0001| HOUSE BILL 10 | 0002| 43rd legislature - STATE OF NEW MEXICO - first session, 1997 | 0003| INTRODUCED BY | 0004| RAYMOND G. SANCHEZ | 0005| | 0006| | 0007| | 0008| FOR THE REVENUE STABILIZATION AND TAX POLICY COMMITTEE | 0009| | 0010| AN ACT | 0011| RELATING TO PROCUREMENT; PROVIDING FOR EQUAL TREATMENT OF NEW | 0012| MEXICO BUSINESSES WITH NEW YORK BUSINESSES IN PROCUREMENT | 0013| MATTERS; AMENDING AND ENACTING SECTIONS OF THE NMSA 1978; | 0014| DECLARING AN EMERGENCY. | 0015| | 0016| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0017| Section 1. [NEW MATERIAL] EQUAL PROCUREMENT ACCESS FOR | 0018| NEW YORK BUSINESSES.-- | 0019| A. Certain recent amendments to the New York state | 0020| procurement statutes have the effect of prohibiting New Mexico | 0021| businesses from selling goods or providing services to New York | 0022| state and local governments and quasi-governmental entities. | 0023| This act eliminates all differential treatment of any kind | 0024| between New York state business enterprises and New Mexico | 0025| businesses in New Mexico procurement and thereby negates the | 0001| application to New Mexico businesses of the New York amendments | 0002| and protects the access of New Mexico businesses to the New | 0003| York market. | 0004| B. New York state business enterprises shall be | 0005| treated as New Mexico resident businesses or resident | 0006| manufactures for all procurement purposes. | 0007| Section 2. Section 13-1-21 NMSA 1978 (being Laws 1979, | 0008| Chapter 72, Section 1, as amended) is amended to read: | 0009| "13-1-21. APPLICATION OF PREFERENCES.-- | 0010| A. For the purposes of this section: | 0011| (1) "resident business" means a New Mexico | 0012| resident business or a New York state business enterprise; | 0013| (2) "New Mexico resident business" means a | 0014| business that is authorized to do and is doing business under | 0015| the laws of this state and: | 0016| (a) that maintains its principal place of | 0017| business in the state; | 0018| (b) has staffed an office and has paid | 0019| applicable state taxes for two years prior to the awarding of | 0020| the bid and has five or more employees who are residents of the | 0021| state; or | 0022| (c) is an affiliate of a business that meets | 0023| the requirements of Subparagraph (a) or (b) of this paragraph. | 0024| As used in this section, "affiliate" means an entity that | 0025| directly or indirectly through one or more intermediaries | 0001| controls, is controlled by or is under common control with the | 0002| qualifying business through ownership of voting securities | 0003| representing a majority of the total voting power of the | 0004| entity; | 0005| (3) "New York state business enterprise" means a | 0006| business enterprise, including a sole proprietorship, | 0007| partnership or corporation, that offers for sale or lease or | 0008| other form of exchange, goods or commodities that are | 0009| substantially manufactured, produced or assembled in New York | 0010| state, or services, other than construction services, that are | 0011| substantially performed within New York state. For purposes of | 0012| construction services, a New York state business enterprise | 0013| means a business enterprise, including a sole proprietorship, | 0014| partnership or corporation, that has its principal place of | 0015| business in New York state; | 0016| ~~[(2)]~~ (4) "resident manufacturer" means a | 0017| person who offers materials grown, produced, processed or | 0018| manufactured wholly in the state; provided, however, that a | 0019| New York state business enterprise shall be deemed to be a | 0020| resident manufacturer solely for the purpose of evaluating the | 0021| New York state business enterprise's bid against the bid of a | 0022| resident manufacturer that is now a New York state business | 0023| enterprise; | 0024| ~~[(3)]~~ (5) "recycled content goods" means | 0025| supplies and materials composed in whole or in part of recycled | 0001| materials; provided that the recycled materials content meets | 0002| or exceeds the minimum content standards required by bid | 0003| specifications; and | 0004| ~~[(4)]~~ (6) "virgin content goods" means | 0005| supplies and materials that are wholly composed of nonrecycled | 0006| materials or do not meet minimum recycled content standards | 0007| required by bid specification. | 0008| B. When bids are received only from nonresident busi- | 0009| | 0010| nesses and resident businesses and the lowest responsible bid | 0011| is from a nonresident business, the contract shall be awarded | 0012| to the resident business whose bid is nearest to the bid price | 0013| of the otherwise low nonresident business bidder if the bid | 0014| price of the resident bidder is made lower than the bid price | 0015| of the nonresident business when multiplied by a factor of .95. | 0016| C. When bids are received only from nonresident busi- | 0017| | 0018| nesses and resident manufacturers and the lowest responsible | 0019| bid is from a nonresident business, the contract shall be | 0020| awarded to the resident manufacturer whose bid is nearest to | 0021| the bid price of the otherwise low nonresident business bidder | 0022| if the bid price of the resident manufacturer is made lower | 0023| than the bid price of the nonresident business when multiplied | 0024| by a factor of .95. | 0025| D. When bids are received only from resident | 0001| businesses and resident manufacturers and the lowest | 0002| responsible bid is from a resident business, the contract shall | 0003| be awarded to the resident manufacturer whose bid is nearest to | 0004| the bid price of the otherwise low resident business bidder if | 0005| the bid price of the resident manufacturer is made lower than | 0006| the bid price of the resident business when multiplied by a | 0007| factor of .95. | 0008| E. When bids are received from resident | 0009| manufacturers, resident businesses and nonresident businesses | 0010| and the lowest responsible bid is from a resident business, the | 0011| contract shall be awarded to the resident manufacturer whose | 0012| bid is nearest to the bid price of the otherwise low resident | 0013| business bidder if the bid price of the resident manufacturer | 0014| is made lower than the bid price of the resident business when | 0015| multiplied by a factor of .95. | 0016| F. When bids are received from resident | 0017| manufacturers, resident businesses and nonresident businesses | 0018| and the lowest responsible bid is from a nonresident business, | 0019| the contract shall be awarded to the resident manufacturer | 0020| whose bid is nearest to the bid price of the otherwise low | 0021| nonresident business bidder if the bid price of the resident | 0022| manufacturer is evaluated as lower than the bid price of the | 0023| nonresident business when multiplied by a factor of .95. If | 0024| there is no resident manufacturer eligible for award under this | 0025| provision, then the contract shall be awarded to the resident | 0001| business whose bid is nearest to the bid price of the otherwise | 0002| low nonresident business bidder if the bid price of the | 0003| resident business is made lower than the bid price of the | 0004| nonresident business when multiplied by a factor of .95. | 0005| G. When bids are received for virgin content goods | 0006| only or for recycled content goods only, Subsections B through | 0007| F of this section shall apply. | 0008| H. When bids are received for both recycled content | 0009| goods and virgin content goods and the lowest responsible bid | 0010| is for virgin content goods, the contract shall be awarded to: | 0011| (1) a resident manufacturer offering the lowest | 0012| bid on recycled content goods of equal quality if the bid price | 0013| of the resident manufacturer when multiplied by a factor of .90 | 0014| is made lower than the otherwise low virgin content goods bid | 0015| price; | 0016| (2) a resident business offering a bid on | 0017| recycled content goods of equal quality if: | 0018| (a) the bid price of no resident | 0019| manufacturer following application of the preference allowed in | 0020| Paragraph (1) of this subsection can be made sufficiently low; | 0021| and | 0022| (b) the lowest bid price of the resident | 0023| business when multiplied by a factor of .90 is made lower than | 0024| the otherwise low virgin content goods bid price; or | 0025| (3) a nonresident business or nonresident | 0001| manufacturer offering recycled content goods of equal quality | 0002| if: | 0003| (a) the bid price of no resident business or | 0004| resident manufacturer following application of the preference | 0005| allowed in Paragraph (1) or (2) of this subsection can be made | 0006| sufficiently low; and | 0007| (b) the lowest bid price of a nonresident | 0008| offering recycled content goods when multiplied by a factor of | 0009| .95 is made lower than the otherwise low virgin content bid | 0010| price. | 0011| I. When bids are received for both recycled content | 0012| goods and virgin content goods, and the lowest responsible bid | 0013| is for recycled content goods offered by a nonresident business | 0014| or nonresident manufacturer, the contract shall be awarded to: | 0015| (1) a resident manufacturer offering the lowest | 0016| bid on recycled content goods of equal quality if the bid price | 0017| of the resident manufacturer when multiplied by a factor of .95 | 0018| is made lower than the otherwise low recycled content goods bid | 0019| price; or | 0020| (2) a resident business offering a bid on | 0021| recycled content goods of equal quality if: | 0022| (a) the bid price of no resident | 0023| manufacturer following application of the preference allowed in | 0024| Paragraph (1) of this subsection can be made sufficiently low; | 0025| and | 0001| (b) the lowest bid price of the resident | 0002| business when multiplied by a factor of .95 is made lower than | 0003| the otherwise low recycled content goods bid price offered by a | 0004| nonresident business or manufacturer. | 0005| J. When bids are received for both recycled content | 0006| goods and virgin content goods, and the lowest responsible bid | 0007| is for recycled content goods offered by a resident business, | 0008| the contract shall be awarded to a resident manufacturer | 0009| offering the lowest bid on recycled content goods of equal | 0010| quality if the bid price of the resident manufacturer when | 0011| multiplied by a factor of .95 is made lower than the otherwise | 0012| low recycled content goods bid price. | 0013| K. This section shall not apply when the expenditure | 0014| of federal funds designated for a specific purchase is involved | 0015| or for any bid price greater than five million dollars | 0016| ($5,000,000)." | 0017| Section 3. Section 13-4-2 NMSA 1978 (being Laws 1984, | 0018| Chapter 66, Section 2, as amended) is amended to read: | 0019| "13-4-2. RESIDENT CONTRACTOR DEFINED--APPLICATION OF | 0020| PREFERENCE.-- | 0021| A. ~~[A]~~ "Resident contractor" ~~[is]~~ means a New | 0022| Mexico resident contractor or a New York state business | 0023| enterprise. | 0024| B. "New Mexico resident contractor" means any | 0025| person, firm, corporation or other legal entity if, at the time | 0001| the contract is advertised for bids and at the time bids are | 0002| opened, it has all required licenses and meets the following | 0003| requirements: | 0004| (1) if the bidder is a corporation, it shall be | 0005| incorporated in New Mexico and maintain its principal office | 0006| and place of business in New Mexico, and a majority of its | 0007| outstanding shares shall be beneficially owned by one or more | 0008| individual citizens who are domiciled in the state; | 0009| (2) if the bidder is a partnership, general or | 0010| limited, or other legal entity, it shall maintain its principal | 0011| office and place of business in New Mexico, and the partners or | 0012| associates owning a majority beneficial interest shall be | 0013| domiciled in the state. If one or more partners or associates | 0014| are corporations, a majority of the outstanding shares of each | 0015| corporation shall be beneficially owned by individual citizens | 0016| who are domiciled in the state. If the entity is a trust, a | 0017| majority of the beneficial interest of the trust shall be owned | 0018| by individual citizens who are domiciled in the state; | 0019| (3) if the bidder is an individual, he shall | 0020| maintain his principal office and place of business in New | 0021| Mexico and the individual shall be a citizen of and domiciled | 0022| in the state; or | 0023| (4) if a bidder who is a telecommunications | 0024| company as defined by Subsection M of Section 63-9A-3 NMSA 1978 | 0025| or an affiliate of a telecommunications company has paid | 0001| unemployment compensation to the employment security division | 0002| of the labor department at the applicable experience rate for | 0003| that employer pursuant to the ~~[New Mexico]~~ Unemployment | 0004| Compensation Law on no fewer than ten employees who have per- | 0005| | 0006| formed services subject to contributions for the two-year | 0007| period prior to issuance of notice to bid, the bidder will be | 0008| considered to have fulfilled the requirements of Paragraph (1), | 0009| (2) or (3) of this subsection. A successor to a previously | 0010| qualified New Mexico contractor or resident contractor, where | 0011| the creation of the bidder resulted from a court order, is | 0012| entitled to credit for qualifying contributions paid by the | 0013| previously qualified New Mexico contractor or resident con- | 0014| | 0015| tractor. | 0016| C. "New York state business enterprise" means a | 0017| business enterprise, including a sole proprietorship, | 0018| partnership or corporation, that offers for sale or lease or | 0019| other form of exchange, goods or commodities that are | 0020| substantially manufactured, produced or assembled in New York | 0021| state, or services, other than construction services, that are | 0022| substantially performed within New York state. For purposes of | 0023| construction services, a New York state business enterprise | 0024| means a business enterprise, including a sole proprietorship, | 0025| partnership or corporation, that has its principal place of | 0001| business in New York state. | 0002| ~~[B.]~~ D. For purposes of this section: | 0003| (1) "affiliate" means an entity that directly or | 0004| indirectly through one or more intermediaries controls, is | 0005| controlled by or is under common control with a | 0006| telecommunications company through ownership of voting | 0007| securities representing a majority of the total voting power of | 0008| that entity; and | 0009| (2) "beneficially owned" or "beneficial | 0010| interest" means exercising actual management and control of all | 0011| operations, including but not limited to financial decisions, | 0012| financial liability, labor relations, supervision of field | 0013| operations, purchases of goods, supplies and services, | 0014| marketing and sales. | 0015| ~~[C.]~~ E. When bids are received only from | 0016| nonresident contractors and resident contractors and the lowest | 0017| responsible bid is from a nonresident contractor, the contract | 0018| shall be awarded to the resident contractor whose bid is | 0019| nearest to the bid price of the otherwise low nonresident | 0020| contractor if the bid price of the resident contractor is made | 0021| lower than the bid price of the nonresident contractor when | 0022| multiplied by a factor of .95. | 0023| ~~[D.]~~ F. No contractor shall be treated as a | 0024| resident contractor in the awarding of public works contracts | 0025| by a state agency or a local public body unless the contractor | 0001| has qualified with the state purchasing agent as a resident | 0002| contractor pursuant to this section by making application to | 0003| the state purchasing agent and receiving from him a | 0004| certification number. The procedure for application and | 0005| certification is as follows: | 0006| (1) the state purchasing agent shall prepare an | 0007| application form for certification as a resident contractor, | 0008| requiring such information and proof as he deems necessary to | 0009| qualify the applicant under the terms of this section; | 0010| (2) the contractor seeking to qualify as a | 0011| resident contractor shall complete the application form and | 0012| submit it to the state purchasing agent prior to the submission | 0013| of a bid on which the contractor desires to be given a | 0014| preference; | 0015| (3) the state purchasing agent shall examine the | 0016| application and if necessary may seek additional information or | 0017| proof so as to be assured that the prospective contractor is | 0018| indeed entitled to certification as a resident contractor. If | 0019| the application is in proper form, the state purchasing agent | 0020| shall issue the contractor a distinctive certification number | 0021| which is valid until revoked and which, when used on bids and | 0022| other purchasing documents for state agencies or local public | 0023| bodies, entitles the contractor to treatment as a resident | 0024| contractor under Subsection ~~[C]~~ E of this section; and | 0025| (4) the certification number issued pursuant to | 0001| Paragraph (3) of this subsection shall be revoked by the state | 0002| purchasing agent upon making a determination that the | 0003| contractor no longer meets the requirements of a resident | 0004| contractor as defined in this section." | 0005| Section 4. Section 13-4-5 NMSA 1978 (being Laws 1933, | 0006| Chapter 19, Section 1, as amended) is amended to read: | 0007| "13-4-5. USE OF NEW MEXICO MATERIALS.-- | 0008| A. In all public works within New Mexico, whether | 0009| constructed or maintained by the state or by a department, a | 0010| board, a commission of the state or by any political sub- | 0011| | 0012| division thereof, or in any construction or maintenance to | 0013| which the state or any political subdivision thereof has | 0014| granted aid, preference shall be given to materials produced, | 0015| grown, processed or manufactured in New Mexico by citizens or | 0016| residents ~~[thereof]~~ of New Mexico or provided or offered by | 0017| a New York state business enterprise, and such materials shall | 0018| be used where ~~[the same]~~ they are deemed satisfactory for | 0019| the intended use. In any case where, in the judgment of the | 0020| different officers, boards, commissions or other authority in | 0021| this state now or hereafter vested with the power of | 0022| contracting for material used in the construction or | 0023| maintenance of public works ~~[herein above]~~ referred to in | 0024| this section, it appears that an attempt is being made by | 0025| producers, growers, processors or manufacturers in the state to | 0001| form a trust or combination of any kind for the purpose of | 0002| fixing or regulating the price of materials to be used in any | 0003| public works to the detriment of or loss to the state, then the | 0004| provisions of this section shall not apply. | 0005| B. As used in this section, "New York state business | 0006| enterprise" means a business enterprise, including a sole | 0007| proprietorship, partnership or corporation, that offers for | 0008| sale or lease or other form of exchange, goods or commodities | 0009| that are substantially manufactured, produced or assembled in | 0010| New York state, or services, other than construction services, | 0011| that are substantially performed within New York state. For | 0012| purposes of construction services, a New York state business | 0013| enterprise means a business enterprise, including a sole | 0014| proprietorship, partnership or corporation, that has its | 0015| principal place of business in New York state." | 0016| Section 5. EMERGENCY.--It is necessary for the public | 0017| peace, health and safety that this act take effect immediately. | 0018| State of New Mexico | 0019| House of Representatives | 0020| | 0021| FORTY-THIRD LEGISLATURE | 0022| FIRST SESSION, 1997 | 0023| | 0024| | 0025| January 23, 1997 | 0001| | 0002| | 0003| Mr. Speaker: | 0004| | 0005| Your BUSINESS AND INDUSTRY COMMITTEE, to whom has | 0006| been referred | 0007| | 0008| HOUSE BILL 10 | 0009| | 0010| has had it under consideration and reports same with | 0011| recommendation that it DO PASS, amended as follows: | 0012| | 0013| 1. On page 14, between lines 4 and 5, insert the | 0014| following new section: | 0015| | 0016| "Section 5. SEVERABILITY.--If any part or application of | 0017| this act is held invalid, the remainder or its application to | 0018| other situations or persons shall not be affected.". | 0019| | 0020| 2. Renumber the succeeding section accordingly. | 0021| | 0022| | 0023| Respectfully submitted, | 0024| | 0025| | 0001| | 0002| | 0003| | 0004| | 0005| Fred Luna, Chairman | 0006| | 0007| | 0008| Adopted Not Adopted | 0009| (Chief Clerk) | 0010| (Chief Clerk) | 0011| | 0012| Date | 0013| | 0014| The roll call vote was 11 For 0 Against | 0015| Yes: 11 | 0016| Excused: Kissner | 0017| Absent: Corley | 0018| | 0019| | 0020| .114655.1 | 0021| G:\BILLTEXT\BILLW_97\H0010 |