45th legislature - STATE OF NEW MEXICO - first session, 2001

RELATING TO PUBLIC PROCUREMENT; ESTABLISHING AN ADMINISTRATIVE APPEAL PROCESS FOR DECISIONS MADE PURSUANT TO THE PROCUREMENT CODE; AMENDING AND ENACTING SECTIONS OF THE NMSA 1978.

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

Section 1. Section 13-1-175 NMSA 1978 (being Laws 1984, Chapter 65, Section 148) is amended to read:

"13-1-175. PROTEST--DETERMINATION.--The state purchasing agent, a central purchasing office or a designee of either shall promptly issue a determination relating to the protest. The determination shall:

A. state the reasons for the action taken; and

B. inform the protestant of the right to [judicial] review of the determination by the procurement appeals board pursuant to Section [156 of the Procurement Code] 13-1-176.4 NMSA 1978."

Section 2. Section 13-1-176 NMSA 1978 (being Laws 1984, Chapter 65, Section 149) is amended to read:

"13-1-176. PROTEST--NOTICE OF DETERMINATION.--A copy of the determination issued under Section [148 of the Procurement Code] 13-1-175 NMSA 1978 shall immediately be mailed to the protestant and other bidders or offerors involved in the procurement. A person aggrieved by the determination may appeal to the procurement appeals board pursuant to Section 13-1-176.4 NMSA 1978."

Section 3. Section 13-1-177 NMSA 1978 (being Laws 1984, Chapter 65, Section 150) is amended to read:

"13-1-177. AUTHORITY TO DEBAR OR SUSPEND.--The state purchasing agent or a central purchasing office, after reasonable notice to the business involved, shall have authority to recommend to the governing authority of a state agency or a local public body the suspension or debarment of a business for cause from consideration for award of contracts, other than contracts for professional services. The debarment shall not be for a period of more than three years, and a suspension shall not exceed three months. The authority to debar or suspend shall be exercised by the governing authority of a state agency or a local public body in accordance with [regulations which shall provide for reasonable notice and a fair hearing prior to suspension or debarment] the Procurement Code and rules adopted pursuant to that code."

Section 4. Section 13-1-179 NMSA 1978 (being Laws 1984, Chapter 65, Section 152) is amended to read:

"13-1-179. DEBARMENT OR SUSPENSION--DETERMINATION.--The governing authority of a state agency or a local public body shall issue a written determination to debar or suspend. The determination shall:

A. state the reasons for the action taken; and

B. inform the debarred or suspended business involved of its [rights to judicial] right to review by the procurement appeals board pursuant to Section [156 of the Procurement Code] 13-1-176.4 NMSA 1978."

Section 5. Section 13-1-180 NMSA 1978 (being Laws 1984, Chapter 65, Section 153) is amended to read:

"13-1-180. DEBARMENT OR SUSPENSION--NOTICE OF DETERMINATION.--A copy of the determination under Section [152 of the Procurement Code] 13-1-179 NMSA 1978 shall immediately be mailed to the debarred or suspended business. A person aggrieved by the determination may appeal to the procurement appeals board pursuant to Section 13-1-176.4 NMSA 1978."

Section 6. Section 13-1-183 NMSA 1978 (being Laws 1984, Chapter 65, Section 156, as amended) is amended to read:

"13-1-183. JUDICIAL REVIEW.--[All] Except for judicial review of actions of the procurement appeals board pursuant to Section 13-1-176.8 NMSA 1978, actions for which judicial review is specifically authorized by the Procurement Code [for judicial review of a determination] shall be [filed] reviewed pursuant to the provisions of Section 39-3-1.1 NMSA 1978."

Section 7. A new section of the Procurement Code, Section 13-1-176.1 NMSA 1978, is enacted to read:

"13-1-176.1. [NEW MATERIAL] CREATION OF PROCUREMENT APPEALS BOARD.--

A. The "procurement appeals board" is created in the executive branch. The procurement appeals board is composed of a chair and one other member, to be appointed by the governor, and a third member to be designated by the two appointed members on a case-by-case basis.
B. None of the members of the procurement appeals board shall otherwise be full-time employees of the state.
C. The appointed members of the procurement appeals board shall have been members in good standing of the state bar for at least five years and shall be experienced in contract or commercial matters.
D. The designated member shall possess the technical expertise and experience needed for the proper disposition of the factual issues presented by the case.
E. Except as required by Subsection F of this section, as terms of current board members expire, the governor shall appoint each new member or reappointed member to a four-year term.
F. Notwithstanding the requirements of Subsection E of this section, the governor shall, at the time of appointment or reappointment, adjust the length of terms to ensure that the terms of board members are staggered so that approximately half of the board is appointed every two years.
G. The designated member shall serve for the case on which designated until the final disposition of the case.
H. Appointed members may be reappointed for succeeding terms and may continue to serve after the expiration of their terms until a successor takes office.
I. Qualified persons may be redesignated as members.
J. When a vacancy occurs in the membership for any reason, the replacement shall be appointed for the unexpired term.
K. Members shall receive no compensation or benefits for their services, but may receive per diem and expenses incurred in the performance of the members' official duties pursuant to the Per Diem and Mileage Act. Members may decline to receive per diem and expenses for their service."

Section 8. A new section of the Procurement Code, Section 13-1-176.2 NMSA 1978, is enacted to read:

"13-1-176.2. [NEW MATERIAL] RULES OF PROCEDURE TO BE ADOPTED.--The procurement appeals board shall adopt rules of procedure that, to the fullest extent possible, will provide for the expeditious resolution of controversies, including procedures to encourage agreements between the parties to a controversy prior to a hearing."

Section 9. A new section of the Procurement Code, Section 13-1-176.3 NMSA 1978, is enacted to read:

"13-1-176.3. [NEW MATERIAL] DECISIONS TO BE IN WRITING.--The procurement appeals board shall issue a decision in writing or take other appropriate action of each appeal submitted. A copy of a decision shall be provided to all parties and the state purchasing agent or the head of a central purchasing office."

Section 10. A new section of the Procurement Code, Section 13-1-176.4 NMSA 1978, is enacted to read:

"13-1-176.4. [NEW MATERIAL] JURISDICTION OF THE PROCUREMENT APPEALS BOARD.--Unless an action has been initiated previously in the district court for essentially the same cause of action, the board shall have jurisdiction to review and determine de novo:

A. a determination relating to a protest of a solicitation or award of a contract pursuant to Section 13-1-175 NMSA 1978, addressed to the board by an aggrieved actual or prospective bidder or offeror; or

B. an appeal by an aggrieved party from a decision rendered or deemed to have been rendered pursuant to Section 13-1-179 NMSA 1978."

Section 11. A new section of the Procurement Code, Section 13-1-176.5 NMSA 1978, is enacted to read:

"13-1-176.5. [NEW MATERIAL] TIME LIMITS TO FILE AN APPEAL--EFFECT OF FILING.--

A. For an appeal from a decision regarding a protested solicitation or award, the aggrieved person shall file an appeal within seven calendar days of receipt of a decision rendered or deemed to have been rendered pursuant to Section 13-1-175 NMSA 1978.

B. For an appeal from a decision regarding a debarment, suspension or contract controversy, the aggrieved person shall file an appeal within sixty calendar days of receipt of a decision rendered or deemed to have been rendered pursuant to Section 13-1-179 NMSA 1978."

Section 12. A new section of the Procurement Code, Section 13-1-176.6 NMSA 1978, is enacted to read:

"13-1-176.6. [NEW MATERIAL] DISCONTINUED APPEAL WITH PREJUDICE EXCEPT AS AUTHORIZED.--After notice of an appeal has been filed with the procurement appeals board, no party may discontinue the appeal without prejudice, except as authorized by the board."

Section 13. A new section of the Procurement Code, Section 13-1-176.7 NMSA 1978, is enacted to read:

"13-1-176.7. [NEW MATERIAL] FACTUAL DETERMINATION OF APPEALS BOARD FINAL AND CONCLUSIVE.--

A. On an appeal pursuant to Section 13-1-176.4 NMSA 1978, the procurement appeals board shall promptly decide whether the solicitation or award or the suspension or debarment was in accordance with the Procurement Code. Prior determinations by administrative officials regarding protests of solicitations or awards or suspension or debarments shall not be final or conclusive.
B. A determination of an issue of fact by the procurement appeals board pursuant to Subsection A of this section shall be final and conclusive unless arbitrary and capricious or clearly erroneous. No determination on an issue of law shall be final or conclusive."

Section 14. A new section of the Procurement Code, Section 13-1-176.8 NMSA 1978, is enacted to read:

"13-1-176.8. [NEW MATERIAL] JUDICIAL REVIEW BY COURT OF APPEALS.--The state or a person receiving an adverse decision may appeal the final decision of the procurement appeals board to the court of appeals pursuant to Rule 12-601 NMRA."

Section 15. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2001.