0001| HOUSE BILL 781
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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| LARRY A. LARRANAGA
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0005|
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0006|
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0007|
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0008|
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0009|
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0010| AN ACT
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0011| RELATING TO PROCUREMENT; AMENDING, REPEALING AND ENACTING
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0012| SECTIONS OF THE PROCUREMENT CODE; MAKING AN APPROPRIATION.
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0013|
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0014| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0015| Section 1. Section 13-1-38 NMSA 1978 (being Laws 1984,
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0016| Chapter 65, Section 11) is amended to read:
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0017| "13-1-38. DEFINITION--CHANGE ORDER.--"Change order" means
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0018| a written order signed and issued by a procurement officer
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0019| after execution of the contract directing the contractor to
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0020| make [changes which] a change within the general scope of
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0021| the contract, consisting of additions, deletions or other
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0022| revisions that the changes clause of the contract authorizes
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0023| the procurement officer to order with or without the consent of
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0024| the contractor."
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0025| Section 2. Section 13-1-40 NMSA 1978 (being Laws 1984,
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0001| Chapter 65, Section 13) is amended to read:
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0002| "13-1-40. DEFINITION--CONSTRUCTION.--
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0003| A. "Construction" means building, altering,
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0004| repairing, installing or demolishing in the ordinary course of
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0005| business any:
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0006| (1) road, highway, bridge, parking area or
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0007| related project;
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0008| (2) building, stadium, parking or other
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0009| structure;
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0010| (3) airport, subway or similar facility;
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0011| (4) park, trail, athletic field, golf course
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0012| or similar facility;
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0013| (5) dam, reservoir, canal, ditch or similar
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0014| facility;
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0015| (6) sewage or water treatment facility, power
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0016| generating plant, pump station, natural gas compressing station
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0017| or similar facility;
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0018| (7) sewage, water, gas or other pipeline;
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0019| (8) transmission line;
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0020| (9) radio, television or other tower;
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0021| (10) water, oil or other storage tank;
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0022| (11) shaft, tunnel or other mining
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0023| appurtenance;
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0024| (12) electrical wiring, plumbing or plumbing
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0025| fixture, gas piping, gas appliances or water conditioners;
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0001| (13) air conditioning conduit, heating or
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0002| other similar mechanical work; or
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0003| (14) similar work, structures or
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0004| installations.
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0005| B. "Construction" shall also include:
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0006| (1) leveling or clearing land;
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0007| (2) excavating earth;
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0008| (3) drilling wells of any type, including
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0009| seismographic shot holes or core drilling; and
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0010| (4) similar work, structures or
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0011| installations." Section 3. Section 13-1-41 NMSA 1978 (being
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0012| Laws 1984, Chapter 65, Section 14) is amended to read:
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0013| "13-1-41. DEFINITION--CONTRACT.--"Contract" means [any]
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0014| a written agreement for the procurement of items of tangible
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0015| personal property, services or construction."
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0016| Section 4. A new section of the Procurement Code, Section
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0017| 13-1-42.1 NMSA 1978, is enacted to read:
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0018| "13-1-42.1. [NEW MATERIAL] DEFINITION--CONTRACT
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0019| ORDER.--"Contract order" means the document issued by a using
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0020| agency that directs a contractor to deliver items of tangible
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0021| personal property, services or construction pursuant to an
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0022| existing price agreement."
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0023| Section 5. Section 13-1-43 NMSA 1978 (being Laws 1984,
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0024| Chapter 65, Section 16) is amended to read:
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0025| "13-1-43. DEFINITION--CONTRACTOR.--"Contractor" means any
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0001| business having a contract with a state agency or a local
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0002| public body. For construction purposes, "contractor" means a
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0003| person licensed as a contractor by the construction industries
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0004| division of the regulation and licensing department."
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0005| Section 6. Section 13-1-55 NMSA 1978 (being Laws 1989,
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0006| Chapter 69, Section 1) is amended to read:
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0007| "13-1-55. DEFINITION--ENGINEERING SERVICES.--"Engineering
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0008| services" means any service or creative work [the adequate
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performance of which] that requires engineering education,
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0010| training and experience in the application of special knowledge
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0011| of the mathematical, physical and engineering sciences to such
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0012| services or creative work as consultation, investigation,
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0013| forensic investigation, evaluation, planning and design of
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0014| engineering works and systems, expert technical testimony,
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0015| engineering studies and the review of construction for the
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0016| purpose of assuring substantial compliance with drawings and
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0017| specifications; any of which embrace such services or work,
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0018| either public or private, in connection with any utilities,
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0019| structures, buildings, machines, equipment, processes, work
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0020| systems, projects and industrial or consumer products or
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0021| equipment of a mechanical, electrical, hydraulic, chemical,
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0022| pneumatic, environmental or thermal nature, insofar as they
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0023| involve safeguarding life, health or property, and including
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0024| such other professional services as may be necessary to the
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0025| planning, progress and completion of any engineering services.
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0001| Such practice includes the performance of architectural work
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0002| incidental to the practice of engineering and the provision of
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0003| general administration of construction contracts.
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0004| "Engineering services" does not include responsibility for the
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0005| superintendence of construction, site conditions, operations,
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0006| equipment, personnel or the maintenance of safety in the work
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0007| place."
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0008| Section 7. Section 13-1-67 NMSA 1978 (being Laws 1984,
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0009| Chapter 65, Section 40) is amended to read:
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0010| "13-1-67. DEFINITION--LOCAL PUBLIC BODY.--"Local public
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0011| body" means every political subdivision of the state and the
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0012| agencies, instrumentalities and institutions thereof and two-
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0013| year post-secondary educational institutions not identified in
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0014| Article 12, Section 11 of the constitution of New Mexico."
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0015| Section 8. Section 13-1-71 NMSA 1978 (being Laws 1984,
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0016| Chapter 65, Section 44) is amended to read:
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0017| "13-1-71. DEFINITION--PRICE AGREEMENT.--"Price agreement"
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0018| means a definite quantity contract or indefinite quantity
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0019| contract [which] that requires the contractor to furnish
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0020| items of tangible personal property, services or construction
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0021| to a state agency or a local public body [which] that
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0022| issues a [purchase] contract order, if the [purchase]
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0023| contract order is within the quantity limitations of the
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0024| contract, if any."
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0025| Section 9. Section 13-1-76 NMSA 1978 (being Laws 1984,
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0001| Chapter 65, Section 49, as amended) is amended to read:
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0002| "13-1-76. DEFINITION--PROFESSIONAL SERVICES.--
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0003| "Professional services" means the services of architects,
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0004| archeologists, engineers, surveyors, landscape architects,
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0005| medical arts practitioners, scientists, management and systems
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0006| analysts, certified public accountants, registered public
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0007| accountants, lawyers, psychologists, planners, researchers and
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0008| persons or businesses providing similar services that may be
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0009| identified by a determination issued by the purchasing division
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0010| or a central purchasing office."
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0011| Section 10. Section 13-1-77 NMSA 1978 (being Laws 1984,
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0012| Chapter 65, Section 50) is amended to read:
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0013| "13-1-77. DEFINITION--PURCHASE ORDER.--"Purchase order"
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0014| means the document issued by the state purchasing agent or a
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0015| central purchasing office [which directs] to formalize a
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0016| purchase transaction with a contractor to deliver items of
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0017| tangible personal property, services or construction pursuant
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0018| to an existing contract. The purchase order shall contain
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0019| statements as to the quantity, quality, description and price
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0020| of the goods, services or construction ordered; applicable
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0021| terms as to payment, discounts, date of performance and
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0022| transportation; and other factors of suitable references
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0023| pertinent to the purchase and its execution by the
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0024| contractor." Section 11. Section 13-1-82 NMSA 1978 (being
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0025| Laws 1984, Chapter 65, Section 55) is amended to read:
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0001| "13-1-82. DEFINITION--RESPONSIBLE BIDDER.--"Responsible
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0002| bidder" means a bidder who submits a responsive bid and who has
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0003| furnished, when required, information and data to prove that
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0004| [his] he has the appropriate license when required and
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0005| financial resources, production or service facilities,
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0006| personnel, service reputation and experience [are] adequate
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0007| to make satisfactory delivery of the services, construction or
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0008| items of tangible personal property described in the invitation
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0009| for bids."
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0010| Section 12. Section 13-1-83 NMSA 1978 (being Laws 1984,
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0011| Chapter 65, Section 56) is amended to read:
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0012| "13-1-83. DEFINITION--RESPONSIBLE OFFEROR.--"Responsible
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0013| offeror" means an offeror who submits a responsive proposal and
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0014| who has furnished, when required, information and data to prove
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0015| that his financial resources, production or service facilities,
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0016| personnel, service reputation and experience are adequate to
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0017| make satisfactory delivery of the services or items of tangible
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0018| personal property described in the request for proposal."
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0019| Section 13. Section 13-1-87 NMSA 1978 (being Laws 1984,
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0020| Chapter 65, Section 60) is amended to read:
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0021| "13-1-87. DEFINITION--SERVICES.--"Services" means the
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0022| furnishing of labor, time or effort by a contractor not
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0023| involving the delivery of a specific end product other than
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0024| reports and other materials [which] that are merely
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0025| incidental to the required performance. "Services" includes
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0001| [the furnishing of insurance] trade or technical services of
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0002| a janitor, security guard, travel agent, plumber, electrician,
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0003| food service operator, mechanic or repair person, but does not
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0004| include construction as defined in Section 13-1-40 NMSA 1978
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0005| or the services of employees of a state agency or a local
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0006| public body."
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0007| Section 14. Section 13-1-91 NMSA 1978 (being Laws 1984,
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0008| Chapter 65, Section 64, as amended) is amended to read:
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0009| "13-1-91. DEFINITION--STATE OR LOCAL PUBLIC WORKS
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0010| PROJECT.--"State public works project" or "local public works
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0011| project" means a project of a state agency, not including
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0012| projects of the state educational institutions, the supreme
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0013| court building commission or the legislature or a local
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0014| public [bodies, which] body that uses architectural or
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0015| engineering services requiring professional design or related
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0016| services costing twenty-five thousand dollars ($25,000) or
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0017| more, [or] landscape architectural services requiring
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0018| professional design or related services costing fifteen
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0019| thousand dollars ($15,000) or more or surveying services
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0020| requiring professional services costing five thousand dollars
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0021| ($5,000) or more, excluding applicable state and local gross
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0022| receipts taxes."
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0023| Section 15. Section 13-1-95 NMSA 1978 (being Laws 1984,
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0024| Chapter 65, Section 68) is amended to read:
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0025| "13-1-95. PURCHASING DIVISION--CREATION--DIRECTOR IS
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0001| STATE PURCHASING AGENT--APPOINTMENT--DUTIES.--
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0002| A. The "purchasing division" is created within the
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0003| general services department.
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0004| B. Subject to the authority of the secretary, the
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0005| state purchasing agent shall be the administrator and chief
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0006| executive of the purchasing division. The state purchasing
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0007| agent shall be appointed by the secretary with the approval of
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0008| the governor.
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0009| C. The purchasing division and state purchasing
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0010| agent shall be the executive procurement officers,
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0011| responsible for the procurement of services, construction and
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0012| items of tangible personal property for all state agencies
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0013| except as otherwise provided in the Procurement Code and shall
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0014| administer the Procurement Code for those state agencies not
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0015| excluded from the requirement of procurement through the state
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0016| purchasing agent.
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0017| D. The state purchasing agent shall have the
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0018| following additional authority and responsibility to:
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0019| (1) recommend procurement regulations to the
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0020| secretary;
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0021| (2) establish, [and] maintain and conduct
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0022| training programs for state agencies and local public bodies
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0023| for the development and use of procurement specifications,
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0024| [and] for the inspection, testing and acceptance of services,
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0025| construction and items of tangible personal property and for
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0001| other matters pertaining to public procurement and contracting
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0002| consistent with the Procurement Code and applicable rules and
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0003| procedures of the purchasing division;
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0004| (3) cooperate with the [state budget division
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of the] department of finance and administration in the
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0006| preparation of statistical data concerning the acquisition and
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0007| usage of all services, construction and items of tangible
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0008| personal property by state agencies and other matters as
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0009| requested;
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0010| (4) require state agencies to furnish reports
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0011| concerning usage, needs and stocks on hand of items of tangible
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0012| personal property and usage and needs for services or
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0013| construction;
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0014| (5) prescribe, with consent of the secretary,
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0015| forms to be used by state agencies to requisition and report
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0016| the procurement of items of tangible personal property,
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0017| services and construction;
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0018| (6) provide information to state agencies and
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0019| local public bodies concerning the development of
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0020| specifications, quality control methods and other procurement
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0021| information; and
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0022| (7) collect information concerning procurement
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0023| matters, quality and quality control of commonly used services,
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0024| construction and items of tangible personal property.
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0025| E. The state purchasing agent shall, upon the request
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0001| of the central purchasing office of a local public body,
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0002| procure a price agreement for the requested services,
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0003| construction or items of tangible personal property.
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0004| F. The "procurement review bureau" is created in the
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0005| purchasing division. Duties of the bureau as set by the state
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0006| purchasing agent and approved by the secretary shall include
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0007| site assessment of agency-level purchasing activity, and other
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0008| central purchasing offices on request, to determine compliance
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0009| with state laws and regulations; recommendations on policies
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0010| and procedures that need to be adjusted or are being
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0011| misinterpreted; and acting as the state's coordinator in
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0012| recycled product procurement. The bureau shall perform other
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0013| duties assigned by the secretary or the state purchasing
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0014| agent."
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0015| Section 16. Section 13-1-98 NMSA 1978 (being Laws 1984,
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0016| Chapter 65, Section 71, as amended) is amended to read:
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0017| "13-1-98. EXEMPTIONS FROM THE PROCUREMENT CODE.--The
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0018| provisions of the Procurement Code shall not apply to:
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0019| A. procurement of items of tangible personal property
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0020| or services by a state agency or a local public body from a
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0021| state agency, a local public body or external procurement unit
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0022| except as otherwise provided in Sections 13-1-135 through
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0023| 13-1-137 NMSA 1978;
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0024| B. procurement of tangible personal property or
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0025| services for the governor's mansion and grounds;
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0001| C. printing and duplicating contracts involving
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0002| materials which are required to be filed in connection with
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0003| proceedings before administrative agencies or state or federal
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0004| courts;
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0005| D. purchases of publicly provided or publicly
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0006| regulated gas, electricity, water, sewer and refuse collection
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0007| and similar services;
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0008| E. purchases of books, [and] periodicals, off-the-
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0009| shelf software and videos from the publishers, [or]
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0010| copyright holders or licensed owners thereof when the
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0011| materials are not available from distributors who will
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0012| participate in competitive bidding;
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0013| F. travel or shipping by common carrier or by private
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0014| conveyance or to meals and lodging;
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0015| G. purchase of livestock at auction rings or to the
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0016| procurement of animals to be used for research and
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0017| experimentation or exhibit;
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0018| H. contracts with businesses for public school
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0019| transportation services;
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0020| I. procurement of tangible personal property or
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0021| services, as defined by Sections 13-l-87 and 13-l-93 NMSA 1978,
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0022| by the corrections industries division of the corrections
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0023| department pursuant to regulations adopted by the corrections
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0024| [industries] commission, which shall be reviewed by the
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0025| purchasing division of the general services department prior to
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0001| adoption;
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0002| J. minor purchases consisting of magazine
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0003| subscriptions, conference registration fees, membership dues
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0004| in professional organizations and other similar purchases
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0005| where prepayments are required;
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0006| K. municipalities having adopted home rule charters
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0007| and having enacted their own purchasing ordinances;
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0008| L. the issuance, sale and delivery of public
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0009| securities pursuant to the applicable authorizing statute, with
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0010| the exception of bond attorneys and general financial
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0011| consultants;
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0012| M. contracts entered into by a local public body with
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0013| a private independent contractor for the operation, or
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0014| provision and operation, of a jail pursuant to Sections 33-3-26
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0015| and
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0016| 33-3-27 NMSA 1978;
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0017| N. contracts for maintenance of grounds and
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0018| facilities at highway rest stops and other contracts for
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0019| employment opportunities, excluding those intended for the
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0020| direct care and support of persons with handicaps, entered into
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0021| by state agencies with private, nonprofit, independent
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0022| contractors who provide services to persons with handicaps;
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0023| O. contracts and expenditures for services to be paid
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0024| or compensated by money or other property transferred to New
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0025| Mexico law enforcement agencies by the United States department
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0001| of justice drug enforcement administration;
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0002| P. contracts for retirement and other benefits
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0003| pursuant to Sections 22-11-47 through 22-11-52 NMSA 1978;
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0004| [and]
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0005| Q. contracts with professional entertainers;
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0006| R. placement costs for media advertisements that
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0007| promote New Mexico and that are not part of an ongoing
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0008| advertising campaign and legal notices or advertisements as
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0009| required by law or the order of a court of record in this
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0010| state;
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0011| S. fees paid for expert witness testimony in
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0012| connection with proceedings before administrative agencies or
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0013| state or federal courts; and
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0014| T. procurement of items of tangible personal property
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0015| in their final form, whose purpose is strictly for resale
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0016| through an enterprise agency wherein the activity is in
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0017| accordance with the organizational unit's stated mission."
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0018| Section 17. Section 13-1-99 NMSA 1978 (being Laws 1984,
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0019| Chapter 65, Section 72, as amended) is amended to read:
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0020| "13-1-99. EXCLUDED FROM CENTRAL PURCHASING THROUGH THE
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0021| STATE PURCHASING AGENT.--Excluded from the requirement of
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0022| procurement through the state purchasing agent, but not from
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0023| the requirements of the Procurement Code and regulations
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0024| promulgated pursuant to Section 13-1-125 NMSA 1978, are the
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0025| following:
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0001| A. procurement of professional services except for
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0002| professional services related to information and communication
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0003| services, resources and systems;
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0004| B. small purchases having a value not exceeding [two
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hundred fifty dollars ($250)] one thousand dollars ($1,000);
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0006| C. emergency procurement;
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0007| D. procurement of highway construction or
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0008| reconstruction by the state highway and transportation
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0009| department;
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0010| E. procurement by the judicial branch of state
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0011| government;
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0012| F. procurement by the legislative branch of state
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0013| government;
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0014| G. procurement by the boards of regents of state
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0015| educational institutions named in Article 12, Section 11 of the
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0016| constitution of New Mexico;
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0017| [H. procurement of information processing resources
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procured through the commission on information and
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communication management;
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I.] H. procurement by the state fair commission of
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0021| tangible personal property, services and construction under
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0022| five thousand dollars ($5,000);
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0023| [J.] I. purchases from the instructional material
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0024| fund;
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0025| [K.] J. procurement by all local public bodies;
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0001| [L.] K. procurement by regional education
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0002| cooperatives; and
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0003| [M.] L. procurement by each state health care
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0004| institution that provides direct patient care and that is, or a
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0005| part of which is, medicaid certified and participating in the
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0006| New Mexico medicaid program."
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0007| Section 18. Section 13-1-104 NMSA 1978 (being Laws 1984,
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0008| Chapter 65, Section 77, as amended) is amended to read:
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0009| "13-1-104. COMPETITIVE SEALED BIDS--PUBLIC NOTICE.--
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0010| A. [The] An invitation for bids or a notice
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0011| thereof shall be published not less than ten calendar days
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0012| prior to the date set forth for the opening of bids. In the
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0013| case of purchases made by the state purchasing agent, the
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0014| invitation or notice shall be published at least once in at
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0015| least three newspapers of general circulation in this state.
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0016| In the case of purchases made by other central purchasing
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0017| offices, the invitation or notice shall be published at least
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0018| once in a newspaper of general circulation in the area in which
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0019| the central purchasing office is located. These requirements
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0020| of publication are in addition to any other procedures which
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0021| may be adopted by central purchasing offices to notify
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0022| prospective bidders that bids will be received, including but
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0023| not limited to publication in a trade journal, if available.
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0024| If there is no newspaper of general circulation in the area in
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0025| which the central purchasing office is located, such other
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0001| notice may be given as is commercially reasonable.
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0002| B. The state purchasing agent and all central
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0003| purchasing offices shall send copies of the notice or
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0004| invitation for bids involving the expenditure of more than
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0005| [five thousand dollars ($5,000)] ten thousand dollars
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0006| ($10,000) to those businesses [which] that have signified
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0007| in writing an interest in submitting bids for particular
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0008| categories of items of tangible personal property, construction
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0009| and services and which have paid any required fees. The state
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0010| purchasing agent or a central purchasing office may set
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0011| different registration fees for different categories of
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0012| services, construction or items of tangible personal property,
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0013| but such fees shall be related to the actual, direct cost of
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0014| furnishing copies of the notice or invitation for bids to the
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0015| prospective bidders. The fees shall be used exclusively for
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0016| the purpose of furnishing copies of the notice or invitation
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0017| for bids of proposed procurements to prospective bidders.
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0018| C. As used in this subsection, "prospective bidders"
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0019| includes [persons] a person considering submission of a bid
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0020| as a licensed general contractor for the proposed
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0021| construction contract and persons who may submit bids to a
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0022| licensed general contractor for work to be subcontracted
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0023| pursuant to the proposed construction contract. The state
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0024| purchasing agent and all central purchasing offices shall make
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0025| copies of invitations for bids for construction contracts
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0001| available to prospective bidders. The state purchasing agent
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0002| or a central purchasing office may require prospective bidders
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0003| who have requested bid documents [for bid] on a proposed
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0004| construction contract to pay a deposit for a copy of the bid
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0005| documents [for bid]. The deposit shall equal the full cost
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0006| of reproduction and delivery of the bid documents [for
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bid]. The deposit, less delivery charges, shall be refunded
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0008| if the bid documents [for bid] are returned in usable
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0009| condition within the time limits specified in the documents for
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0010| bid, which time limits shall be no less than ten calendar days
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0011| from the date of the bid opening. All forfeited deposits shall
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0012| be credited to the funds of the state purchasing agent or
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0013| central purchasing office, whichever is applicable."
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0014| Section 19. Section 13-1-105 NMSA 1978 (being Laws 1984,
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0015| Chapter 65, Section 78, as amended) is amended to read:
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0016| "13-1-105. COMPETITIVE SEALED BIDS--RECEIPT AND
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0017| ACCEPTANCE OF BIDS.--Bids shall be unconditionally accepted for
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0018| consideration for award without alteration or correction,
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0019| except as authorized in the Procurement Code. Bids shall be
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0020| evaluated based on the requirements set forth in the invitation
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0021| for bids, which requirements may include criteria to determine
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0022| acceptability such as inspection, testing, quality,
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0023| workmanship, delivery and suitability for a particular purpose.
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0024| Those criteria such as discounts, transportation costs and
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0025| total or life-cycle costs that will affect the bid price shall
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0001| be objectively measurable, which shall be defined by
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0002| regulation. The invitation for bids shall set forth the
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0003| evaluation criteria to be used. No criteria may be used in bid
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0004| evaluation that are not set forth in the invitation for bids.
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0005| [If the lowest responsible bid has otherwise qualified and if
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there is no change in the original terms and conditions, the
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lowest bidder may negotiate with the purchaser for a lower
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total bid in order to avoid rejection of all bids for the
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reason that the lowest bid was up to ten percent higher than
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budgeted project funds. Such negotiation shall not be allowed
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if the lowest bid was more than ten percent over budgeted
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project funds.] In the event all bids for a construction
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0013| project exceed available funds as certified by the appropriate
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0014| fiscal officer, and the lowest responsive bid, determined by a
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0015| combination of base bid plus or minus any alternates, does not
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0016| exceed the funds by more than ten percent, the state purchasing
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0017| agent or a central purchasing officer may, in situations where
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0018| time or economic considerations preclude resolicitation of work
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0019| of a reduced scope, negotiate an adjustment of the bid price,
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0020| including changes in the scope, plans and technical
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0021| specifications, with the lowest responsible bidder in order to
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0022| bring the bid within the amount of available funds. The state
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0023| purchasing agent or central purchasing officer may not change
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0024| the terms and conditions of the procurement action, which are
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0025| separate and distinct from the specifications and refer to
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0001| various documents such as the invitation to bid; the
|
0002| instruction to bidders; the bid form; bonds, certificates and
|
0003| notices; and the general and supplementary conditions to the
|
0004| contract."
|
0005| Section 20. Section 13-1-106 NMSA 1978 (being Laws 1984,
|
0006| Chapter 65, Section 79) is amended to read:
|
0007| "13-1-106. COMPETITIVE SEALED BIDS--CORRECTION OR
|
0008| WITHDRAWAL OF BIDS.--
|
0009| A. A bid [containing a mistake discovered before bid
|
opening] may be modified or withdrawn by a bidder prior to the
|
0011| time set for bid opening in person or by delivering written
|
0012| [or telegraphic] notice to the location designated in the
|
0013| invitation for bids as the place where bids are to be received.
|
0014| To safeguard the integrity of the bidding process, a
|
0015| modification in bid price shall be submitted in a sealed
|
0016| envelope, accompanied by a cover letter or written notice of
|
0017| explanation signed by the bidder.
|
0018| B. After bid opening, no modifications in bid
|
0019| prices or other provisions of bids shall be permitted. A low
|
0020| bidder alleging a material mistake of fact [which makes his]
|
0021| in the bid [nonresponsive] submitted may be permitted to
|
0022| withdraw [its] that bid if:
|
0023| (1) the mistake is clearly evident [on the face
|
of] in the bid document; or
|
0025| (2) the bidder submits evidence [which] that
|
0001| clearly and convincingly demonstrates that a mistake was made.
|
0002| [B.] C. Any decision by a procurement officer to
|
0003| permit or deny the withdrawal of a bid on the basis of a
|
0004| mistake contained [therein] in the bid shall be supported
|
0005| by a determination setting forth the grounds for the decision."
|
0006| Section 21. Section 13-1-107 NMSA 1978 (being Laws 1984,
|
0007| Chapter 65, Section 80) is amended to read:
|
0008| "13-1-107. COMPETITIVE SEALED BIDS--BID OPENING.--Bids
|
0009| shall be opened publicly in the presence of one or more
|
0010| witnesses at the time and place designated in the invitation
|
0011| for bids. The amount of each bid and each bid item, if
|
0012| appropriate, and such other relevant information as may be
|
0013| specified by the state purchasing agent or a central purchasing
|
0014| office, together with the name of each bidder, shall be
|
0015| recorded, and the record and each bid shall be open to public
|
0016| inspection at the opening and later by appointment with the
|
0017| applicable procurement officer."
|
0018| Section 22. Section 13-1-109 NMSA 1978 (being Laws 1984,
|
0019| Chapter 65, Section 82) is amended to read:
|
0020| "13-1-109. COMPETITIVE SEALED BIDS--MULTI-STEP SEALED
|
0021| BIDDING. Multi-step bidding is a variant of the competitive
|
0022| sealed bidding method that may be used when the state
|
0023| purchasing agent or a central purchasing office makes a
|
0024| written determination that [it is impractical to initially
|
prepare specifications to support an award based on price, an
|
invitation for bids may be issued requesting the submission of
|
unpriced offers to be followed by an invitation for bids]
|
0003| available specifications are inadequate or are too general to
|
0004| permit full and free competition without technical evaluation
|
0005| and discussion. Multi-step bidding shall be a phased process
|
0006| that combines elements of both the competitive sealed proposal
|
0007| method, seeking necessary information or unpriced technical
|
0008| offers in the initial phase; and regular competitive sealed
|
0009| bidding, inviting bidders who submitted technically acceptable
|
0010| offers in the initial phase to submit competitive sealed price
|
0011| bids on their technical offers in the final phase. The
|
0012| contract shall be awarded in accordance with Section 13-1-108
|
0013| NMSA 1978."
|
0014| Section 23. Section 13-1-110 NMSA 1978 (being Laws 1984,
|
0015| Chapter 65, Section 83) is amended to read:
|
0016| "13-1-110. COMPETITIVE SEALED BIDS--IDENTICAL BIDS.--When
|
0017| competitive sealed bids are used and two or more of the bids
|
0018| submitted are identical in price and are the [low] lowest
|
0019| responsible bid, the state purchasing agent or a central
|
0020| purchasing office may:
|
0021| A. award pursuant to the multiple source award
|
0022| provisions of Sections [126 and 127 of the Procurement Code]
|
0023| 13-1-153 and 13-1-154 NMSA 1978;
|
0024| B. award to a resident business if the identical low
|
0025| bids are submitted by a resident business and a nonresident
|
0001| business;
|
0002| C. award to a resident manufacturer if the identical
|
0003| low bids are submitted by a resident manufacturer and a
|
0004| resident business;
|
0005| D. award by lottery to one of the identical low
|
0006| bidders; or
|
0007| E. reject all bids and resolicit bids [or
|
proposals] for the required services, construction or items of
|
0009| tangible personal property."
|
0010| Section 24. Section 13-1-111 NMSA 1978 (being Laws 1984,
|
0011| Chapter 65, Section 84, as amended) is amended to read:
|
0012| "13-1-111. COMPETITIVE SEALED PROPOSALS--CONDITIONS FOR
|
0013| USE.--When a state agency or a local public body is procuring
|
0014| professional services or when the state purchasing agent, a
|
0015| central purchasing office or a designee of either officer makes
|
0016| a written determination that the use of competitive sealed
|
0017| bidding for items of tangible personal property or services
|
0018| is either not practicable or not advantageous to the state
|
0019| agency or a local public body, a procurement shall be effected
|
0020| by competitive sealed proposals. Competitive qualifications-
|
0021| based proposals shall be used for procurement of professional
|
0022| services of architects, engineers, landscape architects and
|
0023| surveyors who submit proposals pursuant to Sections 13-1-120
|
0024| through 13-1-124 NMSA 1978."
|
0025| Section 25. Section 13-1-116 NMSA 1978 (being Laws 1984,
|
0001| Chapter 65, Section 89) is amended to read:
|
0002| "13-1-116. COMPETITIVE SEALED PROPOSALS--DISCLOSURE--
|
0003| RECORD.--The contents of any proposal shall not be disclosed so
|
0004| as to be available to competing offerors during the negotiation
|
0005| process and prior to award."
|
0006| Section 26. Section 13-1-119 NMSA 1978 (being Laws 1984,
|
0007| Chapter 65, Section 92, as amended) is amended to read:
|
0008| "13-1-119. COMPETITIVE SEALED QUALIFICATIONS-BASED
|
0009| PROPOSALS--ARCHITECTS--ENGINEERS--LANDSCAPE ARCHITECTS--
|
0010| SURVEYORS--ADDITIONAL REQUIREMENTS.--In addition to compliance
|
0011| with the requirements of Sections 13-1-112 through 13-1-114 and
|
0012| 13-1-116 through 13-1-118 NMSA 1978, a state agency or local
|
0013| public body, when procuring the professional services of
|
0014| architects, landscape architects, engineers or surveyors for
|
0015| state public works projects or local public works projects,
|
0016| shall comply with Sections 13-1-120 through 13-1-124 NMSA
|
0017| 1978."
|
0018| Section 27. Section 13-1-120 NMSA 1978 (being Laws 1984,
|
0019| Chapter 65, Section 93, as amended) is amended to read:
|
0020| "13-1-120. COMPETITIVE SEALED QUALIFICATIONS-BASED
|
0021| PROPOSALS--ARCHITECTS--ENGINEERS--LANDSCAPE ARCHITECTS--
|
0022| SURVEYORS--SELECTION PROCESS.--
|
0023| A. For each proposed state public works project or
|
0024| local public works project, the architect, engineer, landscape
|
0025| architect and surveyor selection committee, state highway and
|
0001| transportation department selection committee or local
|
0002| selection committee, as appropriate, shall evaluate statements
|
0003| of qualifications and performance data submitted by [at least
|
three] all businesses in regard to the particular project
|
0005| and may conduct interviews with and may require public
|
0006| presentation by all businesses applying for selection regarding
|
0007| their qualifications, their approach to the project and their
|
0008| ability to furnish the required services.
|
0009| B. The appropriate selection committee shall
|
0010| select, ranked in the order of their qualifications, no less
|
0011| than three businesses deemed to be the most highly qualified to
|
0012| perform the required services, after considering the following
|
0013| criteria together with any criteria, except price, established
|
0014| by the using agency authorizing the project:
|
0015| (1) specialized design and technical competence
|
0016| of the business, including a joint venture or association,
|
0017| regarding the type of services required;
|
0018| (2) capacity and capability of the business to
|
0019| perform the work, including any specialized services, within
|
0020| the time limitations, including any subconsultants and their
|
0021| representatives, qualifications and locations;
|
0022| (3) past record of performance on contracts with
|
0023| government agencies or private industry with respect to such
|
0024| factors as control of costs, quality of work and ability to
|
0025| meet schedules;
|
0001| (4) proximity to or familiarity with the area in
|
0002| which the project is located;
|
0003| (5) the amount of design work that will be
|
0004| produced by a New Mexico business within this state; and
|
0005| (6) the volume of work previously done for the
|
0006| entity requesting proposals which is not seventy-five percent
|
0007| complete with respect to basic professional design services,
|
0008| with the objective of effecting an equitable distribution of
|
0009| contracts among qualified businesses and of assuring that the
|
0010| interest of the public in having available a substantial number
|
0011| of qualified businesses is protected; provided, however, that
|
0012| the principle of selection of the most highly qualified
|
0013| businesses is not violated.
|
0014| C. Notwithstanding the requirements of Subsections A
|
0015| and B of this section, if fewer than three businesses have
|
0016| submitted a statement of qualifications for a particular
|
0017| project, the committee may:
|
0018| (1) rank in order of qualifications and submit
|
0019| to the secretary or governing authority of the local public
|
0020| body for award those businesses which have submitted a
|
0021| statement of qualifications; or
|
0022| (2) recommend termination of the selection
|
0023| process pursuant to Section 13-1-131 NMSA 1978 and sending
|
0024| out of new notices of the resolicitation of the proposed
|
0025| procurement pursuant to Section 13-1-104 NMSA 1978. Any
|
0001| proposal received in response to the terminated solicitation is
|
0002| not public information and shall not be made available to
|
0003| competing offerors.
|
0004| D. The names of all businesses submitting proposals
|
0005| and the names of all businesses, if any, selected for interview
|
0006| shall be public information. After an award has been made,
|
0007| the appropriate selection committee's final ranking and
|
0008| evaluation scores for all proposals shall become public
|
0009| information. Businesses [which] that have not been
|
0010| selected for a contract award shall be so notified in writing
|
0011| within [twenty-one] fifteen days after an award is made."
|
0012| Section 28. Section 13-1-121 NMSA 1978 (being Laws 1984,
|
0013| Chapter 65, Section 94, as amended) is amended to read:
|
0014| "13-1-121. COMPETITIVE SEALED QUALIFICATIONS-BASED
|
0015| PROPOSALS--ARCHITECTS--ENGINEERS--LANDSCAPE ARCHITECTS--
|
0016| SURVEYORS--SELECTION COMMITTEE--STATE PUBLIC WORKS PROJECTS.--
|
0017| A. The secretary shall create an "architect,
|
0018| engineer, landscape architect and surveyor selection committee"
|
0019| [is created. The committee, which shall serve] that serves
|
0020| as the selection committee for state public works projects
|
0021| [except for highway projects of the state highway and
|
transportation department, is]. A committee shall be
|
0023| composed of four members as follows:
|
0024| (1) one member of the agency for which the
|
0025| project is being designed;
|
0001| (2) the director of the property control
|
0002| division of the general services department, who shall be
|
0003| chairman;
|
0004| (3) one member designated by the architect-
|
0005| engineer-landscape architect joint practice committee; and
|
0006| (4) one member designated by the secretary.
|
0007| B. The staff architect or his designee of the
|
0008| property control division shall serve as staff to the
|
0009| architect, engineer, landscape architect and surveyor selection
|
0010| committee.
|
0011| C. The members of the architect, engineer, landscape
|
0012| architect and surveyor selection committee shall be reimbursed
|
0013| by the property control division for per diem and mileage in
|
0014| accordance with the provisions of the Per Diem and Mileage Act.
|
0015| D. The state highway and transportation department
|
0016| shall create a selection committee by rule, after notice and
|
0017| hearing, [which] that shall serve as the selection
|
0018| committee for highway projects of the department.
|
0019| E. Each board of regents of state educational
|
0020| institutions named in Article 12, Section 11 of the
|
0021| constitution of New Mexico shall create a selection committee
|
0022| by rule, after notice and hearing. The institution's director
|
0023| of central purchasing or his designee shall serve as chairman
|
0024| of the selection committee for public works projects of that
|
0025| state educational institution.
|
0001| F. The governing body of each local public body shall
|
0002| create a selection committee by rule or ordinance, after notice
|
0003| and hearing, that shall serve as the selection committee for
|
0004| public works projects of that local public body."
|
0005| Section 29. Section 13-1-122 NMSA 1978 (being Laws 1984,
|
0006| Chapter 65, Section 95, as amended) is amended to read:
|
0007| "13-1-122. COMPETITIVE SEALED QUALIFICATIONS-BASED
|
0008| PROPOSALS--AWARD OF ARCHITECT, ENGINEERING, LANDSCAPE ARCHITECT
|
0009| AND SURVEYING CONTRACTS.--
|
0010| A. The secretary or his designee, [or] the
|
0011| secretary of [the] highway and transportation [department]
|
0012| or his designee, a designee of the board of regents of a state
|
0013| educational institution or a designee of a local public body
|
0014| shall negotiate a contract with the highest qualified business
|
0015| for the architectural, landscape architectural, engineering or
|
0016| surveying services at compensation determined in writing to be
|
0017| fair and reasonable. In making this decision, the [secretary
|
or his designee or the designee of a local public body]
|
0019| applicable negotiating party shall take into account the
|
0020| estimated value of the services to be rendered and the scope,
|
0021| complexity and professional nature of the services. Should the
|
0022| [secretary or his designee or the designee of a local public
|
body] applicable negotiating party be unable to negotiate a
|
0024| satisfactory contract with the business considered to be the
|
0025| most qualified [at a price determined to be fair and
|
reasonable], negotiations with that business shall be formally
|
0002| terminated [The secretary or his designee or the designee of a
|
local public body shall then undertake negotiations with the
|
second most qualified business. Failing accord with the second
|
most qualified business, the secretary or his designee or a
|
designee of a local public body shall formally terminate
|
negotiations with that business. The secretary or his designee
|
or the designee of the local public body shall then undertake
|
negotiations with the third most qualified business. Should
|
the secretary or his designee or a designee of a local public
|
body be unable to negotiate a contract with any of the
|
businesses selected by the committee, additional businesses
|
shall be ranked in order of their qualifications and the
|
secretary or his designee or the designee of a local public
|
body shall continue negotiations in accordance with this
|
section until a contract is signed with a qualified business or
|
the procurement process is terminated and a new request for
|
proposals is initiated] and the applicable negotiating party
|
0019| shall undertake negotiations with the next most qualified
|
0020| business, continuing with the process until a contract is
|
0021| agreed to and signed with a qualified business or the
|
0022| procurement process is terminated and a new request for
|
0023| qualifications-based proposals is solicited.
|
0024| B. The [secretary or the representative of a
|
local] applicable public body shall publicly announce the
|
0001| business selected for award.
|
0002| C. Subconsultants listed according to Paragraph (2)
|
0003| of Subsection B of Section 13-1-120 NMSA 1978 shall not be
|
0004| replaced without the written consent of the using agency."
|
0005| Section 30. Section 13-1-123 NMSA 1978 (being Laws 1984,
|
0006| Chapter 65, Section 96, as amended) is amended to read:
|
0007| "13-1-123. ARCHITECTURAL, ENGINEERING, LANDSCAPE
|
0008| ARCHITECTURAL AND SURVEYING CONTRACTS.--
|
0009| A. All architectural, engineering, landscape
|
0010| architectural and surveying contracts [between a state agency
|
and an architect for the construction of new buildings or for
|
the remodeling or renovation of existing buildings] entered
|
0013| into by a state agency or local public body shall contain the
|
0014| provision that all designs, drawings, specifications, notes and
|
0015| other work developed in the performance of the contract are the
|
0016| sole property of [this state] the using agency initiating
|
0017| the contract.
|
0018| B. All documents, including drawings and
|
0019| specifications, prepared by the architect, engineer, landscape
|
0020| architect or surveyor are instruments of professional service.
|
0021| If the plans and specifications developed in the performance of
|
0022| the contract shall become the property of the [contracting]
|
0023| using agency upon completion of the work, the [contracting]
|
0024| using agency agrees to hold harmless, indemnify and defend
|
0025| the architect, engineer, landscape architect or surveyor
|
0001| against all damages, claims and losses, including defense
|
0002| costs, arising out of any reuse of the plans and specifications
|
0003| without the written authorization of the architect, engineer,
|
0004| landscape architect or surveyor.
|
0005| C. A copy of all designs, drawings and other
|
0006| materials which are the property of [this state] the using
|
0007| agency shall be transmitted to the [contracting] using
|
0008| agency. The [contracting] using agency shall index these
|
0009| materials, and a copy of the index shall be provided to the
|
0010| appropriate records center."
|
0011| Section 31. Section 13-1-124 NMSA 1978 (being Laws 1984,
|
0012| Chapter 65, Section 97) is amended to read:
|
0013| "13-1-124. STAFF ARCHITECT AND ENGINEER RATE
|
0014| [SCHEDULE] SCHEDULES.--The secretary shall adopt by
|
0015| regulation [an] architect and engineer rate [schedule
|
which shall set the highest permissible] schedules to be used
|
0017| as a basis for negotiating for architect and engineer services,
|
0018| recommending the range of rates for each [building-type]
|
0019| project-type group [which shall be] defined in the
|
0020| regulations. The rate [schedule] schedules shall be in
|
0021| effect upon the approval of the state board of finance and
|
0022| compliance with the State Rules Act and shall apply to all
|
0023| contracts between a state agency and an architect [which] or
|
0024| engineer that are executed after the effective date of the
|
0025| architect and engineer rate [schedule] schedules. The
|
0001| schedules shall be subject to biennial review with public
|
0002| hearings as required, and may be adopted by local public
|
0003| bodies."
|
0004| Section 32. Section 13-1-125 NMSA 1978 (being Laws 1984,
|
0005| Chapter 65, Section 98, as amended) is amended to read:
|
0006| "13-1-125. SMALL PURCHASES.--
|
0007| A. The state purchasing agent or central purchasing
|
0008| office shall procure services, construction or items of
|
0009| tangible personal property having a value not exceeding [five
|
thousand dollars ($5,000)] ten thousand dollars ($10,000) in
|
0011| accordance with the applicable small purchase regulations
|
0012| [adopted] promulgated by the secretary, a local public body
|
0013| or a central purchasing office that has the authority to issue
|
0014| regulations.
|
0015| B. Notwithstanding the requirements of Subsection A
|
0016| of this section, a central purchasing office may procure
|
0017| professional services having a value not exceeding twenty
|
0018| thousand dollars ($20,000), excluding applicable state and
|
0019| local gross receipts taxes, except for the services of
|
0020| architects, landscape architects, engineers or surveyors for
|
0021| state public works projects or local public works projects,
|
0022| which limits for such services are set forth in Section 13-1-
|
0023| 91 NMSA 1978. Procurement of professional services pursuant to
|
0024| this subsection shall be in accordance with professional ser-
|
0025|
|
0001| vices procurement regulations promulgated by the department of
|
0002| finance and administration, the general services department or
|
0003| a central purchasing office with the authority to issue regula-
|
0004|
|
0005| tions.
|
0006| [C. Notwithstanding the requirements of Subsection A
|
of this section, a central purchasing office for a state
|
educational institution named in Article 12, Section 11 of the
|
constitution of New Mexico, for a state two-year post-secondary
|
institution or for a school district as defined in the Public
|
School Code may procure services, construction or items of
|
tangible personal property having a value not exceeding ten
|
thousand dollars ($10,000) in accordance with regulations
|
promulgated by a central purchasing office with the authority
|
to issue regulations.
|
D.] C. Notwithstanding the requirements of
|
0017| Subsection A of this section, and in accordance with
|
0018| regulations promulgated by the secretary or a central
|
0019| purchasing office, a state agency or a local public body may
|
0020| procure services, construction or items of tangible personal
|
0021| property having a value not exceeding [five hundred dollars
|
($500)] one thousand dollars ($1,000) by issuing a direct
|
0023| purchase order to a contractor based upon the best obtainable
|
0024| price.
|
0025| [E.] D. Procurement requirements shall not be
|
0001| artificially divided so as to constitute either a small
|
0002| purchase under this section or to circumvent the requirements
|
0003| for competitive sealed bidding or competitive sealed proposal.
|
0004| E. Notwithstanding the requirements of Subsection A
|
0005| of this section, the state purchasing agent or a central
|
0006| purchasing office shall direct procurement of bulk fuel,
|
0007| gasoline or diesel in accordance with regulations promulgated
|
0008| by the secretary or a central purchasing office with the
|
0009| authority to issue regulations."
|
0010| Section 33. Section 13-1-129 NMSA 1978 (being Laws 1984,
|
0011| Chapter 65, Section 102, as amended) is amended to read:
|
0012| "13-1-129. PROCUREMENT UNDER EXISTING CONTRACTS.--
|
0013| A. Notwithstanding the requirements of Sections
|
0014| 13-1-102 through 13-1-118 NMSA 1978, the state purchasing agent
|
0015| or a central purchasing office may contract for services,
|
0016| construction or items of tangible personal property without the
|
0017| use of competitive sealed bids or competitive sealed proposals
|
0018| as follows:
|
0019| (1) at a price equal to or less than the
|
0020| contractor's current federal supply contract price [(GSA),
|
providing] if the contractor has indicated in writing a
|
0022| willingness to extend [such contractor] the contract's
|
0023| pricing, terms and conditions to the state agency or local
|
0024| public body and the purchase order adequately identifies the
|
0025| contract relied upon and if the terms and conditions are
|
0001| reviewed and amended, if necessary, to comply with the laws of
|
0002| New Mexico; or
|
0003| (2) with a business which has a current
|
0004| exclusive or nonexclusive price agreement with the state
|
0005| purchasing agent or a central purchasing office or an external
|
0006| procurement unit for the item of tangible personal property,
|
0007| services or construction meeting the same standards and
|
0008| specifications as the items to be procured if the following
|
0009| conditions are met:
|
0010| (a) the contractor has indicated in writing
|
0011| a willingness to extend the contract's pricing, terms and
|
0012| conditions to the interested central purchasing office;
|
0013| [(a)] (b) the total quantity purchased
|
0014| does not exceed the quantity which may be purchased under the
|
0015| applicable price agreement relied on; and
|
0016| [(b)] (c) the purchase order adequately
|
0017| identifies the price agreement relied upon.
|
0018| B. The central purchasing office shall retain for
|
0019| public inspection and for the use of auditors a copy of each
|
0020| federal supply [contractor] contract or state purchasing
|
0021| agent or central purchasing office or external purchasing
|
0022| unit price agreement relied upon to make purchases without
|
0023| seeking competitive bids or proposals."
|
0024| Section 34. Section 13-1-131 NMSA 1978 (being Laws 1984,
|
0025| Chapter 65, Section 104, as amended) is amended to read:
|
0001| "13-1-131. REJECTION OR CANCELLATION OF BIDS OR REQUESTS
|
0002| FOR PROPOSALS--NEGOTIATIONS.--
|
0003| A. An invitation for bids, a request for proposals
|
0004| or any other solicitation may be canceled or any or all bids or
|
0005| proposals may be rejected in whole or in part when it is in the
|
0006| best interest of the state agency or a local public body. A
|
0007| determination containing the [reasons] justification for
|
0008| cancellation or rejection shall be issued and shall be made
|
0009| part of the procurement file.
|
0010| B. If no bids or proposals are received or if all
|
0011| bids or proposals received are unacceptable to the state
|
0012| purchasing agent or central purchasing office and, therefore,
|
0013| are rejected [and if the invitation for bid was for any
|
tangible personal property, construction or service], then
|
0015| the state purchasing agent or a central purchasing office may
|
0016| cancel the solicitation or issue a new [invitations]
|
0017| invitation for bids [shall be requested] or request for
|
0018| proposals or rebid. Prior to issuing a new invitation for bids
|
0019| or request for proposals or rebid, the state purchasing office
|
0020| shall review the:
|
0021| (1) list of prospective contractors to ensure
|
0022| the correct group was solicited and, if possible, seek to
|
0023| identify additional prospective bidders or offerors to which
|
0024| the new invitation for bids or request for proposals or rebid
|
0025| or notice thereof shall be sent; and
|
0001| (2) requirements or specifications as specified
|
0002| in the solicitation to ensure they are reasonable, current and
|
0003| accurate, and make changes where appropriate.
|
0004| C. If upon rebidding the item of tangible
|
0005| personal property, construction or services, using the same
|
0006| bid requirements as used in the first solicitation, the bids
|
0007| received are unacceptable, or if no bids are [secured]
|
0008| received, the state purchasing agent or central purchasing
|
0009| office may purchase the tangible personal property,
|
0010| construction or services in the open market at the best obtain-
|
0011|
|
0012| able price.
|
0013| D. Open market negotiations shall not be authorized
|
0014| unless the state purchasing agent or central purchasing office
|
0015| has made a concerted effort on the rebid to address and correct
|
0016| the reason that made the bids received on the first
|
0017| solicitation unacceptable or made an attempt to solicit from
|
0018| additional bidders or offerors.
|
0019| E. Substantive changes in the requirements of the
|
0020| first invitation for bids or request for proposals that may
|
0021| include quality, quantity, scope of work and delivery require
|
0022| that a new invitation for bids or request for proposals be
|
0023| initiated."
|
0024| Section 35. Section 13-1-137 NMSA 1978 (being Laws 1984,
|
0025| Chapter 65, Section 110) is amended to read:
|
0001| "13-1-137. SALE, ACQUISITION OR USE OF PROPERTY BY A
|
0002| STATE AGENCY OR A LOCAL PUBLIC BODY. Subject to the provisions
|
0003| of Sections 13-6-1 and 13-6-2 NMSA 1978, any state agency or
|
0004| local public body may sell or donate property to, acquire or
|
0005| receive property from or cooperatively use any items of
|
0006| tangible personal property or services belonging to another
|
0007| state agency or a local public body or external procurement
|
0008| unit:
|
0009| A. in accordance with an agreement entered into with
|
0010| the approval of the state board of finance or the [data
|
processing and data communications planning council] chief
|
0012| information officer of the office on information and
|
0013| communication management, if appropriate; or
|
0014| B. subject to the provisions of Sections 3-46-1
|
0015| through 3-46-45; 3-54-1 through 3-54-3; 3-60-1 through 3-60-37
|
0016| and 3-60A-1 through 3-60A-48 NMSA 1978."
|
0017| Section 36. Section 13-1-150 NMSA 1978 (being Laws 1984,
|
0018| Chapter 65, Section 123, as amended by Laws 1993, Chapter 225,
|
0019| Section 1 and also by Laws 1993, Chapter 231, Section 13) is
|
0020| repealed and a new Section 13-1-150 NMSA 1978 is enacted to
|
0021| read:
|
0022| "13-1-150. [NEW MATERIAL] MULTI-TERM CONTRACTS--
|
0023| SPECIFIED PERIOD.--
|
0024| A. A multi-term contract for construction, services,
|
0025| items of tangible personal property and professional services
|
0001| may be entered into for any period of time deemed to be in the
|
0002| best interest of the state agency or a local public body,
|
0003| subject to the following conditions and requirements:
|
0004| (1) the term of the contract and conditions for
|
0005| extension or renewal, if any, shall be included in the
|
0006| specifications of the invitation for bids or request for
|
0007| proposals;
|
0008| (2) funds shall be available for the first
|
0009| fiscal period at the time of contracting, and payment and
|
0010| performance obligations for succeeding fiscal periods shall be
|
0011| subject to the availability and appropriation of funds;
|
0012| (3) if the estimated annual amount of the
|
0013| contract is under twenty-five thousand dollars ($25,000), and
|
0014| for professional services in any amount, the term of the
|
0015| contract shall not exceed four years, including all extensions
|
0016| and renewals;
|
0017| (4) if the estimated annual amount of the
|
0018| contract is twenty-five thousand dollars ($25,000) or more, the
|
0019| term shall not exceed eight years, including all extensions and
|
0020| renewals;
|
0021| (5) a contract entered into pursuant to the
|
0022| Public Building Energy Efficiency Act shall not exceed ten
|
0023| years, including all extensions and renewals;
|
0024| (6) services required to support or operate
|
0025| federally certified medicaid, financial assistance and child
|
0001| support enforcement management information or payment systems
|
0002| may be for a term not to exceed eight years, including all
|
0003| extensions and renewals; and
|
0004| (7) a multi-term contract for the services of
|
0005| trustees, escrow agents, registrars, paying agents, letter of
|
0006| credit issuers and other forms of credit enhancement, and other
|
0007| similar services, excluding bond attorneys, underwriters and
|
0008| financial advisors with regard to the issuance, sale and
|
0009| delivery of public securities, may be for the life of the
|
0010| securities or as long as the securities remain outstanding.
|
0011| B. Notwithstanding the provisions of Subsection A of
|
0012| this section, in order to remain a valid contract, provisions
|
0013| that allow for extension or renewal of a multi-term contract
|
0014| must be exercised, and any required action taken, while the
|
0015| contract is in full force.
|
0016| C. Notwithstanding the provisions of Subsection A of
|
0017| this section, professional services contracts, which may expire
|
0018| during the time the scope of work contracted for is in
|
0019| progress, may be extended for the length of time required to
|
0020| bring the project to completion. No new or additional work on
|
0021| the project may be assigned to the contractor during the
|
0022| extension period. The state purchasing agent or central
|
0023| purchasing office shall issue a written determination setting
|
0024| forth the circumstances for authorizing the extension that
|
0025| shall be made a part of the procurement file."
|
0001| Section 37. Section 13-1-152 NMSA 1978 (being Laws 1984,
|
0002| Chapter 65, Section 125) is amended to read:
|
0003| "13-1-152. MULTI-TERM CONTRACTS--CANCELLATION DUE TO
|
0004| UNAVAILABILITY OF FUNDS.--When funds are not appropriated or
|
0005| otherwise made available to support continuation of performance
|
0006| of a multi-term contract in a subsequent fiscal period, the
|
0007| contract shall be [cancelled] canceled without penalty to
|
0008| the state or local public body."
|
0009| Section 38. Section 13-1-153 NMSA 1978 (being Laws 1984,
|
0010| Chapter 65, Section 126) is amended to read:
|
0011| "13-1-153. MULTIPLE SOURCE AWARD--LIMITATIONS ON USE.--A
|
0012| multiple source award may be made pursuant to Section [83 of
|
the Procurement Code] 13-1-110 NMSA 1978 when awards to two
|
0014| or more bidders or offerors are necessary for adequate delivery
|
0015| or service. If a multiple source award is anticipated, the
|
0016| state purchasing agent or a central purchasing office shall
|
0017| follow the requirements of Section 13-1-154 NMSA 1978, setting
|
0018| forth the justification for a multiple source award and the
|
0019| criteria for award shall be stated in the solicitation.
|
0020| Multiple source awards shall not be made when a single award
|
0021| will meet the needs of the state agency or a local public body
|
0022| without sacrifice of economy or service. [Awards shall be
|
limited to the least number of suppliers in one geographical
|
area necessary to meet the requirements of the state agency or
|
a local public body. A multiple source award shall be based
|
upon the lowest responsible bid or proposal received in each
|
geographical area.]"
|
0003| Section 39. Section 13-1-155 NMSA 1978 (being Laws 1984,
|
0004| Chapter 65, Section 128, as amended) is amended to read:
|
0005| "13-1-155. PROCUREMENT OF USED ITEMS--APPRAISAL
|
0006| REQUIRED--COUNTY ROAD EQUIPMENT EXCEPTION FOR AUCTIONS.--
|
0007| A. A central purchasing office, when procuring used
|
0008| items of tangible personal property [the estimated cost of
|
which exceeds five thousand dollars ($5,000)], shall [request
|
bids] follow the same procurement process as though the
|
0011| items were new, adding specifications that permit used items
|
0012| under conditions to be outlined in the bid [specifications]
|
0013| document, including [but not limited to] requiring a
|
0014| written warranty [for at least ninety days after date of
|
delivery] if available and an independent "certificate of
|
0016| working order" by a qualified mechanic, [or] appraiser or
|
0017| technician.
|
0018| B. Notwithstanding the provisions of Subsection A of
|
0019| this section, the central purchasing office for a county
|
0020| government may purchase, at public or private auctions
|
0021| conducted by established, recognized commercial auction
|
0022| companies, used items of heavy equipment [having an
|
estimated cost that exceeds five thousand dollars ($5,000)]
|
0024| for use in construction and maintenance of county streets,
|
0025| roads and highways, subject to the following provisions:
|
0001| [(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]
|
0005| (1) each piece of equipment shall be appraised
|
0006| prior to the auction by a qualified disinterested appraiser
|
0007| retained and paid by the county, who shall make a written
|
0008| appraisal report stating the basis for the appraisal, including
|
0009| the age, condition, range of value or target value and
|
0010| comparable sales [and stating that] of like equipment. The
|
0011| appraiser has exercised his independent judgment without prior
|
0012| understanding or agreement with any person as to a target value
|
0013| or range of value;
|
0014| [(3)] (2) an independent "certificate of
|
0015| working condition" shall be obtained prior to the auction from
|
0016| a qualified mechanic who shall have made a detailed inspection
|
0017| of each major working or major functional part and certified
|
0018| the working condition of each; and
|
0019| [(4)] (3) the maximum price [paid] that
|
0020| shall be bid by the county, including all auction fees and
|
0021| buyer's surcharges, shall not exceed the appraised value."
|
0022| Section 40. Section 13-1-157 NMSA 1978 (being Laws 1984,
|
0023| Chapter 65, Section 130) is amended to read:
|
0024| "13-1-157. RECEIPT--INSPECTION--ACCEPTANCE OR REJECTION
|
0025| OF DELIVERIES.--
|
0001| A. The using agency is responsible for inspecting
|
0002| and accepting or rejecting deliveries. The using agency shall
|
0003| determine whether the quantity is as specified in the purchase
|
0004| order or contract and whether the quality conforms to the
|
0005| specifications referred to or included in the purchase order or
|
0006| contract. If inspection reveals that the delivery does not
|
0007| conform to the quantity or quality specified in the purchase
|
0008| order or contract, the using agency shall immediately notify
|
0009| the central purchasing office. The central purchasing office
|
0010| shall notify the vendor that the delivery has been rejected and
|
0011| shall order the vendor to promptly make a satisfactory
|
0012| replacement or supplementary delivery. In case the vendor
|
0013| fails to comply, the central purchasing office shall have no
|
0014| obligation to pay for the nonconforming items of tangible per-
|
0015|
|
0016| sonal property. If the delivery does conform to the quantity
|
0017| and quality specified in the purchase order or contract, the
|
0018| using agency shall certify to the central purchasing office
|
0019| that delivery has been completed and is satisfactory.
|
0020| B. Notwithstanding the requirements of Subsection A
|
0021| of this section, if, after delivery and acceptance of items of
|
0022| tangible personal property, the items or a portion thereof are
|
0023| later found to be nonconforming to the specifications referred
|
0024| to or included in the purchase order or contract, such prior
|
0025| acceptance does not waive any other rights or remedies that are
|
0001| otherwise granted the buyer in accordance with other relevant
|
0002| sections of laws of New Mexico."
|
0003| Section 41. Section 13-1-158 NMSA 1978 (being Laws 1984,
|
0004| Chapter 65, Section 131, as amended) is amended to read:
|
0005| "13-1-158. PAYMENTS FOR PURCHASES.--
|
0006| A. No warrant, check or other negotiable instrument
|
0007| shall be issued in payment for any purchase of services,
|
0008| construction or items of tangible personal property unless the
|
0009| central purchasing office or the using agency certifies that
|
0010| the services, construction or items of tangible personal
|
0011| property have been received and meet specifications or unless
|
0012| prepayment is permitted under Section 13-1-98 NMSA 1978 by
|
0013| exclusion of the purchase from the Procurement Code.
|
0014| B. Unless otherwise agreed upon by the parties or
|
0015| unless otherwise specified in the invitation for bids, request
|
0016| for proposals or other solicitation, within fifteen days from
|
0017| the date the [state] central purchasing office or [state]
|
0018| using agency receives written notice from the contractor that
|
0019| payment is requested for services or construction completed or
|
0020| items of tangible personal property delivered on site and
|
0021| received by the [state] using agency, the [state] central
|
0022| purchasing office or [state] using agency shall issue a
|
0023| written certification of complete or partial acceptance or
|
0024| rejection of the services, construction or items of tangible
|
0025| personal property.
|
0001| C. Upon certification by the [state] central
|
0002| purchasing office or the [state] using agency that the
|
0003| services, construction or items of tangible personal property
|
0004| have been received and accepted, payment shall be tendered to
|
0005| the contractor within sixty days of the date of certification.
|
0006| After the sixtieth day from the date that written certification
|
0007| of acceptance is issued, late payment charges shall be paid on
|
0008| the unpaid balance due on the contract to the contractor at the
|
0009| rate of one and one-half percent per month.
|
0010| D. Late payment charges that differ from the
|
0011| provisions of Subsection C of this section may be assessed if
|
0012| specifically provided for by contract or pursuant to tariffs
|
0013| approved by the New Mexico public utility commission or the
|
0014| state corporation commission."
|
0015| Section 42. Section 13-1-171 NMSA 1978 (being Laws 1984,
|
0016| Chapter 65, Section 144, as amended) is amended to read:
|
0017| "13-1-171. PRICE ADJUSTMENTS.--Adjustments in price shall
|
0018| be computed in one or more of the following ways as specified
|
0019| in the contract:
|
0020| A. by agreement on a fixed-price adjustment before
|
0021| commencement of performance of the contract or as soon
|
0022| thereafter as practicable;
|
0023| B. by unit prices specified in the contract or
|
0024| subsequently agreed upon by the contracting parties;
|
0025| C. by the costs attributable to the events or
|
0001| conditions as specified in the contract or subsequently agreed
|
0002| upon by the contracting parties;
|
0003| D. by a provision for both upward and downward
|
0004| revision of stated contract price upon the occurrence of
|
0005| specified contingencies if the contract is for commercial items
|
0006| sold in substantial quantities to the general public with
|
0007| prices based upon established catalogue or list prices in a
|
0008| form regularly maintained by the manufacturer or vendor and
|
0009| published or otherwise available for customer inspection. In
|
0010| the event of revision of the stated contract price, the
|
0011| contract file shall be promptly documented by the state
|
0012| purchasing agent or central purchasing office;
|
0013| E. in such other manner as the contracting parties
|
0014| may mutually agree; or
|
0015| F. in the absence of agreement by the contracting
|
0016| parties, by a unilateral determination reasonably computed by
|
0017| the state [agency] purchasing agent or a [local public
|
body] central purchasing office of the costs attributable to
|
0019| the events or conditions."
|
0020| Section 43. Section 13-1-172 NMSA 1978 (being Laws 1984,
|
0021| Chapter 65, Section 145, as amended) is amended to read:
|
0022| "13-1-172. RIGHT TO PROTEST.--Any prospective bidder or
|
0023| offeror who is aggrieved in connection with a solicitation, or
|
0024| any actual bidder or offeror or who is aggrieved in connection
|
0025| with award of a contract, may protest to the state purchasing
|
0001| agent or a central purchasing office, whichever is responsible
|
0002| for issuance and control of the procurement transaction in
|
0003| question. The protest shall be submitted in writing within
|
0004| fifteen calendar days after [knowledge] the aggrieved person
|
0005| knows or should have known of the facts or occurrences giving
|
0006| rise to the protest. The written protest shall include the
|
0007| name and address of the protester; the solicitation or contract
|
0008| number being protested; a statement of the grounds for the
|
0009| protest; supporting exhibits, evidence or documents to
|
0010| substantiate any claim unless not available within the filing
|
0011| time in which case the expected availability date shall be
|
0012| included; and specify the ruling requested of the appropriate
|
0013| central purchasing office."
|
0014| Section 44. Section 13-1-174 NMSA 1978 (being Laws 1984,
|
0015| Chapter 65, Section 147, as amended) is amended to read:
|
0016| "13-1-174. AUTHORITY TO RESOLVE PROTESTS.--The state
|
0017| purchasing agent or a central purchasing office, whichever
|
0018| is responsible for issuance and control of the procurement in
|
0019| question, or a designee of either shall have the authority to
|
0020| take any action reasonably necessary to resolve a protest of an
|
0021| aggrieved bidder or offeror. This authority shall be exercised
|
0022| in accordance with regulations promulgated by the secretary, a
|
0023| local public body or a central purchasing office which has the
|
0024| authority to issue regulations but shall not include the
|
0025| authority to award money damages or [attorneys'] attorney
|
0001| fees."
|
0002| Section 45. Section 13-1-175 NMSA 1978 (being Laws 1984,
|
0003| Chapter 65, Section 148) is amended to read:
|
0004| "13-1-175. PROTEST--DETERMINATION.--The state purchasing
|
0005| agent or a central purchasing office, whichever is
|
0006| responsible for issuance and control of the procurement in
|
0007| question, or a designee of either shall promptly issue a
|
0008| determination relating to the protest. The determination
|
0009| shall:
|
0010| A. state the reasons for the action taken; and
|
0011| B. inform the [protestant] protester of the right
|
0012| to judicial review of the determination pursuant to Section
|
0013| [156 of the Procurement Code] 13-1-183 NMSA 1978."
|
0014| Section 46. Section 13-1-182 NMSA 1978 (being Laws 1984,
|
0015| Chapter 65, Section 155) is amended to read:
|
0016| "13-1-182. RATIFICATION OR TERMINATION AFTER AN AWARD.--
|
0017| If after an award the state purchasing agent or a central
|
0018| purchasing office makes a determination that a solicitation or
|
0019| award of a contract is in violation of law and if the business
|
0020| awarded the contract has not acted fraudulently or in bad
|
0021| faith:
|
0022| A. the contract may be appropriately amended to
|
0023| comply with law, ratified and affirmed [and revised to
|
comply with law] by the state purchasing agent or a central
|
0025| purchasing office; provided that a determination is made that
|
0001| doing so is in the best interests of a state agency or a local
|
0002| public body; or
|
0003| B. the contract may be terminated, and the
|
0004| [business] contractor awarded the contract shall be
|
0005| compensated for the actual documented expenses reasonably
|
0006| incurred under the contract [plus a reasonable profit prior to
|
termination]."
|
0008| Section 47. Section 13-1-183 NMSA 1978 (being Laws 1984,
|
0009| Chapter 65, Section 156) is amended to read:
|
0010| "13-1-183. JUDICIAL REVIEW--LIMITATION--VENUE.--
|
0011| A. All actions authorized by the Procurement Code for
|
0012| judicial review of a determination shall be based upon the
|
0013| records of the central purchasing office and all evidence
|
0014| submitted by the [protestant] protestor and other
|
0015| interested parties. All actions for judicial review [must]
|
0016| shall be filed within thirty days of receipt of notice of the
|
0017| determination as follows:
|
0018| (1) in the first judicial district court in
|
0019| Santa Fe county when the decision to be reviewed is made by a
|
0020| state agency located in Santa Fe county; or
|
0021| (2) in the district court in which a state
|
0022| agency or a local public body is located when the decision to
|
0023| be reviewed is made by a local public body or a state agency
|
0024| not located in Santa Fe county.
|
0025| B. All determinations under the Procurement Code made
|
0001| by a state agency or a local public body shall be sustained
|
0002| unless arbitrary, capricious, contrary to law, clearly
|
0003| erroneous or not based upon substantial evidence.
|
0004| C. Under no circumstances shall money damages,
|
0005| attorney fees or court costs be awarded."
|
0006| Section 48. APPROPRIATION.--Two hundred ninety-two
|
0007| thousand dollars ($292,000) is appropriated from the general
|
0008| fund to the purchasing division of the general services
|
0009| department for expenditure in fiscal years 1998 through 2000 to
|
0010| acquire a requisition processing system. Any unexpended or
|
0011| unencumbered balance remaining at the end of fiscal year 2000
|
0012| shall revert to the general fund.
|
0013| Section 49. REPEAL.--Sections 13-1-66.1 and 13-1-136 NMSA
|
0014| 1978 (being Laws 1989, Chapter 69, Section 4 and Laws 1984,
|
0015| Chapter 65, Section 109, as amended) are repealed.
|
0016| Section 50. EFFECTIVE DATE.--The effective date of the
|
0017| provisions of this act is July 1, 1997.
|
0018| - 51 - State of New Mexico
|
0019| House of Representatives
|
0020|
|
0021| FORTY-THIRD LEGISLATURE
|
0022| FIRST SESSION, 1997
|
0023|
|
0024|
|
0025| February 24, 1997
|
0001|
|
0002|
|
0003| Mr. Speaker:
|
0004|
|
0005| Your JUDICIARY COMMITTEE, to whom has been referred
|
0006|
|
0007| HOUSE BILL 781
|
0008|
|
0009| has had it under consideration and reports same with
|
0010| recommendation that it DO PASS, amended as follows:
|
0011|
|
0012| 1. On page 18, strike all of lines 4 through 25 and on page
|
0013| 19, strike all of lines 1 through 18.
|
0014|
|
0015| 2. Renumber succeeding sections accordingly.
|
0016|
|
0017| 3. On page 50, strike lines 17 and 18 and insert in lieu
|
0018| thereof:
|
0019|
|
0020| "C. The court, in its discretion, may award attorney
|
0021| fees and costs to a prevailing protestor in an action brought
|
0022| pursuant to the provisions of this section.".,
|
0023|
|
0024| and thence referred to the APPROPRIATIONS AND FINANCE
|
0025| COMMITTEE.
|
0001|
|
0002|
|
0003| Respectfully submitted,
|
0004|
|
0005|
|
0006|
|
0007|
|
0008|
|
0009|
|
0010| Thomas P. Foy, Chairman
|
0011|
|
0012|
|
0013| Adopted Not Adopted
|
0014| (Chief Clerk)
|
0015| (Chief Clerk)
|
0016|
|
0017| Date
|
0018|
|
0019| The roll call vote was 9 For 0 Against
|
0020| Yes: 9
|
0021| Excused: Luna, Pederson, Rios, Sanchez
|
0022| Absent: None
|
0023|
|
0024|
|
0025| .117669.1
|
0001| .117659.1
|
0002| G:\BILLTEXT\BILLW_97\H0781
|