SENATE BILL 443

51st legislature - STATE OF NEW MEXICO - first session, 2013

INTRODUCED BY

Sander Rue

AN ACT

RELATING TO PROCUREMENT; PROVIDING DUTIES OF STATE AGENCIES, LOCAL PUBLIC BODIES AND THE STATE PURCHASING AGENT; PROVIDING EXEMPTIONS FROM THE PROCUREMENT CODE FOR CERTAIN PURCHASES; REVISING SMALL PURCHASE AMOUNTS; DEFINING "CHIEF PROCUREMENT OFFICER"; ESTABLISHING TRAINING REQUIREMENTS; PROVIDING ADDITIONAL PENALTIES FOR WILLFUL VIOLATIONS OF THE PROCUREMENT CODE.

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

     SECTION 1. A new section of the Procurement Code is enacted to read:

     "[NEW MATERIAL] DEFINITION--CHIEF PROCUREMENT OFFICER.--"Chief procurement officer" means that person within a state agency's or local public body's central purchasing office who is responsible for the control of procurement of items of tangible personal property, services or construction. "Chief procurement officer" includes the state purchasing agent."

     SECTION 2. Section 13-1-37 NMSA 1978 (being Laws 1984, Chapter 65, Section 10) is amended to read:

     "13-1-37. DEFINITION--CENTRAL PURCHASING OFFICE.--"Central purchasing office" means that office [or officer] within a state agency or a local public body responsible for the control of procurement of items of tangible personal property, services or construction. "Central purchasing office" includes the purchasing division of the general services department [and the state purchasing agent]."

     SECTION 3. A new section of the Procurement Code is enacted to read:

     "[NEW MATERIAL] CHIEF PROCUREMENT OFFICERS--REPORTING REQUIREMENT--TRAINING--CERTIFICATION.--

          A. On or before January 1 of each year beginning in 2014, and every time a chief procurement officer is hired, each state agency and local public body shall provide to the state purchasing agent the name of the state agency's or local public body's chief procurement officer and information identifying the state agency's or local public body's central purchasing office, if applicable. 

          B. The state purchasing agent shall maintain a list of the names of the chief procurement officers reported to the state purchasing agent by state agencies and local public bodies. The state purchasing agent shall make the list of chief procurement officers available to the public through the web site of the purchasing division of the general services department and in any other appropriate form.

          C. The state purchasing agent shall offer a certification training program for chief procurement officers each year.

          D. On or before January 1, 2015, the state purchasing agent shall establish a certification program for chief procurement officers that includes initial certification and recertification every two years for all chief procurement officers. In order to be recertified, a chief procurement officer shall pass a recertification examination approved by the secretary of general services.

          E. On and after July 1, 2015, only certified chief procurement officers may do the following, except that persons using procurement cards may continue to issue purchase orders and authorize small purchases:

                (1) make determinations, including determinations regarding exemptions, pursuant to the Procurement Code;

                (2) issue purchase orders and authorize small purchases pursuant to the Procurement Code; and

                (3) approve procurement pursuant to the Procurement Code."

     SECTION 4. Section 13-1-95 NMSA 1978 (being Laws 1984, Chapter 65, Section 68) is amended to read:

     "13-1-95. PURCHASING DIVISION--CREATION--DIRECTOR IS STATE PURCHASING AGENT--APPOINTMENT--DUTIES.--

          A. The "purchasing division" is created within the general services department.

          B. Subject to the authority of the secretary, the state purchasing agent shall be the administrator and [chief executive] director of the purchasing division. The state purchasing agent shall be appointed by the secretary with the approval of the governor.

          C. The purchasing division and state purchasing agent shall be responsible for the procurement of services, construction and items of tangible personal property for all state agencies except as otherwise provided in the Procurement Code and shall administer the Procurement Code for those state agencies not excluded from the requirement of procurement through the state purchasing agent.

          D. The state purchasing agent shall have the following additional authority and responsibility to:

                (1) recommend procurement [regulations] rules to the secretary;

                (2) establish and maintain programs for the development and use of procurement specifications and for the inspection, testing and acceptance of services, construction and items of tangible personal property;

                (3) cooperate with the state budget division of the department of finance and administration in the preparation of statistical data concerning the acquisition and usage of all services, construction and items of tangible personal property by state agencies;

                (4) require state agencies to furnish reports concerning usage, needs and stocks on hand of items of tangible personal property and usage and needs for services or construction;

                (5) prescribe, with consent of the secretary, forms to be used by state agencies to requisition and report the procurement of items of tangible personal property, services and construction;

                (6) provide information to state agencies and local public bodies concerning the development of specifications, quality control methods and other procurement information; and

                (7) collect information concerning procurement matters, quality and quality control of commonly used services, construction and items of tangible personal property.

          E. The state purchasing agent shall, upon the request of the central purchasing office of a local public body, procure a price agreement for the requested services, construction or items of tangible personal property. The state purchasing agent may procure a price agreement for services, construction or items of tangible personal property for a state agency or local public body that does not have a chief procurement officer."

     SECTION 5. Section 13-1-97 NMSA 1978 (being Laws 1984, Chapter 65, Section 70) is amended to read:

     "13-1-97. CENTRALIZATION OF PROCUREMENT AUTHORITY.--

          A. All procurement for state agencies shall be performed by the state purchasing agent except as otherwise provided in the Procurement Code.

          B. All procurement for state agencies excluded from the requirement of procurement through the office of the state purchasing agent shall be performed by a central purchasing office [designated by statute, the governing authority of that state agency], the chief procurement officer or as otherwise provided in the Procurement Code.

          C. All procurement for local public bodies shall be performed by a central purchasing office designated by the governing authority of the local public body except as otherwise provided in the Procurement Code. Local public bodies shall identify their designated central purchasing office to the state purchasing agent and shall report their chief procurement officers to the state purchasing agent."

     SECTION 6. 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 and training materials in electronic format 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)] ten thousand dollars ($10,000) consisting of magazine subscriptions, web-based or electronic 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 legal subscription and research services and 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."

     SECTION 7. Section 13-1-125 NMSA 1978 (being Laws 1984, Chapter 65, Section 98, as amended) is amended to read:

     "13-1-125. SMALL PURCHASES.--

          A. A central purchasing office shall procure services, construction or items of tangible personal property having a value not exceeding [twenty thousand dollars ($20,000)] sixty thousand dollars ($60,000), excluding applicable state and local gross receipts taxes, in accordance with the applicable small purchase [regulations] rules adopted by the secretary, a local public body or a central purchasing office that has the authority to issue [regulations] rules.

          B. Notwithstanding the requirements of Subsection A of this section, a central purchasing office may procure professional services having a value not exceeding [fifty thousand dollars ($50,000)] sixty thousand dollars ($60,000), excluding applicable state and local gross receipts taxes, except for the services of landscape architects or surveyors for state public works projects or local public works projects, in accordance with professional services procurement [regulations] rules promulgated by the department of finance and administration, the general services department or a central purchasing office with the authority to issue [regulations] rules.

          C. Notwithstanding the requirements of Subsection A of this section, a state agency or a local public body may procure services, construction or items of tangible personal property having a value not exceeding [ten thousand dollars ($10,000)] twenty thousand dollars ($20,000), excluding applicable state and local gross receipts taxes, by issuing a direct purchase order to a contractor based upon the best obtainable price.

          D. Procurement requirements shall not be artificially divided so as to constitute a small purchase under this section."

     SECTION 8. 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]

          A. A person [which violates the Procurement Code is guilty of a misdemeanor] who willfully violates the Procurement Code is guilty of:

                (1) a misdemeanor if the aggregate monetary value of the violation is equal to or less than sixty thousand dollars ($60,000) and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978; or

                (2) a fourth degree felony if the aggregate monetary value of the violation is greater than sixty thousand dollars ($60,000) and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.

          B. In addition to other fines or penalties provided by law, upon conviction as provided in Subsection A of this section, a public officer or employee shall forfeit the person's position, whether the person was hired, elected or appointed to the position.

          C. The state purchasing agent or a central purchasing office may report suspected violations of the Procurement Code to the attorney general or the district attorney."

     SECTION 9. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2013.