HB0128

HOUSE BILL 128

50th legislature - STATE OF NEW MEXICO - first session, 2011

INTRODUCED BY

Luciano "Lucky" Varela

AN ACT

RELATING TO PROCUREMENT; EXEMPTING FROM THE PROCUREMENT CODE PROCUREMENTS OTHERWISE EXEMPTED UNDER OTHER LAW; REQUIRING ADDITIONAL PROCEDURES FOR SOLE SOURCE AND EMERGENCY PROCUREMENT; RESTRICTING WHO MAY MAKE EMERGENCY PROCUREMENTS; EXPANDING WHO MAY PROTEST A PROCUREMENT AWARD; INCREASING PENALTIES FOR VIOLATING THE PROCUREMENT CODE.

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

SECTION 1. Section 13-1-98 NMSA 1978 (being Laws 1984, Chapter 65, Section 71, as amended) is amended to read:

"13-1-98. EXEMPTIONS FROM THE PROCUREMENT CODE.--The provisions of the Procurement Code shall not apply to:

A. procurement of items of tangible personal property or services by a state agency or a local public body from a state agency, a local public body or external procurement unit except as otherwise provided in Sections 13-1-135 through 13-1-137 NMSA 1978;

B. procurement of tangible personal property or services for the governor's mansion and grounds;

C. printing and duplicating contracts involving materials that are required to be filed in connection with proceedings before administrative agencies or state or federal courts;

D. purchases of publicly provided or publicly regulated gas, electricity, water, sewer and refuse collection services;

E. purchases of books and periodicals from the publishers or copyright holders thereof;

F. travel or shipping by common carrier or by private conveyance or to meals and lodging;

G. purchase of livestock at auction rings or to the procurement of animals to be used for research and experimentation or exhibit;

H. contracts with businesses for public school transportation services;

I. procurement of tangible personal property or services, as defined by Sections 13-1-87 and 13-1-93 NMSA 1978, by the corrections industries division of the corrections department pursuant to rules adopted by the corrections industries commission, which shall be reviewed by the purchasing division of the general services department prior to adoption;

J. minor purchases not exceeding five thousand dollars ($5,000) consisting of magazine subscriptions, conference registration fees and other similar purchases where prepayments are required;

K. municipalities having adopted home rule charters and having enacted their own purchasing ordinances;

L. the issuance, sale and delivery of public securities pursuant to the applicable authorizing statute, with the exception of bond attorneys and general financial consultants;

M. contracts entered into by a local public body with a private independent contractor for the operation, or provision and operation, of a jail pursuant to Sections

33-3-26 and 33-3-27 NMSA 1978;

N. contracts for maintenance of grounds and facilities at highway rest stops and other employment opportunities, excluding those intended for the direct care and support of persons with handicaps, entered into by state agencies with private, nonprofit, independent contractors who provide services to persons with handicaps;

O. contracts and expenditures for services or items of tangible personal property to be paid or compensated by money or other property transferred to New Mexico law enforcement agencies by the United States department of justice drug enforcement administration;

P. contracts for retirement and other benefits pursuant to Sections 22-11-47 through 22-11-52 NMSA 1978;

Q. contracts with professional entertainers;

R. contracts and expenditures for litigation expenses in connection with proceedings before administrative agencies or state or federal courts, including experts, mediators, court reporters, process servers and witness fees, but not including attorney contracts;

S. contracts for service relating to the design, engineering, financing, construction and acquisition of public improvements undertaken in improvement districts pursuant to Subsection L of Section 3-33-14.1 NMSA 1978 and in county improvement districts pursuant to Subsection L of Section

4-55A-12.1 NMSA 1978;

T. works of art for museums or for display in public buildings or places;

U. contracts entered into by a local public body with a person, firm, organization, corporation or association or a state educational institution named in Article 12, Section 11 of the constitution of New Mexico for the operation and maintenance of a hospital pursuant to Chapter 3, Article 44 NMSA 1978, lease or operation of a county hospital pursuant to the Hospital Funding Act or operation and maintenance of a hospital pursuant to the Special Hospital District Act;

V. purchases of advertising in all media, including radio, television, print and electronic;

W. purchases of promotional goods intended for resale by the tourism department;

X. procurement of printing services for materials produced and intended for resale by the cultural affairs department;

Y. procurement by or through the public education department from the federal department of education relating to parent training and information centers designed to increase parent participation, projects and initiatives designed to improve outcomes for students with disabilities and other projects and initiatives relating to the administration of improvement strategy programs pursuant to the federal Individuals with Disabilities Education Act; provided that the exemption applies only to procurement of services not to exceed two hundred thousand dollars ($200,000);

Z. procurement of services from community rehabilitation programs or qualified individuals pursuant to

the State Use Act;

AA. purchases of products or services for eligible persons with disabilities pursuant to the federal Rehabilitation Act of 1973;

BB. procurement, by either the department of health or Grant county or both, of tangible personal property, services or construction that are exempt from the Procurement Code pursuant to Section 9-7-6.5 NMSA 1978;

CC. contracts for investment advisory services, investment management services or other investment-related services entered into by the educational retirement board, the state investment officer or the retirement board created pursuant to the Public Employees Retirement Act;

DD. the purchase for resale by the state fair commission of feed and other items necessary for the upkeep of livestock; [and]

EE. contracts entered into by the crime victims reparation commission to distribute federal grants to assist victims of crime, including grants from the federal Victims of Crime Act of 1984 and the federal Violence Against Women Act; and

FF. procurements exempt from the Procurement Code as otherwise provided by law."

SECTION 2. Section 13-1-126 NMSA 1978 (being Laws 1984, Chapter 65, Section 99, as amended) is amended to read:

"13-1-126. SOLE SOURCE PROCUREMENT.--

A. A contract may be awarded without competitive sealed bids or competitive sealed proposals regardless of the estimated cost when the state purchasing agent or a central purchasing office [makes a determination, after conducting a good-faith review of available sources and consulting the using agency] determines in writing that:

(1) there is only one source for the required service, construction or item of tangible personal property;

(2) the service, construction or item of tangible personal property is unique and this uniqueness is substantially related to the intended purpose of the contract; and

(3) other similar services, construction or items of tangible personal property cannot meet the intended purpose of the contract.

B. The state purchasing agent or a central purchasing office shall use due diligence in determining the basis for the sole source procurement, including reviewing available sources and consulting the using agency, and shall include its written determination in the procurement file.

C. The state purchasing agent or a central purchasing office shall conduct negotiations, as appropriate, as to price, delivery and quantity in order to obtain the price most advantageous to the state agency or a local public body. D. A contract for the purchase of research consultant services by institutions of higher learning constitutes a sole source procurement.

E. The state purchasing agent or a central purchasing office shall not circumvent this section by narrowly drafting specifications so that only one predetermined source would satisfy those specifications."

SECTION 3. Section 13-1-127 NMSA 1978 (being Laws 1984, Chapter 65, Section 100, as amended) is amended to read:

"13-1-127. EMERGENCY PROCUREMENTS.--

A. The state purchasing agent or a central purchasing office [or a designee of either] may make [or authorize others to make] emergency procurements when there exists a threat to public health, welfare, safety or property requiring procurement under emergency conditions; provided that emergency procurements shall be made with competition as is practicable under the circumstances. [A written determination of the basis for the emergency procurement and for the selection of the particular contractor or vendor shall be included in the procurement file. Emergency procurements shall not include the purchase or lease purchase of heavy road equipment.]

B. An emergency condition is a situation [which] that creates a threat to public health, welfare or safety such as may arise by reason of floods, fires, epidemics, riots, acts of terrorism, equipment failures or similar events and includes the planning and preparing for an emergency response. The existence of the emergency condition creates an immediate and serious need for services, construction or items of tangible personal property that cannot be met through normal procurement methods and the lack of which would seriously threaten:

(1) the functioning of government;

(2) the preservation or protection of property; or

(3) the health or safety of any person.

C. Emergency procurements shall not include the purchase or lease purchase of heavy road equipment.

D. The state purchasing agent or a central purchasing office shall use due diligence in determining the basis for the emergency procurement and for the selection of the particular contractor. The determination shall be in writing and included in the procurement file.

[C.] E. Money expended for planning and preparing for an emergency response shall be accounted for and reported to the legislative finance committee and the department of finance and administration within sixty days after the end of each fiscal year."

SECTION 4. Section 13-1-128 NMSA 1978 (being Laws 1984, Chapter 65, Section 101, as amended) is amended to read:

"13-1-128. SOLE SOURCE AND EMERGENCY PROCUREMENTS--PUBLICATION OF AWARD TO AGENCY WEB SITE AND CONTRACT DATABASE--CONTENT AND SUBMISSION OF RECORD.--

A. Prior to award of a sole source procurement contract, the state purchasing agent shall:

(1) post the information described in Subsection E of this section on the state agency web site and in the contract database pursuant to Section 13-1-97.1 NMSA 1978; and

(2) forward the same information to the legislative finance committee.

B. Prior to the award of a sole source procurement contract, the local public body central purchasing office shall post the information described in Subsection E of this section on the local public body web site, if one exists.

C. Within seventy-two hours of awarding an emergency procurement contract, the state purchasing agent shall:

(1) post the information described in Subsection E of this section on the state agency web site and in the contract database pursuant to Section 13-1-97.1 NMSA 1978; and

(2) forward the same information to the legislative finance committee.

D. Within seventy-two hours of awarding an emergency procurement contract, the local public body central purchasing office shall post the information described in Subsection E of this section on the local public body web site, if one exists.

E. All central purchasing offices shall maintain, for a minimum of three years, records of sole source and emergency procurements. The record of each such procurement shall be public record and shall contain:

[A.] (1) the contractor's name and address;

[B.] (2) the amount and term of the contract;

[C.] (3) a listing of the services, construction or items of tangible personal property procured under the contract; [and]

(4) whether the contract was a sole source or emergency procurement; and

[D.] (5) the justification for the procurement method."

SECTION 5. Section 13-1-172 NMSA 1978 (being Laws 1984, Chapter 65, Section 145, as amended) is amended to read:

"13-1-172. RIGHT TO PROTEST.--Any bidder or offeror who is aggrieved in connection with a solicitation or award of a contract, or anyone aggrieved in connection with the award of a sole source or emergency procurement contract, may protest to the state purchasing agent or a central purchasing office. The protest shall be submitted in writing within fifteen calendar days after knowledge of the facts or occurrences giving rise to the protest."

SECTION 6. Section 13-1-199 NMSA 1978 (being Laws 1984, Chapter 65, Section 172) is amended to read:

"13-1-199. [MISDEMEANOR] PENALTIES.--Any business or person [which] that violates the Procurement Code is guilty of:

A. a misdemeanor if the transaction involves ten thousand dollars ($10,000) or less;

B. a fourth degree felony if the transaction involves more than ten thousand dollars ($10,000) but not more than fifty thousand dollars ($50,000);

C. a third degree felony if the transaction involves more than fifty thousand dollars ($50,000) but not more than one hundred thousand dollars ($100,000); or

D. a second degree felony if the transaction involves more than one hundred thousand dollars ($100,000)."

SECTION 7. A new section of the Procurement Code is enacted to read:

"[NEW MATERIAL] COMPETITIVE SEALED BIDS AND PROPOSALS--RECORD MAINTENANCE.--A central purchasing office shall maintain, for a minimum of three years, all records relating to the award of a contract through a competitive sealed bid or competitive sealed proposal process, including any evaluation scoring documents used in the process. The records, excluding any proprietary information, shall be public records available for public inspection."

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