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