HOUSE BILL 384

54th legislature - STATE OF NEW MEXICO - first session, 2019

INTRODUCED BY

Antonio Maestas

AN ACT

RELATING TO PUBLIC PURCHASING; ENACTING THE HISTORICALLY UNDERUTILIZED BUSINESS OPPORTUNITY ACT; PROVIDING ADDITIONAL DUTIES FOR STATE AGENCIES; ENCOURAGING STATE AGENCIES TO USE HISTORICALLY UNDERUTILIZED 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 Business Opportunity Act".

     SECTION 2. [NEW MATERIAL] PURPOSE.--The purpose of the Historically Underutilized Business Opportunity Act is to stimulate economic development and job creation by promoting full and equal business opportunities for all businesses by encouraging and setting goals for the use of historically underutilized businesses by state agencies in all public purchasing decisions. The Historically Underutilized Business Opportunity Act does not inhibit or prevent purchases of goods and services from businesses that are otherwise qualified to provide such goods and services.

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

          A. "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 businesses; and that is approved by the general services department to screen applicants;

          B. "historically underutilized business" means a legally recognized for-profit business organization, corporation, sole proprietorship, partnership or joint venture that has a valid historically underutilized 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) it 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 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

          C. "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] 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 business status;

                (5) appeal of a denial of certification; and

                (6) revocation of a certification;

          B. produce an online, searchable database of businesses certified as historically underutilized businesses;

          C. conduct training sessions and seminars or use other suitable means for informing historically underutilized businesses of opportunities and procedures for doing business with state agencies; 

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

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

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

                (2) the total dollar amount of payments made directly to historically underutilized businesses or indirectly through subcontracts for the purchase of goods and services directly;

                (3) the total number of contracts awarded by state agencies;

                (4) the total number of contracts or procurements awarded directly to historically underutilized businesses or indirectly through subcontracts;

                (5) the total number of bids from historically underutilized businesses received by state agencies; and

                (6) a comparison of each state agency's goals for use of historically underutilized businesses to the actual purchase of goods and services directly from historically underutilized businesses or indirectly through subcontracts.

     SECTION 5. [NEW MATERIAL] DUTIES OF STATE AGENCIES.--Each state agency:

          A. shall establish agency-specific goals for the use of historically underutilized businesses. 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 businesses;

                (3) the state agency's historic utilization of historically underutilized businesses by contracting directly with historically underutilized businesses or indirectly through subcontracts;

                (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 contracts, 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 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 4 of the Historically Underutilized Business Opportunity Act and any other information required by the general services department;

          D. shall make a good-faith effort to utilize historically underutilized businesses in contracts; and

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

- 6 -