SENATE TAX, BUSINESS AND TRANSPORTATION

COMMITTEE SUBSTITUTE FOR

SENATE BILL 53

55th legislature - STATE OF NEW MEXICO - first session, 2021

 

 

 

 

 

 

 

AN ACT

RELATING TO PROCUREMENT; CREATING PREFERENCES AND CERTIFICATION REQUIREMENTS FOR RESIDENT MINORITY AND RESIDENT TRIBAL BUSINESSES AND RESIDENT MINORITY AND RESIDENT TRIBAL CONTRACTORS; RETAINING THE RESIDENT VETERAN BUSINESS PREFERENCE; AUTHORIZING PROCUREMENTS FOR EXCLUSIVE BIDDING BY NEW MEXICO BUSINESSES OR SMALL BUSINESSES; ADDING AND REVISING DEFINITIONS IN THE PROCUREMENT CODE; SPECIFYING THE PERIOD FOR WHICH BIDS AND PROPOSALS ARE TO REMAIN CONFIDENTIAL; CLARIFYING ELECTRONIC SUBMISSION REQUIREMENTS; ALLOWING VIRTUAL BID OPENINGS; REVISING CHIEF PROCUREMENT OFFICER REGISTRATION REQUIREMENTS; CLARIFYING REPORTING REQUIREMENTS FOR IN-STATE AND OUT-OF-STATE CONTRACTS; APPLYING THE PROCUREMENT CODE TO MARKETING; ALLOWING THE REJECTION OF IDENTICAL LOW BIDS BASED ON THE APPEARANCE OF NON-INDEPENDENT BIDDING; SPECIFYING POSTING REQUIREMENTS FOR EMERGENCY PROCUREMENT; PRESCRIBING REQUIREMENTS FOR PURCHASES OF SUSTAINABLE AND RECYCLED CONTENT GOODS; AUTHORIZING AUDITS RELATED TO SALES UNDER A CONTRACT; DEFINING OFFERORS FOR PURPOSES OF PROTESTING AN AWARD; REQUIRING REPORTING ON CONTRACTS AWARDED TO NEW MEXICO BUSINESSES; ALLOWING THE PURCHASE OF ELECTRIC, PLUG-IN HYBRID ELECTRIC AND GAS-ELECTRIC HYBRID VEHICLES MADE OUTSIDE NORTH AMERICA; AMENDING AND ENACTING SECTIONS OF THE NMSA 1978; REPEALING LAWS 2012, CHAPTER 56, SECTION 4 AND LAWS 2015, CHAPTER 73, SECTION 25.

 

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

         SECTION 1. Section 13-1-21 NMSA 1978 (being Laws 1979, Chapter 72, Section 1, as amended) is amended to read:

         "13-1-21. APPLICATION OF PREFERENCES.--

                   A. For the purposes of this section:

                               (1) "bid" means a submission by a prospective supplier in response to a solicitation involving a formal bid process, where all bids are submitted wholly independent of each other in a competitive manner;

                               [(1)] (2) "business" means a commercial enterprise carried on for the purpose of selling goods or services, including growing, producing, processing or distributing agricultural products;

                               [(2)] (3) "formal bid process" means a competitive bid process;

                               [(3)] (4) "formal request for proposals process" means a competitive proposal process, including a competitive qualifications-based proposal process;

                               [(4)] (5) "public body" means a department, commission, council, board, committee, institution, legislative body, agency, government corporation, educational institution or official of the executive, legislative or judicial branch of the government of the state or a political subdivision of the state and the agencies, instrumentalities and institutions thereof, including two-year post-secondary educational institutions, school districts, local school boards and all municipalities, including home-rule municipalities;

                               [(5)] (6) "recycled content goods" means supplies and materials composed twenty-five percent or more of recycled materials or sustainable materials, as determined by the general services department; provided that the recycled materials or sustainable materials content meets or exceeds the minimum content standards required by bid specifications;

                               [(6)] (7) "resident business" means a business that has a valid resident business certificate issued by the taxation and revenue department pursuant to Section 13-1-22 NMSA 1978 but does not include a resident veteran business [and], resident minority business or resident tribal business;

                               (8) "resident minority business" means a business that has a valid resident minority business certificate issued by the taxation and revenue department pursuant to Section 13-1-22 NMSA 1978;

                               (9) "resident tribal business" means a business that has a valid resident tribal business certificate issued by the taxation and revenue department pursuant to Section 13-1-22 NMSA 1978; and

                               [(7)] (10) "resident veteran business" means a business that has a valid resident veteran business certificate issued by the taxation and revenue department pursuant to Section 13-1-22 NMSA 1978.

                   B. Except as provided in Subsection C of this section, when a public body makes a purchase using a formal bid process, the public body shall deem a bid submitted by a [(1) resident business to be five percent lower than the bid actually submitted; or

                               (2)] resident business, resident minority business, resident tribal business or resident veteran business [with annual gross revenues of up to three million dollars ($3,000,000) in the preceding tax year] to be favored with a ten percent [lower than] preference over the bid actually submitted.

                   C. When a public body makes a purchase using a formal bid process and the bids are received for both recycled content goods and nonrecycled content goods, the public body shall deem [(1)] bids submitted for recycled content goods from any business [except a resident veteran business] to be [five] favored with a ten percent [lower than] preference over the bids actually submitted [or

                               (2) bids submitted for recycled content goods from a resident veteran business with annual gross revenues of up to three million dollars ($3,000,000) in the preceding tax year to be ten percent lower than the bids actually submitted].

                   D. When a public body makes a purchase using a formal request for proposals process, not including contracts awarded on a point-based system, the public body shall award an additional [(1) five percent of the total weight of all the factors used in evaluating the proposals to a resident business; and

                               (2)] ten percent of the total weight of all the factors used in evaluating the proposals to a resident business, resident minority business, resident tribal business or resident veteran business [that has annual gross revenues of up to three million dollars ($3,000,000) in the preceding tax year].

                   E. When a public body makes a purchase using a formal request for proposals process, and the contract is awarded based on a point-based system, the public body shall award additional points equivalent to [(1) five percent of the total possible points to a resident business; or

                             (2)] ten percent of the total possible points to a resident business, resident minority business, resident tribal business or resident veteran business [that has annual gross revenues of up to three million dollars ($3,000,000) in the preceding tax year].

                   F. When a joint bid or joint proposal is submitted by a combination of resident veteran, resident or nonresident, resident minority or resident tribal businesses, the preference provided pursuant to Subsection B, C, D or E of this section shall be calculated in proportion to the percentage of the contract, based on the dollar amount of the goods or services provided under the contract, that will be performed by each business as specified in the joint bid or proposal.

                   [G. A resident veteran business shall not benefit from the preference pursuant to this section for more than ten consecutive years. A person that is an owner of a business that is a resident veteran business shall not benefit from the preference pursuant to this section for more than ten consecutive years. A person shall not benefit from the provisions of this section based on more than one business concurrently.

                   H.] G. A public body shall not award a business [both a resident business preference and a resident veteran business preference] more than one preference pursuant to this section.

                   [I.] H. The procedures provided in Sections 13-1-172 through 13-1-183 NMSA 1978 or in an applicable purchasing ordinance apply to a protest to a public body concerning the awarding of a contract in violation of this section.

                   [J.] I. This section shall not apply when the expenditure includes federal funds for a specific purchase."

         SECTION 2. Section 13-1-22 NMSA 1978 (being Laws 1969, Chapter 184, Section 1, as amended) is amended to read:

         "13-1-22. [RESIDENT BUSINESS, RESIDENT VETERAN BUSINESS, RESIDENT CONTRACTOR AND RESIDENT VETERAN CONTRACTOR CERTIFICATION] CERTIFICATIONS FOR PREFERENCES.--

                   A. To receive a resident business, [or] resident veteran business, resident minority business or resident tribal business preference pursuant to Section 13-1-21 NMSA 1978 or a resident contractor, [or] resident veteran contractor, resident minority contractor or resident tribal contractor preference pursuant to Section 13-4-2 NMSA 1978, a business or contractor shall submit with its bid or proposal a copy of [a valid resident business certificate, valid resident veteran business certificate, valid resident contractor certificate, or valid resident veteran contractor] the certificate issued by the taxation and revenue department to the business or contractor pursuant to this section.

                   B. To qualify for a certification pursuant to this section, the gross revenues of the applicant business or contractor in the preceding tax year shall not exceed three million five hundred thousand dollars ($3,500,000). Every two years, the taxation and revenue department shall adjust the gross revenues required by this subsection in accordance with the percentage of the preceding two calendar years' increase of the consumer price index for all urban consumers, United States city average for all items, published by the United States department of labor, and shall publish the increased amounts on its website.

                   [B.] C. An application for a resident business certificate shall include an affidavit [from a certified public accountant] providing the previous year's gross revenues for the business and setting forth that the business is licensed to do business in this state and that:

                               (1) the business has paid property taxes or rent on real property in the state and paid at least one other tax administered by the state in each of the three years immediately preceding the submission of the affidavit;

                               (2) if the business is a new business, the owner or majority of owners has paid property taxes or rent on real property in the state and has paid at least one other tax administered by the state in each of the three years immediately preceding the submission of the affidavit and has not applied for a resident business or resident contractor certificate pursuant to this section during that time period;

                               (3) if the business is a relocated business, at least eighty percent of the total personnel of the business in the year immediately preceding the submission of the affidavit were residents of the state and that, prior to the submission of the affidavit, the business either leased real property for ten years or purchased real property greater than one hundred thousand dollars ($100,000) in value in the state; or

                               (4) if the business is a previously certified business or was eligible for certification, the business has changed its name, has reorganized into one or more different legal entities, was purchased by another legal entity but operates in the state as substantially the same commercial enterprise or has merged with a different legal entity but operates in the state as substantially the same commercial enterprise.

                   [C.] D. An application for a resident veteran business certificate shall include the affidavit required by Subsection [B] C of this section [an affidavit from a certified public accountant providing the previous year's annual revenues of the resident veteran business] and:

                               (1) verification by the federal department of veterans affairs as being either a veteran-owned small business or a service-disabled veteran-owned small business; or

                               (2) verification of veteran status as indicated by the United States department of defense DD form 214 of release or discharge from active duty with an honorable discharge or of service-disabled veteran status by the department of veterans affairs and proof that a veteran or veterans own a majority of the business.

                   E. An application for a resident minority business certificate shall include:

                               (1) the affidavit required by Subsection C of this section; and  

                               (2) verification that more than fifty percent of the business is owned by women or persons who are African American or Black, Latino or Hispanic, Asian, Pacific Islander, Native American or Alaska native. The requirements of this paragraph may be satisfied by submitting verification of women-owned or minority-owned business status by an agency of the United States government or a national certifying entity approved by an agency of the United States government or by submitting other evidence of women-owned or minority-owned business status as established by the taxation and revenue department in rule.

                   F. An application for a resident