HOUSE BILL 385

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

INTRODUCED BY

Thomas C. Taylor

AN ACT

RELATING TO GOVERNMENT PROCUREMENT; PROHIBITING STATE AGENCIES AND LOCAL PUBLIC BODIES FROM CONTRACTING WITH INDIVIDUALS AND ENTITIES THAT HAVE BEEN CONVICTED OF OR FOUND CIVILLY LIABLE FOR CERTAIN CRIMINAL AND UNETHICAL CONDUCT; PROVIDING CIVIL AND CRIMINAL PENALTIES.

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

     SECTION 1. GOVERNMENT PROCUREMENT--PROHIBITION AGAINST CONTRACTING WITH CERTAIN INDIVIDUALS AND ENTITIES.--

          A. A state agency or local public body shall not seek or enter into a contractual relationship with an individual or entity if the individual, entity or a key employee of the entity has, within the ten-year period prior to the commencement of the procurement process, been convicted of, administratively or civilly found to be in violation of or determined to be civilly liable for a violation of a law that regulates the relationship between an individual or entity and the government.

          B. As used in this section:

                (1) "conviction" means a plea, judgment or verdict of guilty, a plea of nolo contendere or a plea or judgment entered in connection with a suspended sentence;

                (2) "key employee" means:

                     (a) an officer of an entity whose annual compensation from the entity exceeds one hundred thirty thousand dollars ($130,000);

                     (b) an employee of an entity, or the employee's spouse, parent, child, grandchild or sibling, who owns more than five percent of the entity;

                     (c) an employee of an entity, or the employee's spouse, parent, child, grandchild or sibling, who owns more than one percent of the entity and the employee's compensation exceeds one hundred fifty thousand dollars ($150,000); or

                     (d) a senior executive or manager of an entity who is considered to be managing or controlling the operations of the entity;

                (3) "law that regulates the relationship between an individual or entity and the government" means any of the following laws, or any provision of the following laws, for which civil or criminal penalties may be imposed for their violation:

                     (a) the Election Code;

                     (b) the Campaign Reporting Act;

                     (c) the Lobbyist Regulation Act;

                     (d) the Governmental Conduct Act;

                     (e) the Financial Disclosure Act;

                     (f) the Gift Act;

                     (g) the Procurement Code;

                     (h) the New Mexico Uniform Securities Act;

                     (i) the 1999 Public Accountancy Act;

                     (j) fraud, as provided in Section 30-16-6 NMSA 1978;

                     (k) embezzlement, as provided in Section 30-16-8 NMSA 1978;

                     (l) forgery, as provided in Section 30-16-10 NMSA 1978; 

                     (m) misconduct by officials, as provided in Sections 30-23-1 through 30-23-7 NMSA 1978;

                     (n) bribery, as provided in Sections 30-24-1 through 30-24-3.1 NMSA 1978;

                     (o) perjury and false affirmation, as provided in Section 30-25-1 NMSA 1978;

                     (p) tampering with public records, as provided in Section 30-26-1 NMSA 1978;

                     (q) this section; and

                     (r) attempt to commit a felony or conspiracy to commit a felony associated with a law identified in Subparagraphs (a) through (q) of this paragraph that includes a felony, as provided in Sections 30-28-1 and 30-28-2 NMSA 1978;

                (4) "local public body" means a political subdivision of the state or an agency, instrumentality or institution of the political subdivision, including two-year post-secondary educational institutions, school districts or local school boards, municipalities and counties; and

                (5) "state agency" means a department, commission, council, board, committee, institution, agency, government corporation or educational institution or an official of the executive, legislative or judicial branch of the government.

          C. The prohibition in Subsection A of this section applies to contractual relationships subject to the Procurement Code and to contractual relationships that are exempt from the Procurement Code.

          D. As part of a procurement process, a state agency or local public body shall specifically request information from an individual or entity that is a prospective contractor about whether the individual, the entity or a key employee of the entity has, within the ten-year period prior to the commencement of the procurement process, been convicted of, administratively or civilly found to be in violation of or determined to be civilly liable for a violation of a law that regulates the relationship between an individual or entity and the government. The request and response shall be maintained as a public record in the state agency's or local public body's files for that procurement and shall be designated as compliance with this section.

          E. An individual or entity that knowingly provides false information in the response required by Subsection D of this section is subject to a civil penalty of not more than five thousand dollars ($5,000) for each violation. The attorney general or the district attorney in the jurisdiction in which the violation occurs may bring a civil action for the enforcement of this section. A penalty collected under the provisions of this section shall be credited to the general fund of the state agency or local public body on whose behalf the civil action was brought.

          F. An individual or entity that knowingly provides false information in the response required by Subsection D of this section is guilty of a misdemeanor and shall be sentenced as provided in Section 31-19-1 NMSA 1978.

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