HB0278

HOUSE BILL 278

53rd legislature - STATE OF NEW MEXICO - first session, 2017

INTRODUCED BY

James E. Smith and Daniel A. Ivey-Soto

FOR THE LEGISLATIVE FINANCE COMMITTEE

AN ACT

RELATING TO PROCUREMENT; REQUIRING NOTICE OF PROCUREMENTS THAT ARE EXEMPT FROM THE PROCUREMENT CODE; DIRECTING THE LEGISLATIVE FINANCE COMMITTEE AND THE GENERAL SERVICES DEPARTMENT TO REVIEW EXEMPT PROCUREMENTS AND TO MAKE RECOMMENDATIONS TO THE LEGISLATURE; AMENDING AND REPEALING SECTIONS OF THE NMSA 1978; ENACTING A DELAYED REPEAL OF EXEMPTIONS FROM THE PROCUREMENT CODE.

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

SECTION 1. Section 13-1-98 NMSA 1978 (being Laws 1984, Chapter 65, Section 71, as amended) is amended to read:

"13-1-98. EXEMPTIONS FROM THE PROCUREMENT CODE.--

A. Subject to the provisions of Subsection B of this section, the provisions of the Procurement Code shall not apply to:

[A.] (1) procurement of items of tangible personal property or services by a state agency or a local public body from a state agency, a local public body or external procurement unit except as otherwise provided in Sections 13-1-135 through 13-1-137 NMSA 1978;

[B.] (2) procurement of tangible personal property or services for the governor's mansion and grounds;

[C.] (3) printing and duplicating contracts involving materials that are required to be filed in connection with proceedings before administrative agencies or state or federal courts;

[D.] (4) purchases of publicly provided or publicly regulated gas, electricity, water, sewer and refuse collection services;

[E.] (5) purchases of books, periodicals and training materials in printed or electronic format from the publishers or copyright holders thereof;

[F.] (6) travel or shipping by common carrier or by private conveyance or to meals and lodging;

[G.] (7) purchase of livestock at auction rings or to the procurement of animals to be used for research and experimentation or exhibit;

[H.] (8) contracts with businesses for public school transportation services;

[I.] (9) procurement of tangible personal property or services, as defined by Sections 13-1-87 and 13-1-93 NMSA 1978, by the corrections industries division of the corrections department pursuant to rules adopted by the corrections industries commission, which shall be reviewed

by the purchasing division of the general services department prior to adoption;

[J.] (10) purchases not exceeding ten thousand dollars ($10,000) consisting of magazine subscriptions, web-based or electronic subscriptions, conference registration fees and other similar purchases where prepayments are required;

[K.] (11) municipalities having adopted home rule charters and having enacted their own purchasing ordinances;

[L.] (12) the issuance, sale and delivery of public securities pursuant to the applicable authorizing statute, with the exception of bond attorneys and general financial consultants;

[M.] (13) contracts entered into by a local public body with a private independent contractor for the operation, or provision and operation, of a jail pursuant to Sections 33-3-26 and 33-3-27 NMSA 1978;

[N.] (14) contracts for maintenance of grounds and facilities at highway rest stops and other employment opportunities, excluding those intended for the direct care and support of persons with handicaps, entered into by state agencies with private, nonprofit, independent contractors who provide services to persons with handicaps;

[O.] (15) contracts and expenditures for services or items of tangible personal property to be paid or compensated by money or other property transferred to New Mexico law enforcement agencies by the United States department of justice drug enforcement administration;

[P.] (16) contracts for retirement and other benefits pursuant to Sections 22-11-47 through 22-11-52 NMSA 1978;

[Q.] (17) contracts with professional entertainers;

[R.] (18) contracts and expenditures for legal subscription and research services and litigation expenses in connection with proceedings before administrative agencies or state or federal courts, including experts, mediators, court reporters, process servers and witness fees, but not including attorney contracts;

[S.] (19) contracts for service relating to the design, engineering, financing, construction and acquisition of public improvements undertaken in improvement districts pursuant to Subsection L of Section 3-33-14.1 NMSA 1978 and in county improvement districts pursuant to Subsection L of Section 4-55A-12.1 NMSA 1978;

[T.] (20) works of art for museums or for display in public buildings or places;

[U.] (21) contracts entered into by a local public body with a person, firm, organization, corporation or association or a state educational institution named in Article 12, Section 11 of the constitution of New Mexico for the operation and maintenance of a hospital pursuant to Chapter 3, Article 44 NMSA 1978, lease or operation of a county hospital pursuant to the Hospital Funding Act or operation and maintenance of a hospital pursuant to the Special Hospital District Act;

[V.] (22) purchases of advertising in all media, including radio, television, print and electronic;

[W.] (23) purchases of promotional goods intended for resale by the tourism department;

[X.] (24) procurement of printing services for materials produced and intended for resale by the cultural affairs department;

[Y.] (25) procurement by or through the public education department from the federal department of education relating to parent training and information centers designed to increase parent participation, projects and initiatives designed to improve outcomes for students with disabilities and other projects and initiatives relating to the administration of improvement strategy programs pursuant to the federal Individuals with Disabilities Education Act; provided that the exemption applies only to procurement of services not to exceed two hundred thousand dollars ($200,000);

[Z.] (26) procurement of services from community rehabilitation programs or qualified individuals pursuant to the State Use Act;

[AA.] (27) purchases of products or services for eligible persons with disabilities pursuant to the federal Rehabilitation Act of 1973;

[BB.] (28) procurement, by either the department of health or Grant county or both, of tangible personal property, services or construction that are exempt from the Procurement Code pursuant to Section 9-7-6.5 NMSA 1978;

[CC.] (29) contracts for investment advisory services, investment management services or other investment-related services entered into by the educational retirement board, the state investment officer or the retirement board created pursuant to the Public Employees Retirement Act;

[DD.] (30) the purchase for resale by the state fair commission of feed and other items necessary for the upkeep of livestock;

[EE.] (31) contracts entered into by the crime victims reparation commission to distribute federal grants to assist victims of crime, including grants from the federal Victims of Crime Act of 1984 and the federal Violence Against Women Act of 1994;

[FF.] (32) procurement by or through the children, youth and families department of pre-kindergarten services purchased pursuant to the Pre-Kindergarten Act;

[GG.] (33) procurement of services of commissioned advertising sales representatives for New Mexico magazine; [and]

(34) a procurement of items of tangible personal property or services by a state agency or a local public body through an agreement with any other state agency, local public body or external procurement unit or any other person, corporation, organization or association that provides that the parties to the agreement shall join together for the purpose of making some or all purchases necessary for the operation of public hospitals or public and private hospitals, if the state purchasing agent or a central purchasing office makes a determination that the arrangement will or is likely to reduce health care costs;

(35) a procurement of items of tangible personal property or services by a state agency or a local public body through an agreement with any other state agency, local public body or external procurement unit or any other person, corporation, organization or association for the purpose of creating a network of health care providers or jointly operating a common health care service, if the state purchasing agent or a central purchasing office makes a determination that the arrangement will or is likely to reduce health care costs, improve quality of care or improve access to care;

(36) contracts entered into by a local public body with a person, firm, organization, corporation, association or state educational institution named in Article 12, Section 11 of the constitution of New Mexico for:

(a) the operation and maintenance of a hospital pursuant to Chapter 3, Article 44 NMSA 1978;

(b) the lease or operation of a county hospital pursuant to the Hospital Funding Act;

(d) the use of county buildings pursuant to Section 4-38-13.1 NMSA 1978; and

[HH.] (37) procurements exempt from the Procurement Code as otherwise provided by law.

B. To benefit from an exemption described in Subsection A of this section, at least thirty days prior to entering into an exempt procurement, a state agency or local public body shall post a notice of its intent to enter into an exempt procurement on the sunshine portal. The notice shall describe the procurement as exempt from the Procurement Code and identify at a minimum:

(1) the parties to the proposed procurement;

(2) the nature and quantity of the services, construction or items of tangible personal property to be procured; and

(3) the cost of the service, construction or items of tangible personal property to be procured.

C. The provisions of Subsection B of this section are applicable to Procurement Code exemptions contained in other laws and exempted pursuant to Paragraph (37) of Subsection A of this section."

SECTION 2. TEMPORARY PROVISION.--The legislative finance committee and the general services department shall review the exemptions to the Procurement Code listed in Section 13-1-98 NMSA 1978 and other exemptions to the Procurement Code provided by law and together provide recommendations and report to the appropriate interim legislative committee prior to December 31, 2018.

SECTION 3. REPEAL.--Sections 13-1-98.1 and 13-1-98.2 NMSA 1978 (being Laws 1998, Chapter 69, Section 1 and Laws 2003, Chapter 187, Section 1, as amended) are repealed.

SECTION 4. DELAYED REPEAL.--Section 13-1-98 NMSA 1978 (being Laws 1984, Chapter 65, Section 71, as amended) is repealed effective July 1, 2019.

SECTION 5. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2017.