HOUSE BILL 225

52nd legislature - STATE OF NEW MEXICO - second session, 2016

INTRODUCED BY

Antonio "Moe" Maestas

AN ACT

RELATING TO PUBLIC PURCHASING; ENACTING THE HISTORICALLY UNDERUTILIZED AND DISADVANTAGED BUSINESS OPPORTUNITY ACT; PROVIDING ADDITIONAL DUTIES FOR THE GENERAL SERVICES DEPARTMENT; REQUIRING CERTAIN STATE AGENCIES TO USE HISTORICALLY UNDERUTILIZED AND DISADVANTAGED BUSINESSES.

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

     SECTION 1. [NEW MATERIAL] SHORT TITLE.--This act may be cited as the "Historically Underutilized and Disadvantaged Business Opportunity Act".

     SECTION 2. [NEW MATERIAL] PURPOSE.--The purpose of the Historically Underutilized and Disadvantaged Business Opportunity Act is to promote full and equal business opportunities for all businesses by encouraging and setting goals for the use of historically underutilized and disadvantaged businesses by state agencies in all public purchasing decisions.

     SECTION 3. [NEW MATERIAL] DEFINITIONS.--As used in the Historically Underutilized and Disadvantaged Business Opportunity Act:

          A. "disadvantaged business" means a business that meets the criteria set forth in Paragraphs (1) and (2) of Subsection C of this section and that can demonstrate evidence of social disadvantage, including:

                (1) at least one objective distinguishing element such as race, ethnicity, gender, physical disability, long-term residence in an environment isolated from the mainstream of American society or other similar element not common to individuals who are not socially disadvantaged;

                (2) personal experiences of substantial and chronic social disadvantage in American society, not in other countries; and

                (3) negative impact on the individual's entrance into the business world because of the stated disadvantages;

          B. "facilitating nonprofit agency" means a nonprofit agency that is organized to promote and enhance economic development opportunities; that can also provide business and workforce education with expertise in assisting historically underutilized and disadvantaged businesses; and that is approved by the general services department to screen applicants;

          C. "historically underutilized business" means a legally recognized for-profit business organization, corporation, sole proprietorship, partnership or joint venture that has a valid historically underutilized and disadvantaged business certificate issued by the general services department certifying that:

                (1) it has an average gross revenue for the preceding three fiscal years that does not exceed five million dollars ($5,000,000) or an average number of employees for the preceding three fiscal years that does not exceed fifty;

                (2) is a "resident business" as certified by the taxation and revenue department pursuant to Section 13-1-22 NMSA 1978; and

                (3) at least fifty-one percent of the business is owned by a woman, a veteran or a person who is a member of one or more of the following minorities: African American, Latino or Hispanic, Asian, Pacific Islander, Native American or Alaska Native; and

          D. "state agency" means any department, commission, council, board, committee, institution, agency, government corporation or educational institution, including any office or officer of the above, but does not include the legislative or judicial branch or local public bodies.

     SECTION 4. [NEW MATERIAL] HISTORICALLY UNDERUTILIZED AND DISADVANTAGED BUSINESS PROGRAM--GOALS.--

          A. The general services department shall apply the following initial statewide goals for the use of historically underutilized and disadvantaged businesses in the procurement of the following goods or services:

     Industry               Veteran-, Women- or Minority-Owned

(1)  agriculture, forestry,

fishing and hunting40%

(2)  mining, quarrying and

oil and gas extraction34%

(3)  utilities                               9%

(4)  construction                           36%

(5)  manufacturing                          30%

(6)  wholesale trade                        39%

(7)  retail trade                           42%

(8)  transportation and warehousing         52%

(9)  information                            35%

(10) finance and insurance                  18%

(11) real estate and rental and leasing     30%

(12) professional, scientific and

technical services35%

(13) management of companies and

enterprises37%

(14) administrative and

support and waste management55%

(15) educational services                   64%

(16) health care and social assistance      46%

(17) arts, entertainment and recreation     49%

(18) accommodation and food services        42%

(19) other services (except public

administration)50%.

          B. Beginning in fiscal year 2018, the general services department shall modify the goals provided in Subsection A of this section consistent with the university of New Mexico bureau of business and economic research review of the United States census bureau survey of business owners and its most recent findings of the most up-to-date percentages listed in Subsection A of this section.

     SECTION 5. [NEW MATERIAL] DUTIES OF GENERAL SERVICES DEPARTMENT.--The general services department shall:

          A. establish the procedures for:

                (1) identification of qualified applicants for certification;

                (2) approval of facilitating nonprofit agencies;

                (3) precertification screening of eligibility by facilitating nonprofit agencies;

                (4) certification of applicants for historically underutilized or disadvantaged business status;

                (5) appeal of a denial of certification; and

                (6) revocation of a certification;

          B. at least monthly, produce an online, searchable database of businesses certified as historically underutilized or disadvantaged businesses;

          C. offer forums in which historically underutilized or disadvantaged businesses deliver to state agencies technical and business presentations that demonstrate their capability to do business with state agencies;

          D. review and approve each state agency's agency-specific goals for the utilization of historically underutilized or disadvantaged businesses; and

          E. at the end of every fiscal year, prepare and publish a consolidated annual report that includes the total:

                (1) dollar amount of payments made by state agencies for the purchase of goods and services;

                (2) dollar amount of payments made by state agencies for the purchase of goods and services from historically underutilized businesses;

                (3) dollar amount of payments made by state agencies for the purchase of goods and services from disadvantaged businesses;

                (4) number of contracts awarded by state agencies;

                (5) number of contracts awarded to historically underutilized businesses by state agencies;

                (6) number of contracts awarded to disadvantaged businesses by state agencies;

                (7) number of bids from historically underutilized businesses received by state agencies;

                (8) number of bids from disadvantaged businesses received by state agencies;

                (9) dollar amount of payments made by state agencies to historically underutilized businesses; and

                (10) dollar amount of payments made by state agencies to disadvantaged businesses.

     SECTION 6. [NEW MATERIAL] DUTIES OF STATE AGENCIES.--Each state agency:

          A. shall establish agency-specific goals for the use of historically underutilized and disadvantaged businesses for each procurement category listed in Subsection A of Section 4 of the Historically Underutilized and Disadvantaged Business Opportunity Act. State agencies may set their agency-specific goals higher than the statewide historically underutilized and disadvantaged business goals. Agency-specific goals shall be based on: 

                (1) the state agency's fiscal year expenditures and total contract expenditures;

                (2) the availability of historically underutilized and disadvantaged businesses in each procurement category;

                (3) the state agency's historic utilization of historically underutilized and disadvantaged businesses;

                (4) other relevant factors as determined by the state agency; and

                (5) other relevant factors required by the general services department;

          B. shall, before soliciting bids, proposals, offers or other applicable expressions of interest for a contract with a value of one hundred thousand dollars ($100,000) or more over the life of the contract, including any renewals, determine whether subcontracting opportunities are probable under the contract and, if so, require respondents to submit a plan to subcontract with at least one historically underutilized or disadvantaged business in its response;

          C. shall maintain and compile monthly reports that provide the information to the general services department required by Subsection E of Section 5 of the Historically Underutilized and Disadvantaged Business Opportunity Act and any other information required by the general services department;

          D. shall make a good-faith effort to utilize historically underutilized or disadvantaged businesses in contracts for each procurement category listed in Subsection A of Section 4 of the Historically Underutilized and Disadvantaged Business Opportunity Act; and

          E. may achieve its agency-specific annual historically underutilized or disadvantaged business goals by contracting directly with historically underutilized or disadvantaged businesses or indirectly through subcontracting opportunities.

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