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AN ACT

RELATING TO ECONOMIC DEVELOPMENT; PROTECTING CERTAIN NEW

MEXICO SMALL BUSINESSES; ENACTING A NEW SECTION OF THE

PROCUREMENT CODE TO PROVIDE FOR SEPARATE PRICING OF CERTAIN

COMPONENTS IN CERTAIN CIRCUMSTANCES.

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

Section 1. Section 13-1-21 NMSA 1978 (being Laws 1979,

Chapter 72, Section 1, as amended) is amended to read:

"13-1-21. APPLICATION OF PREFERENCES.--

A. For the purposes of this section and Section

13-1-22 NMSA 1978:

(1) "bid" means an offer made by a

competitive sealed bid pursuant to Section 13-1-102 NMSA

1978;

(2) "disadvantaged small business" means a

resident business, at least fifty-one percent of which is

owned by a woman, a United States military veteran who was

not dishonorably discharged, including a disabled veteran, or

any other minority person as defined by the minority business

development agency of the United States department of

commerce;

(3) "proposal" means an offer made by a

competitive sealed proposal pursuant to Section 13-1-102 NMSA

1978;

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(4) "recycled content goods" means supplies

and materials composed in whole or in part of recycled

materials; provided that the recycled materials content meets

or exceeds the minimum content standards required by bid

specifications;

(5) "resident business" means a New Mexico

resident business or a New York state business enterprise;

(6) "New Mexico resident business" means a

business that is authorized to and is doing business under

the laws of this state and:

(a) that maintains its principal place

of business in the state;

(b) has staffed an office and has paid

applicable state taxes for two years prior to the awarding of

the bid and has five or more employees who are residents of

the state; or

meets the requirements of Subparagraph (a) or (b) of this

paragraph. As used in this section, "affiliate" means an

entity that directly or indirectly through one or more

intermediaries controls, is controlled by or is under common

control with the qualifying business through ownership of

voting securities representing a majority of the total voting

power of the entity;

(7) "New York state business enterprise"

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means a business enterprise, including a sole proprietorship,

partnership or corporation, that offers for sale or lease or

other form of exchange, goods or commodities that are

substantially manufactured, produced or assembled in New York

state, or services, other than construction services, that

are substantially performed within New York state. For

purposes of construction services, a New York state business

enterprise means a business enterprise, including a sole

proprietorship, partnership or corporation, that has its

principal place of business in New York state;

(8) "resident manufacturer" means a person

who offers materials grown, produced, processed or

manufactured wholly in the state; provided, however, that a

New York state business enterprise shall be deemed to be a

resident manufacturer solely for the purpose of evaluating

the New York state business enterprise's bid against the bid

of a resident manufacturer that is not a New York state

business enterprise;

(9) "small business" means a resident

business as defined in Paragraph (5) of this subsection that

employs twenty or fewer employees; and

(10) "virgin content goods" means supplies

and materials that are wholly composed of nonrecycled

materials or do not meet minimum recycled content standards

required by bid specification.

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B. When bids are received only from nonresident

businesses and resident businesses and the lowest responsible

bid is from a nonresident business, the contract shall be

awarded to the resident business whose bid is nearest to the

bid price of the otherwise low nonresident business bidder if

the bid price of the resident bidder is made lower than the

bid price of the nonresident business when multiplied by a

factor of .95.

C. When bids are received only from nonresident

businesses and resident manufacturers and the lowest

responsible bid is from a nonresident business, the contract

shall be awarded to the resident manufacturer whose bid is

nearest to the bid price of the otherwise low nonresident

business bidder if the bid price of the resident manufacturer

is made lower than the bid price of the nonresident business

when multiplied by a factor of .95.

D. When bids are received only from resident

businesses and resident manufacturers and the lowest

responsible bid is from a resident business, the contract

shall be awarded to the resident manufacturer whose bid is

nearest to the bid price of the otherwise low resident

business bidder if the bid price of the resident manufacturer

is made lower than the bid price of the resident business

when multiplied by a factor of .95.

E. When bids are received from resident

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manufacturers, resident businesses and nonresident businesses

and the lowest responsible bid is from a resident business,

the contract shall be awarded to the resident manufacturer

whose bid is nearest to the bid price of the otherwise low

resident business bidder if the bid price of the resident

manufacturer is made lower than the bid price of the resident

business when multiplied by a factor of .95.

F. When bids are received from resident

manufacturers, resident businesses and nonresident businesses

and the lowest responsible bid is from a nonresident

business, the contract shall be awarded to the resident

manufacturer whose bid is nearest to the bid price of the

otherwise low nonresident business bidder if the bid price of

the resident manufacturer is evaluated as lower than the bid

price of the nonresident business when multiplied by a factor

of .95. If there is no resident manufacturer eligible for

award under this provision, then the contract shall be

awarded to the resident business whose bid is nearest to the

bid price of the otherwise low nonresident business bidder if

the bid price of the resident business is made lower than the

bid price of the nonresident business when multiplied by a

factor of .95.

G. When bids are received for virgin content goods

only or for recycled content goods only, Subsections B

through F of this section shall apply.

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H. When bids are received for both recycled

content goods and virgin content goods and the lowest

responsible bid is for virgin content goods, the contract

shall be awarded to:

(1) a resident manufacturer offering the

lowest bid on recycled content goods of equal quality if the

bid price of the resident manufacturer when multiplied by a

factor of .90 is made lower than the otherwise low virgin

content goods bid price;

(2) a resident business offering a bid on

recycled content goods of equal quality if:

(a) the bid price of no resident

manufacturer following application of the preference allowed

in Paragraph (1) of this subsection can be made sufficiently

low; and

(b) the lowest bid price of the

resident business when multiplied by a factor of .90 is made

lower than the otherwise low virgin content goods bid price;

(3) a nonresident business or nonresident

manufacturer offering recycled content goods of equal quality

if:

(a) the bid price of no resident

business or resident manufacturer following application of

the preference allowed in Paragraph (1) or (2) of this

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subsection can be made sufficiently low; and

(b) the lowest bid price of a

nonresident offering recycled content goods when multiplied

by a factor of .95 is made lower than the otherwise low

virgin content bid price.

I. When bids are received for both recycled

content goods and virgin content goods and the lowest

responsible bid is for recycled content goods offered by a

nonresident business or nonresident manufacturer, the

contract shall be awarded to:

(1) a resident manufacturer offering the

lowest bid on recycled content goods of equal quality if the

bid price of the resident manufacturer when multiplied by a

factor of .95 is made lower than the otherwise low recycled

content goods bid price; or

(2) a resident business offering a bid on

recycled content goods of equal quality if:

(a) the bid price of no resident

manufacturer following application of the preference allowed

in Paragraph (1) of this subsection can be made sufficiently

low; and

(b) the lowest bid price of the

resident business when multiplied by a factor of .95 is made

lower than the otherwise low recycled content goods bid price

offered by a nonresident business or manufacturer.

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J. When bids are received for both recycled

content goods and virgin content goods and the lowest

responsible bid is for recycled content goods offered by a

resident business, the contract shall be awarded to a

resident manufacturer offering the lowest bid on recycled

content goods of equal quality if the bid price of the

resident manufacturer when multiplied by a factor of .95 is

made lower than the otherwise low recycled content goods bid

price.

K. This section shall not apply when the

expenditure of federal funds designated for a specific

purchase is involved or for any bid price greater than five

million dollars ($5,000,000).

L. The provisions of this section shall not apply

to the purchase of buses from a resident manufacturer or a

New Mexico resident business that manufactures buses in New

Mexico. It is the purpose of this subsection to:

(1) allow any bus manufacturer or business

that manufactures buses to compete openly for public

procurement contracts in New Mexico without giving preference

to a business based on the location of the place of

manufacture of the buses;

(2) give resident manufacturers and New

Mexico resident businesses that manufacture buses an equal

opportunity to sell their buses in states that have

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reciprocal preference laws; and

(3) eliminate all different treatment of any

kind under New Mexico law and by all political jurisdictions

in the state between New Mexico resident businesses and

manufacturers that manufacture buses and businesses in other

states that manufacture and sell buses.

M. The provisions of this section shall not apply

to:

(1) construction contracts, construction

services, construction maintenance contracts or construction

contracts based on unit pricing; or

(2) construction materials to be used in any

contract or service specified in Paragraph (1) of this

subsection.

N. When bids are received from a small business

and the lowest responsible bid is from a nonresident business

or a resident business that is not a small business, the

contract shall be awarded to the small business whose bid is

nearest to the otherwise low bidder if the bid price of the

small business is made lower than the bid price of the

otherwise low bidder when multiplied by a factor of .90.

When a resident bid preference is combined with a small

business bid preference, the total maximum preference awarded

may not exceed ten percent.

O. When bids are received from a disadvantaged

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small business and the lowest responsible bid is from a

nonresident business or a resident business that is not a

disadvantaged small business, the contract shall be awarded

to the disadvantaged small business whose bid is nearest to

the otherwise low bidder if the bid price of the

disadvantaged small business is made lower than the bid price

of the otherwise low bidder when multiplied by a factor of

.85. When a resident bid preference is combined with a

disadvantaged small business bid preference, the total

maximum preference awarded may not exceed fifteen percent.

P. When proposals that include prices are received

from a resident business, those prices shall be multiplied by

.95 prior to awarding evaluation points as outlined in the

request for proposals.

Q. When proposals that include prices are received

from a small business, those prices shall be multiplied by

.90 prior to awarding evaluation points as outlined in the

request for proposals. When a resident bid preference is

combined with a small business bid preference, the total

maximum preference awarded may not exceed ten percent.

R. When proposals that include prices are received

from a disadvantaged small business, those prices shall be

multiplied by .85 prior to awarding evaluation points as

outlined in the request for proposals. When a resident bid

preference is combined with a disadvantaged small business

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bid preference, the total maximum preference awarded may not

exceed fifteen percent."

Section 2. Section 13-1-22 NMSA 1978 (being Laws 1969,

Chapter 184, Section 1, as amended) is amended to read:

"13-1-22. RESIDENT BUSINESS AND MANUFACTURER

CERTIFICATION--APPLICATION--INFORMATION.--No resident

business, resident manufacturer, small business or

disadvantaged small business, as those terms are defined in

Subsection A of Section 13-1-21 NMSA 1978, shall be given any

preference in the awarding of contracts for furnishing

materials or services to a state agency unless the resident

business, resident manufacturer, small business or

disadvantaged small business has qualified with the state

purchasing agent as a resident business, resident

manufacturer, small business or disadvantaged small business

by making application to the state purchasing agent and

receiving from the state purchasing agent a certification

number. The procedure for application and certification

shall be as follows:

A. the state purchasing agent shall prepare an

application form for certification as a resident business,

small business, resident manufacturer or disadvantaged small

business, requesting such information and proof as deemed

necessary to qualify the applicant under the terms of Section

13-1-21 NMSA 1978;

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B. the resident business, resident manufacturer,

small business or disadvantaged small business shall complete

the application form and submit it to the state purchasing

agent prior to the awarding of any contract in which the

resident business, resident manufacturer, small business or

disadvantaged small business desires to be given a

preference; and

C. the state purchasing agent shall examine the

application and if necessary may seek additional information

or necessary proof that the prospective resident business,

small business, resident manufacturer or disadvantaged small

business is entitled to the statutory preference. If all is

in order, the resident business, resident manufacturer, small

business or disadvantaged small business shall be issued a

distinctive certification number that shall be valid until

revoked and that when used on bids and other purchasing

documents shall entitle the resident business, resident

manufacturer, small business or disadvantaged small business

to the statutory preference."

Section 3. A new section of the Procurement Code is

enacted to read:

"SPECIFICATION OF CERTAIN COMPONENTS--SEPARATE PRICING

REQUIRED.--Prior to submitting a bid or proposal for a state

public works project or a local public works project, if the

state purchasing agent, the central purchasing office or a

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responsible bidder or responsible offeror determines that

there is only one source for a specific service, construction

or item of tangible personal property that is required in the

specifications, the state purchasing agent, central purchasing

office, responsible bidder or responsible offeror may require

any bid or offer submitted by a subcontractor or supplier to

separately price the specific service, construction or item of

tangible personal property."