Mille Lacs Band Statutes Annotated
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Mille Lacs Band Statutes Annotated
Amendments received through: October 28, 2021
______________________________________________________________________________
TITLE 7 – PROCUREMENT
Section
1.
Purchasing.
2.
Reservation of Right of Amendment.
3.
Procurement Procedures and Standards.
4.
Standards of Conduct.
5.
Open and Free Competition.
6.
Solicitation of Offers.
7.
Contracting with Small and Minority Firms, Women’s Business Enterprises.
8.
Contract Pricing.
9.
Requisition.
10. Small Purchase Procedures.
11. Competitive Sealed Bids; Formal Advertising.
12. Competitive Sealed Bids; Generally.
13. Negotiated Procurement.
14. Competitive Negotiation.
15. Responsible Contractors.
16. Procurement Records.
17. Bonding.
18. Environmental Standards.
19. Contract Provisions.
20. General Services Administration Supply Sources.
21. Indian Preference.
22. Equal Opportunity.
23. Use of Indian Businesses.
24. Buy Indian Provisions.
25. Subcontracting.
26. Contract Administration.
27. Work Statements.
28. Changes.
29. Termination.
30. Warranties.
31. Audit.
32. Covenant Against Contingent Fees.
33. Notice.
34. Mille Lacs Band Responsibilities.
35. Disputes.
36. Jurisdiction.
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37.
Construction and Severability.
§ 1. Purchasing.
(a)
All public service contracts awarded by the Band or any political subdivision and that
is performed within the territorial jurisdiction of the Band shall only be awarded to
businesses licensed under the laws of the Mille Lacs Band.
(b)
In order to protect the economic security of the Band and its political subdivisions,
contracts may only be awarded to businesses organized pursuant to the laws of the
Mille Lacs Band, the laws of a state of the United States or the laws of a federally
recognized Indian tribe.
(c)
Authority to initiate a purchase or contract action on behalf of the Mille Lacs Band or
any of its political subdivisions is hereby delegated by the Band Assembly.
(d)
The Corporate Commission of the Mille Lacs Band is expressly exempt from all
provisions of this Title.
Historical and Statutory Notes
Source:
Band Ordinance 17-98, § 1.
§ 2. Reservation of Right of Amendment.
The Band Assembly hereby fully reserves the right to alter, amend or repeal the several
provisions of this title, and all rights and privileges granted or extended hereunder shall be
subject to such reserved right.
Historical and Statutory Notes
Source:
Band Ordinance 17-98, § 2.
§ 3. Procurement Procedures and Standards.
(a)
The Mille Lacs Band and its political subdivisions will use its own procurement
procedures which reflect applicable law and regulations, provided that procurements
for Federal and state assistance programs conform to the standards of applicable law.
(b)
The Mille Lacs Band hereby establishes standards and guidelines for procuring
supplies, equipment, construction and services, complying with the provisions of all
applicable law.
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(c)
(d)
Notwithstanding any other provisions of the Mille Lacs Band of Ojibwe procurement
law, to the contrary the following procedures and standards shall apply to contracting
for services by any expert witness whose services are necessary in connection with
any criminal, civil or administrative proceeding.
(1)
Retainer agreements for expert witness services shall be prepared and
executed by the attorney representing the client in connection with any
criminal, civil, or administrative proceeding. The attorney shall assure that the
retainer agreement contains provisions that preserve the attorney client
privilege and evidentiary privilege recognized as the attorney work product
doctrine.
(2)
The Mille Lacs Band of Ojibwe Commissioner of Finance is authorized to
prepare and process any disbursement of appropriated funds to pay the costs
associated with any expert witness services.
(3)
Subsection (c) of this section shall expire December 31, 2000.
Office of the Solicitor General will notify Band Assembly of the expiration before
December 31, 2000.
Historical and Statutory Notes
Source:
Band Ordinance 17-98, § 3.
Band Ordinance 29-00.
§ 4. Standards of Conduct.
(a)
Mille Lacs Band or political subdivision officials and employees who are engaged in
procuring goods or services shall not solicit or accept gratuities, favors or anything of
monetary value in excess of $10 from contractors or potential contractors.
(b)
All Mille Lacs Band or political subdivision officials, employees and agents who are
involved in purchasing or contracting activities must follow the standards of conduct
set forth in applicable Band law and regulations.
(c)
Mille Lacs Band or political subdivision officials, employees and agents will refrain
from participating in purchasing or contracting in which a conflict of interest, real or
apparent, could be involved. Such a conflict arises when the official, employee or
agent has a financial or other interest in a firm being considered for award of a
purchase order or contract. A conflict also arises when an immediate family member
(mother, father, brother, sister, husband, wife, son or daughter or in-laws) or a
business partner or associate of the Band officer, employee or agent has an interest in
a firm.
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(d)
Any Mille Lacs Band or political subdivision official, employee or agent who has
unknowingly obtained a benefit from a purchase order or contract awarded will
immediately, upon discovery, report the benefit to his or her immediate supervisor.
Failure to report such benefit is a breach of the ethical standards governing the Band
procurement activities.
(e)
Officials, employees or agents of the Band or political subdivisions shall not
knowingly use confidential information for actual or anticipated personal gain.
(f)
Band or political subdivision officials, employees and agents engaged in procurement
activities will at all times act in good faith when dealing with actual or potential
contractors.
(g)
Any Band or political subdivision official, employee, or agent who has doubts about
the propriety of an action or decision shall refrain from taking such action or making
such decision until consulting with a supervisor. When advice of counsel would be
helpful and proper, the official, employee or agent should seek it.
(h)
All persons who are employed by or who represent the Band or a political subdivision
thereof are responsible for complying with the Band’s purchasing and contracting
policies and for following all applicable procedures. All such persons will make
purchases only through proper procedures and only after obtaining necessary
approvals.
Historical and Statutory Notes
Source:
Band Ordinance 17-98, § 4.
§ 5 Open and Free Competition.
All procurement transactions regardless of whether by sealed bids or by negotiation and without
regard to dollar amount, shall be conducted in a manner that provides maximum open and free
competition consistent with applicable provisions of this Title. Procurement procedures shall not
be used to restrict or eliminate competition.
Historical and Statutory Notes
Source:
Band Ordinance 17-98, § 5.
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§ 6. Solicitation of Offers.
The Mille Lacs Band’s written selection procedures shall provide the following procedural
requirements. Solicitation of offers, whether by competitive sealed bids or competitive
negotiations shall include:
(a)
Incorporation of a clear and accurate description of the technical requirements for the
material, product or service to be procured. Such description shall not, in competitive
procurements, contain features unduly restricting competition. The description may
include a statement of the qualitative nature of the material, product or service to be
procured, and when necessary, shall set forth those minimum essential characteristics
and standards which it must conform to. Detailed product specification should be
avoided when possible. When it is impractical or uneconomical to make a clear and
accurate description of the technical requirements, a “brand name” or equal
description may be used as a means to define the performance or other salient
requirement. The specific features of the name brand which must be met by a vendor
shall be clearly stated.
(b)
Clearly set forth all requirements which vendors must fulfill and all other factors to be
used in evaluating bids or proposals.
Historical and Statutory Notes
Source:
Band Ordinance 17-98, § 6.
§ 7. Contracting with Small and Minority Firms, Women’s Business Enterprises.
Best efforts will be made to use small business and minority owned business for supplies and
services. This provision shall apply only after Indian preference requirements have been met, and
which are not inconsistent with other provisions of this Title.
Historical and Statutory Notes
Source:
Band Ordinance 17-98, § 7.
§ 8. Contract Pricing.
The Mille Lacs Band and its political subdivisions shall perform some form of cost or price
analysis in connection with every procurement action including contract modification. Costs or
prices based on estimated costs for contracts under grants shall be allowed only to the extent that
costs for incurred or cost estimates included in negotiated prices are consistent with federal grant
purchasing principals.
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Historical and Statutory Notes
Source:
Band Ordinance 17-98, § 8.
§ 9. Requisition.
(a)
The basic purpose of the purchasing and contracting process is to support Mille Lacs
Band or political subdivision program activities by obtaining the items and services
needed. A requisition is the internal document that conveys the program activity’s
request for supplies, equipment or services. It officially initiates a particular
purchasing or contracting action. No purchase or contract may be initiated without a
requisition.
(b)
Preparation of a requisition is the responsibility of Mille Lacs Band program
personnel. Those personnel must ensure that the requisitions submitted provide a
clear, accurate and complete description of program requirements. Additionally, they
must ensure, prior to submitting a requisition that purchases of items or services are
authorized by the program budget and that all necessary approvals have been
obtained.
Historical and Statutory Notes
Source:
Band Ordinance 17-98, § 9.
§ 10. Small Purchase Procedures.
(a)
Small purchase procedures are those relatively simple and informal procurement
methods that are sound and appropriate for the procurement of services, supplies or
other property, costing in the aggregate not more than $25,000.
(b)
Competition will be obtained whenever the price of an item is estimated to exceed
$7,500.00. Price or rate quotations shall be obtained from at least three (3) qualified
sources if available.
(c)
A purchase order is issued under small purchase procedures by a document conveying
the Mille Lacs Band’s or political subdivision’s offer to buy. If a seller then accepts
the offer, the Purchase Order becomes a binding agreement having the same force and
effect as a contract. The following provisions must be stated on the back or attached
to the copy of the purchase order:
(1)
Change Clause: Reserves for the Mille Lacs Band of Ojibwe or political
subdivision the right to change a purchase order within reason.
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(d)
(2)
Termination for Convenience: The Mille Lacs Band may terminate an order at
any time prior to delivery of the requested product or service if such action
would be in the best interest of the Band.
(3)
Termination For Default: The Mille Lacs Band may, in addition to any other
remedy it may have, terminate an order for default, if the supplies or
equipment delivered are not received on the due date(s) or are defective.
(4)
The Contractor shall provide any commercial warranty normally offered to the
public. The Band shall not accept delivery of supplies and equipment “as is”
unless previously agreed to in writing.
(5)
Audit: To the extent permitted by applicable law, the contractor agrees that
the Comptroller General of the United States and other government
representatives or appropriate Band officials may examine those records
related to the equipment or supplies purchased.
(6)
Discounts: All discounts from vendors must be listed by vendors on the
invoice and credited to the procuring department.
Approval and signatures required on all purchase orders:
(1)
$.01-$1999.99 – Purchasing Clerk
(2)
$2000-$9999.99 Purchasing Clerk and Finance Officer.
(3)
$10,000-$25,000.00 Commissioner of Finance.
(4)
$25,000.01 and above Chief Executive and Secretary-Treasurer
(e)
A change in a Purchase Order of up to 5% may be made by a commissioner or branch
leader provided sufficient funds are available for purchases made pursuant to this
section.
(f)
A purchase order shall not be created if there are insufficient funds in a budget lineitem except in the case of a public emergency as determined by the Chief Executive
and the Secretary-Treasurer.
Historical and Statutory Notes
Source:
Band Ordinance 17-98, § 10.
Band Ordinance 09-20.
Band Ordinance 07-22
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§ 11. Competitive Sealed Bids; Formal Advertising.
(a)
Formal advertising with an adequate purchase description, sealed bids and public
openings shall be the required method of procurement unless negotiated procurement
pursuant to Section 14 of this Title is necessary to accomplish sound procurement.
However, procurement of $25,000 or less need not be so advertised. Where such
advertised bids are obtained the awards shall be made to the responsible bidder whose
bid is responsive to the invitation and is most advantageous to the Mille Lacs Band
price and other factors considered. Any and all bids may be rejected when it is in the
Mille Lacs Band’s best interest to do so.
(b)
“Formal Advertising” shall mean placing notice in a conspicuous public place in all
districts for a period of at least fourteen (14) days.
Historical and Statutory Notes
Source:
Band Ordinance 17-98, § 11.
§ 12. Competitive Sealed Bids; Generally.
(a)
In competitive sealed bids (formal advertising), sealed bids are publicly solicited and
a firm-fixed price contract (lump sum or unit price) is awarded to the responsible
bidder whose bid, conforming with all the material terms and conditions of the
invitation for bids, is the lowest in price and best meets the Band’s needs.
(b)
In order for formal advertising to be feasible, appropriate conditions must be present,
including, at a minimum, the following:
(c)
(1)
A complete and accurate list of specifications or a thorough purchase
description.
(2)
Two or more responsible suppliers are willing and able to compete effectively
for the business.
(3)
The procurement lends itself to a firm-fixed price contract, and selection of
the successful bidder can appropriately be made principally on the basis of
price.
If formal advertising is used for procurement the following requirements shall apply:
(1)
A sufficient time prior to the date set for opening of the bids. Bids shall be
solicited from an adequate number of known suppliers. In addition, the
invitation shall be publicly advertised.
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(2)
The invitation for bids, including specifications and pertinent attachments,
shall clearly define the items or services needed in order for the bidders to
properly respond to the invitation.
(3)
All bids shall be opened publicly at the time and place stated in the invitation
for bids.
(4)
A firm-fixed price contract shall be awarded by written notice to the
responsible bidder. Where specified in the bidding documents, factors such as
discounts, transportation costs and life cycle costs shall be considered in
determining which bid is lowest. Payment discounts may only be used to
determine low bids when prior experience of the contractor indicates that such
discounts are available.
(5)
Any or all bids may be rejected when there are sound documented business
reasons and it is in the best interest of the Band to do so.
Historical and Statutory Notes
Source:
Band Ordinance 17-98, § 12.
§ 13. Negotiated Procurement.
(a)
(b)
Procurement may be negotiated if it is impractical and unfeasible to use formal
advertising procurements and if one of the following situations exist:
(1)
Public exigency will not permit the delay incident to advertising; or
(2)
The contract is for personal or professional services or for any services
rendered by a university, college or other educational institution; or
(3)
No acceptable bids have been received after formal advertising; or
(4)
The purchase is for highly perishable goods or medical supplies, for materials
or services where the prices are established by law; for technical items or
equipment requiring standardization or interchangeability of parts with
existing equipment; for experimental developments or research work; for
supplies purchased for authorized resale; and for technical or specialized
supplies requiring substantial initial investment; or
(5)
Otherwise authorized by Band statute.
Notwithstanding the existence of circumstances justifying negotiations, competition
shall be obtained to the maximum extent practicable.
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Historical and Statutory Notes
Source:
Band Ordinance 17-98, § 13.
§ 14. Competitive Negotiation.
(a)
In competitive negotiation, proposals are requested from at least three (3) sources and
the request for proposals is publicized, submitting offers, and either a fixed-price or
cost reimbursable type contract is awarded, as appropriate.
(b)
If competitive negotiation is used for a procurement the following requirements shall
apply:
(c)
(1)
Proposals shall be solicited from at least three (3) sources to permit reasonable
competition consistent with the nature and requirements of the procurement.
The request for proposal shall be publicized and reasonable request by other
sources to complete shall be honored to the maximum extent practicable.
(2)
The request for proposal shall identify all significant evaluation factors,
including price or cost where required and their relative importance.
(3)
The Band shall provide a mechanism for technical evaluation of the proposals
received, determining responsible vendors for the purpose of written or oral
discussion, and selection for a contract award.
(4)
Awards may be made to a responsible contractor whose proposal will be most
advantageous to the Mille Lacs Band, price and other factors considered.
Unsuccessful offerors shall be notified promptly.
The Mille Lacs Band may utilize competitive negotiation procedures for procurement
of professional services, whereby competitors are selected, subject to negotiation of
fair and reasonable compensation.
Historical and Statutory Notes
Source:
Band Ordinance 17-98, § 14.
§ 15. Responsible Contractors.
Contracts shall be made only with responsible contractors who possess the potential ability to
perform successfully under the terms and conditions of a proposed procurement. Consideration
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shall be given to such matters as contractor integrity, record of past performance, financial and
technical resources or accessibility to other necessary resources.
Historical and Statutory Notes
Source:
Band Ordinance 17-98, § 15.
§ 16 Procurement Records.
(a)
The Mille Lacs Band will maintain records in sufficient detail to track the significant
history of all procurements over $7,500.00. The records shall include, but are not
limited to information pertinent to the following: rationale for the method of
procurement, selection of contract type, contractor selection or rejection and the basis
for the price.
(b)
Procurement records or files for negotiated purchases over $25,000 will provide
justification for use of negotiations in lieu of advertising, contractor selection and the
basis for the price.
Historical and Statutory Notes
Source:
Band Ordinance 17-98, § 16.
Band Ordinance 09-20.
Band Ordinance 07-22.
§ 17. Bonding.
(a)
In construction contracts that are federally funded or deemed commercial, bonding is
required. These types of contracts shall demand a performance bond of not less than
twenty percent (20%) of the total contract price, but not to exceed $500,000.00. A
performance bond requirement is to ensure that, if a contractor defaults, the Band
may request that the surety pay the expenses incurred to complete the construction
contract.
(b)
In addition, all construction contracts identified as federally funded or commercial,
shall be covered by a payment bond equal to one payment installment to cover
subcontractors/ suppliers as determined by the Contracting Officer or his agents. The
payment bond must contain language stating that if the contractor fails to make a
payment to its subcontractors/suppliers, the surety will make the necessary payment.
(c)
For all Band funded residential construction projects, a performance bond is required
for contracts in excess of $100,000.00.
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Historical and Statutory Notes
Source:
Band Ordinance 03-06, § 1, Paragraph 3.
Band Ordinance 07-22.
§ 18. Environmental Standards.
Contracts in excess of $10,000.00 shall contain a provision which requires the recipient of the
contract to agree to comply with all applicable standards, orders, or regulations issued regarding
Environmental Protections and as amended. Violations shall be reported to the Bureau of Indian
Affairs and the Regional Office of the Environmental Protection Agency or other appropriate
agencies.
Historical and Statutory Notes
Source
Band Ordinance 17-98, § 18.
§ 19. Contract Provisions.
In addition to provisions defining a sound and complete procurement contract, the Mille Lacs
Band, will include the following contract provisions or conditions in all procurement contracts
and subcontracts:
(a)
Contracts other than small purchases shall contain provisions or conditions which
allow for administrative, contractual, or legal remedies in instances where contractors
violate or breach contract terms, and provide for such sanctions and penalties as may
be appropriate.
(b)
All contracts in excess of $10,000.00 shall contain suitable provisions for termination
by the Mille Lacs Band and the basis for any settlement. In addition, such contracts
shall describe conditions under which the contract may be terminated for default as
well as conditions where the contract may be terminated because of circumstances
beyond the control of the contractor.
(c)
All contracts and sub-contracts for construction or facility repair shall include a
provision for compliance with the Copeland “Anti-Kickback Act” (18 USC 874) and
as supplemented in the Department of Labor regulations. This Act provides that each
contractor or sub-contractor shall be prohibited from including, by any means, any
person employed in the construction, completion, or repair of public work, to give up
any part of the compensation to which he is otherwise entitled. The Mille Lacs Band
will prosecute or report all suspected or reported violations to appropriate law
enforcement officials.
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(d)
When required by Federal Grant Program law or Band statute, all construction
contracts in excess of $5000 awarded by the Mille Lacs Band or any of its political
subdivisions shall include a provision for compliance with the Davis-Bacon Act
(40 USC 276a to 276a-7and as amended) and as supplemented by the Department of
Labor regulations. Under this Title, contractors shall be required to pay wages to
laborers and mechanics at a rate not less than the minimum wages specified in a wage
determination made by the Secretary of Labor. The Mille Lacs Band shall place a
copy of the current prevailing wage determination issued by the Department of Labor
in each solicitation and the award of a contract shall be conditioned upon the
acceptance of the wage determination.
(e)
When applicable, all contracts awarded by the Mille Lacs Band and sub-contracts in
excess of $5000 for construction which involve the employment of laborers shall
include a provision for compliance with the Contract Work Hours and Safety
Standards Act (40 USC 327 to 330) and as supplemented by the Department of Labor
regulations. Each contractor shall be required to compute the wages of every
mechanic and laborer on the basis of a standard work day of eight (8) hours and a
standard work week of forty (40) hours. Work in excess of the standard work day or
work week is permissible provided that the worker is compensated at a rate of no less
than one and one half (1 1/2 ) times the basic rate of pay for all hours worked in
excess of eight (8) hours in any calendar day or forty (40) hours in the work week.
The Act is applicable to construction work and provides that no laborer or mechanic
shall be required to work in surroundings or under conditions which are unsanitary,
hazardous, or dangerous to health and safety as determined under construction, safety
and health standards promulgated by the Secretary of Labor. These requirements do
not apply to the purchase of supplies or materials or articles ordinarily available on
the open market, or contracts for transportation or transmission of information.
(f)
The contract shall include notice of requirements and regulations pertaining to
reporting and patent rights under any contract involving research, developmental,
experimental or demonstration work with respect to any discovery or invention which
arises or is developed in the course of or under such contract and of requirements and
regulations pertaining to copyrights and rights in data.
(g)
All negotiated contracts, except those awarded by small purchase procedures,
awarded by the Mille Lacs Band shall include a provision that the Mille Lacs Band,
the Comptroller General of the United States, or any of their duly authorized
representatives, shall have access to any books, documents, papers, and records of the
Contractor which are directly pertinent to that specific contract, for the purpose of
making audits, examination, excerpts and transcriptions. The Mille Lacs Band shall
require contractors to maintain all required records for three years after the Mille Lacs
Band makes final payments and all other pending matters are closed.
(h)
Contracts and subcontracts in excess of $100,000.00 shall contain a provision which
requires compliance with all applicable standards, orders or requirements issued
under the Clean Air Act (42 USC 1857(h) and as amended, the Clean Water Act
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(33 USC 1368) and as amended, Executive Order 11738, and Environmental
Protection Agency regulations which prohibit the use under non-exempt Federal
Contracts, grants or loans of facilities included on the EPA list of Violating Facilities.
The provision shall require reporting of violations to the grantor agency.
(i)
Contracts shall recognize mandatory standards and policies relating to energy
efficiency requirements issued in compliance with the Energy Policy and
Conservation Act (42 USC § 6321).
(j)
Contracts and subcontracts awarded by the Mille Lacs Band of Ojibwe shall contain a
section that prohibits the assignment of any rights or interests or obligations under the
contract without the written approval of the contracting Officer.
Historical and Statutory Notes
Source:
Band Ordinance 17-98, § 19.
§ 20. General Services Administration Supply Sources.
When the Mille Lacs Band is performing services under cost reimbursement contracts the Band
shall be entitled to use the General Services Administration Supply sources to the extent
allowable by law.
Historical and Statutory Notes
Source:
Band Ordinance 17-98, § 20.
§ 21. Indian Preference.
(a)
A contractor awarded a public service contract shall give preferential employment
under the contract, including subcontracts thereunder, to qualified Indians and to the
extent feasible and consistent with the efficient performance of the contract, provide
employment and training opportunities to Indians regardless of age, religion or sex
that are not fully qualified to perform under the contract. The contractor shall comply
with all Indian preference requirements established by the Mille Lacs Band under the
contract to the extent that such requirements are not inconsistent with the purpose and
intent of this Title.
(b)
If a contractor or any of its subcontractors are unable to fill employment openings
after giving full consideration to Indians as required in paragraph (a), these
employment openings may then be filled by other persons under the conditions set
forth in the Equal Employment Opportunity clause of the contract. The contractor
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agrees to include this clause or one similar thereto in all subcontracts issued under the
contract.
(c)
Indian Preference shall mean awarding a contract or a subcontract with priority first
given to qualified Mille Lacs Band Members. The second priority shall be given to
qualified members of another federally recognized Indian Tribe. The third priority
shall be given to all other qualified persons.
(d)
Indian Preference shall also mean that contracts bid by Band member contractors that
are within 10% of the lowest competitive bid shall be given the opportunity to
negotiate an acceptable bid.
Historical and Statutory Notes
Source:
Band Ordinance 17-98, § 21.
Band Ordinance 15-14, Title IV, § 1.
§ 22. Equal Opportunity.
During the performance of a contract and after complying with the Indian Employment
Preference clause of the contract the contractor agrees as follows:
(a)
The contractor will not discriminate against any employee or applicant for
employment because of race, age, religion or sex. The contractor will take affirmative
action that applicants are employed and that employees are treated during
employment without regard to their race, age, religion or sex. Such action shall
include, but not be limited to the following: Employment upgrading; demotion or
transfer; layoff or termination; rates of pay or other forms of competition, including
apprenticeship
(b)
The contractor will, in all solicitation or advertisements for employees placed by or
on behalf of the contractor, state that all qualified applicants will receive
consideration for employment without regard to race, age, religion or sex.
(c)
The contractor will include provisions of these paragraphs in every subcontract or
purchase order so that such provisions will be binding upon each subcontractor or
vendor. The contractor will take such action with respect to any subcontract or
purchase order as the Mille Lacs Band may direct to enforce such provisions,
including sanctions for non-compliance. However, if the contractor becomes involved
in or is threatened with, litigation with a subcontractor or vendor as a result of such
direction, the contractor may request the Mille Lacs Band to enter such litigation to
protect the interest of the Mille Lacs Band.
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Historical and Statutory Notes
Source:
Band Ordinance 17-98, § 22.
§ 23. Use of Indian Businesses.
(a)
As used in this section, the term “Indian Businesses” means Indian organizations or
an Indian owned economic enterprise as defined in the code of Federal Regulations or
the laws of the Mille Lacs Band.
(b)
The Mille Lacs Band and its political subdivisions shall give preference in awarding
contracts and subcontracts to “Indian Businesses.”
(c)
The contractor agrees to give preference to qualified Indian businesses in the
awarding of any subcontracts entered into under the contract consistent with the
efficient performance of the contract. The contractor shall comply with any
preference requirements regarding Indian businesses established by the Mille Lacs
Band receiving services under the contract to the extent that such requirements are
not inconsistent with the purpose and intent of this Title.
(d)
If no Indian businesses are available under the conditions in paragraph (c) above, the
contractor agrees to accomplish the maximum amount of subcontracting, as the
contractor determines is consistent with efficient performance of the contract, with
small business concerns or minority business. The contractor is not, however,
required to establish a small business, labor surplus or minority business
subcontracting program
Historical and Statutory Notes
Source:
Band Ordinance 17-98, § 23.
§ 24. Buy Indian Provisions.
The Mille Lacs Band of Ojibwe, and political subdivisions, as well as all contractors and
subcontractors who conduct business on lands under the jurisdiction of the Mille Lacs Band of
Ojibwe pursuant to a contract or subcontract with the Band or political subdivision thereof shall
comply with the provisions of the Buy Indian Act (25 USC 47) and regulations promulgated
thereunder.
Historical and Statutory Notes
Source:
Band Ordinance 17-98, § 24.
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§ 25. Subcontracting.
(a)
Any contract proposal or plan of operations submitted by a tribal organization which
proposes to do a portion of the work by subcontract shall identify the purpose and
scope of the proposed subcontract, the manner in which the subcontractor will be
selected, and the estimated cost of the subcontract.
(b)
Preference shall be given to qualified Indian businesses in awarding subcontracts, and
the contractor shall comply with any preference requirements established by the Mille
Lacs Band receiving services under the contract.
(c)
If no Indian business are available under the conditions in the above paragraph, the
contractor shall accomplish the maximum amount of subcontracting, as is consistent
with efficient performance of the contract, with small business concerns labor surplus
area concerns and minority business enterprise.
(d)
Subcontract opportunities shall be advertised or negotiated in a manner which
provides free and open competition to the extent provided for by law. Subcontracts
shall be awarded in accordance with sound business practices and the preferential
requirements in this Title.
Historical and Statutory Notes
Source:
Band Ordinance 17-98, § 25.
§ 26. Contract Administration.
(a)
A system for contract administration will be maintained to assure contractor
conformance with terms, conditions and specifications of the contracts or orders and
to assure adequate and timely follow-up of all purchases.
(b)
All contracts for services and materials shall be reviewed and approved in the
following manner:
(1)
The Office of Management and Budget shall review all contracts to ensure
that sufficient budgetary and payment term considerations are in place.
(2)
The Solicitor General shall review all contracts over $7,500.00.
(3)
Administration Policy Board approval is required for all executive branch
contracts over $7,500.00.
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(4)
Band Assembly ratification is required for all contracts in excess of
$25,000.00, including any and all contract addendum(s) that in total increase
costs to $25,000.00.
Historical and Statutory Notes
Source:
Band Ordinance 17-98, § 26.
Band Ordinance 44-09, § 1.
Band Ordinance 07-22.
§ 27. Work Statements.
(a)
Work statements must satisfy clarity, precision, and completeness. The following
requirements will be included in the work statements:
(1)
Objectives: to precisely identify desired end objectives of the project and
associated requirements.
(2)
Context for project: list background information that will aid in understanding
the nature and origin of the program. Include a brief summary of objectives,
program authority, major programs and goals set by statute if relevant.
Describe the relationship of the effort to other programs and goals.
(3)
Acceptance: identify milestones or management control points in the sequence
of tasks where progress review, approvals, acceptances or rejections are to
occur. Establish relevant and well-defined baselines for performance
measurement. These baselines will serve at least four purposes including:
(i)
Prevention of contractor from drifting into areas not pertinent to the
effort;
(ii)
Measure the results of completed work;
(iii)
Assist in defining whether or not subsequent changes or redirection of
effort falls within the original scope of work;
(iv)
Assist the program official and the contracting officer in monitoring
the progress of the work. Monitoring is particularly important for
phase-type contracts where it is necessary to detect unsatisfactory
performance early. It will allow a Project Officer to inform
procurement personnel of unpromising contractor actions that should
be dealt with promptly before their effect compromises the entire
contract effort.
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(4)
Responsibility: identify all Mille Lacs Band or political subdivision and
Contractor participation or cooperation that is needed for the success of the
project, as well as the nature and extent of all task responsibilities. All tasks
requiring Mille Lacs Band support (e.g., Band-furnished equipment, facilities,
materials and extra laboratory government assistance) should be stated
specifically. The nature and requirements of Band support to be provided also
should be presented specifically.
(5)
Schedule: generate a schedule for the sequence of tasks to be performed by a
contractor and a similar schedule for related responsibilities of the Mille Lacs
Band.
(6)
Delivery: identify delivery requirements precisely and schedule a delivery
date for each. Include details about the type and quantity of all deliverables.
(State precisely what a contractor is to deliver at specified times as the work
progresses and on completion of the next contract performance.)
Historical and Statutory Notes
Source:
Band Ordinance 17-98, § 27.
§ 28. Changes.
(a)
(b)
The Band’s Contracting Officer may at any time, by written order, make changes
within the general scope of the contract to any one or more of the following:
(1)
drawings, designs or specifications when the supplies to be furnished are to be
specially manufactured for the Band in accordance with drawings, designs or
specifications;
(2)
methods of shipment or packing;
(3)
place of delivery;
(4)
the scope of the service performed; or
(5)
a change in the product delivered.
If any such change causes an increase or decrease in the cost of, or the time required
for performance of any part of the work under the contract, the Contract Officer is
authorized to make an equitable adjustment of up to five percent (5%) in the contract
price (provided sufficient funds are available), the delivery schedule, or both. Any
and all modifications of a contract, which combined total $25,000.00, shall be
approved by the Band Assembly. Failure of the parties to agree to any such
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adjustment shall be a dispute under the Disputes Clause. However, nothing in either
this clause or the Disputes Clause shall excuse the contractor from proceeding on the
contract as changed.
(c)
The Contracting Officer shall be the respective Commissioner or leader of a
respective branch or political subdivisions.
Historical and Statutory Notes
Source:
Band Ordinance 17-98, § 28.
Band Ordinance 44-09, § 2.
§ 29. Termination.
(a)
(b)
The Band may cancel a contract at any time with or without cause. Termination for
convenience should be included in all contracts.
(1)
The Band may terminate an order at any time prior to delivery of the
requested product or service if such action would be in the best interest of the
Band. If the contractor has begun work under an order, it shall so notify the
Band Contracting Officer and submit a proposal for any necessary partial
payment, restocking charge or other compensation. The Contracting Officer
shall determine what compensation, if any, should be paid. Such
determination shall be final unless a claim is made pursuant to the Disputes
clause of the contract.
(2)
The Contracting Officer, by written notice may terminate the contract, in
whole or in part, when it is in the Band’s best interest. If the contract is
terminated, the Band shall be responsible only for payment, pursuant to the
payment provision of the contract, for services rendered before the effective
date or termination.
The Band or political subdivisions may, in addition to any other remedy available
terminate the Contract for default if the supplies or equipment delivered are not
received on the due date(s) or are defective. Upon termination, the Band may pursue
any remedy it may have under federal, state or Band law, including but not limited to
self-help or set off.
(1)
The Band or political subdivisions may, by written notice of default to the
Contractor, terminate this contract in whole or in part, when the Contractor
fails to:
(i)
deliver the supplies or to perform the services within the time specified
in the contract or any agreed upon extension;
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(ii)
make progress, so as to endanger performance of the contract (but see
paragraph (2) below) and;
(iii)
perform any of the other provisions of the contract (see paragraph (2)
below).
(2)
The Band’s or political subdivision’s right to terminate a contract under the
provision above, may be exercised if the Contractor does not cure such failure
within ten (10) business days (or more if authorized in writing by the
Contracting Officer) after receipt of a notice from the Contracting Officer
specifying the failure.
(3)
If the Band or political subdivision terminates this contract in whole or in part,
it may acquire under the terms and the manner the Contracting Officer
considers appropriate, supplies or services similar to those terminated, and the
Contractor will be liable to the Band or political subdivision for any excess
costs for those supplies or services. However, the Contractor shall continue
the provisions of the contract not terminated.
(4)
Except for defaults of subcontractors, the Contractor the shall not be liable for
any excess costs if the failure to perform the contract arises from causes
beyond the control and without the fault or negligence of the Contractor.
(5)
If the failure to perform is caused by the default of a subcontractor and if the
cause of the default is beyond the control of both the Contractor and
subcontractor, and without the fault or negligence of either, the Contractor
shall not be liable for any excess cost for failure to perform, unless the
subcontracted supplies or services were obtainable from other sources in
sufficient time for the Contractor to meet the required delivery schedule.
(6)
The Band or political subdivision shall pay the contract price for completed
services performed and accepted. The Band may withhold from these amounts
any sum the Contracting Officer determines to be necessary to protect the
Band against loss. Failure to agree on such an amount will be a dispute under
the Disputes clause.
(7)
If, after termination, it is determined that the Contractor was not in default, or
that the default was excusable, the rights and obligations of the parties shall be
the same as if the termination had been issued for the convenience of the
Band.
(8)
The right and remedies of the Band or political subdivision in this clause are
in addition to any other rights and remedies provided by the law or under the
contract.
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(c)
The right of the Contractor to proceed may be terminated by written notice if, after
notice and hearing, the Administration Policy Board determines that the Contractor or
its representative offered or gave a gratuity (e.g. an entertainment or gift) to an
official, agent or employee of the Band, and intended by the gratuity to obtain a
contract or favorable treatment under a contract.
Historical and Statutory Notes
Source:
Band Ordinance 17-98, § 29.
§ 30. Warranties.
The contractor shall provide any commercial warranty normally offered to the public. The Band
or political subdivisions shall not accept delivery of supplies and equipment “as is” unless the
Contracting Officer has previously agreed in writing to such terms.
Historical and Statutory Notes
Source:
Band Ordinance 17-98, § 30.
§ 31. Audit.
To the extent required by law, the contractor agrees that the Commissioner of Finance of the
Mille Lacs Band and other Band Officials may examine those records related to the equipment or
supplies purchased.
Historical and Statutory Notes
Source:
Band Ordinance 17-98, § 31.
§ 32. Covenant Against Contingent Fees.
The Contractor warrants that no person or selling agency has been employed or retained to solicit
or obtain this contract upon an agreement or understanding for a commission, percentage,
brokerage or contingent fee, except a bona fide employee or bona fide established selling agent
maintained by the Contractor for the purpose of securing business. For breach or violation of this
warranty, the Band shall have the right to annul the contract without liability or in its discretion
to deduct from the contract price, or otherwise recover, the full amount of such commission,
percentage, brokerage or contingent fee.
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Historical and Statutory Notes
Source:
Band Ordinance 17-98, § 32.
§ 33. Notice.
Notices to either party shall be given by addressing the communications to the address set forth
in this agreement or such other address as shall be later given in writing, and depositing the same
in the United States mail, postage prepaid.
Historical and Statutory Notes
Source:
Band Ordinance 17-98, § 33.
§ 34. Mille Lacs Band Responsibilities.
The Mille Lacs Band or political subdivisions will be responsible, in accordance with good
administrative practice and sound business judgment, for the settlement of all contractual and
administrative issues arising out of procurement. These include but are not limited to source
evaluation, protest, disputes and claims. Violation of law shall be referred to the appropriate
Band, state or federal officials.
Historical and Statutory Notes
Source:
Band Ordinance 17-98, § 34.
§ 35. Disputes.
Any claim by the contractor shall be submitted in writing to the Band’s Contracting Officer for a
written decision. A claim by the Band or political subdivision against the Contractor shall be
subject to a written decision by the Contracting Officer. “Claim” as used in this section, means a
written decision demand or written assertion by one of the contracting parties seeking, as a
matter of right, the payment of money in a sum certain, the adjustment or interpretation of the
contract terms, or other relief arising under or relating to the contract. A voucher, invoice or
other routine request for payment that is not in dispute when submitted is not a claim. It may be
converted to a claim, by complying with the submission requirements of this section, if it is
disputed either as to liability or amount or is not acted upon in a reasonable time. The
Contracting Officer’s decision shall be final unless the Contractor appeals the matter to the
Administration Policy Board whose decision will be final unless the Contractor files suit. The
Contractor shall proceed diligently with performance of this contract, pending final resolution of
any request for relief, claim, appeal or action under the contract, and comply with any decision
of the Contracting Officer or the Band’s Administration Policy Board.
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Historical and Statutory Notes
Source:
Band Ordinance 17-98, § 35.
§ 36. Jurisdiction.
The Court of Central Jurisdiction is hereby granted subject matter jurisdiction for any cause of
action which arises from this Title or the application thereof. Nothing in this Title shall be
construed as a waiver of sovereign immunity of the Mille Lacs Band of Ojibwe in any court of
competent jurisdiction.
Historical and Statutory Notes
Source:
Band Ordinance 17-98, § 36.
§ 37. Construction and Severability.
The provisions of this title shall be liberally construed so as to effectuate the purposes thereof.
The provisions of this title shall be several and if any phrase, clause, sentence, or provision is
held invalid by a court of competent jurisdiction, the validity of the remainder of this title and the
applicability thereof shall not be affected thereby.
Historical and Statutory Notes
Source:
Band Ordinance 17-98, § 37.
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