45th legislature - STATE OF NEW MEXICO - second session, 2002

REQUESTING THE ATTORNEY GENERAL TO INFORM SCHOOL DISTRICTS, REGIONAL CENTER COOPERATIVES, POST-SECONDARY EDUCATIONAL INSTITUTIONS AND OTHER STATE AGENCIES, POLITICAL SUBDIVISIONS AND JOINT POWERS AGREEMENTS AGENCIES THAT THEY ARE REQUIRED TO COMPLY WITH THE PROVISIONS OF THE PROCUREMENT CODE AND REQUESTING THE ATTORNEY GENERAL TO RECOMMEND TO THE LEGISLATURE APPROPRIATE AND MEANINGFUL PENALTIES FOR VIOLATION OF THAT ACT.

WHEREAS, the purposes of the Procurement Code are to provide for the fair and equitable treatment of all persons who want to provide goods or services to publicly funded state and local public bodies and to ensure taxpayers that their hard-earned dollars are being spent through a procurement system that safeguards integrity, fairness and value; and

WHEREAS, legislators have received complaints that there are some school districts, regional center cooperatives and post-secondary educational institutions that are not complying with the provisions of the Procurement Code; and

WHEREAS, while some purchases are exempt from the provisions of the Procurement Code, it appears that the only public bodies that are exempt from the act are home-rule municipalities with their own procurement ordinances; and

WHEREAS, Section 13-1-99 NMSA 1978 excludes certain named public bodies from purchasing through the state purchasing agent, but does not exempt them from the provisions of the Procurement Code; and

WHEREAS, in State ex rel. Educational Assessments Systems, Inc. v. Cooperative Educational Services of New Mexico, Inc., the court of appeals said that since member school districts are subject to the Procurement Code, a joint agency established by two or more school districts pursuant to a joint powers agreement must also comply with that act; and

WHEREAS, to ensure the fair and equitable treatment of vendors and contractors, the law limits the use of sole source contracts; and

WHEREAS, requests for proposals, bid specifications and contracts should be written with sufficient specificity to allow anyone who reads those documents to understand what the contractor must provide, what the public body expects and the price that will be paid to the contractor; and

WHEREAS, neither the Procurement Code nor the Public Facility Energy Efficiency and Water Conservation Act contemplates a public body being able to modify a contract for energy or water conservation measures to include the construction of an entirely new building; and

WHEREAS, citizens pay taxes, essentially voluntarily, to accomplish public purposes, and they have every right to expect that custodians of the public trust are not playing favorites in the awarding of contracts or piggybacking unrelated work on an existing contract because obeying the Procurement Code is "too much trouble";

NOW, THEREFORE, BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO that the attorney general be requested to inform school districts, regional center cooperatives, state educational institutions, other public post-secondary institutions, joint powers agreements agencies and other state and local public bodies that they are required to follow the provisions of the Procurement Code; and

BE IT FURTHER RESOLVED that the office of the attorney general be requested to consider appropriate and meaningful penalties for violations of the Procurement Code by state or local public bodies and report its recommendations to the first session of the forty-sixth legislature; and

BE IT FURTHER RESOLVED that a copy of this memorial be transmitted to the attorney general.