HOUSE BUSINESS AND INDUSTRY COMMITTEE SUBSTITUTE FOR
HOUSE BILL 705
49th legislature - STATE OF NEW MEXICO - first session, 2009
AN ACT
RELATING TO PUBLIC PROCUREMENT; INCREASING CERTAIN THRESHOLD VALUES FOR PROCUREMENT ACTIONS; AMENDING SECTIONS OF THE NMSA 1978.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 13-1-60 NMSA 1978 (being Laws 1984, Chapter 65, Section 33) is amended to read:
"13-1-60. DEFINITION--HEAVY ROAD EQUIPMENT.--"Heavy road equipment" means any motor-driven vehicle or apparatus capable of use for earth moving or mixing components [which] that has an aggregate value or price of over [one thousand dollars ($1,000)] fifty thousand dollars ($50,000)."
Section 2. 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;
B. small purchases having a value not exceeding [one thousand five hundred dollars ($1,500)] twenty thousand dollars ($20,000);
C. emergency procurement;
D. procurement of highway construction or reconstruction by the department of transportation;
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 twenty thousand dollars ($20,000);
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;
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; and
N. procurement by the public school facilities authority."
Section 3. Section 13-1-146 NMSA 1978 (being Laws 1984, Chapter 65, Section 119, as amended) is amended to read:
"13-1-146. REQUIREMENT FOR BID SECURITY.--Bid security shall be required of bidders or offerors for construction contracts when the price is estimated by the procurement officer to exceed [twenty-five thousand dollars ($25,000)] sixty thousand dollars ($60,000). Bid security in an amount equal to at least five percent of the amount of the bid shall be a bond provided by a surety company authorized to do business in this state, or the equivalent in cash, or otherwise supplied in a form satisfactory to the state agency or a local public body."
Section 4. Section 13-1-155 NMSA 1978 (being Laws 1984, Chapter 65, Section 128, as amended) is amended to read:
"13-1-155. PROCUREMENT OF USED ITEMS--APPRAISAL REQUIRED--COUNTY ROAD EQUIPMENT EXCEPTION FOR AUCTIONS.--
A. A central purchasing office, when procuring used items of tangible personal property the estimated cost of which exceeds [five thousand dollars ($5,000)] twenty thousand dollars ($20,000), shall request bids as though the items were new, adding specifications that permit used items under conditions to be outlined in the bid specifications, including but not limited to requiring a written warranty for at least ninety days after date of delivery and an independent "certificate of working order" by a qualified mechanic or appraiser.
B. Notwithstanding the provisions of Subsection A of this section, the purchasing office for a county may purchase, at public or private auctions conducted by established, recognized commercial auction companies, used heavy equipment having an estimated cost that exceeds [five thousand dollars ($5,000)] twenty thousand dollars ($20,000) for use in construction and maintenance of county streets, roads and highways, subject to the following provisions:
(1) the commercial auction company shall have been in business for at least three years preceding the date of purchase and shall conduct at least five auctions annually;
(2) the value of each piece of equipment shall be appraised prior to the auction by a qualified disinterested appraiser retained and paid by the county, who shall make a written appraisal report stating the basis for the appraisal, including the age, condition and comparable sales, and stating that the appraiser has exercised [his] independent judgment without prior understanding or agreement with any person as to a target value or range of value;
(3) an independent "certificate of working condition" shall be obtained prior to the auction from a qualified mechanic who shall have made a detailed inspection of each major working or major functional part and certified the working condition of each; and
(4) the price paid, including all auction fees and buyer's surcharges, shall not exceed the appraised value."
Section 5. Section 13-1-156 NMSA 1978 (being Laws 1984, Chapter 65, Section 129, as amended) is amended to read:
"13-1-156. TRADE OR EXCHANGE OF USED ITEMS--APPRAISAL REQUIRED.--
A. A central purchasing office, when trading in or exchanging used items of tangible personal property the estimated value of which exceeds [five thousand dollars ($5,000)] twenty thousand dollars ($20,000) as part-payment on the procurement of new items of tangible personal property, shall:
(1) have an independent appraisal made of the items to be traded in or exchanged. The appraisal shall be in writing, shall be made part of the procurement file and shall be a public record. The invitation for bids or request for proposals shall contain notice to prospective bidders or offerors of the description and specifications of the items to be traded in or exchanged, the appraised value of the items to be traded in or exchanged and the location where the items to be traded in or exchanged may be inspected; or
(2) have two written quotes for purchase of the property at a specified price.
B. Award shall be based upon the net bid. Bidders or offerors shall compute their net bid or offer by deducting the appraised value or highest quote of the items to be traded in or exchanged from the gross bid or offer on the new items of tangible personal property to be procured. If an amount offered in trade is less than the appraised value or the highest quote but is found to be a fair reflection of the current market, representative of the condition of the items of tangible personal property and in the best interest of the agency, the bid or offer may be accepted. Documentation of the terms of acceptance shall be in writing, shall be made a part of the procurement file and shall be a public record."
Section 6. Section 13-4-13.1 NMSA 1978 (being Laws 2004, Chapter 89, Section 1, as amended) is amended to read:
"13-4-13.1. PUBLIC WORKS CONTRACTS--REGISTRATION OF CONTRACTORS AND SUBCONTRACTORS.--
A. Except as otherwise provided in this subsection, in order to submit a bid valued at more than [fifty thousand dollars ($50,000)] sixty thousand dollars ($60,000) in order to respond to a request for proposals or to be considered for award of any portion of a public works project greater than [fifty thousand dollars ($50,000)] sixty thousand dollars ($60,000) for a public works project that is subject to the Public Works Minimum Wage Act, the contractor, serving as a prime contractor or not, shall be registered with the labor [and industrial division of the labor] relations division of the workforce solutions department. Bidding documents issued or released by a state agency or political subdivision of the state shall include a clear notification that each contractor, prime contractor or subcontractor is required to be registered pursuant to this subsection. The provisions of this section do not apply to vocational classes in public schools or public post-secondary educational institutions.
B. The state or any political subdivision of the state shall not accept a bid on a public works project subject to the Public Works Minimum Wage Act from a prime contractor that does not provide proof of required registration for itself.
C. Contractors and subcontractors may register with the division on a form provided by the division and in accordance with [labor] workforce solutions department rules. The division shall charge an annual registration fee of two hundred dollars ($200). The division shall issue to the applicant a certificate of registration within fifteen days after receiving from the applicant the completed registration form and the registration fee.
D. Registration fees collected by the division shall be deposited in the labor enforcement fund."
Section 7. Section 13-6-1 NMSA 1978 (being Laws 1961, Chapter 100, Section 1, as amended) is amended to read:
"13-6-1. DISPOSITION OF OBSOLETE, WORN-OUT OR UNUSABLE TANGIBLE PERSONAL PROPERTY.--
A. The governing authority of each state agency, local public body, school district and state educational institution may dispose of any item of tangible personal property belonging to that authority and delete the item from its public inventory upon a specific finding by the authority that the item of property is:
(1) of a current resale value of [five thousand dollars ($5,000)] twenty thousand dollars ($20,000) or less; and
(2) worn-out, unusable or obsolete to the extent that the item is no longer economical or safe for continued use by the body.
B. The governing authority shall, as a prerequisite to the disposition of any items of tangible personal property:
(1) designate a committee of at least three officials of the governing authority to approve and oversee the disposition; and
(2) give notification at least thirty days prior to its action making the deletion by sending a copy of its official finding and the proposed disposition of the property to the state auditor and the appropriate approval authority designated in Section 13-6-2 NMSA 1978, duly sworn and subscribed under oath by each member of the authority approving the action.
C. A copy of the official finding and proposed disposition of the property sought to be disposed of shall be made a permanent part of the official minutes of the governing authority and maintained as a public record subject to the Inspection of Public Records Act.
D. The governing authority shall dispose of the tangible personal property by negotiated sale to any governmental unit of an Indian nation, tribe or pueblo in New Mexico or by negotiated sale or donation to other state agencies, local public bodies, school districts, state educational institutions or municipalities or through the central purchasing office of the governing authority by means of competitive sealed bid or public auction or, if a state agency, through the surplus property bureau of the transportation services division of the general services department.
E. A state agency shall give the surplus property bureau of the transportation services division of the general services department the right of first refusal when disposing of obsolete, worn-out or unusable tangible personal property of the state agency.
F. If the governing authority is unable to dispose of the tangible personal property pursuant to Subsection D or E of this section, the governing authority may sell or, if the property has no value, donate the property to any organization described in Section 501(c)(3) of the Internal Revenue Code of 1986.
G. If the governing authority is unable to dispose of the tangible personal property pursuant to Subsection D, E or F of this section, it may order that the property be destroyed or otherwise permanently disposed of in accordance with applicable laws.
H. If the governing authority determines that the tangible personal property is hazardous or contains hazardous materials and may not be used safely under any circumstances, the property shall be destroyed and disposed of pursuant to Subsection G of this section.
I. No tangible personal property shall be donated to an employee or relative of an employee of a state agency, local public body, school district or state educational institution; provided that nothing in this subsection precludes an employee from participating and bidding for public property at a public auction.
J. This section shall not apply to any property acquired by a museum through abandonment procedures pursuant to the Abandoned Cultural Properties Act."
Section 8. Section 13-6-2 NMSA 1978 (being Laws 1979, Chapter 195, Section 3, as amended) is amended to read:
"13-6-2. SALE OF PROPERTY BY STATE AGENCIES OR LOCAL PUBLIC BODIES--AUTHORITY TO SELL OR DISPOSE OF PROPERTY--APPROVAL OF APPROPRIATE APPROVAL AUTHORITY.--
A. Providing a written determination has been made, a state agency, local public body, school district or state educational institution may sell or otherwise dispose of real or tangible personal property belonging to the state agency, local public body, school district or state educational institution.
B. A state agency, local public body, school district or state educational institution may sell or otherwise dispose of real property:
(1) by negotiated sale or donation to an Indian nation, tribe or pueblo located wholly or partially in New Mexico, or to a governmental unit of an Indian nation, tribe or pueblo in New Mexico, that is authorized to purchase land and control activities on its land by an act of congress or to purchase land on behalf of the Indian nation, tribe or pueblo;
(2) by negotiated sale or donation to other state agencies, local public bodies, school districts or state educational institutions;
(3) through the central purchasing office of the state agency, local public body, school district or state educational institution by means of competitive sealed bid, public auction or negotiated sale to a private person or to an Indian nation, tribe or pueblo in New Mexico; or
(4) if a state agency, through the surplus property bureau of the transportation services division of the general services department.
C. A state agency shall give the surplus property bureau of the transportation services division of the general services department the right of first refusal to dispose of tangible personal property of the state agency. A school district may give the surplus property bureau the right of first refusal to dispose of tangible personal property of the school district.
D. Except as provided in Section 13-6-2.1 NMSA 1978 requiring state board of finance approval for certain transactions, sale or disposition of real or tangible personal property having a current resale value of more than [five thousand dollars ($5,000)] twenty thousand dollars ($20,000) may be made by a state agency, local public body, school district or state educational institution if the sale or disposition has been approved by the state budget division of the department of finance and administration for state agencies, the local government division of the department of finance and administration for local public bodies, the public education department for school districts and the higher education department for state educational institutions.
E. Prior approval of the appropriate approval authority is not required if the tangible personal property is to be used as a trade-in or exchange pursuant to the provisions of the Procurement Code.
F. The appropriate approval authority may condition the approval of the sale or other disposition of real or tangible personal property upon the property being offered for sale or donation to a state agency, local public body, school district or state educational institution.
G. The appropriate approval authority may credit a payment received from the sale of such real or tangible personal property to the governmental body making the sale. The state agency, local public body, school district or state educational institution may convey all or any interest in the real or tangible personal property without warranty.
H. This section does not apply to:
(1) computer software of a state agency;
(2) those institutions specifically enumerated in Article 12, Section 11 of the constitution of New Mexico;
(3) the New Mexico state police division of the department of public safety;
(4) the state land office or the department of transportation;
(5) property acquired by a museum through abandonment procedures pursuant to the Abandoned Cultural Properties Act;
(6) leases of county hospitals with any person pursuant to the Hospital Funding Act;
(7) property acquired by the economic development department pursuant to the Statewide Economic Development Finance Act; and
(8) the state parks division of the energy, minerals and natural resources department."
Section 9. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2009.
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