Committee Substitute for HB0124JCS

HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR

HOUSE BILL 124

49th legislature - STATE OF NEW MEXICO - second session, 2010

AN ACT

RELATING TO GOVERNMENT CONTRACTING; REQUIRING PROSPECTIVE CONTRACTORS TO REGISTER WITH THE GENERAL SERVICES DEPARTMENT; REQUIRING DISCLOSURE OF CERTAIN INFORMATION BY PROSPECTIVE CONTRACTORS AND BY CONTRACTORS; PROVIDING FOR ONLINE ACCESS OF DISCLOSURE STATEMENTS AND REGISTRATION INFORMATION; PROHIBITING CERTAIN CONTRIBUTIONS DURING PENDENCY OF THE PROCUREMENT PROCESS OR DURING THE TERM OF A CONTRACT; PROVIDING FOR CANCELLATION OF THE PROCUREMENT PROCESS AND CONTRACTS; AMENDING, REPEALING AND ENACTING SECTIONS OF THE NMSA 1978.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. [NEW MATERIAL] PROSPECTIVE CONTRACTOR REGISTRATION--CONTRIBUTION DISCLOSURE--PROHIBITION--DEFINITIONS.--

A. A prospective contractor, prior to seeking a contract with a state agency or local public body, shall register with the general services department on a disclosure statement form developed by the department and made available to prospective contractors, contractors and the public on the department's web site. The prospective contractor shall disclose and certify pursuant to Section 30-25-1 NMSA 1978 the following information:

(1) the name and address of the business;

(2) the principals of the business;

(3) any affiliated business entities;

(4) the name and address of a contact person

for the business;

(5) any contracts the prospective contractor currently has with a state agency or local public body and the amount and term of each contract; and

(6) a contribution disclosure statement as required by Subsection C of this section.

B. A prospective contractor shall disclose or update the information required by Subsection A of this section prior to responding to a solicitation.

C. A prospective contractor shall disclose all contributions given by a principal of the prospective contractor to a state public officer or local public officer of the office soliciting the contract during the two years prior to the date the prospective contractor responds to a solicitation if the aggregate total of contributions from a principal to the public officer exceeds two hundred fifty dollars ($250) over the two-year period. The disclosure statement shall state the date, the amount and the nature of the contribution and the person receiving the contribution.

D. Before a state agency or local public body enters into a contract with a prospective contractor, the appropriate procurement officer shall review the information that the prospective contractor has disclosed to the general services department and shall certify in the agency's or local public body's procurement file that:

(1) based on the disclosed information, the prospective contractor has properly registered with the department and disclosed contributions as required by this section; and

(2) no conflict of interest with the state agency or local public body appears to exist involving the prospective contractor or its principals or contributions and that no undue influence on the procurement officer, state agency or local public body has been exerted by a principal of the prospective contractor, a state public officer, a local public officer or any other person during the pendency of the procurement process.

E. A contractor who was a prospective contractor pursuant to this section shall update the information required by Subsection A of this section within thirty days of the event requiring the update.

F. A principal of a prospective contractor shall not make a contribution to or solicit a contribution for the benefit of a state public officer or a local public officer during the pendency of the procurement process initiated by the officer's respective state agency or local public body and in which the prospective contractor is involved.

G. A principal of a contractor that was a prospective contractor pursuant to this section shall not make a contribution to or solicit a contribution for the benefit of a state public officer or a local public officer during the term of a contract entered into between the officer's state agency or local public body and the contractor.

H. A state agency or local public body shall disqualify a prospective contractor from receiving a contract if the prospective contractor fails to submit or update a fully completed disclosure statement pursuant to this section or makes or solicits a contribution prohibited by Subsection F of this section.

I. A state agency or local public body may terminate a contract if a contractor fails to update a fully completed disclosure statement pursuant to this section or makes or solicits a contribution prohibited by Subsection G of this section.

J. The provisions of this section shall be applied in conformity with the Procurement Code, a municipal ordinance or any other procurement requirement to which a state agency or local public body is subject. To the extent that a provision of the Procurement Code, a municipal ordinance or any other procurement requirement is in conflict with a provision of this section, the provision of this section shall apply.

K. As used in this section:

(1) "contract" means an agreement or transaction entered into through a request for proposals or invitation for bids issued by a state agency or local public body having a value of twenty thousand dollars ($20,000) or more; a combination or series of such agreements or transactions having a value of twenty thousand dollars ($20,000) or more in a fiscal year; or a contract for professional services having a value of fifty thousand dollars ($50,000) or more for:

(a) the rendition of services, including professional services and financial services;

(b) the furnishing of any material, supplies or equipment;

(d) the acquisition, sale or lease of any land or building;

(e) a licensing arrangement;

(f) a loan or loan guarantee; or

(g) the purchase or sale of financial securities or instruments or the investment of public money;

(2) "contractor" means a person that enters into a contract, which person shall be deemed to be a contractor until the termination of the contract; but "contractor" does not include the state or a political subdivision of the state or any full-time or part-time employee of the state or a political subdivision of the state in that person's capacity as an employee of the state or political subdivision of the state or a health care professional providing services under a medicaid provider agreement;

(3) "contribution" means:

(a) a gift, subscription, loan, advance or deposit of money or any other thing of value, including the estimated value of an in-kind contribution, that is made or received for a political purpose, including payment of a debt incurred in an election campaign;

(b) a donation to an organization that is made in response to a request by a state public officer or a local public officer or an agent on behalf of either; or

(c) a donation to an organization that supports a state agency or local public body pursuant to the provisions of Section 6-5A-1 NMSA 1978 if the donor seeks or obtains a contract with the state agency or local public body that the organization supports;

(4) "local public body" means a political subdivision of the state and the agencies, instrumentalities and institutions thereof, including two-year post-secondary educational institutions, school districts and local school boards; municipalities, including any home rule municipality that has adopted a charter pursuant to Article 10, Section 6 of the constitution of New Mexico; and counties;

(5) "local public officer" means a person elected to an office or a person appointed to complete a term of an elected office in a local public body;

(6) "pendency of the procurement process" means the time period commencing on the day of the initial solicitation for a contract by the state agency or local public body and ending with the execution of the contract or the cancellation of the solicitation;

(7) "principal" means, in addition to the contractor or prospective contractor itself:

(a) a person who is a member of the board of directors of, or has an ownership interest in, a contractor or prospective contractor, except for a person who owns less than five percent of the shares of a contractor or prospective contractor that is a publicly traded corporation;

(b) a person who is employed as president, treasurer, executive vice president or senior vice president of a contractor or prospective contractor;

(d) an agent, including a lobbyist subject to the Lobbyist Regulation Act, seeking a contract for a contractor or prospective contractor;

(e) the spouse or a dependent child of a person described in Subparagraphs (a) through (c) of this paragraph; or

(f) a political committee established by or on behalf of a person described in this paragraph;

(8) "procurement officer" means a person or a designee authorized by a state agency or a local public body to enter into or administer contracts and make written determinations with respect to those contracts;

(9) "prospective contractor" means a person that responds to a solicitation for or seeks a contract, until the contract has been entered into or the solicitation canceled, but "prospective contractor" does not include the state or a political subdivision of the state or any full-time or part-time employee of the state or a political subdivision of the state, in that person's capacity as an employee of the state or a political subdivision of the state or a health care professional providing services under a medicaid provider agreement;

(10) "solicitation" means an invitation to bid, a request for qualifications, a request for proposals or other request to enter into a contract, pursuant to the Procurement Code, or the initiation of a process to enter into a contract that is exempt from the Procurement Code pursuant to Sections 13-1-98 through 13-1-98.2 NMSA 1978;

(11) "state agency" means an office, department, board, council, commission, institution or agency in the executive, legislative or judicial branch of state government; an institution of the state; or an instrumentality of the state, including the New Mexico finance authority and the New Mexico mortgage finance authority; and

(12) "state public officer" means a person elected to an office, or a person appointed to complete a term of an elected office, in the executive, legislative or judicial branch of state government; a candidate or political committee established or controlled by or affiliated with a person elected to or appointed to complete a term of an elected office; or any other person in a state agency who is involved in a solicitation or procurement process and who has an active candidate committee or political committee account.

Section 2. Section 13-1-112 NMSA 1978 (being Laws 1984, Chapter 65, Section 85, as amended) is amended to read:

"13-1-112. COMPETITIVE SEALED PROPOSALS--REQUEST FOR PROPOSALS.--

A. Competitive sealed proposals, including competitive qualifications-based proposals, shall be solicited through a request for proposals that shall be issued and shall include:

(1) the specifications for the services or items of tangible personal property to be procured;

(2) all contractual terms and conditions applicable to the procurement;

(3) the form for disclosure of [campaign] contributions given by prospective contractors to applicable public officials pursuant to [Section 13-1-191.1 NMSA 1978] Section 1 of this 2010 act; and

(4) the location where proposals are to be received and the date, time and place where proposals are to be received and reviewed.

B. A request for proposals may, pursuant to Section 13-1-95.1 NMSA 1978, require that all or a portion of a responsive proposal be submitted electronically.

C. In the case of requests for competitive qualifications-based proposals, price shall be determined by formal negotiations related to scope of work."

Section 3. REPEAL.--Section 13-1-191.1 NMSA 1978 (being Laws 2006, Chapter 81, Section 1, as amended) is repealed.

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