SB0149

SENATE BILL 149

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

INTRODUCED BY

David Ulibarri

FOR THE MILITARY AND VETERANS' AFFAIRS COMMITTEE

AN ACT

RELATING TO PROCUREMENT; PROTECTING CERTAIN NEW MEXICO SMALL BUSINESSES; AMENDING THE PROCUREMENT CODE TO PROVIDE FOR A THREE PERCENT PREFERENCE FOR VETERAN-OWNED BUSINESSES.

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

SECTION 1. Section 13-1-21 NMSA 1978 (being Laws 1979, Chapter 72, Section 1, as amended) is amended to read:

"13-1-21. APPLICATION OF PREFERENCES.--

A. For the purposes of this section:

(1) ["resident business" means a New Mexico resident business or a New York state business enterprise] "bid" means an offer to do work or supply goods at a stated price made by competitive process;

(2) "New Mexico resident business" means a business that is authorized to do and is doing business under the laws of this state and that:

(a) [that] maintains its principal place of business in the state;

(b) has staffed an office and has paid applicable state taxes for two years prior to the awarding of the bid and has five or more employees who are residents of the state; or

(c) is an affiliate of a business that meets the requirements of Subparagraph (a) or (b) of this paragraph. As used in this section, "affiliate" means an entity that directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with the qualifying business through ownership of voting securities representing a majority of the total voting power of the entity;

(3) "New York state business enterprise" means a business enterprise, including a sole proprietorship, partnership or corporation, that offers for sale or lease or other form of exchange, goods or commodities that are substantially manufactured, produced or assembled in New York state, or services, other than construction services, that are substantially performed within New York state. For purposes of construction services, [a] "New York state business enterprise" means a business enterprise, including a sole proprietorship, partnership or corporation, that has its principal place of business in New York state;

(4) "public body" means the executive, legislative and judicial branches of state and local governments, including home rule municipalities;

(5) "recycled content goods" means supplies and materials composed in whole or in part of recycled materials; provided that the recycled materials content meets or exceeds the minimum content standards required by bid specifications;

(6) "resident business" means a New Mexico resident business or a New York state business enterprise;

[(4)] (7) "resident manufacturer" means a person who offers materials grown, produced, processed or manufactured wholly in the state; provided, however, that a New York state business enterprise shall be deemed to be a resident manufacturer solely for the purpose of evaluating the New York state business enterprise's bid against the bid of a resident manufacturer that is not a New York state business enterprise;

[(5) "recycled content goods" means supplies and materials composed in whole or in part of recycled materials; provided that the recycled materials content meets or exceeds the minimum content standards required by bid specifications; and]

(8) "veteran-owned business" means a resident business, at least fifty-one percent of which is owned by an honorably discharged member of the United States armed forces;

(9) "veteran-owned manufacturer" means a resident manufacturer, at least fifty-one percent of which is owned by an honorably discharged member of the United States armed forces; and

[(6)] (10) "virgin content goods" means supplies and materials that are wholly composed of nonrecycled materials or do not meet minimum recycled content standards required by bid specification.

[B. When bids are received only from nonresident businesses and resident businesses and the lowest responsible bid is from a nonresident business, the contract shall be awarded to the resident business whose bid is nearest to the bid price of the otherwise low nonresident business bidder if the bid price of the resident bidder is made lower than the bid price of the nonresident business when multiplied by a factor of .95.

C. When bids are received only from nonresident businesses and resident manufacturers and the lowest responsible bid is from a nonresident business, the contract shall be awarded to the resident manufacturer whose bid is nearest to the bid price of the otherwise low nonresident business bidder if the bid price of the resident manufacturer is made lower than the bid price of the nonresident business when multiplied by a factor of .95.

D. When bids are received only from resident businesses and resident manufacturers and the lowest responsible bid is from a resident business, the contract shall be awarded to the resident manufacturer whose bid is nearest to the bid price of the otherwise low resident business bidder if the bid price of the resident manufacturer is made lower than the bid price of the resident business when multiplied by a factor of .95.

E. When bids are received from resident manufacturers, resident businesses and nonresident businesses and the lowest responsible bid is from a resident business, the contract shall be awarded to the resident manufacturer whose bid is nearest to the bid price of the otherwise low resident business bidder if the bid price of the resident manufacturer is made lower than the bid price of the resident business when multiplied by a factor of .95.

F. When bids are received from resident manufacturers, resident businesses and nonresident businesses and the lowest responsible bid is from a nonresident business, the contract shall be awarded to the resident manufacturer whose bid is nearest to the bid price of the otherwise low nonresident business bidder if the bid price of the resident manufacturer is evaluated as lower than the bid price of the nonresident business when multiplied by a factor of .95. If there is no resident manufacturer eligible for award under this provision, then the contract shall be awarded to the resident business whose bid is nearest to the bid price of the otherwise low nonresident business bidder if the bid price of the resident business is made lower than the bid price of the nonresident business when multiplied by a factor of .95.]

B. When a public body receives bids and the lowest responsible bid is from a nonresident business, the contract shall be awarded to:

(1) the veteran-owned manufacturer whose bid is nearest to the bid price of the otherwise low nonresident business if the bid price of the veteran-owned manufacturer is

made lower than the bid price of the nonresident business when multiplied by a factor of .92;

(2) the resident manufacturer whose bid is nearest to the bid price of the otherwise low nonresident business if the bid price of the resident manufacturer is made lower than the bid price of the:

(a) nonresident business when multiplied by a factor of .95; and

(b) veteran-owned manufacturer when multiplied by a factor of 1.03;

(3) the veteran-owned business whose bid is nearest to the bid price of the otherwise low nonresident business if the bid price of the veteran-owned business is made lower than the bid price of the:

(a) nonresident business when multiplied by a factor of .92;

(b) veteran-owned manufacturer when multiplied by a factor of 1.05; and

(4) the resident business whose bid is nearest to the bid price of the otherwise low nonresident business if the bid price of the resident business is made lower than the bid price of the:

(a) nonresident business when multiplied by a factor of .95;

(b) veteran-owned manufacturer when multiplied by a factor of 1.08;

(d) veteran-owned business when multiplied by a factor of 1.02.

C. When a public body receives bids and the lowest responsible bid is from a resident business, the contract shall be awarded to:

(1) the veteran-owned manufacturer whose bid is nearest to the bid price of the otherwise low resident business if the bid price of the veteran-owned manufacturer is

made lower than the bid price of the resident business when multiplied by a factor of .92;

(2) the resident manufacturer whose bid is nearest to the bid price of the otherwise low resident business if the bid price of the resident manufacturer is made lower than the bid price of the:

(a) resident business when multiplied by a factor of .95; and

(b) veteran-owned manufacturer when multiplied by a factor of 1.03; or

(3) the veteran-owned business whose bid is nearest to the bid price of the otherwise low resident business if the bid price of the veteran-owned business is made lower than the bid price of the:

(a) resident business when multiplied by a factor of .97;

(b) veteran-owned manufacturer when multiplied by a factor of 1.05; and

D. When a public body receives bids and the lowest responsible bid is from a veteran-owned business, the contract shall be awarded to:

(1) the veteran-owned manufacturer whose bid is nearest to the bid price of the otherwise low veteran-owned business if the bid price of the veteran-owned manufacturer is made lower than the bid price of the veteran-owned business when multiplied by a factor of .95; or

(2) the resident manufacturer whose bid is nearest to the bid price of the otherwise low veteran-owned business if the bid price of the resident manufacturer is made lower than the bid price of the:

(a) veteran-owned business when multiplied by a factor of .98; and

(b) veteran-owned manufacturer when multiplied by a factor of 1.03.

E. When bids are received by a public body and the lowest responsible bid is from a resident manufacturer, the contract shall be awarded to the veteran-owned manufacturer whose bid is nearest to the bid price of the otherwise low resident manufacturer if the bid price of the veteran-owned manufacturer is made lower than the bid price of the resident manufacturer when multiplied by a factor of .97.

[G.] F. When bids are received by a public body for virgin content goods only or for recycled content goods only, Subsections B through [F] E of this section shall apply.

[H.] G. When bids are received by a public body for both recycled content goods and virgin content goods and the lowest responsible bid is for virgin content goods, the contract shall be awarded to:

(1) a veteran-owned manufacturer offering the lowest bid on recycled content goods of equal quality if the bid price of the veteran-owned manufacturer is made lower than the otherwise low virgin content goods bid price when multiplied by a factor of .87;

[(1)] (2) a resident manufacturer offering the lowest bid on recycled content goods of equal quality if the bid price of the resident manufacturer [when multiplied by a factor of .90] is made lower than:

(a) the otherwise low virgin content goods bid price when multiplied by a factor of .90; and

(b) the veteran-owned manufacturer when multiplied by a factor of 1.03;

(3) a veteran-owned business offering the lowest bid on recycled content goods of equal quality if the bid price of the veteran-owned business is made lower than:

(a) the otherwise low virgin content goods bid price when multiplied by a factor of .87;

(b) the veteran-owned manufacturer when multiplied by a factor of 1.05; and

[(2)] (4) a resident business offering [a] the lowest bid on recycled content goods of equal quality if

[(a) the bid price of no resident manufacturer following application of the preference allowed in Paragraph (1) of this subsection can be made sufficiently low; and

(b) the lowest bid price of the resident business when multiplied by a factor of .90 is made lower than the otherwise low virgin content goods bid price; or

(3) a nonresident business or nonresident manufacturer offering recycled content goods of equal quality if:

(a) the bid price of no resident business or resident manufacturer following application of the preference allowed in Paragraph (1) or (2) of this subsection can be made sufficiently low; and

(b) the lowest bid price of a nonresident offering recycled content goods when multiplied by a factor of .95 is made lower than the otherwise low virgin content bid price] the bid price of the resident business is made lower than:

(a) the otherwise low virgin content goods bid price when multiplied by a factor of .90;

(b) the veteran-owned manufacturer when multiplied by a factor of 1.08;

(d) the veteran-owned business when multiplied by a factor of 1.03; or

(5) a nonresident business offering recycled content goods of equal quality if the bid price of the nonresident business is made lower than:

(a) the otherwise low virgin content goods bid price when multiplied by a factor of .95;

(b) the veteran-owned manufacturer when multiplied by a factor of 1.08;

(d) the veteran-owned business when multiplied by a factor of 1.08; and

(e) the resident business when multiplied by a factor of 1.05.

[I.] H. When bids are received by a public body for both recycled content goods and virgin content goods and the lowest responsible bid is for recycled content goods offered by a nonresident business or nonresident manufacturer, the contract shall be awarded to:

(1) a veteran-owned manufacturer offering the lowest bid on recycled content goods of equal quality if the bid price of the veteran-owned manufacturer is made lower than the otherwise low recycled content goods bid price when multiplied by a factor of .92;

(a) the otherwise low recycled content goods bid price [or] when multiplied by a factor of .95; and

(b) the veteran-owned manufacturer when multiplied by a factor of 1.03;

(3) a veteran-owned business offering the lowest bid on recycled content goods of equal quality if the bid price of the veteran-owned business is made lower than:

(a) the otherwise low recycled content goods bid price when multiplied by a factor of .92;

(b) the veteran-owned manufacturer when multiplied by a factor of 1.05; and

[(2)] (4) a resident business offering a bid on recycled content goods of equal quality if

[(a) the bid price of no resident manufacturer following application of the preference allowed in Paragraph (1) of this subsection can be made sufficiently low; and

(b) the lowest] the bid price of the resident business [when multiplied by a factor of .95] is made lower than:

(a) the otherwise low recycled content goods bid price [offered by a nonresident business or manufacturer] when multiplied by a factor of .95;

(b) the veteran-owned manufacturer when multiplied by a factor of 1.08;

(d) the veteran-owned business when multiplied by a factor of 1.03.

[J.] I. When bids are received by a public body for both recycled content goods and virgin content goods and the lowest responsible bid is for recycled content goods offered by a resident business, the contract shall be awarded to:

(1) a veteran-owned manufacturer offering the lowest bid on recycled content goods of equal quality if the bid price of the veteran-owned manufacturer is made lower than the otherwise low recycled content goods bid price when multiplied by a factor of .92;

(2) a resident manufacturer offering the lowest bid on recycled content goods of equal quality if the bid price of the resident manufacturer [when multiplied by a factor of .95] is made lower than:

(a) the otherwise low recycled content goods bid price when multiplied by a factor of .95; and

(b) the veteran-owned manufacturer when multiplied by a factor of 1.03; or

(3) a veteran-owned business offering the lowest bid on recycled content goods of equal quality if the bid price of the veteran-owned business is made lower than:

(a) the otherwise low recycled content goods bid price when multiplied by a factor of .97;

(b) the veteran-owned manufacturer when multiplied by a factor of 1.05; and

J. When bids are received by a public body for both recycled content goods and virgin content goods and the lowest responsible bid is for recycled content goods offered by a veteran-owned business, the contract shall be awarded to:

(1) a veteran-owned manufacturer offering the lowest bid on recycled content goods of equal quality if the bid price of the veteran-owned manufacturer is made lower than the otherwise low recycled content goods bid price when multiplied by a factor of .95; or

(2) a resident manufacturer offering the lowest bid on recycled content goods of equal quality if the bid price of the resident manufacturer is made lower than:

(a) the otherwise low recycled content goods bid price when multiplied by a factor of .98; and

(b) the veteran-owned manufacturer when multiplied by a factor of 1.03.

K. When bids are received by a public body for both recycled content goods and virgin content goods and the lowest responsible bid is for recycled content goods offered by a resident manufacturer, the contract shall be awarded to a veteran-owned manufacturer offering the lowest bid on recycled content goods of equal quality if the bid price of the veteran-owned manufacturer is made lower than the otherwise low recycled content goods bid price when multiplied by a factor of .95.

[K.] L. This section shall not apply when the expenditure of federal funds designated for a specific purchase is involved or for any bid price greater than five million dollars ($5,000,000).

[L.] M. The provisions of this section shall not apply to the purchase of buses from a resident manufacturer or a New Mexico resident business that manufactures buses in New Mexico. It is the purpose of this subsection to:

(1) allow any bus manufacturer or business that manufactures buses to compete openly for public procurement contracts in New Mexico without giving preference to a business based on the location of the place of manufacture of the buses;

(2) give resident manufacturers and New Mexico resident businesses that manufacture buses an equal opportunity to sell their buses in states that have reciprocal preference laws; and

(3) eliminate all different treatment of any kind under New Mexico law and by all political jurisdictions in the state between New Mexico resident businesses and manufacturers that manufacture buses and businesses in other states that manufacture and sell buses."

SECTION 2. Section 13-1-22 NMSA 1978 (being Laws 1969, Chapter 184, Section 1, as amended) is amended to read:

"13-1-22. RESIDENT AND VETERAN BUSINESS AND MANUFACTURER CERTIFICATION--APPLICATION--INFORMATION.--[No] A veteran-owned business, veteran-owned manufacturer, resident business or resident manufacturer, as those terms are defined in Subsection A of Section 13-1-21 NMSA 1978, shall not be given any preference in the awarding of contracts for furnishing materials or services to a state agency unless the veteran-owned business, veteran-owned manufacturer, resident business or resident manufacturer [shall have] has qualified with the state purchasing agent as a veteran-owned business, veteran-owned manufacturer, resident business or resident manufacturer, or [both] a combination thereof, by making application to the state purchasing agent and receiving [from him] a certification number. The procedure for application and certification shall be as follows:

A. the state purchasing agent shall prepare an application form for certification as a veteran-owned business, veteran-owned manufacturer, resident business or resident manufacturer, requesting such information and proof as [he deems] necessary to qualify the applicant under the terms of Section 13-1-21 NMSA 1978;

B. the veteran-owned business, veteran-owned manufacturer, resident business or resident manufacturer shall complete the application form and submit it to the state purchasing agent prior to the awarding of any contract in which the veteran-owned business, veteran-owned manufacturer, resident business or resident manufacturer desires to be given a preference; and

C. the state purchasing agent shall examine the application and if necessary may seek additional information or proof to [assure himself] ensure that the prospective business or manufacturer is indeed entitled to the statutory preference. If all is in order, [he] the state purchasing agent shall issue the [supplier] prospective business or manufacturer a distinctive certification number [which] that shall be valid until revoked and, [which] when used on bids and other purchasing documents, shall entitle the [business or] veteran-owned business, veteran-owned manufacturer, resident business or resident manufacturer to the statutory preference."

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