HOUSE BILL 139
50th legislature - STATE OF NEW MEXICO - first session, 2011
INTRODUCED BY
Rick Miera
AN ACT
RELATING TO PROCUREMENT; RAISING MONETARY LIMITS FOR PUBLIC WORKS PROJECTS, SMALL PURCHASES, MULTIPLE SOURCE CONTRACTS AND THE PURCHASE AND TRADE OF USED ITEMS IN THE PROCUREMENT CODE; ALLOWING LOCAL PUBLIC BODIES TO ENTER INTO MULTIPLE SOURCE CONTRACTS; RECONCILING CONFLICTING AMENDMENTS TO THE SAME SECTION OF LAW BY REPEALING LAWS 2007, CHAPTER 312, SECTION 4.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 13-1-66.1 NMSA 1978 (being Laws 1989, Chapter 69, Section 4, as amended) is amended to read:
"13-1-66.1. DEFINITION--LOCAL PUBLIC WORKS PROJECT.--"Local public works project" means a project of a local public body that uses architectural or engineering services requiring professional services costing fifty thousand dollars ($50,000) or more or landscape architectural or surveying services requiring professional services costing [ten thousand dollars ($10,000)] twenty thousand dollars ($20,000) or more, excluding applicable state and local gross receipts taxes."
SECTION 2. Section 13-1-91 NMSA 1978 (being Laws 1984, Chapter 65, Section 64, as amended by Laws 2007, Chapter 312, Section 4 and by Laws 2007, Chapter 315, Section 2) is amended to read:
"13-1-91. DEFINITION--STATE PUBLIC WORKS PROJECT.--"State public works project" means a project of a state agency, not including projects of the state educational institutions, the supreme court building commission, the legislature or local public bodies, that uses architectural or engineering services requiring professional services costing fifty thousand dollars ($50,000) or more or landscape architectural or surveying services requiring professional services costing [ten thousand dollars ($10,000)] twenty thousand dollars ($20,000) or more, excluding applicable state and local gross receipts taxes."
SECTION 3. Section 13-1-104 NMSA 1978 (being Laws 1984, Chapter 65, Section 77, as amended) is amended to read:
"13-1-104. COMPETITIVE SEALED BIDS--PUBLIC NOTICE.--
A. An invitation for bids or a notice thereof shall be published not less than ten calendar days prior to the date set forth for the opening of bids. In the case of purchases made by the state purchasing agent, the invitation or notice shall be published at least once in at least three newspapers of general circulation in this state; in addition, an invitation or notice may be published electronically on the state purchasing agent's web site that is maintained for that purpose. In the case of purchases made by other central purchasing offices, the invitation or notice shall be published at least once in a newspaper of general circulation in the area in which the central purchasing office is located. These requirements of publication are in addition to any other procedures that may be adopted by central purchasing offices to notify prospective bidders that bids will be received, including publication in a trade journal, if available. If there is no newspaper of general circulation in the area in which the central purchasing office is located, such other notice may be given as is commercially reasonable.
B. Central purchasing offices shall send copies of the notice or invitation for bids involving the expenditure of more than [twenty thousand dollars ($20,000)] fifty thousand dollars ($50,000) to those businesses that have signified in writing an interest in submitting bids for particular categories of items of tangible personal property, construction and services and that have paid any required fees. A central purchasing office may set different registration fees for different categories of services, construction or items of tangible personal property, but such fees shall be related to the actual, direct cost of furnishing copies of the notice or invitation for bids to the prospective bidders. The fees shall be used exclusively for the purpose of furnishing copies of the notice or invitation for bids of proposed procurements to prospective bidders.
C. A central purchasing office may satisfy the requirement of sending copies of a notice or invitation for bids by distributing the documents to prospective bidders through electronic media. Central purchasing offices shall not require that prospective bidders receive a notice or invitation for bids through electronic media.
D. As used in this section, "prospective bidders" includes persons considering submission of a bid as a general contractor for the construction contract and persons who may submit bids to a general contractor for work to be subcontracted pursuant to the construction contract. Central purchasing offices shall make copies of invitations for bids for construction contracts available to prospective bidders. A central purchasing office may require prospective bidders who have requested documents for bid on a construction contract to pay a deposit for a copy of the documents for bid. The deposit shall equal the full cost of reproduction and delivery of the documents for bid. The deposit, less delivery charges, shall be refunded if the documents for bid are returned in usable condition within the time limits specified in the documents for bid, which time limits shall be no less than ten calendar days from the date of the bid opening. All forfeited deposits shall be credited to the funds of the applicable central purchasing office."
SECTION 4. 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)] fifty thousand dollars ($50,000) 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), 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)] fifteen thousand dollars ($15,000) 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 5. Section 13-1-154.1 NMSA 1978 (being Laws 2007, Chapter 312, Section 1) is amended to read:
"13-1-154.1. MULTIPLE SOURCE CONTRACTS--ARCHITECTURAL AND DESIGN SERVICE CONTRACTS--INDEFINITE QUANTITY CONSTRUCTION CONTRACTS.--
A. A state agency or local public body may procure multiple architectural or engineering design service contracts for multiple projects under a single qualifications-based request for proposals, provided the total amount of a contract and all renewals does not exceed [two hundred thousand dollars ($200,000)] five hundred thousand dollars ($500,000) over four years.
B. A state agency or local public body may procure multiple indefinite quantity construction contracts pursuant to a price agreement for multiple projects under a single request for proposals, provided the total amount of a contract and all renewals does not exceed [two million dollars ($2,000,000)] four million dollars ($4,000,000) over four years and the contract provides that any one purchase order under the contract may not exceed five hundred thousand dollars ($500,000).
C. A state agency or local public body may make procurements in accordance with the provision of Subsection A or B of this section if:
(1) the advertisement and request for proposals for services or the notice or invitation for bids for construction states that multiple contracts may or will be awarded, states the number of contracts that may or will be awarded and describes the services or construction to be performed under each contract;
(2) there is a single selection process for all of the multiple contracts, except that for each contract there may be a separate final list and, if applicable, a separate negotiation of contract terms;
(3) each of the multiple contracts for professional design services or construction shall have a term not exceeding four years, including all extensions and renewals;
(4) a contract shall not be awarded pursuant to this section to a firm that is currently performing under a contract issued pursuant to this section if the total amount of all contracts issued pursuant to this section to that firm would exceed:
(a) [two hundred thousand dollars ($200,000)] five hundred thousand dollars ($500,000) in any four-year period, for architectural or engineering design services; or
(b) [two million dollars ($2,000,000)] four million dollars ($4,000,000) in any four-year period, for construction services; and
(5) the procurement is subject to the limitations of Sections 13-1-150 through 13-1-154 NMSA 1978."
SECTION 6. Section 13-1-155 NMSA 1978 (being Laws 1984, Chapter 65, Section 128, as amended) is amended to read:
"13-1-155. PROCUREMENT OF USED ITEMS--APPRAISAL REQUIRED--COUNTY ROAD EQUIPMENT EXCEPTION FOR AUCTIONS.--
A. A central purchasing office, when procuring used items of tangible personal property the estimated cost of which exceeds [five thousand dollars ($5,000)] fifty thousand dollars ($50,000), shall request bids as though the items were new, adding specifications that permit used items under conditions to be outlined in the bid specifications, including [but not limited to] requiring a written warranty for at least ninety days after date of delivery and an independent "certificate of working order" by a qualified mechanic or appraiser.
B. Notwithstanding the provisions of Subsection A of this section, the purchasing office for a county may purchase, at public or private auctions conducted by established, recognized commercial auction companies, used heavy equipment having an estimated cost that exceeds [five thousand dollars ($5,000)] fifty thousand dollars ($50,000) for use in construction and maintenance of county streets, roads and highways, subject to the following provisions:
(1) the commercial auction company shall have been in business for at least three years preceding the date of purchase and shall conduct at least five auctions annually;
(2) the value of each piece of equipment shall be appraised prior to the auction by a qualified disinterested appraiser retained and paid by the county, who shall make a written appraisal report stating the basis for the appraisal, including the age, condition and comparable sales, and stating that the appraiser has exercised [his] independent judgment without prior understanding or agreement with any person as to a target value or range of value;
(3) an independent "certificate of working condition" shall be obtained prior to the auction from a qualified mechanic who shall have made a detailed inspection of each major working or major functional part and certified the working condition of each; and
(4) the price paid, including all auction fees and buyer's surcharges, shall not exceed the appraised value."
SECTION 7. Section 13-1-156 NMSA 1978 (being Laws 1984, Chapter 65, Section 129, as amended) is amended to read:
"13-1-156. TRADE OR EXCHANGE OF USED ITEMS--APPRAISAL REQUIRED.--
A. A central purchasing office, when trading in or exchanging used items of tangible personal property the estimated value of which exceeds [five thousand dollars ($5,000)] fifty thousand dollars ($50,000.00) as part-payment on the procurement of new items of tangible personal property, shall:
(1) have an independent appraisal made of the items to be traded in or exchanged. The appraisal shall be in writing, shall be made part of the procurement file and shall be a public record. The invitation for bids or request for proposals shall contain notice to prospective bidders or offerors of the description and specifications of the items to be traded in or exchanged, the appraised value of the items to be traded in or exchanged and the location where the items to be traded in or exchanged may be inspected; or
(2) have two written quotes for purchase of the property at a specified price.
B. Award shall be based upon the net bid. Bidders or offerors shall compute their net bid or offer by deducting the appraised value or highest quote of the items to be traded in or exchanged from the gross bid or offer on the new items of tangible personal property to be procured. If an amount offered in trade is less than the appraised value or the highest quote but is found to be a fair reflection of the current market, representative of the condition of the items of tangible personal property and in the best interest of the agency, the bid or offer may be accepted. Documentation of the terms of acceptance shall be in writing, shall be made a part of the procurement file and shall be a public record."
SECTION 8. REPEAL.--Laws 2007, Chapter 312, Section 4 is repealed.
SECTION 9. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2011.
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