SB0031

SENATE BILL 31

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

INTRODUCED BY

Dede Feldman

ENDORSED BY THE

COURTS, CORRECTIONS AND JUSTICE COMMITTEE

AN ACT

RELATING TO PUBLIC CONTRACTS; REQUIRING PROSPECTIVE CONTRACTORS TO REGISTER WITH THE GENERAL SERVICES DEPARTMENT; REQUIRING DISCLOSURE OF AND PROHIBITING CERTAIN CONTRIBUTIONS BY PROSPECTIVE CONTRACTORS AND CONTRACTORS; PROVIDING FOR ONLINE ACCESS OF DISCLOSURE STATEMENTS AND REGISTRATION INFORMATION; AMENDING AND ENACTING SECTIONS OF THE NMSA 1978.

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

SECTION 1. [NEW MATERIAL] PROSPECTIVE CONTRACTOR REGISTRATION--CONTRIBUTION DISCLOSURE AND PROHIBITION.--

A. As used in this section:

(1) "contract" means an agreement or transaction with a state agency having a value of fifty thousand dollars ($50,000) or more, or a combination or series of such agreements or transactions having a value of fifty thousand dollars ($50,000) or more, in a fiscal year, for:

(a) the rendition of services, including professional services;

(b) the furnishing of any material, supplies or equipment;

(d) the acquisition, sale or lease of any land or building;

(e) a licensing arrangement;

(f) a loan or loan guarantee; or

(g) the purchase of financial securities or instruments;

(2) "contractor" means a person that enters into a contract with a state agency. "Contractor" does not include a state agency or a political subdivision of the state or an employee of a state agency or political subdivision of the state, whether full- or part-time, in that person's capacity as an employee of the state or political subdivision of the state or a health care professional providing services under a medicaid provider agreement;

(3) "contribution" means:

(a) a gift, subscription, loan, advance or deposit of money or other thing of value, including the estimated value of an in-kind contribution, that is made or received for a political purpose, including payment of a debt incurred in an election campaign;

(b) a donation to an organization that is made in response to a request by a state public officer or an agent on behalf of a state public officer; or

(c) a donation to an organization that supports a state agency pursuant to the provisions of Section 6-5A-1 NMSA 1978 if the donor seeks or obtains a contract with the agency that the organization supports;

(4) "pendency of the procurement process" means the time period commencing on the day of the initial solicitation for a contract by the state agency and ending with the award of the contract or the cancellation of the solicitation;

(5) "principal of a contractor" or "principal of a prospective contractor" means, in addition to the contractor or prospective contractor itself:

(a) a person who is a member of the board of directors of, or has an ownership interest in, a contractor or prospective contractor, except for a person who owns less than five percent of the shares of a contractor or prospective contractor that is a publicly traded corporation;

(b) a person who is the chief executive officer of a contractor or prospective contractor;

(c) an agent, including a lobbyist subject to the Lobbyist Regulation Act, seeking a contract for a contractor or prospective contractor; or

(d) a political committee established by or on behalf of a person described in this paragraph;

(6) "prospective contractor" means a person that submits a bid in response to a bid solicitation by a state agency, a proposal in response to a request for proposals or a response to any other solicitation by a state agency until the contract has been entered into. "Prospective contractor" does not include a state agency or a political subdivision of the state or an employee of a state agency or political subdivision of the state, whether full- or part-time, in that person's capacity as an employee of the state or political subdivision of the state or a health care professional providing services under a medicaid provider agreement;

(7) "solicitation" means a request to enter into a contract for services, personal property, real property or any other thing of value;

(8) "state agency" means an office, department, board, council, commission, institution or other agency in the executive, judicial or legislative branch of state government, an institution of the state or an instrumentality of the state, including the New Mexico finance authority and the New Mexico mortgage finance authority; and

(9) "state public officer" means a person elected to an office, or a person appointed to complete a term of an elected office, in the executive, judicial or legislative branch of state government, a campaign committee established or controlled by or affiliated with that person or any department secretary in the executive branch having an active campaign committee or political committee account.

B. A prospective contractor, prior to entering into a contract with a state agency, shall register with the general services department on a form developed by the department and made available on the department's web site. The prospective contractor shall provide the following information:

(1) the name and address of the business;

(2) the principals of the business;

(3) any affiliated business entities;

(4) the name and address of a contact person for the business; and

(5) any contracts the prospective contractor currently has with a state agency and the amount and term of the contract.

C. A prospective contractor shall update any of the information required by Subsection B of this section prior to responding to a solicitation from a state agency.

D. A prospective contractor shall disclose all contributions given by a principal of the prospective contractor to a state public officer of the state agency soliciting the contract during the two years prior to the date the prospective contractor responds to a solicitation by a state agency to enter into a contract with the state agency if the total contributions from the principal to the state public officer exceed two hundred fifty dollars ($250) over the two- year period.

E. The disclosure shall indicate the date, the amount and the nature of the contribution and the person receiving the contribution. Prospective contractors shall complete the disclosure statement online, and the general services department shall post the disclosure statements in a searchable format on its web site.

F. A principal of a prospective contractor that is seeking to contract with a state agency shall not make a contribution to or solicit a contribution for a state public officer of the state agency soliciting the contract during the pendency of the procurement process.

G. If a prospective contractor enters into a contract with a state agency, during the term of the contract, the contractor shall update the information required by this section quarterly. Quarterly updates shall be filed by 5:00 p.m. on the second Monday in January, April, July and October.

H. A principal of a contractor shall not make a contribution to or solicit a contribution for the benefit of a state public officer of the state agency that has entered into a contract with the contractor during the term of the contract.

I. If a principal of a prospective contractor or principal of a contractor inadvertently makes a contribution that would otherwise bar the contractor from receiving a contract or makes a contribution prohibited by Subsection H of this section, the principal may request full reimbursement from the recipient, and, if reimbursement is received within thirty days after the date on which the contribution was made, the contractor shall be eligible to receive a contract or shall no longer be in violation, as appropriate. Any contribution made during the pendency of the procurement process shall be presumed not to be made inadvertently.

J. Before awarding or entering into a contract with a prospective contractor, the appropriate purchasing agent or contract evaluation committee shall review the information that the prospective contractor has submitted and shall certify that the prospective contractor has properly registered with the general services department and submitted the list of contributions required by this section.

K. A solicitation for or proposed award of a contract may be canceled or a contract that is executed may be terminated if it is in the best interests of the state when a prospective contractor or a contractor fails to submit a fully completed disclosure statement pursuant to this section or makes a contribution prohibited by Subsection F or H of this section.

L. The general services department shall issue all rules necessary to carry out the provisions of this section.

SECTION 2. 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 that shall be issued and shall include:

(1) the specifications for the services or items of tangible personal property to be procured;

(2) all contractual terms and conditions applicable to the procurement;

(3) the [form] applicable instructions for disclosure of [campaign] contributions given by prospective contractors to applicable public officials pursuant to Section 13-1-191.1 NMSA 1978 or Section 1 of this 2011 act; and

(4) the location where proposals are to be received and the date, time and place where proposals are to be received and reviewed.

B. 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.

C. In the case of requests for competitive qualifications-based proposals, price shall be determined by formal negotiations related to scope of work."

SECTION 3. Section 13-1-191.1 NMSA 1978 (being Laws 2006, Chapter 81, Section 1, as amended) is amended to read:

"13-1-191.1. CAMPAIGN CONTRIBUTION DISCLOSURE AND PROHIBITION.--

A. This section applies to prospective contractors with [the state or] a local public body.

B. A prospective contractor subject to this section shall disclose all campaign contributions given by the prospective contractor or a family member or representative of the prospective contractor to an applicable public official of [the state or] a local public body during the two years prior to the date on which a proposal is submitted or, in the case of a sole source or small purchase contract, the two years prior to the date on which the contractor signs the contract, if the aggregate total of contributions given by the prospective contractor or a family member or representative of the prospective contractor to the public official exceeds two hundred fifty dollars ($250) over the two-year period.

C. The disclosure shall indicate the date, the amount, the nature and the purpose of the contribution. The disclosure statement shall be on a form developed and made available electronically by the department of finance and administration to all [state agencies and] local public bodies. The [state agency or] local public body that procures the services or items of tangible personal property shall indicate on the form the name or names of every applicable public official, if any, for which disclosure is required by a prospective contractor for each competitive sealed proposal, sole source or small purchase contract. The form shall be filed with the [state agency or] local public body as part of the competitive sealed proposal or, in the case of a sole source or small purchase contract, on the date on which the contractor signs the contract.

D. A prospective contractor submitting a disclosure statement pursuant to this section who has not contributed to an applicable public official, whose family members have not contributed to an applicable public official or whose representatives have not contributed to an applicable public official shall make a statement that no contribution was made.

E. A prospective contractor or a family member or representative of the prospective contractor shall not give a campaign contribution or other thing of value to an applicable public official or the applicable public official's employees during the pendency of the procurement process or during the pendency of negotiations for a sole source or small purchase contract.

F. A solicitation or proposed award for a proposed contract may be canceled pursuant to Section 13-1-181 NMSA 1978 or a contract that is executed may be ratified or terminated pursuant to Section 13-1-182 NMSA 1978 if:

(1) a prospective contractor fails to submit a fully completed disclosure statement pursuant to this section; or

(2) a prospective contractor or family member or representative of the prospective contractor gives a campaign contribution or other thing of value to an applicable public official or the applicable public official's employees during the pendency of the procurement process.

G. As used in this section:

(1) "applicable public official" means a person elected to an office, or a person appointed to complete a term of an elected office, who has the authority to award or influence the award of the contract for which the prospective contractor is submitting a competitive sealed proposal or who has the authority to negotiate a sole source or small purchase contract that may be awarded without submission of a sealed competitive proposal;

(2) "family member" means a spouse, father, mother, child, father-in-law, mother-in-law, daughter-in-law or son-in-law of:

(a) a prospective contractor, if the prospective contractor is a natural person; or

(b) an owner of a prospective contractor;

(3) "pendency of the procurement process" means the time period commencing with the public notice of the request for proposals and ending with the award of the contract or the cancellation of the request for proposals;

(4) "prospective contractor" means a person or business that is subject to the competitive sealed proposal process set forth in the Procurement Code or is not required to submit a competitive sealed proposal because that person or business qualifies for a sole source or small purchase contract; and

(5) "representative of the prospective contractor" means an officer or director of a corporation, a member or manager of a limited liability corporation, a partner of a partnership or a trustee of a trust of the prospective contractor."

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