HOUSE STATE GOVERNMENT, ELECTIONS AND INDIAN AFFAIRS
COMMITTEE SUBSTITUTE FOR
HOUSE BILL 384
54th legislature - STATE OF NEW MEXICO - first session, 2019
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 applied for and received a valid historically underutilized business certificate issued by the taxation and revenue 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) as certified by the taxation and revenue department, more than fifty percent of the business is owned by women or persons who are members 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, that procures, purchases, rents, leases or otherwise acquires items of tangible personal property, services or construction, but does not include the legislative or judicial branch or local public bodies.
SECTION 4. [NEW MATERIAL] DUTIES OF TAXATION AND REVENUE DEPARTMENT AND GENERAL SERVICES DEPARTMENT.--
A. The taxation and revenue department shall 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;
(6) revocation of a certification; and
(7) recertification.
B. The general services department shall develop an online, searchable database of businesses certified as historically underutilized businesses.
C. The taxation and revenue department shall develop 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. State agencies shall develop procedures for the utilization of historically underutilized businesses.
E. At the end of every fiscal year, each state agency shall prepare and submit a report to the general services department 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 and procurements awarded directly to historically underutilized businesses or indirectly through subcontracts; and
(4) the total number of bids from historically underutilized businesses received by state agencies.
F. The general services department shall prepare an annual consolidated report based on the information submitted by the state agencies.
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; and
(4) other relevant factors as determined by the state agency;
B. shall, before soliciting bids, proposals, offers or other applicable expressions of interest for contracts, including any renewals, require respondents to submit a plan to identify and attempt to subcontract with applicable historically underutilized businesses;
C. shall make a good-faith effort to utilize historically underutilized businesses in contracts; and
D. may achieve its agency-specific annual historically underutilized business goals by contracting directly with historically underutilized businesses or indirectly through subcontracts.
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