SENATE JUDICIARY COMMITTEE SUBSTITUTE FOR

SENATE BILL 31

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

AN ACT

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

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

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

          A. As used in this section:

                (1) "contract" means an agreement or transaction with a state agency or a local public body 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;

                     (c) the construction, alteration or repair of any public building or public work;

                     (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) "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 local public officer or an agent on behalf of either; or

                     (c) a donation to an organization that supports an 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;

                (3) "local contractor" means a person that enters into a contract with a local public body. "Local 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;

                (4) "local public body" means the governing authority of a political subdivision of the state;

                (5) "local public officer" means a person elected to an office, or a person appointed to complete a term of an elected office, in the political subdivision of the state where the local public body is seeking to contract with a local contractor;

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

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

                     (a) an individual who is a member of the board of directors of, or a person that has an ownership or controlling 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) an individual 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;

                (8) "prospective contractor" means a person that submits a bid in response to a bid solicitation by a state agency or a local public body, a proposal in response to a request for proposals or a response to any other solicitation by a state agency or a local public body 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;

                (9) "solicitation" means a request for the purchase of services, personal property, real property or any other thing of value;

                (10) "state agency" means an office, department, board, council, commission, institution or other agency in the executive, judicial or legislative branch of state government;

                (11) "state contractor" means a person that enters into a contract with a state agency. "State 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; and

                (12) "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 person who is involved in a solicitation or procurement process that has an active campaign committee or political committee account.

          B. A prospective contractor, prior to entering into a contract with a state agency or a local public body, 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 or local public body 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 or local public body.  

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

          F. The state agency or local public body that makes a solicitation shall provide a list to prospective contractors that indicates the name of each public officer, if any, for which disclosure is required by a prospective contractor. 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.

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

          H. If a contractor enters into a contract with a state agency or local public body, during the term of the contract, the contractor shall update the information required by this section annually and include contributions made since the beginning of the contract. Updates shall be filed by 5:00 p.m. on the second Monday in January.

           I. If a principal of a prospective contractor inadvertently makes a contribution during the pendency of the procurement process, 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.

          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 or local public body when a prospective contractor or a state or local contractor fails to submit a fully completed disclosure statement pursuant to this section or makes a contribution prohibited by Subsection G of this section.

          L. The New Mexico finance authority and the New Mexico mortgage finance authority shall adopt policies that have the same effect as the requirements of this section.

          M. The department of finance and administration 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] 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. REPEAL.--Section 13-1-191.1 NMSA 1978 (being Laws 2006, Chapter 81, Section 1, as amended) is repealed.

- 10 -