HOUSE BILL 341

51st legislature - STATE OF NEW MEXICO - second session, 2014

INTRODUCED BY

Mimi Stewart

AN ACT

RELATING TO PROCUREMENT; AMENDING THE SUNSHINE PORTAL TRANSPARENCY ACT; REQUIRING THE APPLICATION OF THE INSPECTION OF PUBLIC RECORDS ACT AND OPEN MEETINGS ACT TO CERTAIN CONTRACTS; PROVIDING REQUIREMENTS FOR OUTSOURCING CONTRACTS.

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

     SECTION 1. Section 10-16D-3 NMSA 1978 (being Laws 2010, Chapter 34, Section 3, as amended) is amended to read:

     "10-16D-3. SUNSHINE PORTAL--DEPARTMENT DUTIES.--

          A. The department, with the department of finance and administration, shall develop, operate and maintain a single internet web site that is free, user-friendly, searchable and accessible to the public, known as the "sunshine portal", to host the state's financial information for the purpose of governmental transparency and accountability to taxpayers.

          B. No later than October 1, 2010, the department shall create the architecture and the information exchange process for the collection and electronic publication of the state's financial information.

          C. No later than July 1, 2011, the sunshine portal shall be available for public access and include updated information as required by Subsection D of this section.

          D. The sunshine portal shall provide, at a minimum, access to the following information:

                (1) the state's cash balances by account or fund;

                (2) a monthly summary of the state's investment accounts;

                (3) annual operating budgets for each state agency with monthly expenditures by category;

                (4) contracts that a state agency enters into for the lease, sale or development of state land and state contracts that have a total contract price of more than twenty thousand dollars ($20,000) [naming the recipient of the contract, the purpose of the contract and the amounts expended]. In the case of a contract that has a total price of more than twenty thousand dollars ($20,000), the information shall include:

                     (a) a description of the contract, its purpose and the services being provided;

                     (b) the name of the state agency entering into the contract;

                     (c) the effective and expiration dates of the contract;

                     (d) amounts paid to the contractor in prior fiscal years and in the current fiscal year;

                     (e) the total projected cost of the contract during its full term; and

                     (f) the names of all contractor and subcontractor employees who have provided or are providing the services required by the contract and their hourly wage or other rate of compensation;

                (5) the revenue that the state received in the preceding month by source, such as type of tax, fee, fine, administrative fee or other collection category;

                (6) special appropriations received outside the general appropriation act by each state agency and the purpose of those appropriations;

                (7) approved budget adjustment requests by state agency and affected budget category;

                (8) quarterly consensus revenue estimates;

                (9) reversions and cash balances by state agency and fund;

                (10) appropriations for capital projects, identified by project location, type of project and funding source;

                (11) a directory of all employee positions, other than exempt employee positions, identified only by state agency, position title and salary;

                (12) a directory of all exempt employee positions, identified by state agency, position title, salary and the name of the individual that holds the position;

                (13) information relating to local education providers compiled and published by the public education department pursuant to Section 10-16D-6 NMSA 1978;

                (14) a link to an open meeting tracker web site upon which each state agency shall post open meetings scheduled for the current month and the next month, including the time and place of the meeting, the subject of the meeting and an agenda;

                (15) a link to the web site maintained by the regulation and licensing department for the purpose of accessing information relating to occupational licenses;

                (16) a link to the state auditor's web site for the purpose of accessing financial audits;

                (17) a link to New Mexico's statutes;

                (18) a link to the New Mexico Administrative Code;

                (19) a link to the secretary of state's web sites for lobbyist regulation;

                (20) an annual summary within three months after the end of the fiscal year, or as soon thereafter as the information becomes available, of the state's fiscal health, including the state budget, revenues and expenditures for the previous fiscal year and projected revenues and operating budgets for the current fiscal year; and

                (21) additional information, as required by rule of the department of finance and administration, that will assist the public in understanding state government operations and the use of taxpayer dollars.

          E. State agencies shall provide updated financial information as frequently as possible but at least monthly.

          F. The department shall update the web site as new information is received but at least monthly, include information from the previous month or year, where relevant, for comparison purposes and maintain the web site as the primary source of public information about the activity of the state government."

     SECTION 2. Section 13-1-170 NMSA 1978 (being Laws 1984, Chapter 65, Section 143, as amended by Laws 1997, Chapter 104, Section 2 and also by Laws 1997, Chapter 222, Section 2) is amended to read:

     "13-1-170. UNIFORM CONTRACT CLAUSES.--

          A. A state agency, local public body or central purchasing office with the power to issue regulations may require by regulation that contracts include uniform clauses providing for termination of contracts, adjustments in prices, adjustments in time of performance or other contract provisions as appropriate, including but not limited to the following subjects:

                (1) the unilateral right of a state agency or a local public body to order in writing:

                     (a) changes in the work within the scope of the contract; and

                     (b) temporary stoppage of the work or the delay of performance;

                (2) variations occurring between estimated quantities of work in a contract and actual quantities;

                (3) liquidated damages;

                (4) permissible excuses for delay or nonperformance;

                (5) termination of the contract for default;

                (6) termination of the contract in whole or in part for the convenience of the state agency or a local public body;

                (7) assignment clauses providing for the assignment by the contractor to the state agency or a local public body of causes of action for violation of state or federal antitrust statutes;

                (8) identification of subcontractors by bidders in bids; and

                (9) uniform subcontract clauses in contracts.

          B. A state agency, local public body or central purchasing office with the power to issue regulations shall require by regulation that contracts include a clause imposing late payment charges against the state agency or local public body in the amount and under the conditions stated in Section 13-1-158 NMSA 1978.

          C. A state agency, local public body or central purchasing office with the power to issue regulations shall require by regulation that contracts include:

                (1) a clause requiring that the contractor maintain all records relating to the contract and providing that those records are public records subject to the Inspection of Public Records Act and shall be made available upon request to the state agency, local public body or central purchasing office without charge; and

                (2) a clause providing that a meeting between the contractor and a policymaking body of the state agency, local public body or central purchasing office is subject to the Open Meetings Act."

     SECTION 3. A new section of the Procurement Code is enacted to read:

     "[NEW MATERIAL] OUTSOURCING CONTRACTS--COST ANALYSES--COMPLIANCE--WAGES--PARTICULAR PROVISIONS.--Prior to a state agency or local public body entering into a contract for services that will replace the provision of similar services by public employees, the state agency or local public body shall:

          A. conduct an analysis comparing the internal cost of providing the services by an independent contractor with the cost of continuing the provision of the services by public employees. For the purpose of this section, "cost" includes wages or salary, health and other fringe benefits and the proportional share of administrative and material costs for support of employees performing the services. A state agency or local public body shall not enter into a contract for the services if the analysis reveals that cost savings resulting from contracting for the services is less than ten percent of the cost of the provision of the services by a public employee;

          B. if the analysis conducted pursuant to Subsection A of this section reveals a cost savings of more than ten percent, permit the public employees whose services are proposed to be replaced by an independent contractor, or the public employees' authorized representative pursuant to the Public Employee Bargaining Act, to review the analysis and to present their recommendations for cost savings and quality control in order to make the proposed contract unnecessary. The state agency or local public body shall provide a written response to the public employees concerning their recommendations, explaining the reasons for accepting or rejecting them;

          C. conduct an analysis assessing the external cost of providing the services by an independent contractor. For the purpose of this section, "external cost" includes the impact on employment and income, social services, public assistance, businesses, tax revenue and the natural environment in the local area where the services are performed. The analysis process shall include a description of the local area assessed and the reasoning for selecting that local area, a notice to residents and businesses in that local area regarding the proposed contract and an opportunity for those receiving notice to be heard on the matter. The completed analysis shall be posted on the contracting state agency or local public body's web site or the web site used by that entity;

          D. require a potential contractor to attest under penalty of perjury that the contractor is in compliance with all federal and state laws applicable to the contractor, including tax, health, safety, labor and licensing laws;

          E. if the state agency or local public body decides to proceed with a contract, require the potential contractor to pay its employees performing the replaced services a wage or salary equal to the wage or salary paid to the public employees performing the services immediately prior to the beginning of the contract term and to provide health benefits comparable to those offered to the public employees performing the services immediately prior to the beginning of the contract term; and

          F. provide, when appropriate based on the nature of the services, in an invitation for bids or request for proposals, that the contract shall:

                (1) not guarantee an occupancy rate;

                (2) not prohibit the state agency or local public body from maintaining, operating, improving or building public infrastructure;

                (3) not penalize the state agency or local public body if the contractor loses revenue or does not meet its revenue projections unless the loss or failure of expectation is due to a breach of contract by the state agency or local public body; and

                (4) provide that any increase in fees or charges allowed for the public service to be provided by the contract must be approved by the state agency or local public body."

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