46th legislature - STATE OF NEW MEXICO - first session, 2003

RELATING TO PROCUREMENT FOR PUBLIC WORKS PROJECTS; REQUIRING THAT A CONTRACT COMPLIANCE MONITOR BE UTILIZED FOR CERTAIN PROJECTS FOR THE CONSTRUCTION OF BUILDINGS; DECLARING AN EMERGENCY.

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

Section 1. Section 13-1-99 NMSA 1978 (being Laws 1984, Chapter 65, Section 72, as amended) is amended to read:

"13-1-99. EXCLUDED FROM CENTRAL PURCHASING THROUGH THE STATE PURCHASING AGENT.--Excluded from the requirement of procurement through the state purchasing agent but not from the requirements of the Procurement Code are the following:

A. procurement of professional services, except for contract compliance services required by the provisions of Section 13-1-100.2 NMSA 1978;

B. small purchases having a value not exceeding one thousand five hundred dollars ($1,500);

C. emergency procurement;

D. procurement of highway construction or reconstruction by the state highway and transportation department;

E. procurement by the judicial branch of state government;

F. procurement by the legislative branch of state government;

G. procurement by the boards of regents of state educational institutions named in Article 12, Section 11 of the constitution of New Mexico;

H. procurement by the state fair commission of tangible personal property, services and construction under five thousand dollars ($5,000);

I. purchases from the instructional material fund;

J. procurement by all local public bodies;

K. procurement by regional education cooperatives;

L. procurement by charter schools; and

M. procurement by each state health care institution that provides direct patient care and that is, or a part of which is, medicaid certified and participating in the New Mexico medicaid program."

Section 2. Section 13-1-100.1 NMSA 1978 (being Laws 1997, Chapter 171, Section 3) is amended to read:

"13-1-100.1. CONSTRUCTION CONTRACTS--CONSTRUCTION MANAGEMENT SERVICES.--

A. Unless a contract compliance services contract is required pursuant to Section 13-1-100.2 NMSA 1978, a construction management services contract may be entered into for any construction or state or local public works project when a state agency or local public body makes a determination that it is in the public's interest to utilize construction management services. Construction management services shall not duplicate and are in addition to the normal scope of separate architect or engineer contracts, the need for which may arise due to the complexity or unusual requirements of a project as requested by a state agency or local public body.

B. To [insure] ensure fair, uniform, clear and effective procedures that will strive for the delivery of a quality project, on time and within budget, the secretary, in conjunction with the appropriate and affected professional associations and contractors, shall promulgate regulations, which shall be adopted by the governing bodies of all using agencies and shall be followed by all using agencies when procuring construction management services as authorized in Subsection A of this section.

C. Except as provided in Section 13-1-100.2 NMSA 1978, a state agency shall make the decision on a construction management services contract for a state public works project, and a local public body shall make that decision for a local public works project. Except as provided in Section 13-1-100.2 NMSA 1978, a state agency shall not make the decision on a construction management services contract for a local public works project."

Section 3. A new section of the Procurement Code, Section 13-1-100.2 NMSA 1978, is enacted to read:

"13-1-100.2. [NEW MATERIAL] CONTRACT COMPLIANCE SERVICES REQUIRED--CERTAIN BUILDING CONSTRUCTION PROJECTS.--

A. Unless excluded pursuant to Subsection C of this section, no contract for the construction of a building shall be entered into by the state or a local public body unless a separate contract for contract compliance services with an independent contract compliance monitor is also entered into. The contract compliance monitor shall provide oversight, not construction management, as an agent of the using agency and of the state or the local public body in monitoring the construction project for the purpose of monitoring the time, cost and quality of the project to ensure conformance with the contract documents entered into between the contractor, the using agency and the state or local public body. In performing contract compliance services, a contract compliance monitor may employ such other licensed contractors and professionals, including architects, engineers and surveyors, as are necessary. The costs of the contract compliance monitor shall be paid from any funds available to the using agency.

B. Except as provided in Subsection D of this section, if the contract for the construction of the building is entered into by the state or an agency or institution of the state, the state purchasing agent shall, pursuant to the provisions of the Procurement Code, select a contract compliance monitor for each project subject to the provisions of this section.

C. The provisions of this section are not applicable to a contract for the construction of:

(1) a building if the projected state expenditure pursuant to the contract is less than one million dollars ($1,000,000); provided, however, that if the state purchasing agent determines that the using agency of the state or local public body has other projects for the construction of buildings that will commence in the same fiscal year and if the projected state expenditure in the aggregate for all the projects is one million dollars ($1,000,000) or more, then all of the projects are subject to the provisions of this section. As used in this paragraph, "state expenditure" means money appropriated by the legislature for the project, including direct appropriations from a specific fund, the use of severance tax bond proceeds, the use of state general obligation bond proceeds and the use of proceeds from bonds or loans issued or made by the New Mexico finance authority;

(2) public school buildings and facilities funded pursuant to the Public School Capital Outlay Act or the construction of which is overseen pursuant to that act; or

(3) single- or multi-family dwellings built pursuant to a federal or state housing program.

D. Excluded from the requirement to procure the services of a contract compliance monitor through the state purchasing agent but not from the requirement to procure the services of a contract compliance monitor are:

(1) agencies of the judicial branch of government;

(2) the boards of regents of the state educational institutions named in Article 12, Section 11 of the constitution of New Mexico;

(3) procurement by all local public bodies;

(4) procurement by regional education cooperatives; and

(5) procurement by charter schools.

E. As used in this section, "contract compliance monitor" means a person who is registered under the Architectural Act to practice architecture or licensed as a professional engineer and who:

(1) has the skills and background necessary to provide contract compliance services;

(2) possesses a G-98 contracting license issued by the construction industries division of the regulation and licensing department; and

(3) has professional liability insurance coverage of at least one million dollars ($1,000,000)."

Section 4. EMERGENCY.--It is necessary for the public peace, health and safety that this act take effect immediately.