HOUSE BILL 517

52nd legislature - STATE OF NEW MEXICO - first session, 2015

INTRODUCED BY

Antonio "Moe" Maestas

AN ACT

RELATING TO PUBLIC PURCHASING; ENACTING THE HISTORICALLY UNDERUTILIZED BUSINESS OPPORTUNITY ACT; PROVIDING ADDITIONAL DUTIES FOR THE STATE AUDITOR; REQUIRING CERTAIN STATE AGENCIES TO USE HISTORICALLY UNDERUTILIZED BUSINESSES.

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

     SECTION 1. [NEW MATERIAL] SHORT TITLE.--This act may be cited as the "Historically Underutilized Business Opportunity Act".

     SECTION 2. [NEW MATERIAL] PURPOSE.--The purpose of the Historically Underutilized Business Opportunity Act is to promote full and equal business opportunities for all businesses by encouraging and setting goals for the use of historically underutilized businesses by state agencies in all public purchasing decisions.

     SECTION 3. [NEW MATERIAL] DEFINITIONS.--As used in the Historically Underutilized Business Opportunity Act:

          A. "facilitating nonprofit agency" means a nonprofit agency that is organized to promote and enhance economic development opportunities; that can also provide business and work force education with expertise in assisting historically underutilized businesses; and that is approved by the state auditor to assist in screening applicants and otherwise assist in identifying qualified applicants for certification;

          B. "historically underutilized business" means a legally recognized for-profit business organization, corporation, sole proprietorship, partnership or joint venture that has a valid historically underutilized business certificate issued by the state auditor certifying that:

                (1) it has an average volume for the preceding three fiscal years that does not exceed one million five hundred thousand dollars ($1,500,000) or an average number of employees for the preceding three fiscal years that does not exceed one hundred fifty;

                (2) its principal place of business is in New Mexico; and

                (3) at least fifty-one percent of the business is owned by a woman, a veteran or a person who is African American, Hispanic, Asian-Pacific American or Native American; and

          C. "state agency" means any department, commission, council, board, committee, institution, agency, government corporation or educational institution, including any office or officer of the above but does not include the legislative or judicial branch or local public bodies.

     SECTION 4. [NEW MATERIAL] HISTORICALLY UNDERUTILIZED BUSINESS PROGRAM--GOALS.--

          A. The state auditor shall set initial statewide goals for fiscal year 2016 of not less than ten percent for the use of historically underutilized businesses in the procurement of the following goods or services:

                (1) heavy construction other than building contracts;

                (2) all building construction, including general contractors and operative builders contracts;

                (3) all special trade construction contracts;

                (4) professional services contracts;

                (5) all other services contracts; and

                (6) commodities contracts.

          B. Beginning in fiscal year 2017, the state auditor shall modify these goals consistent with the university of New Mexico bureau of business and economic research review of United States economic census data and its most recent findings and recommendations related to historically underutilized businesses.

          C. Each state agency shall make a good-faith effort to utilize historically underutilized businesses in contracts for each procurement category listed in Subsection A of this section.

          D. Each agency may achieve its agency-specific annual historically underutilized business goals by contracting directly with historically underutilized businesses or indirectly through subcontracting opportunities.

     SECTION 5. [NEW MATERIAL] DUTIES OF STATE AUDITOR.--The state auditor shall:

          A. establish the procedures for:

                (1) certification of applicants for historically underutilized business status;

                (2) precertification screening of eligibility;

                (3) appeal of a denial of certification;

                (4) revocation of a certification; and

                (5) approval of facilitating nonprofit agencies;

          B. at least semiannually, produce an online, searchable database of businesses certified as historically underutilized businesses;

          C. offer forums in which historically underutilized businesses deliver to state agencies technical and business presentations that demonstrate their capability to do business with state agencies;

          D. review and approve each state agency's agency-specific goals for the utilization of historically underutilized businesses; and

          E. at the end of every fiscal year, prepare and publish a consolidated annual report that includes the total:

                (1) dollar amount of payments made by state agencies for the purchase of goods and services;

                (2) dollar amount of payments made by state agencies for the purchase of goods and services from historically underutilized businesses;

                (3) number of contracts awarded by state agencies;

                (4) number of contracts awarded to historically underutilized businesses by state agencies;

                (5) number of bids received by state agencies;

                (6) number of bids from historically underutilized businesses received by state agencies; and

                (7) number of historically underutilized businesses actually paid by state agencies.

     SECTION 6. [NEW MATERIAL] DUTIES OF STATE AGENCIES.--Each state agency shall:

          A. establish agency-specific goals for the use of historically underutilized businesses for each procurement category listed in Section 4 of the Historically Underutilized Business Opportunity Act. Agencies may set their agency-specific goals higher than the statewide historically underutilized business goals set by the state auditor. Agency-specific goals shall be based on: 

                (1) the agency's fiscal year expenditures and total contract expenditures;

                (2) the availability of historically underutilized businesses in each procurement category;

                (3) the agency's historic utilization of historically underutilized businesses;

                (4) other relevant factors as determined by the agency; and

                (5) other relevant factors required by the state auditor;

          B. before soliciting bids, proposals, offers or other applicable expressions of interest for a contract with a value of one hundred thousand dollars ($100,000) or more over the life of the contract, including any renewals, determine whether subcontracting opportunities are probable under the contract and, if so, require respondents to submit a plan to subcontract with at least one historically underutilized business in its response; and

          C. maintain and compile monthly reports that provide the information to the state auditor required by Subsection E of Section 5 of the Historically Underutilized Business Opportunity Act and any other information required by the state auditor.

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