0001| HOUSE BILL 10
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0002| 43rd legislature - STATE OF NEW MEXICO - first session, 1997
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0003| INTRODUCED BY
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0004| RAYMOND G. SANCHEZ
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0005|
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0006|
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0007|
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0008| FOR THE REVENUE STABILIZATION AND TAX POLICY COMMITTEE
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0009|
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0010| AN ACT
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0011| RELATING TO PROCUREMENT; PROVIDING FOR EQUAL TREATMENT OF NEW
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0012| MEXICO BUSINESSES WITH NEW YORK BUSINESSES IN PROCUREMENT
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0013| MATTERS; AMENDING AND ENACTING SECTIONS OF THE NMSA 1978;
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0014| DECLARING AN EMERGENCY.
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0015|
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0016| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0017| Section 1. [NEW MATERIAL] EQUAL PROCUREMENT ACCESS FOR
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0018| NEW YORK BUSINESSES.--
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0019| A. Certain recent amendments to the New York state
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0020| procurement statutes have the effect of prohibiting New Mexico
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0021| businesses from selling goods or providing services to New York
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0022| state and local governments and quasi-governmental entities.
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0023| This act eliminates all differential treatment of any kind
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0024| between New York state business enterprises and New Mexico
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0025| businesses in New Mexico procurement and thereby negates the
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0001| application to New Mexico businesses of the New York amendments
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0002| and protects the access of New Mexico businesses to the New
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0003| York market.
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0004| B. New York state business enterprises shall be
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0005| treated as New Mexico resident businesses or resident
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0006| manufactures for all procurement purposes.
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0007| Section 2. Section 13-1-21 NMSA 1978 (being Laws 1979,
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0008| Chapter 72, Section 1, as amended) is amended to read:
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0009| "13-1-21. APPLICATION OF PREFERENCES.--
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0010| A. For the purposes of this section:
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0011| (1) "resident business" means a New Mexico
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0012| resident business or a New York state business enterprise;
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0013| (2) "New Mexico resident business" means a
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0014| business that is authorized to do and is doing business under
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0015| the laws of this state and:
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0016| (a) that maintains its principal place of
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0017| business in the state;
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0018| (b) has staffed an office and has paid
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0019| applicable state taxes for two years prior to the awarding of
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0020| the bid and has five or more employees who are residents of the
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0021| state; or
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0022| (c) is an affiliate of a business that meets
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0023| the requirements of Subparagraph (a) or (b) of this paragraph.
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0024| As used in this section, "affiliate" means an entity that
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0025| directly or indirectly through one or more intermediaries
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0001| controls, is controlled by or is under common control with the
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0002| qualifying business through ownership of voting securities
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0003| representing a majority of the total voting power of the
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0004| entity;
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0005| (3) "New York state business enterprise" means a
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0006| business enterprise, including a sole proprietorship,
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0007| partnership or corporation, that offers for sale or lease or
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0008| other form of exchange, goods or commodities that are
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0009| substantially manufactured, produced or assembled in New York
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0010| state, or services, other than construction services, that are
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0011| substantially performed within New York state. For purposes of
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0012| construction services, a New York state business enterprise
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0013| means a business enterprise, including a sole proprietorship,
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0014| partnership or corporation, that has its principal place of
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0015| business in New York state;
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0016| [(2)] (4) "resident manufacturer" means a
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0017| person who offers materials grown, produced, processed or
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0018| manufactured wholly in the state; provided, however, that a
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0019| New York state business enterprise shall be deemed to be a
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0020| resident manufacturer solely for the purpose of evaluating the
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0021| New York state business enterprise's bid against the bid of a
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0022| resident manufacturer that is now a New York state business
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0023| enterprise;
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0024| [(3)] (5) "recycled content goods" means
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0025| supplies and materials composed in whole or in part of recycled
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0001| materials; provided that the recycled materials content meets
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0002| or exceeds the minimum content standards required by bid
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0003| specifications; and
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0004| [(4)] (6) "virgin content goods" means
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0005| supplies and materials that are wholly composed of nonrecycled
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0006| materials or do not meet minimum recycled content standards
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0007| required by bid specification.
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0008| B. When bids are received only from nonresident busi-
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0009|
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0010| nesses and resident businesses and the lowest responsible bid
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0011| is from a nonresident business, the contract shall be awarded
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0012| to the resident business whose bid is nearest to the bid price
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0013| of the otherwise low nonresident business bidder if the bid
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0014| price of the resident bidder is made lower than the bid price
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0015| of the nonresident business when multiplied by a factor of .95.
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0016| C. When bids are received only from nonresident busi-
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0017|
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0018| nesses and resident manufacturers and the lowest responsible
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0019| bid is from a nonresident business, the contract shall be
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0020| awarded to the resident manufacturer whose bid is nearest to
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0021| the bid price of the otherwise low nonresident business bidder
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0022| if the bid price of the resident manufacturer is made lower
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0023| than the bid price of the nonresident business when multiplied
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0024| by a factor of .95.
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0025| D. When bids are received only from resident
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0001| businesses and resident manufacturers and the lowest
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0002| responsible bid is from a resident business, the contract shall
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0003| be awarded to the resident manufacturer whose bid is nearest to
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0004| the bid price of the otherwise low resident business bidder if
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0005| the bid price of the resident manufacturer is made lower than
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0006| the bid price of the resident business when multiplied by a
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0007| factor of .95.
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0008| E. When bids are received from resident
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0009| manufacturers, resident businesses and nonresident businesses
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0010| and the lowest responsible bid is from a resident business, the
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0011| contract shall be awarded to the resident manufacturer whose
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0012| bid is nearest to the bid price of the otherwise low resident
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0013| business bidder if the bid price of the resident manufacturer
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0014| is made lower than the bid price of the resident business when
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0015| multiplied by a factor of .95.
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0016| F. When bids are received from resident
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0017| manufacturers, resident businesses and nonresident businesses
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0018| and the lowest responsible bid is from a nonresident business,
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0019| the contract shall be awarded to the resident manufacturer
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0020| whose bid is nearest to the bid price of the otherwise low
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0021| nonresident business bidder if the bid price of the resident
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0022| manufacturer is evaluated as lower than the bid price of the
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0023| nonresident business when multiplied by a factor of .95. If
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0024| there is no resident manufacturer eligible for award under this
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0025| provision, then the contract shall be awarded to the resident
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0001| business whose bid is nearest to the bid price of the otherwise
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0002| low nonresident business bidder if the bid price of the
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0003| resident business is made lower than the bid price of the
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0004| nonresident business when multiplied by a factor of .95.
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0005| G. When bids are received for virgin content goods
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0006| only or for recycled content goods only, Subsections B through
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0007| F of this section shall apply.
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0008| H. When bids are received for both recycled content
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0009| goods and virgin content goods and the lowest responsible bid
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0010| is for virgin content goods, the contract shall be awarded to:
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0011| (1) a resident manufacturer offering the lowest
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0012| bid on recycled content goods of equal quality if the bid price
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0013| of the resident manufacturer when multiplied by a factor of .90
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0014| is made lower than the otherwise low virgin content goods bid
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0015| price;
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0016| (2) a resident business offering a bid on
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0017| recycled content goods of equal quality if:
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0018| (a) the bid price of no resident
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0019| manufacturer following application of the preference allowed in
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0020| Paragraph (1) of this subsection can be made sufficiently low;
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0021| and
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0022| (b) the lowest bid price of the resident
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0023| business when multiplied by a factor of .90 is made lower than
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0024| the otherwise low virgin content goods bid price; or
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0025| (3) a nonresident business or nonresident
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0001| manufacturer offering recycled content goods of equal quality
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0002| if:
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0003| (a) the bid price of no resident business or
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0004| resident manufacturer following application of the preference
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0005| allowed in Paragraph (1) or (2) of this subsection can be made
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0006| sufficiently low; and
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0007| (b) the lowest bid price of a nonresident
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0008| offering recycled content goods when multiplied by a factor of
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0009| .95 is made lower than the otherwise low virgin content bid
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0010| price.
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0011| I. When bids are received for both recycled content
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0012| goods and virgin content goods, and the lowest responsible bid
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0013| is for recycled content goods offered by a nonresident business
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0014| or nonresident manufacturer, the contract shall be awarded to:
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0015| (1) a resident manufacturer offering the lowest
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0016| bid on recycled content goods of equal quality if the bid price
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0017| of the resident manufacturer when multiplied by a factor of .95
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0018| is made lower than the otherwise low recycled content goods bid
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0019| price; or
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0020| (2) a resident business offering a bid on
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0021| recycled content goods of equal quality if:
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0022| (a) the bid price of no resident
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0023| manufacturer following application of the preference allowed in
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0024| Paragraph (1) of this subsection can be made sufficiently low;
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0025| and
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0001| (b) the lowest bid price of the resident
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0002| business when multiplied by a factor of .95 is made lower than
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0003| the otherwise low recycled content goods bid price offered by a
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0004| nonresident business or manufacturer.
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0005| J. When bids are received for both recycled content
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0006| goods and virgin content goods, and the lowest responsible bid
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0007| is for recycled content goods offered by a resident business,
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0008| the contract shall be awarded to a resident manufacturer
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0009| offering the lowest bid on recycled content goods of equal
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0010| quality if the bid price of the resident manufacturer when
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0011| multiplied by a factor of .95 is made lower than the otherwise
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0012| low recycled content goods bid price.
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0013| K. This section shall not apply when the expenditure
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0014| of federal funds designated for a specific purchase is involved
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0015| or for any bid price greater than five million dollars
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0016| ($5,000,000)."
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0017| Section 3. Section 13-4-2 NMSA 1978 (being Laws 1984,
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0018| Chapter 66, Section 2, as amended) is amended to read:
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0019| "13-4-2. RESIDENT CONTRACTOR DEFINED--APPLICATION OF
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0020| PREFERENCE.--
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0021| A. [A] "Resident contractor" [is] means a New
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0022| Mexico resident contractor or a New York state business
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0023| enterprise.
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0024| B. "New Mexico resident contractor" means any
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0025| person, firm, corporation or other legal entity if, at the time
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0001| the contract is advertised for bids and at the time bids are
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0002| opened, it has all required licenses and meets the following
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0003| requirements:
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0004| (1) if the bidder is a corporation, it shall be
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0005| incorporated in New Mexico and maintain its principal office
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0006| and place of business in New Mexico, and a majority of its
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0007| outstanding shares shall be beneficially owned by one or more
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0008| individual citizens who are domiciled in the state;
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0009| (2) if the bidder is a partnership, general or
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0010| limited, or other legal entity, it shall maintain its principal
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0011| office and place of business in New Mexico, and the partners or
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0012| associates owning a majority beneficial interest shall be
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0013| domiciled in the state. If one or more partners or associates
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0014| are corporations, a majority of the outstanding shares of each
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0015| corporation shall be beneficially owned by individual citizens
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0016| who are domiciled in the state. If the entity is a trust, a
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0017| majority of the beneficial interest of the trust shall be owned
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0018| by individual citizens who are domiciled in the state;
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0019| (3) if the bidder is an individual, he shall
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0020| maintain his principal office and place of business in New
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0021| Mexico and the individual shall be a citizen of and domiciled
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0022| in the state; or
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0023| (4) if a bidder who is a telecommunications
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0024| company as defined by Subsection M of Section 63-9A-3 NMSA 1978
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0025| or an affiliate of a telecommunications company has paid
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0001| unemployment compensation to the employment security division
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0002| of the labor department at the applicable experience rate for
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0003| that employer pursuant to the [New Mexico] Unemployment
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0004| Compensation Law on no fewer than ten employees who have per-
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0005|
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0006| formed services subject to contributions for the two-year
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0007| period prior to issuance of notice to bid, the bidder will be
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0008| considered to have fulfilled the requirements of Paragraph (1),
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0009| (2) or (3) of this subsection. A successor to a previously
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0010| qualified New Mexico contractor or resident contractor, where
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0011| the creation of the bidder resulted from a court order, is
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0012| entitled to credit for qualifying contributions paid by the
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0013| previously qualified New Mexico contractor or resident con-
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0014|
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0015| tractor.
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0016| C. "New York state business enterprise" means a
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0017| business enterprise, including a sole proprietorship,
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0018| partnership or corporation, that offers for sale or lease or
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0019| other form of exchange, goods or commodities that are
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0020| substantially manufactured, produced or assembled in New York
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0021| state, or services, other than construction services, that are
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0022| substantially performed within New York state. For purposes of
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0023| construction services, a New York state business enterprise
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0024| means a business enterprise, including a sole proprietorship,
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0025| partnership or corporation, that has its principal place of
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0001| business in New York state.
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0002| [B.] D. For purposes of this section:
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0003| (1) "affiliate" means an entity that directly or
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0004| indirectly through one or more intermediaries controls, is
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0005| controlled by or is under common control with a
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0006| telecommunications company through ownership of voting
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0007| securities representing a majority of the total voting power of
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0008| that entity; and
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0009| (2) "beneficially owned" or "beneficial
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0010| interest" means exercising actual management and control of all
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0011| operations, including but not limited to financial decisions,
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0012| financial liability, labor relations, supervision of field
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0013| operations, purchases of goods, supplies and services,
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0014| marketing and sales.
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0015| [C.] E. When bids are received only from
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0016| nonresident contractors and resident contractors and the lowest
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0017| responsible bid is from a nonresident contractor, the contract
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0018| shall be awarded to the resident contractor whose bid is
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0019| nearest to the bid price of the otherwise low nonresident
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0020| contractor if the bid price of the resident contractor is made
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0021| lower than the bid price of the nonresident contractor when
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0022| multiplied by a factor of .95.
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0023| [D.] F. No contractor shall be treated as a
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0024| resident contractor in the awarding of public works contracts
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0025| by a state agency or a local public body unless the contractor
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0001| has qualified with the state purchasing agent as a resident
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0002| contractor pursuant to this section by making application to
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0003| the state purchasing agent and receiving from him a
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0004| certification number. The procedure for application and
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0005| certification is as follows:
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0006| (1) the state purchasing agent shall prepare an
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0007| application form for certification as a resident contractor,
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0008| requiring such information and proof as he deems necessary to
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0009| qualify the applicant under the terms of this section;
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0010| (2) the contractor seeking to qualify as a
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0011| resident contractor shall complete the application form and
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0012| submit it to the state purchasing agent prior to the submission
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0013| of a bid on which the contractor desires to be given a
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0014| preference;
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0015| (3) the state purchasing agent shall examine the
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0016| application and if necessary may seek additional information or
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0017| proof so as to be assured that the prospective contractor is
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0018| indeed entitled to certification as a resident contractor. If
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0019| the application is in proper form, the state purchasing agent
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0020| shall issue the contractor a distinctive certification number
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0021| which is valid until revoked and which, when used on bids and
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0022| other purchasing documents for state agencies or local public
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0023| bodies, entitles the contractor to treatment as a resident
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0024| contractor under Subsection [C] E of this section; and
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0025| (4) the certification number issued pursuant to
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0001| Paragraph (3) of this subsection shall be revoked by the state
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0002| purchasing agent upon making a determination that the
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0003| contractor no longer meets the requirements of a resident
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0004| contractor as defined in this section."
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0005| Section 4. Section 13-4-5 NMSA 1978 (being Laws 1933,
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0006| Chapter 19, Section 1, as amended) is amended to read:
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0007| "13-4-5. USE OF NEW MEXICO MATERIALS.--
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0008| A. In all public works within New Mexico, whether
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0009| constructed or maintained by the state or by a department, a
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0010| board, a commission of the state or by any political sub-
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0011|
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0012| division thereof, or in any construction or maintenance to
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0013| which the state or any political subdivision thereof has
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0014| granted aid, preference shall be given to materials produced,
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0015| grown, processed or manufactured in New Mexico by citizens or
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0016| residents [thereof] of New Mexico or provided or offered by
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0017| a New York state business enterprise, and such materials shall
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0018| be used where [the same] they are deemed satisfactory for
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0019| the intended use. In any case where, in the judgment of the
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0020| different officers, boards, commissions or other authority in
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0021| this state now or hereafter vested with the power of
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0022| contracting for material used in the construction or
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0023| maintenance of public works [herein above] referred to in
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0024| this section, it appears that an attempt is being made by
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0025| producers, growers, processors or manufacturers in the state to
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0001| form a trust or combination of any kind for the purpose of
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0002| fixing or regulating the price of materials to be used in any
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0003| public works to the detriment of or loss to the state, then the
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0004| provisions of this section shall not apply.
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0005| B. As used in this section, "New York state business
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0006| enterprise" means a business enterprise, including a sole
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0007| proprietorship, partnership or corporation, that offers for
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0008| sale or lease or other form of exchange, goods or commodities
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0009| that are substantially manufactured, produced or assembled in
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0010| New York state, or services, other than construction services,
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0011| that are substantially performed within New York state. For
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0012| purposes of construction services, a New York state business
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0013| enterprise means a business enterprise, including a sole
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0014| proprietorship, partnership or corporation, that has its
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0015| principal place of business in New York state."
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0016| Section 5. EMERGENCY.--It is necessary for the public
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0017| peace, health and safety that this act take effect immediately.
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0018| State of New Mexico
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0019| House of Representatives
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0020|
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0021| FORTY-THIRD LEGISLATURE
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0022| FIRST SESSION, 1997
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0023|
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0024|
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0025| January 23, 1997
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0001|
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0002|
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0003| Mr. Speaker:
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0004|
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0005| Your BUSINESS AND INDUSTRY COMMITTEE, to whom has
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0006| been referred
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0007|
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0008| HOUSE BILL 10
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0009|
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0010| has had it under consideration and reports same with
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0011| recommendation that it DO PASS, amended as follows:
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0012|
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0013| 1. On page 14, between lines 4 and 5, insert the
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0014| following new section:
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0015|
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0016| "Section 5. SEVERABILITY.--If any part or application of
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0017| this act is held invalid, the remainder or its application to
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0018| other situations or persons shall not be affected.".
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0019|
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0020| 2. Renumber the succeeding section accordingly.
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0021|
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0022|
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0023| Respectfully submitted,
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0024|
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0025|
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0001|
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0002|
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0003|
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0004|
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0005| Fred Luna, Chairman
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0006|
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0007|
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0008| Adopted Not Adopted
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0009| (Chief Clerk)
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0010| (Chief Clerk)
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0011|
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0012| Date
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0013|
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0014| The roll call vote was 11 For 0 Against
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0015| Yes: 11
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0016| Excused: Kissner
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0017| Absent: Corley
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0018|
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0019|
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0020| .114655.1
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0021| G:\BILLTEXT\BILLW_97\H0010
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