SENATE BILL 522
46th legislature - STATE OF NEW MEXICO - second session, 2004
INTRODUCED BY
John Arthur Smith
AN ACT
RELATING TO THE PROCUREMENT OF PUBLIC PROPERTY; AMENDING THE PROCUREMENT CODE TO PROVIDE THAT, UNDER CERTAIN CIRCUMSTANCES, BIDS AND PROPOSALS MAY BE SUBMITTED ELECTRONICALLY AND TO PROVIDE, IN CERTAIN CIRCUMSTANCES, FOR REVERSE AUCTION PROCEDURES AS AN ALTERNATIVE TO SEALED BIDS; DECLARING AN EMERGENCY.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 13-1-28 NMSA 1978 (being Laws 1984, Chapter 65, Section 1) is amended to read:
"13-1-28. SHORT TITLE.--Sections [1 through 172 of this act] 13-1-21 through 13-1-199 NMSA 1978 may be cited as the "Procurement Code"."
Section 2. Section 13-1-64 NMSA 1978 (being Laws 1984, Chapter 65, Section 37) is amended to read:
"13-1-64. DEFINITION--INVITATION FOR BIDS.--"Invitation for bids" means all documents, including those attached or incorporated by reference, utilized for soliciting sealed or reverse auction bids."
Section 3. Section 13-1-95.1 NMSA 1978 (being Laws 2001, Chapter 292, Section 7) is amended to read:
"13-1-95.1. ELECTRONIC TRANSMISSIONS.--
A. The state purchasing agent shall [work with the attorney general to] develop guidelines for central purchasing offices to use electronic media, including acceptance of sealed bids and [requests for] competitive sealed proposals that include electronic signatures. The guidelines shall include:
[A.] (1) appropriate security to prevent unauthorized access to electronically submitted sealed bids or proposals prior to the date and time set for opening of bids or the deadline set for receipt for proposals, including the electronic bidding, approval and award process; and
[B.] (2) accurate retrieval or conversion of electronic forms of information into a medium that permits inspection and copying.
B. A central purchasing office, in an invitation for bids or a request for proposals, may require all or any part of a sealed bid or a competitive sealed proposal to be submitted electronically if the office determines that an electronic submission will be advantageous to the procurement process. If electronic submission is required:
(1) no hard copy documentation shall be submitted to a central purchasing office prior to the award of the contract, except as specifically identified in the invitation for bids or the request for proposals;
(2) the invitation for bids or request for proposals shall specify an opening date and time, a fixed closing date and time and an email account to which the electronic bid or proposal shall be submitted;
(3) for sealed bids, a representative of the central purchasing office and a witness shall open the email account immediately after the closing time, record the vendors that submitted bids, the date and time submitted, the bids and associated prices and prepare a bid tabulation of all responsive vendors for review. The bids shall then be evaluated and the contract awarded as required in the invitation for bids and as otherwise provided in the Procurement Code; and
(4) for sealed proposals, the proposals shall be opened, evaluated and the contract awarded as required in the request for proposals and as otherwise provided in the Procurement Code."
Section 4. Section 13-1-102 NMSA 1978 (being Laws 1984, Chapter 65, Section 75) is amended to read:
"13-1-102. COMPETITIVE SEALED BIDS REQUIRED.--All procurement shall be achieved by competitive sealed bid pursuant to Sections [76 through 83 of the Procurement Code] 13-1-103 through 13-1-110 NMSA 1978, except procurement achieved pursuant to the following sections of the Procurement Code:
A. Sections [84 through 97] 13-1-111 through 13-1-122 NMSA 1978, competitive sealed proposals;
B. Section [98] 13-1-125 NMSA 1978, small purchases;
C. Section [99] 13-1-126 NMSA 1978, sole source procurement;
D. Section [100] 13-1-127 NMSA 1978, emergency procurements;
E. Section [102] 13-1-129 NMSA 1978, existing contracts; [and]
F. Section [103] 13-1-130 NMSA 1978, purchases from anti-poverty program businesses; and
G. Section 13-1-110.1 NMSA 1978, reverse auction bidding."
Section 5. Section 13-1-103 NMSA 1978 (being Laws 1984, Chapter 65, Section 76) is amended to read:
"13-1-103. [COMPETITIVE SEALED BIDS] INVITATION FOR BIDS.--
A. An invitation for bids shall be issued and shall include the specifications for the services, construction or items of tangible personal property to be procured, all contractual terms and conditions applicable to the procurement and whether the procurement will be by sealed bid or by reverse auction.
B. If the procurement is to be by sealed bid without electronic submission, the invitation for bids shall include the location where bids are to be received and the date, time and place of the bid opening.
C. If the procurement is to be by sealed bid with part or all of the bid to be submitted electronically, the invitation for bids shall comply with the requirements of Section 13-1-95.1 NMSA 1978.
D. If the procurement is to be by reverse auction, the invitation for bids shall comply with the requirements of Section 13-1-110.1 NMSA 1978."
Section 6. Section 13-1-107 NMSA 1978 (being Laws 1984, Chapter 65, Section 80) is amended to read:
"13-1-107. COMPETITIVE SEALED BIDS--BID OPENING.--Bids submitted electronically shall be opened as provided in Section 13-1-95.1 NMSA 1978; otherwise, bids shall be opened publicly in the presence of one or more witnesses at the time and place designated in the invitation for bids. The amount of each bid and each bid item, if appropriate, and such other relevant information as may be specified by the state purchasing agent or a central purchasing office, together with the name of each bidder, shall be recorded, and the record and each bid shall be open to public inspection."
Section 7. A new section of the Procurement Code, Section 13-1-110.1 NMSA 1978, is enacted to read:
"13-1-110.1. [NEW MATERIAL] REVERSE AUCTION--PROCEDURE.--
A. A central purchasing office may use a reverse auction, in lieu of competitive bidding, for the procurement of goods and nonprofessional services when the central purchasing office determines that the reverse auction would be advantageous.
B. In addition to the information required by Section 13-1-103 NMSA 1978, an invitation for bids using a reverse auction shall designate both an opening date and time and a closing date and time; provided that the closing date and time need not be a fixed point in time, but may remain dependent on variables specified in the invitation for bids. In addition, an invitation for bids using a reverse auction may require bidders to register before the opening date and time and, as part of that registration, to agree to any terms, conditions or other requirements set forth in the invitation. Public notice of an invitation for bids using a reverse auction shall be given in the same manner as provided for competitive sealed bids in Section 13-1-104 NMSA 1978.
C. At the time specified in the invitation for bids, the central purchasing office shall begin accepting real-time, online bids over the internet and shall continue to accept such bids until the closing date and time. Following receipt of the first bid after the opening date and time, all bid prices shall be posted electronically to the internet and updated on a real-time basis. During the bidding process, all bidders' prices are public and shall be revealed online; provided that bidders' names or other information that may reveal a bidder's identity shall not be disclosed at any time before the closing date and time. At any time before the closing date and time, a bidder may lower, but not raise, the price of its bid, if the lowered price is less than the then-current low bid, and a bidder's lowest bid price supersedes all prior higher bids from that bidder. Unless a bid is allowed to be withdrawn pursuant to Subsection D of this section, all bids are binding on the bidder; provided that a price entered in error may be corrected by the bidder by complying with the time frame and procedure for bid correction as specified in the invitation for bids.
D. After the closing date and time, a bidder may request, via an email message to the central purchasing office, that its bid be withdrawn. Such a request may be allowed by the central purchasing office only upon a written finding that the bid was submitted or calculated by mistake. If the lowest responsible bid is withdrawn pursuant to this subsection, the central purchasing office may cancel the procurement, award the contract to the next highest bidder or reopen the real-time online bidding process to all previous bidders by giving notice, as specified in the invitation for bids, of both the new opening date and time and the new closing date and time.
E. A contract solicited by a reverse auction process shall be awarded pursuant to the procedure prescribed for competitive sealed bids in Section 13-1-108 NMSA 1978.
F. The secretary shall adopt such rules as are necessary to effectuate the provisions of this section."
Section 8. Section 13-1-112 NMSA 1978 (being Laws 1984, Chapter 65, Section 85, as amended) is amended to read:
"13-1-112. COMPETITIVE SEALED PROPOSALS--REQUEST FOR PROPOSALS.--
A. Competitive sealed proposals, including competitive qualifications-based proposals, shall be solicited through a request for proposals which shall be issued and shall include the specifications for the services or items of tangible personal property to be procured, all contractual terms and conditions applicable to the procurement, the location where proposals are to be received and the date, time and place where proposals are to be received and reviewed. A request for proposals may, pursuant to Section 13-1-95.1 NMSA 1978, require that all or a portion of a responsive proposal be submitted electronically.
B. In the case of requests for competitive qualifications-based proposals, price shall be determined by formal negotiations related to scope of work."
Section 9. Section 13-1-119.1 NMSA 1978 (being Laws 1997, Chapter 171, Section 5, as amended) is amended to read:
"13-1-119.1. PUBLIC WORKS PROJECT DELIVERY SYSTEM--DESIGN AND BUILD PROJECTS AUTHORIZED.--
A. Except for road and highway construction or reconstruction projects, a design and build project delivery system may be authorized when the state purchasing agent or a central purchasing office makes a determination in writing that it is appropriate and in the best interest of the state or local public body to use the system on a specific project with a maximum allowable construction cost of more than ten million dollars ($10,000,000). The determination shall be issued only after the state purchasing agent or a central purchasing office has taken into consideration the following criteria, which shall be used as the minimum basis in determining when to use the design and build process:
(1) the extent to which the project requirements have been or can be adequately defined;
(2) time constraints for delivery of the project;
(3) the capability and experience of potential teams with the design and build process;
(4) the suitability of the project for use of the design and build process as concerns time, schedule, costs and quality; and
(5) the capability of the using agency to manage the project, including experienced personnel or outside consultants, and to oversee the project with persons who are familiar with the design and build process.
B. When a determination has been made by the state purchasing agent or a central purchasing office that it is appropriate to use a design and build project delivery system, the design and build team shall include, as needed, a New Mexico registered engineer or architect and a contractor properly licensed in New Mexico for the type of work required.
C. Except as provided in Subsections F and G of this section, for each proposed state or local public works design and build project, a two-phase procedure for awarding design and build contracts shall be adopted and shall include at a minimum the following:
(1) during phase one, and prior to solicitation, documents shall be prepared for a request for qualifications by a registered engineer or architect, either in-house or selected in accordance with Sections 13-1-120 through 13-1-124 NMSA 1978, and shall include minimum qualifications, a scope of work statement and schedule, documents defining the project requirements, the composition of the selection committee and a description of the phase-two requirements and subsequent management needed to bring the project to completion. Design and build qualifications of responding firms shall be evaluated and a maximum of five firms shall be short-listed in accordance with technical and qualifications-based criteria; and
(2) during phase two, the short-listed firms shall be invited to submit detailed specific technical concepts or solutions, costs and scheduling. Unsuccessful firms may be paid a stipend to cover proposal expenses. After evaluation of these submissions, selection shall be made and the contract awarded to the highest ranked firm.
D. Except as provided in Subsections F and G of this section, to 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 rules applicable to all using agencies, which shall be followed by all using agencies when procuring a design and build project delivery system.
E. A state agency shall make the decision on a design and build project delivery system for a state public works project, and a local public body shall make that decision for a local public works project. A state agency shall not make the decision on a design and build project delivery system for a local public works project.
F. The requirements of Subsections C and D of this section and the minimum construction cost requirement of Subsection A of this section do not apply to a design and build project delivery system and the services procured for the project if:
(1) the maximum allowable construction cost of the project is four hundred thousand dollars ($400,000) or less; and
(2) the only requirement for architects, engineers, landscape architects or surveyors is limited to either site improvements or adaption for a pre-engineered building or system.
G. The procurement of a design and build project delivery system qualifying for exemptions pursuant to Subsection F of this section, including the services of any architect, engineer, landscape architect, construction manager or surveyor needed for the project, shall be accomplished by competitive sealed bids pursuant to Sections 13-1-102 through 13-1-110 NMSA 1978 or by reverse auction pursuant to Section 13-1-110.1 NMSA 1978."
Section 10. Section 13-1-138 NMSA 1978 (being Laws 1984, Chapter 65, Section 111) is amended to read:
"13-1-138. COST OR PRICING DATA REQUIRED.--When required by the state purchasing agent or a central purchasing office, a prospective contractor shall submit cost or pricing data when the contract is expected to exceed twenty-five thousand dollars ($25,000) and is to be awarded by a method other than competitive sealed bids or reverse auction."
Section 11. Section 13-1-139 NMSA 1978 (being Laws 1984, Chapter 65, Section 112, as amended) is amended to read:
"13-1-139. COST OR PRICING DATA NOT REQUIRED.--The cost or pricing data relating to the award of a contract shall not be required when:
A. the procurement is based on competitive sealed bid or reverse auction;
B. the contract price is based on established catalogue prices or market prices;
C. the contract price is set by law or regulation;
D. the contract is for professional services; or
E. the contract is awarded pursuant to the Public [Building] Facility Energy Efficiency and Water Conservation Act."
Section 12. EMERGENCY.--It is necessary for the public peace, health and safety that this act take effect immediately.
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