SENATE BILL 448
51st legislature - STATE OF NEW MEXICO - first session, 2013
INTRODUCED BY
Joseph Cervantes
AN ACT
RELATING TO PROCUREMENT; REVISING PROVISIONS RELATED TO DEBARMENT AND SUSPENSION; INCLUDING CIVIL VIOLATIONS AS CAUSE FOR DEBARMENT OR SUSPENSION; PROVIDING LIMITATIONS ON CONTINUATION OF CONTRACTS AND SUBCONTRACTING WITH DEBARRED OR SUSPENDED PARTIES.
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--PERSON.--"Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture or other legal or commercial entity."
SECTION 2. Section 13-1-177 NMSA 1978 (being Laws 1984, Chapter 65, Section 150) is amended to read:
"13-1-177. AUTHORITY TO [DEBAR OR] SUSPEND OR DEBAR.--
A. The state purchasing agent or a central purchasing office, after consultation with the using agency, may suspend a person from consideration for award of contracts if the state purchasing agent or central purchasing office, after reasonable investigation, finds that a person has engaged in conduct that constitutes cause for debarment pursuant to Section 13-1-178 NMSA 1978.
B. The term of a suspension pursuant to this section shall not exceed three months; however, if a person, including a bidder, offeror or contractor, has been charged with a criminal offense that would be a cause for debarment pursuant to Section 13-1-178 NMSA 1978, the suspension shall remain in effect until the criminal charge is resolved and the person is debarred or the reason for suspension no longer exists.
C. The state purchasing agent or a central purchasing office, after reasonable notice to the [business] person involved, shall have authority to recommend to the governing authority of a state agency or a local public body the [suspension or] debarment of a [business] person for cause from consideration for award of contracts, other than contracts for professional services. The debarment shall not be for a period of more than three years [and a suspension shall not exceed three months]. The authority to debar [or suspend] shall be exercised by the governing authority of a state agency or a local public body in accordance with [regulations which] rules that shall provide for reasonable notice and a fair hearing prior to [suspension or] debarment.
D. As used in this section, the terms "person", "bidder", "offeror" and "contractor" include principals, officers, directors, owners, partners and managers of the person, bidder, offeror or contractor."
SECTION 3. Section 13-1-178 NMSA 1978 (being Laws 1984, Chapter 65, Section 151) is amended to read:
"13-1-178. CAUSES FOR DEBARMENT OR SUSPENSION--TIME LIMIT.--
A. The causes for debarment or suspension occurring within three years of the time final action on a procurement is taken include but are not limited to the following:
[A.] (1) criminal conviction [of] or civil judgment against a bidder, offeror or contractor for commission of a criminal offense or civil violation related to obtaining or attempting to obtain a public or private contract or subcontract, or [in] related to the performance of such contract or subcontract;
[B.] (2) conviction of a bidder, offeror or contractor under state or federal statutes [of] related to embezzlement, theft, forgery, bribery, fraud, falsification or destruction of records, [or] making false statements or receiving stolen property or for violation of federal or state tax laws;
[C.] (3) conviction of a bidder, offeror or contractor under state or federal antitrust statutes [arising out of] relating to the submission of [bids or proposals] offers;
(4) criminal conviction or civil judgment against a bidder, offeror or contractor for any other offense related to honesty, integrity or business ethics;
(5) civil judgment against a bidder, offeror or contractor pursuant to the Unfair Practices Act;
[D.] (6) violation by a bidder, offeror or contractor of contract provisions, as set forth in this [subsection] paragraph, of a character [which] that is reasonably regarded by the state purchasing agent or a central purchasing office to be so serious as to justify suspension or debarment action, including:
[(1)] (a) willful failure to perform in accordance with one or more contracts; provided that this failure has occurred within a reasonable time preceding the decision to impose debarment; or
[(2)] (b) a history of failure to perform or of unsatisfactory performance of one or more contracts; provided that this failure or unsatisfactory performance has occurred within a reasonable time preceding the decision to impose debarment; and provided further that failure to perform or unsatisfactory performance caused by acts beyond the control of the contractor shall not be considered to be a basis for debarment;
[E.] (7) any other cause occurring within three years of a procurement [which] that the state purchasing agent or a central purchasing office determines to be so serious and compelling as to affect responsibility as a contractor; or
[F.] (8) for a willful violation by a bidder, offeror or contractor of the provisions of the Procurement Code within three years of a procurement.
B. As used in this section, the terms "bidder", "offeror" and "contractor" include principals, officers, directors, owners, partners and managers of the bidder, offeror or contractor."
SECTION 4. Section 13-1-180 NMSA 1978 (being Laws 1984, Chapter 65, Section 153) is amended to read:
"13-1-180. DEBARMENT OR SUSPENSION--NOTICE OF DETERMINATION.--A copy of the determination [under] made pursuant to Section [152 of the Procurement Code] 13-1-179 NMSA 1978 shall [immediately be mailed to the debarred or suspended business] be:
A. mailed to the last known address on file with the state purchasing agent or central purchasing office, by first class mail, within three business days after issuance of the written determination; or
B. transmitted electronically within three business days after issuance of the written determination."
SECTION 5. A new section of the Procurement Code is enacted to read:
"[NEW MATERIAL] CONTINUATION OF CURRENT CONTRACTS--RESTRICTIONS ON SUBCONTRACTING.--
A. Notwithstanding the debarment, suspension or proposed debarment of a person, a state agency or local public body may continue contracts or subcontracts in existence at the time that the person is debarred, suspended or proposed for debarment unless the governing authority of the state agency or local public body directs otherwise.
B. Unless the governing authority of a state agency or local public body issues a written determination based on compelling reasons holding otherwise, a person that has been debarred or suspended or whose debarment has been proposed shall not, after the date that the person is debarred, suspended or proposed for debarment:
(1) incur financial obligations, including those for materials, services and facilities, unless the person is specifically authorized to do so under the terms and conditions of the person's contract; or
(2) extend the duration of the person's contract by adding new work, by exercising options or by taking other action.
C. Unless pursuant to written authorization based on the compelling reasons of the governing authority of a state agency or local public body, the state purchasing agent or a central purchasing office shall not consent to enter a subcontract subject to the Procurement Code with a person that has been debarred, suspended or proposed for debarment.
D. A person that has entered into a contract subject to the Procurement Code shall not subcontract with another person that has been debarred, suspended or proposed for debarment without the written authorization of the state purchasing agent or a central purchasing office. A person that wishes to subcontract with another person that has been debarred, suspended or proposed for debarment shall make a request to the applicable state agency or local public body that includes the following:
(1) the name of the proposed subcontractor;
(2) information about the proposed subcontractor's debarment, suspension or proposed debarment;
(3) the requester's compelling reasons for seeking a subcontract with the proposed subcontractor; and
(4) a statement of how the person will protect the interests of the state agency or local public body considering the proposed subcontractor's debarment, suspension or proposed debarment."
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