreted by the Eighth

Circuit in Val-U Construction.

In the event a dispute arises between its parties .. .

either party may seek arbitration of said dispute and

both parties do hereby subject themselves to the ju-

risdiction of the American Arbitration Association

and do hereby agree to be bound by and comply

with its rules and regulations as promulgated from

time to time.

884 F.2d 419.

The company, Pan American, filed a demand for arbi-

tration and later sued the tribe in California federal dis-

trict court to enforce the contract. The case was dis-

missed on the ground that tribal sovereign immunity had

not been waived and the Ninth Circuit Court of Appeals

upheld the dismissal and reaffirmed the principle that

waiver of tribal sovereign immunity must be “unequiv-

ocally expressed.” 884 F.2d 420. In response to Pan

American’s argument that the above language in the arbi-

tration clause was an express waiver of sovereign im-

munity the court stated:

Pan American reads this clause as an explicit waiver

of the Band’s sovereign immunity since “a submission

to arbitration is a submission to judicial jurisdiction

... aS a matter of definition.” Such a reading of the

|

9

arbitration clause runs counter to not only the strong

presumption against tribal waivers of immunity, but

also generally accepted principles governing the in-

terpretation of contractual arbitration provisions.

The Bingo Agreement’s arbitration clause simply

does not contain that unequivocal expression of tribal

consent to suit necessary to effect a waiver of the

Band’s sovereign immunity.

884 F.2d 419.

Ill. THE CONFLICT HAS SERIOUS CONSEQUENCES

TO INDIAN TRIBES AND PERSONS DOING BUSI-

NESS WITH THEM AND INVOLVES AN IMPOR-

TANT ISSUE OF FEDERAL LAW THAT SHOULD

BE SETTLED.

Indian tribes across the country, encouraged by federal

legislation, e.g., Indian Financing Act of 1974, 25 U.S.C.

1451 et seq., Indian Self-Determination Education and

Education Assistance Act, 25 U.S.C. 450 et seq., and

Indian Gaming Regulatory Act, 25 U.S.C. 2701 et seq.,

have undertaken many different economic development

and business projects designed to improve tribal self-

sufficiency. These business projects and undertakings

have required Indian tribes and persons doing business

with them to enter into business agreements dealing with

resolution of disputes. E.g., 25 U.S.C. 1710(d)(3)(C)

& 2711(b)(6). Because of the complicated nature of

tribal jurisdiction, agreements often include provisions

dealing with arbitration. The effect of such arbitration

provisions is in a state of considerable confusion under

the current state of the law; whether such provisions

waive sovereign immunity depends on in which federal

circuit or state the particular contract is being construed.

Commerce is being impeded. This important issue of fed-

eral law has not been but should be settled by a definitive

ruling from this Court.

10

CONCLUSION

The Petition for a Writ of Certiorari should be granted.

Respectfully submitted,

TERRY L. PECHOTA

Counsel of Record

VIKEN, VIKEN, PECHOTA, LEACH

& DEWELL

1617 Sheridan Lake Road

Rapid City, South Dakota 57702

(605) 341-4400

Attorney for Petitioner

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APPENDICES |

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 94-2083

ROSEBUD SI0UX TRIBE, THE UNITED STATES FOR THE

USE AND BENEFIT OF THE ROSEBUD SIOUX TRIBE;

Plaintiff-A ppellee;

Vv.

VaL-U CONSTRUCTION COMPANY OF SOUTH DAKOTA,

INC.; FREDERICK L. VALANDRA;

Defendants-A ppellants;

GARY L. HARRE; EAGLE SuRETY, INc.; Lou BAKER;

WOODLANDS TRUST COMPANY; TAMMY BAKER;

BRADLEY E. BAGGE;

Defendants;

RONALD MCDONALD;

Defendant-A ppellant;

YANCEY LAMAR ANTHONY;

Defendant.

Appeal from the United States District Court

for the District of South Dakota

Submitted: December 16, 1994

Filed: March 16, 1995

2a

Before RICHARD S. ARNOLD, Chief Judge;

HEANEY, Senior Circuit Judge; and BARNES,* District

Judge.

HEANEY, Senior Circuit Judge.

Val-U Construction Company (“Val-U”) appeals the

dismissal of its counterclaims against the Rosebud Sioux

Tribe (“the Tribe”) arising out of a contract to build

housing on the Rosebud Sioux Indian Reservation. We

affirm the dismissal of Val-U’s counterclaims sounding

in tort, because we agree with the district court that the

Tribe did not waive its sovereign immunity with respect

to those causes of action. We reverse the dismissal of

Val-U’s breach of contract counterclaims because we find

that the contract’s arbitration clause operated as a waiver

of the Tribe’s immunity.

BACKGROUND

In July 1989 Val-U Construction entered into a $3.6

million contract with the Tribe to build seventy-six hous-

ing units to serve a medical facility on the Rosebud Sioux

Indian Reservation. Problems arose during the perform-

ance of the contract, and the Tribe terminated the con-

tract in September 1990. The contract included an arbi-

tration clause.

In October 1990 Val-U demanded arbitration of the

contract termination. The Tribe refused to participate in

the arbitration, citing sovereign immunity, and instead

sued Val-U in April 1991 for breach of contract, present-

ing false payment vouchers, RICO violations, and fraud

and misrepresentation. Val-U pleaded as an affirmative

defense the contract’s arbitration clause and, later, col-

lateral estoppel based on the subsequent arbitration award

* The Honorable Harry F. Barnes, District Judge for the Western

District of Arkansas, sitting by designation.

3a

in its favor. Val-U also counterclaims for breach of con-

tract, loss of the ability to compete, and loss of reputation.

The district court neither compelled arbitration of the

Tribe’s claims nor stayed the arbitration of Val-U’s claims

against the Tribe.

The arbitration proceeded without the Tribe’s partici-

pation. In June 1991 the arbitrator awarded Val-U

$793,943.58 plus interest, fees, and costs after finding

the Tribe had breached the contract.

In September the district court heard the Tribe’s motion

to dismiss, which it granted regarding Val-U’s tort coun-

terclaims but denied with respect to the contract counter-

claims. In a September 15, 1991, decision the court reit-

erated that Val-U’s counterclaims were not barred by sov-

ereign immunity to the extent of recoupment, but it

deferred ruling on sovereign immunity as it pertained to

any recovery beyond recoupment. The court reasoned

that, because the case had not yet been tried, it was

impossible to tell whether any recovery by Val-U would

exceed that of the Tribe and therefore go beyond the

recoupment principle.

In the meantime, litigation continued by the Tribe to

enforce performance and payment bonds backed by indi-

vidual sureties. In July 1993 the district court found

one of the sureties liable on the bonds in the amount of

$3,633,165.

Thereafter the district court granted Val-U’s motion to

dismiss the Tribe’s claims for RICO violations and for

fraud and misrepresentation regarding the performance

and payment bonds, but denied Val-U’s motion to dismiss

all the Tribe’s claims as barred by collateral estoppel and

to enter judgment for Val-U based on the arbitration

award. The court ruled that the contract’s arbitration

clause was not enforceable because it was not an explicit

waiver of sovereign immunity. Motions Hrg. Tr. (Sept.

27, 1993), at 23.

4a

In February 1994 the Tribe moved for voluntary dis-

missal under Fed. R. Civ. P. 41(a)(2). The court

granted the motion to dismiss without prejudice and dis-

missed Val-U’s counterclaims as limited to recoupment.

It delayed entry of judgment, however, until the conclu-

sion of litigation concerning claims brought by several

subcontractors under the Miller Act, 40 U.S.C. § 270a-d.

Upon conclusion of the trial on the Miller Act claims,

the court entered judgment in the principal litigation dis-

missing the Tribe’s lawsuit with prejudice and holding that

Val-U’s counterclaim was barred by sovereign immunity

to the extent it sought recovery beyond recoupment. Any

claim for recoupment, in turn, became moot upon dismis-

sal of the Tribe’s complaint. Rosebud Sioux Tribe v.

Val-U Construction Co., Civ. 91-3019, slip op. at 1

(D.S.D. Mar. 30, 1994) (order of dismissal). Val-U

appeals the dismissal of its counterclaims against the

Tribe.

DISCUSSION

Val-U advances two arguments on appeal. First, Val-U

contends that the Tribe waived its sovereign immunity via

the contractual arbitration clause and by virtue of the “sue

and be sued” clause in its corporate charter. Second,

Val-U claims that, through the doctrine of collateral

estoppel, it is entitled to summary judgment based on the

arbitration award it obtained against the Tribe.

We first address the issue of whether the Tribe waived

its sovereign immunity. The Tribe asserts that the arbitra-

tion clause is not a waiver of immunity and that the “sue

and be sued” clause is irrelevant because the Tribe entered

the contract with Val-U as a sovereign rather than a

corporate entity. The district court concluded that the

arbitration clause was not a clear waiver of immunity, but

it did not address the “sue and be sued” clause in the

Tribe’s corporate charter. Motions Hrg. (Sept. 27, 1993),

at 23. We review de novo the question of whether the

Sa

Tribe waived its sovereign immunity. General Electric

Capital Corp. v. Grossman, 991 F.2d 1376, 1380 (8th

Cir. 1993).

It is well established that Indian tribes possess the com-

mon law immunity from suit traditionally enjoyed by

sovereign powers. Santa Clara Pueblo v. Martinez, 436

U.S. 49, 58 (1978). A tribe may waive its immunity,

but such waiver “cannot be implied but must be unequivo-

cally expressed.” Jd. (internal quotation omitted). When

a tribe brings a lawsuit, it does not waive immunity for

counterclaims, Oklahoma Tax Comm'n vy. Citizen Band

Potawatomi Indian Tribe, 498 U.S. 505, 509 (1991),

except for matters asserted in recoupment, Rosebud Sioux

Tribe v. A & P Steel, Inc., 874 F.2d 550, 552 (8th Cir.

1989). Recoupment is a defensive action that operates to

diminish the plaintiff's recovery rather than to assert

affirmative relief. See Jicarilla Apache Tribe v. Andrus,

687 F.2d 1324, 1344 (10th Cir. 1982).

The first asserted waiver of immunity in this case is

an arbitration clause which reads, “All questions of dis-

pute under this Agreement shall be decided by arbitration

in accordance with the Construction Industry Arbitration

Rules of the American Arbitration Association.” We con-

clude that this cause is a clear expression that the Tribe

has waived its immunity with respect to claims under the

contract.

The language of this clause is spare but explicit that

disputes under the contract “shall be decided by arbitra-

tion.” The clause further specifies that the arbitration

shall proceed in accordance with the Construction Indus-

try Arbitration Rules of the American Arbitration Associ-

ation. Rule 47(c) of those rules states, “Parties to these

rules shall be deemed to have consented that judgment

upon the arbitration award may be entered in any federal

or state court having jurisdiction thereof.” By designating

arbitration in accordance with specified arbitration rules

6a

as the forum for dispute resolution, the parties clearly

intended a waiver of sovereign immunity with respect to

resolving disputes under the contract. By definition such

disputes could not be resolved by arbitration if one party

intended to assert sovereign immunity as a defense. See

Native Village of Eyak v. GC Contractors, 658 P.2d 756,

760 (Alaska 1983).

We do not believe that the simplicity of the clause

undermines its clarity or explicitness. In finding a waiver

of immunity, we are mindful of the strong policy in sup-

port of tribal sovereignty and of the Supreme Court’s

prohibition of implied waivers of immunity. See Santa

Clara Pueblo, 436 U.S. at 58-59. We note, however, that

while the Supreme Court has expressed its protectiveness

of tribal sovereign immunity by requiring that any waiver

be explicit, it has never required the invocation of “magic

words” stating that the tribe hereby waives its sovereign

immunity.

This court recently found a waiver of a tribe’s sovereign

immunity in the language of a complaint the tribe had

brought in federal court. In Rupp v. Omaha Indian

Tribe, Nos. 93-3103, 93-3106, 1995 WL 27483, at *3

(8th Cir. Jan. 26, 1995), the court found a waiver

because the tribe “did not merely file a quiet title action”

but “affirmatively requested the district court to order the

defendants to assert any claims in the disputed lands.”

The court concluded that the tribe’s explicit request that

the defendants assert their claims was an unequivocal con-

sent to such counterclaims. /d.

The Rupp opinion distinguished this court’s holding in

American Indian Agric. Credit Consortium, Inc. v. Stand-

ing Rock Sioux Tribe, 780 F.2d 1374, 1376 (8th Cir.

1985), in which the court found no waiver from language

in a promissory note that provided various remedies in

the event of default “in addition to such other and further

rights and remedies provided by law,” allowed for attor-

7a

ney’s fees incurred in collection efforts, and stated that the

law of the District of Columbia applied. The court stated

that the tribe “did not explicitly consent to submit any

dispute over repayment on the note to a particular forum,

or to be bound by its judgment. To derive an express

waiver of sovereign immunity from a promissory note that

merely alludes to ‘rights and remedies provided by law,’

that provides for attorney fees in the event of a collection

action, and that contains a choice of law provision, simply

asks too much.” /d. at 1380-81.

We too distinguish Standing Rock. Unlike that case,

the parties here specifically designated an arbitral forum

to settle disputes under the contract, as well as arbitration

rules that explicitly provide for judicial enforcement of

any arbitration award. The parties clearly manifested

their intent to resolve disputes by arbitration, and the

Tribe waived its immunity with respect to any disputes

under the contract.

The waiver of immunity does not extend, however, to

any tort claims by Val-U. The arbitration clause waives

sovereign immunity only as to claims under the contract.

Furthermore, we find that the “sue and be sued clause”

in the Tribe’s corporate charter does not operate as a

general waiver of the Tribe’s immunity from suit. See,

e.g., United Keetoowah Band of Cherokee Indians v.

Oklahoma, 927 F.2d 1170, 1174 (10th Cir. 1991)

(formation of corporation does not affect tribe’s power to

act in governmental capacity). The record shows that

the Tribe entered into the contract as a sovereign govern-

mental entity. The construction contract was signed by

the tribal chairman, and the Tribe oversaw the contract

through the Tribal Council and the Medical Center Man-

agement Committee. There is no evidence that Val-U was

dealing with a tribal corporate entity.

Having concluded that Val-U’s breach of contract

claims against the Tribe are not barred by sovereign

immunity, we remand the case to the district court to hear

8a

Val-U’s counterclaims and, in so doing, to determine the

validity and effect of the arbitration award Val-U ob-

tained against the Tribe in the amount of $793,943.58,

plus interest, fees, and costs. Val-U urges us to enforce

the award by ordering that judgment be entered in its

favor in that amount. We conclude, however, that the

proper course is for the district court to examine the arbi-

tration proceeding to decide its effect. See Dean Witter

Reynolds, Inc. v. Byrd, 470 U.S. 213, 223 (1985).

Due to the diverse claims and parties involved in this

case, Val-U’s counterclaims against the Tribe have never

been addressed by the district court despite the prolonged

period of litigation. The court deferred any decision on

the Tribe’s sovereign immunity defense to the counter-

claims until the litigation on the bonding and Miller Act

issues was completed. The Tribe recovered on the bond

from one of the sureties, and subcontractors recovered

judgments from the surety and from Val-U on the Miller

Act claims. Having made itself whole, the Tribe re-

quested voluntary dismissal of its claims against Val-U

pursuant to Fed. R. Civ. P. 41(a)(2). The district court

granted the request and, in turn, concluded that any

recovery by Val-U on a recoupment theory disappeared

upon dismissal of the Tribe’s claims, and that sovereign

immunity barred any recovery outside of recoupment. As

we have removed the Tribe’s immunity defense by finding

a waiver, the district court now has jurisdiction over

Val-U’s counterclaims and must determine the validity

and effect of the arbitration award on those counter-

claims against the Tribe.

Accordingly, we affirm the dismissal of Val-U’s tort

counterclaims but reverse the dismissal of its breach of

contract counterclaims against the Tribe. We remand this

case to the district court to hear those counterclaims.

A true copy.

Attest:

Clerk, U.S. Court of Appeals, Eighth Circuit.

9a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 94-2083SDP

ROSEBUD SIOUX TRIBE,

Appellee,

VS.

VAL-U CONSTRUCTION COMPANY OF

SOUTH DaKoTA, INC., et al.,

Appellants.

Appeal from the United States District Court

for the District of South Dakota

The petition for rehearing filed by the appellee has

been considered by the court and is denied.

April 21, 1995

Order Entered at the Direction of the Court:

/s/ Michael E. Gaus

Clerk

U.S. Court of Appeals

Eighth Circuit

10a

APPENDIX C

[Filed Mar. 30, 1994] P

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

CENTRAL DIVISION

CIV. 91-3019

ROSEBUD Sioux TRIBE and THE UNITED STATES for the

use and benefit of the RoSEBUD Sioux TRIBE,

Plaintiff

-VS-

VAL-U CONSTRUCTION COMPANY OF SOUTH DAKOTA,

FREDERICK L. VALANDRA, Dr. YANCEY L. ANTHONY,

GaRY L. HARRE, EAGLE SURETY, INC., Lou BAKER,

WOODLANDS TRUST COMPANY, TAMMY BAKER, BRAD-

LEY E. BAGGE, and RONALD MCDONALD, Jointly and

Severally,

Defendants.

ORDER OF DISMISSAL

All pending motions came on for hearing on February |

25, 1994 by conference telephone with the plaintiff ap-

pearing by Mason D. Morisset by telephone, and with |

defendant Val-U Construction Company appearing by '

William G. Taylor, and with defendant Yancey Lamar

Anthony appearing by Christopher G. McCary by tele-

phone, and

The Court finds that the plaintiff's motion should be

granted and the plaintiff's complaint should be dismissed

with prejudice, and the Court further finds that all of

the claims of defendant Val-U Construction Company are

lla

barred by plaintiff's sovereign immunity except the claim

for recoupment which becomes moot with dismissal of

plaintiff's complaint. The application of Val-U Construc-

tion for monetary sanctions against plaintiff as a condi-

tion of dismissal is denied.

The Court further finds that all of the other claims by

other parties in this action become moot with dismissal

of the claims of plaintiff and defendant Val-U Construc-

tion Company, and that the entire action must be dis-

missed with prejudice.

The Court further finds that the application of Mason

D. Morisset and K. Allison McGaw to withdraw as coun-

sel for the plaintiff should be granted.

Upon the record herein,

IT IS ORDERED:

(1) That the Motion of Rosebud Sioux Tribe for Dis-

missal, Doc. 309, is granted.

(2) That all claims of all other parties are dismissed

as moot; and defendant Val-U Construction Company’s

application for sanctions against the plaintiff is denied.

(3) That this action and all claims made herein are

dismissed with prejudice.

(4) That the application of Mason D. Morisset and

K. Allison McGaw for withdrawal as counsel for the

plaintiff, Doc. 314, is granted, and they are relieved of

any further obligations herein.

Dated this 29th day of March, 1994 at Pierre, South

Dakota.

By THE CourT:

/s/ John B. Jones

Chief Judge

| | 12a

APPENDIX D

CONTRACT BETWEEN

CONTRACTOR AND ROSEBUD SIOUX TRIBE

This AGREEMENT, made the 18th day of July, 1989,

by and between Val-U Construction Co. of South Dakota,

Inc. hereinafter called the party of the second part

(CONTRACTOR) and the Medical Center Management

Committee Rosebud Sioux Tribe (MCMC) hereinafter

called the party of the first part. The party of the second

part (CONTRACTOR) and the party of the first part

“MCMC) for the consideration hereinafter name agree

as follows:

ARTICLE 1 SCOPE OF WORK:

The completion of Bid Schedule No. 4—Housing—Total

Base bid and option Items 8, 9, 10, 11 and 12 as sub-

mitted, option items 6 and 7 may be added at a later

date as provided in the specifications.

The party of the second part (CONTRACTOR) shall

furnish all of the materials, labor and perform all of the

work as described in the plans, specifications, and con-

tract documents, prepared by Louis L. Weller Architects,

P.C., 401-d Alvarado Dr. SE, Albuquerque, New Mexico

87108 hereinafter called the ARCHITECT.

ARTICLE 2 TIME OF COMPLETION:

The work to be performed under this Contract shall be

commenced within ten (10) calendar days after the

NOTICE TO PROCEED is issued to the CONTRAC-

TOR and shall be completed within the time set forth

herein:

First twenty units—120 Calendar Days from the date the

Notice to Proceed is issued. Second forty units—320

Calendar Days from the date the Notice to Proceed is

issued.

| |

13a

Liquidated damages will be charged for failure to com-

plete the project on or before the completion date is in

the amount of:

The amount from Special Conditions—32, Based on work

not accepted.

Request for time extensions shall be made in writing to

the [MCMC] on the CHANGE ORDER form. All time

extensions will be issued by the [MCMC] and will be

granted only for good cause beyond the control and with-

out the fault and negligence of the Contractor.

ARTICLE 3 THE CONTRACT SUM:

The party of the first part [MCMC] shall pay the party

of the second part [CONTRACTOR] for the perform-

ance of the Contract, subject to additions and deductions

provided therein by CHANGE ORDERS in current funds

as work progresses and requested on PAYMENT RE-

QUEST forms:

In accordance with Bid Schedule No. 4 as submitted in

the BID for the amount of $3,633,165.00

ARTICLE 4 CONTRACTING DOCUMENT:

The CONTRACT DOCUMENTS include the items in

the Project Manual: Bid Requirements, Bid Documents,

Contract Documents and any ADDENDUM thereto,

Technical provisions and any Change Orders thereto. The

Project Manual is referred to as the Specifications.

The party of the second part (CONTRACTOR) further

agrees and states that he has read the Specifications and

Plans and has visited the site and is familiar with the

terms and conditions stipulated therein and that this Con-

tract is for all materials and labor furnished and installed

and in proper operation.

14a

IN WITNESS WHERE OF:

The Rosebud Sioux Tribe, party of the first part, MCMC,

having duly approved this Contract, has caused this Con-

tract to be executed in its behalf by its Tribal Chair-

person, thereunto duly authorized, and has hereto at-

tached its seal this 31 day of July 1989.

PARTY OF THE FIRST PART PARTY OF THE SECOND PART

Rosebud-Sioux Tribe

By: /s/ Alex J. Lunderman Val-U Construction Co. of 8.D. Inc.

Tribal Chairman Name of the company

Date: July 31, 1989

ATTEST By: /s/ Liedevich L. Valender

By: /s/ Sharon L. Burnette Title: President

TITLE: Tribal Secretary Address: 301 E. Malley Dr. #83

Northglenn, CO 80233

(303) 252-7329

SEAL CORPORATE SEAL

15a

APPENDIX E

CONTRACT NUMBER

102-88-0014

PROJECT NAMES & LOCATION

STAFF QUARTERS

ROSEBUD, SOUTH DAKOTA

PROJECT NUMBER

D10-425

Department of Health and Human Services

Office of Engineering Services

Seattle, Washington

16a

ATTACHMENT H

SPECIAL CONDITIONS FOR CONSTRUCTION

BID PACKAGES/SUBCONTRACTS

The contractor shall include Special Conditions similar

to the following clauses in construction bid packages pre-

pared and subcontracts awarded under this contract. The

clauses shall be selected, edited, and used as necessary to

properly identify the contracting parties (Government,

Contractor, Subcontractor) and their contractual relation-

ship and obligations.

SPECIAL CONDITIONS

INDEX

Paragraph Title

—0! Architect

—02 Construction Sign

—03 Safety Barricades

-—04 Materials On Site

—05 Salvage

—06 Items Furnished By Government And

Installed By The Contractor

—07 Progress And Final Photographs

—08 N/A _ Photograph On Samples Wall Panel

—09 Ceremonies

—10 N/A _ Use Of Power Equipment By Contractor

—l1 Use Of Equipment By The Government

—12 Vacating Of Premises

—13 N/A Occupancy Of Premises

—14 Protection

—15 Equipment On The Site

-—16 New Work

—17 Existing Work

—18 Sanitary Conveniences

—19 Temporary Water

—20 Temporary Light And Power

—21 Temporary Heat

17a

INDEX—Continued

Paragraph Title

—22 Heating

—23 Monuments And Bench Marks

—24 Measurements

—25 Maintenance Of Traffic

—26 Trucking

—27 Manuals

—28 Instruction Of Government Employees

—29 Project Drawings

—30 Hours Of Work

—31 N/A _ Competency Of Contractors In Asbestos

Removal

—32 Competency Of Contractors

-01 ARCHITECT

“Architect” refers to the professional services con-

tractor,

Name Address

City State Zip

The Architect’s status relative to this construction

will be fully delineated, in writing by the Contract-

ing Officer, at the pre-construction conference. The

Architect may furnish personnel for site supervision,

if required by his contract.

CONSTRUCTION SIGN

Contractor shall furnish and erect signs on the site

of the project as soon as practicable after commence-

ment of work, located where directed by the Con-

tracting Officer.

-03

04

-06

18a

SAFETY BARRICADES

a. Provide safety barricades in accordance with re-

quirements of the Uniform Building Code for the

State of , all local, and federal ordi-

nances and codes, and in compliance with OSHA

regulations.

b. Barricades shall be removed upon completion of

the project, to the satisfaction of the Contracting

Officer.

MATERIALS ON SITE

Unless otherwise provided in the specifications or

drawings, materials removed and not reused under

the contract shall become the property of the con-

tractor. The salvage value of such materials shall be

taken into consideration in the preparation of the

bids, but no separate credit therefore shall be stated.

The materials shall be removed from the site by the

contractor; and storage or sale of the materials on

the site will not be permitted.

SALVAGE

The Government does not assume responsibility for

any loss or damage to materials removed and not

reused under the contract which become the property

of the contractor.

ITEMS FURNISHED BY THE GOVERNMENT

AND INSTALLED BY THE CONTRACTOR

FAR 52.245-3, “Identification of Government Fur-

nished Property”, is supplemented as follows:

Within calendar days after the receipt of No-

tice to Proceed, the contractor shall submit to the

Contracting Officer a schedule in quadruplicate giv-

ing desired dates for delivery of items furnished by

the Government. Schedule shall be subject to written

19a

approval of the Contracting Officer. Approved dates

of delivery shall be confirmed, thirty (30) days prior

to delivery, by the contractor.

-07 PROGRESS AND FINAL PHOTOGRAPHS

a. Progress photographs, black and white, in sharp

focus taken by a_ professional photographer,

marked with the name of project, contractor,

and date taken, shall be furnished and delivered

flat. Prints shall be 8” x 10” and shall be fur-

nished in gloss. One print shall be mounted on

muslin, allowing 1-1/2” flap on the narrow end

for binding.

b. Progress photographs shall be taken on the first

working day of each month (whether or not any

work has been done during the preceding

month), until the project is completed. The

photographs shall be taken from ( four/two)

points, selected by the Contracting Officer. One

set shall be delivered to the Architect and two

sets to the Contracting Officer.

c. Final photographs, reproduced in triplicate, shall

be taken when the project is completed, and

shall be furnished subject to approval, to the

Contracting Officer. The photographs shall be

taken when daylight is bright or sunny and pro-

duced with such professional skill to be suitable

for exhibition and reproduction.

Exterior photographs shall be taken from two

points of view, one showing the entire front eleva-

tion and one side, the other showing the entire

rear elevation and remaining side. The front ele-

vation shall be proportionally dimensioned to ap-

pear longer than the side. Exterior photographs

shall also be taken of each interior courtyard

from two points of view, each showing two sides.

e.

f.

20a

Interior photographs shall be taken from two

points of view, as selected by the Contracting

Officer, in each of the following rooms or spaces:

and one point of view in

each of the following rooms or spaces: General

Office Space or typical office floor lobby ase

ing elevator), machine room,

Requirements for photographs shall apply to

each building or structure under the contract.

If progress photographs are not furnished within

five (5) days of the date due, the Contracting

Officer will arrange to have the photographs

taken, and the cost will be charged to the con-

tractor. Final photographs shall be furnished as

soon as possible, under the specified light con-

ditions.

All negatives of progress and final photographs

shall become the property of the Government.

Upon completion of the work, the contractor

shall deliver the negatives to the Contracting

Officer.

-08 PHOTOGRAPHS ON SAMPLE WALL PANEL

This section is not applicable to this solicitation.

-09

CEREMONIES

Subject to mutually satisfactory arrangements be-

tween the parties to the contract, the Government

may enter the premises during the term of the con-

tract to conduct ceremonies, such as laying the

cornerstone or dedication ceremonies, and to occupy

temporarily such portions of the premises for the

event. The ceremony area shall be cleared and

cleaned of all contract activities.

21a

-10 USE OF POWER EQUIPMENT BY

CONTRACTOR

This section is not applicable to this solicitation.

-11

-12

-13

USE OF EQUIPMENT BY THE GOVERNMENT

FAR 52.236-11, “Use and Possession Prior to Com-

pletion”, is supplemented as follows.

a.

The Government will take over and operate such

equipment as is necessary, with Government em-

ployees, for heating or cooling such areas of the

building as require the service, as soon as the

installation is sufficiently complete.

The Contracting Officer will advise the contrac-

tor by letter, prior to the use of equipment, stat-

ing what items of equipment will be operated,

and the date and time such operation will begin.

Government operation of equipment will not re-

lieve the contractor of the specified one-year war-

ranty on materials and workmanship provided

for in this contract.

The warranty period, for each piece of equip-

ment, shall begin at the time the Government

takes it over for uperation.

VACATING OF PREMISES

The Government will vacate the ( building/premises)

during performance of the work under the contract.

OCCUPANCY OF PREMISES

This section is not applicable to this solicitation.

-14 PROTECTION

a. The contractor shall provide protection for all

parts of the building, its contents and occupants

wherever work under this contract is performed.

eet

-15

-16

22a

Furniture, office fixtures, and carpets shall be

moved for performance of the work, stored on

the premises, protected, and replaced.

b. The contractor shall provide dustproof enclosures

or partitions for protection, in locations approved

by the Contracting Officer.

c. High noise level operations involving equipment

such as jackhammers, air compressors, and

power actuated tools shall be scheduled for week-

ends, from Friday afternoon at 4:30 p.m. to

Monday morning at 7:30 a.m. or after the nor-

mal weekday working hours, as approved by the

Contracting Officer.

d. Temporary weatherproof partitions with suitable

(doors/windows) shall be provided before ex-

terior walls are removed.

EQUIPMENT ON THE SITE

Equipment to remain in place, within the area of

contract operations, shall be covered and protected

against damage or loss. Equipment removed in per-

formance of work under the contract shall be stored

on the premises where directed, or shall be reused in

work as shown or specified. Equipment temporarily

removed shall be protected, cleaned, and replaced

equal to its condition prior to starting work under

the contract. Security for equipment or material to

be reused, removed for temporary storage, shall be

the responsibility of the contractor.

NEW WORK

Unless otherwise noted on drawings or specified, new

work in extension of existing conditions shall corre-

spond in all respects to similar existing conditions,

in material, workmanship and finish.

23a

-17 EXISTING WORK

a. Existing work shall be cut, drilled, altered, re-

moved or temporarily removed and replaced for

performance of work under the contract. Work

replaced shall match similar existing work.

Structural members shall not be cut or altered,

except as shown, without authorization of the

Contracting Officer. Work remaining in place

damaged or defaced during this contract shall be

restored to the condition at time of award of

contract.

b. Discolored or unfinished surfaces exposed by re-

moval of existing work and indicated to be the

final exposed surfaces, shall be refinished or the

material shall be replaced to be uniform and

harmonious with contiguous work. Work out of

alignment, where exposed by removal of existing

work, shall be called to the Contracting Officer’s

attention. Corrective work, directed by the Con-

tracting Officer will be subject to adjustment of

the contract in accordance with FAR 52.236-2,

“Differing Site Conditions”.

-18 SANITARY CONVENIENCES

a. Contractor shall provide temporary sanitary con-

veniences, at approved location, for use by em-

ployees on the contract. The installation shall be

water supplied, connected to a sewer, and shall

be protected against freezing. The convenience

premises shall receive daily attention and shall be

maintained in a clean and sanitary condition.

a. Contractor shall provide a temporary chemical

type sanitary convenience, at an approved loca-

tion, for use by employees on the contract. The

convenience premises shall receive daily attention

and shall be maintained in a clean and Sanitary

condition.

SE LS aT CT SE

0 —————————eEeEEEEEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeaeaaa=EaaE>E—EeeeeeeaaaeaEaeaEeaeaeaeEeaeEeeEeEeeEeEeEeEeEeEeEeEeeeeeee eee eee

24a

a. Contractor’s personnel will be permitted to use a

toilet room on the premises subject to regulation

and control of the Contracting Officer. The con-

venience premises shall receive daily attention

and shall be maintained in a clean and sanitary

condition.

-19 TEMPORARY WATER

a. Government-owned and operated water systems

are adequate for the use of the contractor as well

as the Government. Reasonably required

amounts of water will be made available by the

Government from existing water systems without

cost to the contractor. Contractor shall install

and maintain, at his own expense, supply connec-

tions and facilities in locations and in a manner

approved by the Contracting Officer. All water

shall be carefully conserved. Before final accept-

ance, temporary connections and piping, installed

by the contractor, shall be removed to the satis-

faction of the Contracting Officer. Fire hydrants

shall not be used as a temporary source of water

supply.

a. Water system is not available on the site for con-

tract work. Contractor shall make his own ar-

rangements for water.

-20 TEMPORARY LIGHT AND POWER

a. The contractor shall furnish and install tempo-

rary electrical facilities, including lamps, for con-

struction and safety operations. All temporary

facilities shall remain the property of the contrac-

tor, and be removed after permanent connections

have been completed. When temporary facilities

interfere with Government operations or con-

struction activities, the contractor, upon notifica-

tion by the Contracting Officer, shall relocate

25a

the temporary facilities, at no cost to the Gov-

ernment. Electrical wiring, conduit or equipment

which are part of permanent electrical systems,

shall not be used for temporary electrical facili-

ties, unless specifically approved by the Contract-

ing Officer. The contractor shall be responsible

j for any damage or injury to equipment, mate-

| rials, or personnel caused by temporary electrical

f installation. Costs for materials and installation

of temporary electrical facilities shall be at the

expense of the contractor.

b. Contractor shall arrange and pay for energy

consumed in providing temporary electrical facil-

ities. Contractor shall install and maintain, at

his own expense, connections and facilities in

locations and in a manner approved by the Con-

tracting Officer.

b. Electricity will be made available to the contrac-

tor by the Government from Government-owned

or operated electrical systems, without cost to the

contractor. Contractor shall install and main-

tain, at his own expense, connections and facili-

ties in locations and in a manner approved by

the Contracting Officer.

c. The hours of operation, level of illumination and

coverage for safety of personnel shall meet the

minimum requirements of the Contracting Offi-

cer.

-21 TEMPORARY HEATING

Applicable when existing heat shall be off for more

than twelve (12) hours:

a. The contractor, at his expense, for contract activ-

ities, shall furnish, install, and maintain such

temporary radiation and coils, with related pip-

ing and valves, and shall furnish all labor to

26a

operate the heating plant and the ventilating ap-

paratus when available, for purposes of produc-

ing temporary heating as described, and in

accordance with specification requirements.

. Temporary heating shall maintain a uniform

temperature of 55° to 60°F throughout the

building during normal working hours, and at

other times shall provide a temperature to pre-

vent damage to the building and its equipment.

The service shall be continued until the perma-

nent installation is in operation, and the building

has been accepted by the Government.

Should heat be deemed necessary before the tem-

porary heating plant operation as specified herein

becomes feasible, other means, as approved by

the Contracting Officer, shall be furnished and

maintained at the contractor’s expense.

. Salamanders or open type burners will not be

permitted. All piping, radiators, supports, and

electrical controls required for the temporary

heat shall be removed upon completion of the

work, and shall not be used in the permanent

contract work.

. The contractor may utilize the permanent heat-

ing system and related equipment to furnish the

specified heating results prior to the time of com-

pletion of the building. However, the equipment

shall be operated by qualified personnel and in

accordance with manufacturer’s instructions.

Contractor shall, prior to the time of final inspec-

tion, place the permanent heating system and

related equipment in first class, equal to new,

condition, satisfactory to the Contracting Officer.

Boiler water treatment shall be provided if con-

densate is wasted or if its use is considered nec-

essary by the Contracting Officer.

27a

g. The contractor’s operation of the equipment shall

not change the date of the guarantee period.

-22 HEATING

a. Heat shall be provided as follows:

Cc.

In the existing building and the extension, heat

at all times to protect materials and work in

place, installed under this contract or other con-

current contracts, against injury from dampness

and cold.

In areas of existing building occupied by Gov-

ernment personnel during the term of the con-

tract, to maintain a temperature between 70°

and 75°F.

Contractor shall furnish and install all tempo-

rary facilities, such as partitions, enclosures,

radiation, piping and boiler equipment, including

if necessary, temporary alterations in existing

heating equipment.

The Contracting Officer will determine sufficiency

and time when heat is to be provided in oc-

cupied portions of the building.

Contractor may utilize the existing heating sys-

tem and the new equipment. Fuel will be pro-

vided by the Government. However, prior to

final inspection, the entire system shall be placed

in condition satisfactory to the Contracting Of-

ficer.

-23 MONUMENTS AND BENCH MARKS

a. The Government has established, or will estab-

lish, such general reference points as will enable

the contractor to proceed with the work. The

contractor will provide new monuments where

shown or specified. If the contractor finds that

-24

28a

any previously established reference points have

been destroyed or displaced, or that none have

been established, the Contracting Officer shall be

promptly notified.

b. The contractor shall protect and preserve the es-

tablished bench marks and monuments, and shall

make no changes in locations without the writ-

ten approval of the Contracting Officer. Any

monuments or bench marks lost, destroyed or

disturbed because of changes in grades or loca-

tions shall, subject to prior approval by the Con-

tracting Officer, be replaced and accurately lo-

cated or relocated at the contractor’s expense,

by a licensed engineer or land surveyor.

c. New monuments shall be 6” square by 3’ depth,

concrete or stone, with %” diameter, 3” length,

copper or brass pin in the center, set flush with

ground or pavement in locations indicated on

approach plan.

d. Monuments will not be required where lines of

building(s) are coincident with property lines.

e. After completion of construction and prior to

final payment, the contractor shall furnish the

Government blueprints (in triplicate) of plats

showing the exact location of construction sur-

vey monuments with reference to true property

lines.

MEASUREMENTS

All dimensions shown of existing work and for con-

nections with work now in place, shall be verified

by the contractor by actual measurements of the ex-

isting conditions. Any discrepancies between the

drawings and specifications and the existing condi-

tions shall be referred to the Contracting Officer for

adjustment before any work affected thereby has

been performed.

29a

-25 MAINTENANCE OF TRAFFIC

The contractor shall maintain vehicular traffic where

existing roads are crossed, at all times, for installa-

tion of underground work as follows:

a.

Excavate one-half of the roadway and provide a

bridge over the open trench. After the bridge

is in place, excavate the remaining half of the

roadway and install a bridge over this portion.

Upon completion of installation of utilities, back-

fill one-half of the trench, and upon completion,

backfill the second half of the roadway.

Backfill shall be as specified in applicable speci-

fications section.

The bridge across the open trench shall be of

steel plate and rigid deck framing, as approved

by the Contracting Officer.

After completion of backfilling and removal of

steel plates, provide and maintain a temporary

cold laid bituminous patch, of 2” thickness, until

completion of permanent pavement.

-26 TRUCKING

a.

c.

All trucks, bringing to or removing from the

site, earth, loose materials, or debris shall be

loaded in a manner to prevent dropping of ma-

terials on streets.

At all points, where trucks leave the project site

and enter adjacent paved streets, the contractor

shall maintain an installation and crew to pre-

vent any mud from being carried onto such ad-

jacent paved streets.

Earth, loose materials, or debris deposited on the

streets due to contract trucking activities shall

be removed daily.

30a

-27 MANUALS

a. In addition to the shop drawings, coordinated

drawings, schedules, and other descriptive litera-

ture submitted for approval, as specified, the

contractor shall furnish to the Contracting Of-

ficer operating and maintenance manuals for each

item of equipment and system in accordance with

requirements of other sections.

b. The manuals shall include copies of all corrected

and approved shop drawings, schedules, cata-

logue data, illustrations, performance curves and

rating data, wiring and control diagrams, manu-

facturer’s installation, operating and maintenance

instructions, including safe operating procedures

and requirements, spare parts lists and other per-

tinent information for the specified equipment

and systems.

c. The manuals shall include the names, addresses

and telephone numbers of each subcontractor in-

stalling the equipment and systems, and the local

representatives for each item of equipment and

each system.

d. The manuals shall be submitted in — copies and

a minimum of — calendar days prior to com-

mencement of any instruction period or if this

is not specified, — days prior to final acceptance

by the Government.

e. The manuals shall be in the form of (bound/3-

ring loose leaf) volumes, with hard covers, tables

of contents, and typed or printed information

pages, and related illustrations, drawings, and

diagrams compiled to fit neatly into the manual.

Pages and other information shall not be larger

than 842” x 11”, except sheets may ve folded

to that size and used as a pull-out.

3la

f. Contractor is to furnish three (3) complete sets

of the Operation and Maintenance Data to in-

clude the following:

(1) Manufacturers’, and suppliers’ names, ad-

dresses, and phone numbers.

(2) Schedule of routine maintenance for each

component.

(3) Replacement part numbers.

(4) Written guarantees.

(5) Any applicable drawings.

-28 INSTRUCTIONS OF GOVERNMENT EMPLOY-

EES

a. The contractor shall furnish, without additional

od

expense to the Government, the services of com-

petent instructors, who will give full instruction

in the adjustment, operation, and maintenance,

including pertinent safety requirements of the

equipment, as specified in other sections, to the

designated Government employees.

Each instructor shall be thoroughly familiar with

all parts of the installation on which he/she is to

give instruction, and shall be trained in operat-

ing theory as well as in practical operation and

maintenance work.

Instruction shall be given during the regular

work week after the building has been accepted

and turned over to the Government for regular

operation. The number of man-days (eight-hour)

of instructions furnished for each system shall

be as specified in other sections. Where more

than four (4) man-days of instruction are speci-

fied for a system approximately half of the time

shall be used for classroom instructions. All

other time shall be used for instruction at the

32a

equipment. Where significant changes or modi-

fications in equipment are made under the terms

of the guarantee, additional instruction shall be

provided to acquaint the operating personnel with

the changes or modifications.

-29 PROJECT DRAWINGS

-32

The contractor shall perform all work in accordance

with the specifications and as shown on the ac-

companying drawings listed below.

TITLE DRAWING NO. DATE

HOURS OF WORK

FAR 52.236-10 is supplemented as follows:

All work shall be performed between 7:00 a.m. and

5:00 p.m. local time, Monday through Friday. In

the event that the contractor wishes to work on the

day of a Government holiday, he shall notify the

Contracting Officer seven (7) days in advance of

the date he wishes to work. There shall be no work

scheduled on weekends without special approval by

the Contracting Officer prior to 4:00 p.m. Seattle

time on the preceding Thursday.

COMPETENCY OF CONTRACTOR IN ASBES-

TOS REMOVAL.

This section is not applicable to this solicitation.

COMPETENCY OF CONTRACTOR

a. The contractor or the subcontractor whom the

contractor will use for performance of the

work, shall have had at least —( ) years suc-

cessful experience in installing and servicing of

systems.

b. In addition, the contractor or the subcontractor

shall have had at least —( ) prior projects,

Cc.

Qu

S.

33a

— ( ) of which are comparable to the removal

procedures required for this project and which

have performed satisfactorily under conditions

of normal use for a period of not less than —

( ) years.

A list of the prior comparable projects by the

contractor or by the subcontractor, together with

the names and addresses of the buildings, the

names of the owners or managers thereof, and

any other pertinent information required shall

be submitted promptly upon request of the Gov-

ernment.

The names, addresses, experience, and a state-

ment of the work to be performed by each sub-

contractor or second-tier subcontractor whom the

contractor or the principal subcontractor, as the

case may be, will use for performance of minor

positions of the installation of systems

shall also be submitted promptly upon request by

the Government.

Failure to meet the experience requirements of

this clause may be cause to require the contrac-

tor to propose another subcontractor to perform

the portion of this contract.

34a

APPENDIX F

ADDENDUM NUMBER THREE

ROSEBUD STAFF QUARTERS

MCMC

Medical Center Management Committee

Rosebud, South Dakota

Project No. D-10-425/THS-981

VIA FAX

The following modification and additions shall be in-

corporated into the Contract Documents for the above

mentioned project. Receipt of this addendum must be

acknowledged on the Bid Proposal Form. Failure to do

so may subject bidder to disqualification.

The addendum consists of one (1) page.

A. ITEM “B” CONTRACT DOCUMENTS?” shall be

deleted.

B. Special Conditions, Page SC-10, add the following:

33 ARBITRATION

All questions of dispute under this Agreement

shall be decided by arbitration in accordance

with the Construction Industry Arbitration Rules

of the American Arbitration Association.

END OF ADDENDUM NO. THREE