New Mexico Register /
Volume XXXIII, Issue 12 / June 21, 2022
TITLE 1 GENERAL
GOVERNMENT ADMINISTRATION
CHAPTER 4 STATE
PROCUREMENT
PART 1 PROCUREMENT
CODE REGULATIONS
1.4.1.1 ISSUING
AGENCY: General Services Department - State
Purchasing Division.
[1.4.1.1 NMAC - Rp, 1.4.1.1 NMAC,
6/21/2022]
1.4.1.2 SCOPE: All executive
branch state agencies.
A. Except as otherwise provided in the
Procurement Code, Sections 13-1-28 through 13-1-199 NMSA 1978, the code applies
to every expenditure by state agencies and local public bodies for the
procurement of items of tangible personal property, services and construction.
B. General: Except as otherwise provided in this section,
this rule applies to every agency and to every transaction to which the
Procurement Code applies except the following:
(1) procurement of highway construction
or reconstruction by the department of transportation;
(2) procurement by the judicial branch of
state government;
(3) procurement by the legislative branch
of state government;
(4) procurement by the boards of regents
of state educational institutions named in Article 12 Section 11 of the
constitution of New Mexico;
(5) procurement by the state fair
commission of tangible personal property, services and construction under twenty
thousand dollars ($20,000);
(6) purchases from the instructional
material fund;
(7) procurement by all local public
bodies;
(8) procurement by regional education
cooperatives;
(9) procurement
by charter schools;
(10) procurement by each state health care
institution that provides direct patient care and that is, or a part of which
is, medicaid certified and participating in the New Mexico medicaid program;
and
(11) procurement by the public school
facilities authority.
[1.4.1.2 NMAC - Rp, 1.4.1.2
NMAC, 6/21/2022]
1.4.1.3 STATUTORY
AUTHORITY: Section 9-17-5 NMSA 1978, Laws of 1983,
Chapter 301, Section 5; and 13-1-95, Laws of 1984, Chapter 65, Section 68 (Repl. Pamp. 1997).
Subject to the authority of the
secretary of the general services department, Section 13-1-95 NMSA 1978
designates the state purchasing agent as both the administrator and chief
executive of the state purchasing division.
The cite further designates the state purchasing agent and purchasing
division shall be responsible for the procurement of items of tangible personal
property, services and construction for all state agencies except as otherwise
provided in the Procurement Code, Sections 13-1-28 through 13-1-199 NMSA 1978,
and shall administer the code for those state agencies not excluded from the
requirement of procurement through the state purchasing agent. Among the statutory duties and
responsibilities afforded the state purchasing agent is to recommend
procurement regulations to the secretary of the general services department.
[1.4.1.3 NMAC - Rp, 1.4.1.3
NMAC, 6/21/2022]
1.4.1.4 DURATION: Permanent.
[1.4.1.4 NMAC - Rp, 1.4.1.4
NMAC, 6/21/2022]
1.4.1.5 EFFECTIVE
DATE:
June 21, 2022, unless a later date is cited at the end of a section.
[1.4.1.5 NMAC - Rp, 1.4.1.5
NMAC, 6/21/2022]
1.4.1.6 OBJECTIVE: Subsection C
of Section 13-1-29 NMSA 1978 states that, the purposes of the Procurement Code
are to provide for the fair and equal treatment of all persons involved in
public procurement, to maximize the purchasing value of public funds and to
provide safeguards for maintaining a procurement system of quality and
integrity. The objective of this rule is
to have the force and effect of law to implement, interpret or make statute specific
as it applies to the Procurement Code, Sections 13-1-28 through 13-1-199 NMSA
1978 and the purposes stated therein.
[1.4.1.6 NMAC - Rp, 1.4.1.6
NMAC, 6/21/2022]
1.4.1.7 DEFINITIONS:
A. Most of the terms which appear in
this rule are defined in the Procurement Code.
B. In these rules and regulations the
following definitions apply.
(1) “Anti-poverty
program businesses” means small businesses, cooperatives, community
self-determination corporations or other such enterprises designed and operated
to alleviate poverty conditions and aided by state or federal antipoverty
programs or through private philanthropy.
(2) “Best
obtainable price” means that price at which services or goods can be
purchased which is most advantageous to the purchasing entity; best obtainable
price can be found by obtaining quotes or other appropriate methods; where
there is only one vendor available for such a purchase utilizing a direct
purchase order in accordance with statute (such as an entity requiring dues,
for example), the price would be the best obtainable price since it is the only
possible price for that particular procurement.
(3) “Bidding
time” means the period of time between the date the invitation to bid
notice is published and the date and time set for receipt of bids.
(4) “Bidder”
means one who submits a bid in response to an invitation for bid.
(5) “Competitive process” means an
invitation for bid or request for proposals.
Three quotes does not constitute a competitive process as the vendors
from whom the quotes are received are singled out and specifically chosen. Increasing the number of quotes does not
invalidate this lack of fairness, transparency, and competitiveness.
(6) “Competitive
sealed bid” means the response from a bidder to an invitation to bid (ITB).
(7) “Competitive
sealed proposal” means the response from an offeror to a request for
proposals (RFP).
(8) “Contract”
means any written, binding agreement for the procurement of items of tangible personal
property, services or construction. A purchase order alone can be a binding contract.
(9) “Invitation
for bid (IFB)” means all documents, including those attached or
incorporated by reference, used for soliciting competitive sealed bids. Also sometimes referred to as an invitation
to bid (ITB).
(10) “Offeror”
means one who submits a proposal in response to a request for proposals.
(11) “Sealed” means, in terms of a
non-electronic submission, that the bid or proposal is enclosed in a package
which is completely fastened in such a way that nothing can be added or removed. Open packages submitted will not be accepted except
for packages that may have been damaged by the delivery service itself. The state reserves the right, however, to
accept or reject packages where there may have been damage done by the delivery
service itself. Whether a package has
been damaged by the delivery service or left unfastened and should or should
not be accepted is a determination to be made by the procurement manager of any
particular procurement. In terms of
electronic submission, the entire required information and accompanying
documents for the bid or proposal must be submitted via the electronic system
being used by the state and by the deadline specified in the procurement. The deadline is that minute as stated in the
procurement. That is, if a submission is
due by 3:00 p.m., on a particular day, that deadline means 3:00:00 p.m., and
does not mean 3:00:59 p.m.
[1.4.1.7 NMAC - Rp, 1.4.1.7
NMAC, 6/21/2022]
1.4.1.8 CENTRALIZATION
OF PROCUREMENT ACTIVITY (1.4.1.8 - 1.4.1.13 NMAC):
A. State purchasing agent. All procurement for state agencies shall be
performed by the state purchasing agent except the following:
(1) professional services;
(2) small purchases having a value not
exceeding one thousand five hundred dollars ($1,500);
(3) emergency procurements; and
(4) the types of procurement specified in
Subsection B of 1.4.1.2 NMAC.
B. Central purchasing offices. All procurement for state agencies excluded
from the requirement of procurement through the state purchasing agent shall be
performed by a central purchasing office designated by statute, the governing
authority of that state agency or as otherwise provided in the Procurement
Code.
C. Cooperative procurement. Nothing in this section should be interpreted
as limiting the ability of state agencies to make procurements under existing
contracts or enter into cooperative procurement agreements in accordance with Sections
13-1-29, 13-1-135 and 13-1-136 NMSA 1978.
[1.4.1.8 NMAC - Rp, 1.4.1.8
NMAC, 6/21/2022]
1.4.1.9 INSPECTION
OF PUBLIC RECORDS: The inspection of public records is governed
by the Inspection of Public Records Act, Sections 14-2-1 through 14-2-12 NMSA
1978. To the extent that any provision
of this rule conflicts with the Inspection of Public Records Act, as
interpreted by the courts of this state, that act shall control. Furthermore, no obligation to keep data
confidential which is contained in this rule is intended to create any
liability that would not otherwise exist under state law.
[1.4.1.9 NMAC - Rp, 1.4.1.9
NMAC, 6/21/2022]
1.4.1.10 DOLLAR
AMOUNTS: Whenever a dollar amount appears in this
rule, such amount is exclusive of applicable gross receipts and local option
taxes as the term is defined in Subsection Q of Section 7-9-3 NMSA 1978.
[1.4.1.10 NMAC - Rp, 1.4.1.10
NMAC, 6/21/2022]
1.4.1.11 INDEMNIFICATION
AND INSURANCE:
A. Tort liability. Except as provided for in the Tort Claims
Act, Section 41-4-1 through 41-4-27 NMSA 1978, no contract governed by this
rule shall contain any provision whereby a state agency agrees to indemnify or
provide tort liability insurance for any contractor.
B. Other risks. No contract governed by this rule shall
contain any provision whereby a state agency agrees to indemnify a contractor
or provide a contractor with a limitation of liability or provide a contractor
with insurance for non-tort risks.
C. Contract provisions void. Any indemnification or insurance provision in
any contract executed in violation of this section shall be void and of no
effect.
[1.4.1.11 NMAC - Rp, 1.4.1.11
NMAC, 6/21/2022]
1.4.1.12 [RESERVED]
1.4.1.13 SEVERABILITY: If any
provision of this rule, or any application thereof, to any person or
circumstance, is held invalid, such invalidity shall not affect any other
provision or application of this rule which can be given effect without the
invalid provision or application.
[1.4.1.13 NMAC - Rp, 1.4.1.13
NMAC, 6/21/2022]
1.4.1.14 APPLICATION
(COMPETITIVE SEALED BIDS; 1.4.1.14 -1.4.1.28 NMAC): The provisions
of 1.4.1.14 through 1.4.1.28 NMAC apply to every procurement made by
competitive sealed bids.
[1.4.1.14 NMAC - Rp, 1.4.1.14
NMAC, 6/21/2022]
1.4.1.15 COMPETITIVE
SEALED BIDS REQUIRED: All procurement performed pursuant to the
procurement code shall be achieved by competitive sealed bids except
procurement achieved pursuant to the following methods:
A. competitive sealed proposals;
B. small purchases;
C. sole source procurement;
D. emergency procurement;
E. procurement under existing
contracts; and
F. purchases from anti-poverty program
businesses.
[1.4.1.15 NMAC - Rp, 1.4.1.15
NMAC, 6/21/2022]
1.4.1.16 INVITATION
FOR BIDS ("IFB"):
A. General: The invitation for bids ("IFB"),
also sometimes referred to as the invitation to bid (ITB), is used to initiate
a competitive sealed bid procurement. The
IFB shall include the following:
(1) the specifications for the services,
construction or items of tangible personal property to be procured, except that
professional services and a design and build project delivery system cannot be
procured with an IFB pursuant to Section 13-1-111 NMSA 1978;
(2) all contractual terms and conditions
applicable to the procurement including any requirements for complying with
applicable preferences provided in law;
(3) the term of the contract and
conditions of renewal or extension, if any;
(4) instructions and information to
bidders, including the location where bids are to be received and the date,
time and place of the bid opening;
(5) a notice that the IFB may be canceled
and that any and all bids may be rejected in whole or in part when it is in the
best interest of the state of New Mexico; and
(6) a notice that reads substantially as
follows: The Procurement Code, Section 13-1-28
through Section 13-1-199 NMSA 1978, imposes civil, misdemeanor and felony criminal
penalties for its violation. In
addition, the New Mexico criminal statutes impose felony penalties for bribes,
gratuities and kick-backs.
B. Incorporation by reference: The IFB may incorporate documents by
reference, provided that the IFB specifies where such documents can be
obtained.
C. Evaluation criteria: The IFB shall set forth the evaluation
criteria that will be used to determine acceptability such as inspection,
testing, quality, workmanship, delivery and suitability for a particular
purpose. Those criteria such as
discounts, transportation costs and total or life-cycle costs that will affect
the bid price shall be objectively measurable.
No criteria may be used in bid evaluation that are not set forth in the
IFB.
D. Bid form: The IFB shall provide a form which shall
include space in which the bid price shall be inserted and which the bidder
shall affirm, certify, or sign and submit along with all other necessary
submissions. This may be an entirely
electronic process if required by the procurement.
E. Bid samples and descriptive
literature:
(1) "Descriptive literature"
means information available in the ordinary course of business that shows the
characteristics, construction, or operation of an item.
(2) "Bid sample" means a sample
furnished by a bidder that shows the characteristics of an item offered in the
bid.
(3) Bid samples or descriptive literature
may be required when it is necessary to evaluate required characteristics of
the item bid.
(4) Bid samples, when required, shall be
furnished free of expense to the state and prior to the time set for the
opening of bids. Samples not destroyed
or mutilated in testing will be returned upon request by mail, express or
freight, collect. Each sample must be
labeled to clearly show the bid number and the bidder's name.
F. Bidding time: Bidding time is the period of time between
the date of distribution of the IFB and the time and date set for receipt of
bids. In each case bidding time shall be
set to provide bidders a reasonable time to prepare their bids. In no case shall the bidding time be shorter
than the time required for publication under 1.4.1.17 NMAC of this rule.
[1.4.1.16 NMAC - Rp, 1.4.1.16
NMAC, 6/21/2022]
1.4.1.17 PUBLIC
NOTICE INVITATION FOR BID: Publication.
The IFB or notice thereof shall be published not less than ten calendar
days prior to the date set for the opening of bids. The IFB or notice must be published in
accordance with statute.
A. These requirements of publication
are in addition to any other procedures that may be adopted by the state
purchasing agent to notify prospective bidders that bids will be received,
including but not limited to publication in trade journals, if available.
B. Bidder lists. The state purchasing agent shall send copies
of the notice or IFB to those businesses which have signified in writing an
interest in submitting bids for particular categories of items of tangible
personal property, construction and services and which have paid any required
fees. This may be done through
electronic means. (Section 13-1-104 NMSA
1978). Reference is also given to 1.4.1.48
NMAC of this rule.
C. Public availability. A copy of the IFB shall be made available for
public inspection on the state purchasing
agnet’s website.
[1.4.1.17 NMAC - Rp, 1.4.1.17
NMAC, 6/21/2022]
1.4.1.18 PRE-BID
CONFERENCES: Pre-bid conferences may be conducted to
explain the procurement requirements. If
a pre-bid conference is to be held it shall be noticed in the IFB. The conference should be held long enough
after the IFB has been issued to allow bidders to become familiar with it, but
sufficiently before bid opening to allow consideration of the conference
results in preparing their bids. Nothing
stated at the pre-bid conference shall change the IFB. An IFB shall only be changed by written
amendment as provided in this rule.
[1.4.1.18 NMAC - Rp, 1.4.1.18
NMAC, 6/21/2022]
1.4.1.19 AMENDMENTS
TO THE INVITATION FOR BIDS:
A. Form. An amendment to the IFB shall be identified as
such and shall require that bidders acknowledge its receipt. The amendment shall refer to the portions of
the IFB it amends.
B. Distribution. Amendments shall be sent to all prospective
bidders known to have received the IFB.
C. Timeliness. Amendments shall be distributed within a
reasonable time to allow prospective bidders to consider them in preparing
their bids. If the time and date set for
receipt of bids will not permit such preparation, the time shall be increased
to the extent possible in the amendment or, if necessary, by other electronic
means and confirmed in the amendment.
D. Use of amendments: Amendments should be used to:
(1) make any changes in the IFB such as
changes in quantity, purchase descriptions, delivery schedules, and opening
dates;
(2) correct defects or ambiguities; or
(3) furnish to other bidders information
given to one bidder if such information will assist the other bidders in
submitting bids or if the lack of such information would prejudice the other
bidders.
[1.4.1.19 NMAC - Rp, 1.4.1.19
NMAC, 6/21/2022]
1.4.1.20 PRE-OPENING
MODIFICATION OR WITHDRAWAL OF BIDS:
A. Procedure: A bid may be modified or withdrawn by a bidder
prior to the time set for bid opening by delivering written or electronic
notice to the location designated in the IFB as the place where bids are to be
received.
B. Disposition of bid security: If a bid is withdrawn in accordance with this
section, the bid security, if any, shall be returned to the bidder.
C. Records: All documents relating to the modification or
withdrawal of bids shall be made a part of the appropriate procurement file.
[1.4.1.20 NMAC - Rp, 1.4.1.20
NMAC, 6/21/2022]
1.4.1.21 LATE
BIDS, LATE WITHDRAWALS AND LATE MODIFICATIONS:
A. Definition: Any bid or any withdrawal or modification of
a bid received after the time and date for opening of bids at the place
designated for opening is late. (NOTE: if the time a bid is due is listed as “3
p.m.” this means 3:00:00 and not 3:00:59.)
B. General rule: No late bid, late modification, or late
withdrawal will be considered unless received before contract award, and the
bid, modification, or withdrawal would have been timely but for the action or
inaction of state personnel directly serving the procurement activity.
C. Records: All documents relating to late bids, late
modifications, or late withdrawals shall be made a part of the appropriate
procurement file.
[1.4.1.21 NMAC - Rp, 1.4.1.21
NMAC, 6/21/2022]
1.4.1.22 BID
OPENING:
A. Receipt: Upon its receipt, each bid and modification
shall be time-stamped but not opened and shall be stored in a secure place
until the time and date set for bid opening.
This may be done entirely electronically.
B. No bids received: Except as provided in 1.4.1.68 through
1.4.1.72 NMAC of this rule, if no bids are received or if all bids received are
rejected in accordance with the provisions of 1.4.1.68 through 1.4.1.72 NMAC of
this rule, a new IFB shall be issued. If
upon re-bidding with no change in specifications from the first IFB, the bids
received are unacceptable, or if no bids are secured, the state purchasing
agent may purchase (i.e., as opposed to procure) the items of tangible personal
property, construction or services in the open market at the best obtainable
price.
C. Opening and recording: Bids and modifications shall be opened
publicly in the presence of one or more witnesses at the time and place
designated in the IFB. Presence in this
context may include virtual presence. The
name of each bidder, the amount of each bid and each bid item, if appropriate,
the names and addresses of the required witnesses, and such other relevant
information as may be specified by the state purchasing agent shall be recorded. The record shall be open for public
inspection. Each bid, except those
portions for which a bidder has made a written request for confidentiality,
shall also be open to public inspection.
Any data, which a bidder believes should be kept confidential shall
accompany the bid and shall be readily separable from the bid in order to
facilitate public inspection of the non-confidential portion of the bid. Prices and makes and models or catalogue
numbers of the items offered, deliveries, and terms of payment shall be
publicly available at the time of bid opening regardless of any designation to
the contrary.
[1.4.1.22 NMAC - Rp, 1.4.1.22
NMAC, 6/21/2022]
1.4.1.23 MISTAKES
IN BIDS:
A. Consideration for award: Bids shall be unconditionally accepted for
consideration for award without alteration or correction, except as authorized
in 1.4.1.14 through 1.4.1.28 NMAC of this rule.
B. General principles: Correction or withdrawal of a bid because of
an inadvertent, nonjudgmental mistake in the bid requires careful consideration
to protect the integrity of the competitive bidding system, and to assure
fairness. If the mistake is attributable
to an error in judgment, the bid may not be corrected. Bid correction or withdrawal by reason of a
nonjudgmental mistake is permissible but only to the extent authorized in
1.4.1.14 through 1.4.1.28 NMAC of this rule.
C. Mistakes discovered before opening: A bidder may correct mistakes discovered
before bid opening by withdrawing or correcting the bid as provided in 1.4.1.20
NMAC of this rule.
D. Confirmation of bid: When the procurement officer knows or has
reason to conclude that a mistake has been made in the low bid, the procurement
officer should request the low bidder to confirm the bid. Situations in which confirmation should be
requested include obvious, apparent errors on the face of the low bid or a bid
unreasonably lower than the other bids submitted. If the low bidder alleges mistake, the bid
may be corrected or withdrawn if the conditions set forth in Subsection E of
this section are met.
E. Mistakes discovered after opening: This subsection sets forth procedures to be
applied in three situations in which mistakes in bids are discovered after the
time and date set for bid opening.
(1) Technical irregularities: Technical irregularities are matters of form
rather than substance evident from the bid document, or insignificant mistakes
that can be waived or corrected without prejudice to other bidders; that is,
when there is no effect on price, quality or quantity. The procurement officer may waive such
irregularities or allow the low bidder to correct them if either is in the best
interest of the state. Examples include
the failure of the low bidder to:
(a) return the
number of signed bids required by the IFB;
(b) sign the bid,
but only if the unsigned bid is accompanied by other material indicating the
low bidder's intent to be bound; or
(c) acknowledge
receipt of an amendment to the IFB, but only if:
(i) it
is clear from the bid that the low bidder received the amendment and intended
to be bound by its terms; or
(ii) the
amendment involved had no effect on price, quality or quantity.
(2) Mistakes where intended correct bid
is evident: If the mistake and the
intended correct bid are clearly evident on the face of a bid document, the bid
shall be corrected to the intended correct bid and may not be withdrawn. Examples of mistakes that may be clearly
evident on the face of a bid document are typographical errors, errors in
extending unit prices, transposition errors, and arithmetical errors. It is emphasized that mistakes in unit prices
cannot be corrected.
(3) Mistakes where intended correct bid
is not evident: A low bidder alleging a
material mistake of fact which makes the bid non-responsive may be permitted to
withdraw the bid if:
(a) a mistake is
clearly evident on the face of the bid document but the intended correct bid is
not; or
(b) the low bidder
submits evidence which clearly and convincingly demonstrates that a mistake was
made.
(4) Written determination: When a bid is corrected or withdrawn, or a
correction or withdrawal is denied, the procurement officer shall prepare a
written determination showing that the relief was granted or denied in
accordance with this section.
[1.4.1.23 NMAC - Rp, 1.4.1.23
NMAC, 6/21/2022]
1.4.1.24 BID
EVALUATION AND AWARD:
A. General: A contract solicited by competitive sealed
bids shall be awarded with reasonable promptness by written notice to the
lowest responsible bidder. The IFB shall
set forth the requirements and criteria that will be used to determine the
lowest responsive bid. No bid shall be
evaluated for any requirement or criterion that is not disclosed in the IFB. Contracts solicited by competitive sealed
bids shall require that the bid amount exclude the applicable state gross
receipts tax or local option tax but that the contracting agency shall be
required to pay the tax including any increase in the tax becoming effective
after the contract is entered into. The
tax shall be shown as a separate amount on each billing or request for payment
made under the contract.
B. Product acceptability: The IFB shall set forth all evaluation
criteria to be used in determining product acceptability. It may require the submission of bid samples,
descriptive literature, technical data, or other material. It may also provide for accomplishing any or
all of the following prior to award:
(1) inspection or testing of a product
for such characteristics as quality or workmanship;
(2) examination of such elements as
appearance, finish, taste or feel; or
(3) other examinations to determine
whether it conforms with other purchase description requirements.
C. Purpose of acceptability evaluation: An acceptability evaluation is not conducted
for the purpose of determining whether one bidder's item is superior to
another's but only to determine that a bidder's offering is acceptable as set
forth in the IFB. Any bidder's offering
which does not meet the acceptability requirements shall be rejected as
non-responsive.
D. Brand-name or equal specification: Where a brand-name or equal specification is
used in a solicitation, the solicitation shall contain explanatory language
that the use of a brand name is for the purpose of describing the standard of quality,
performance and characteristics desired and is not intended to limit or
restrict competition. When bidding an
"or equal" the burden of persuasion is on the supplier or
manufacturer who has not been specified to convince the procurement officer that
their product is, in fact, equal to the one specified. The procurement officer is given the
responsibility and judgement for making a final determination on whether a
proposed substitution is an "or equal".
E. Determination of lowest bidder: Following determination of product
acceptability as set forth in Subsections B, C and D of this section, if any is
required, bids will be evaluated to determine which bidder offers the lowest
cost to the state in accordance with the evaluation criteria set forth in the
IFB. Only objectively measurable
criteria that are set forth in the IFB shall be applied in determining the
lowest bidder. Examples of such criteria
include, but are not limited to, discounts, transportation costs and ownership
or life-cycle formulas. Evaluation
factors need not be precise predictors of actual future costs, but to the
extent possible the evaluation factors shall be reasonable estimates based upon
information the state has available concerning future use.
(1) Prompt payment discounts. Prompt payment discounts shall not be
considered in computing the low bid. Such
discounts may be considered after award of the contract.
(2) Trade discounts. Trade discounts shall be considered in
computing the low bid. Such discounts
may be shown separately, but must be deducted by the bidder in calculating the
unit price quoted.
(3) Quantity discounts. Quantity discounts shall be included in the
price of an item. Such discounts may not
be considered where set out separately unless the IFB so specifies.
(4) Transportation costs. Transportation costs shall be considered in
computing the low bid. Such costs may be
computed into the bid price or be listed as a separate item.
(5) Total or life-cycle costs. Award may be determined by total or
life-cycle costing if so indicated in the IFB.
Life-cycle cost evaluation may take into account operative, maintenance,
and money costs, other costs of ownership and usage and resale or residual
value, in addition to acquisition price, in determining the lowest bid cost
over the period the item will be used.
(6) Energy efficiency. Award may be determined by an evaluation
consisting of acquisition price plus the cost of energy consumed over a
projected period of use.
F. Restrictions: Nothing in 1.4.1.24 NMAC of this rule shall
be deemed to permit contract award to a bidder submitting a higher quality item
than designated in the IFB unless the bidder is also the lowest bidder as
determined under Subsection E of this section. Further, except as provided in this Subsection
F of 1.4.1.24 NMAC tion, 1.4.1.24 NMAC of this rule does not permit negotiations with any bidder. If the lowest responsive bid has otherwise
qualified, and if there is no change in the original terms and conditions, the
lowest responsible bidder may negotiate with the purchaser (i.e., this
exception applies only to purchases and does not apply to procurements
generally) for a lower total bid to avoid rejection of all bids for the reason
that the lowest bid was up to ten percent higher than budgeted project funds. Such negotiation shall not be allowed if the
lowest bid was more than ten percent over budgeted project funds.
G. Documentation of award: Following award, a record showing the basis
for determining the successful bidder shall be made a part of the procurement
file. Award in this context means the
final required state agency signature on the contract(s) resulting from the
procurement.
H. Publicizing awards: Written notice of award shall be sent to the
successful bidder. Notice of award shall
also be posted on the state purchasing website.
[1.4.1.24 NMAC - Rn 1.4.1.24
NMAC, 6/21/2022]
1.4.1.25 STATUTORY
PREFERENCES: Statutory preferences to be applied in
determining low bidder or successful offeror. New Mexico law provides certain statutory
preferences for several categories of
bidders and offerors as well as for recycled content goods (Sections 13-1-21
and 13-1-22 NMSA 1978). These preferences
must be applied in regard to invitations for bids and requests for proposals in
accordance with statute in determining the lowest bidder or successful offeror.
[1.4.1.25 NMAC - Rp, 1.4.1.25
NMAC, 6/21/2022]
1.4.1.26 IDENTICAL LOW BIDS:
A. Definition: Identical low bids are low responsive bids,
from responsible bidders, which are identical in price after the application of
the preferences referred to in 1.4.1.25 NMAC of this rule and which meet all
the requirements and criteria set forth in the IFB.
B. Award: When two or more identical low bids are
received, the state purchasing agent may:
(1) award pursuant to the multiple source
award provisions of Sections 13-1-153 and 13-1-154 NMSA 1978;
(2) award to a bidder with a statutory
preference if the identical low bids are submitted by a bidder with a statutory
preference and a nonresident business or nonresident contractor;
(3) award to a bidder offering recycled
content goods if the identical low bids are for recycled content goods and
virgin goods;
(4) award by lottery to one of the
identical low bidders; or
(5) reject all bids and re-solicit bids
or proposals for the required services, construction or items of tangible
personal property.
[1.4.1.26 NMAC - Rp, 1.4.1.26
NMAC, 6/21/2022]
1.4.1.27 MULTI-STEP
SEALED BIDS:
A. General: Multi-step bidding is a variant of the
competitive sealed bidding method. This
method may be utilized when the state purchasing agent or a central purchasing
office makes a determination that it is impractical initially to prepare
specifications to support an award based on price, or that specifications are
inadequate or are too general to permit full and free competition without
technical evaluation and discussion.
B. Phased process: Multi-step bidding is a phased process which
combines elements of both the competitive sealed proposal method, seeking
necessary information or unpriced technical offers in the initial phase; and
regular competitive sealed bidding, inviting bidders who submitted technically
acceptable offers in the initial phase, to submit competitive sealed price bids
on the technical offers in the final phase.
The contract shall be awarded to the lowest responsible bidder. If time is a factor, the state purchasing
agent or a central purchasing office may require bidders to submit a separate
sealed bid during the initial phase to be opened after the technical
evaluation.
C. Public notice: Whenever multi-step sealed bids are used,
public notice for the first phase shall be given in accordance with 1.4.1.17 NMAC
of this rule. Public notice is not
required for the second phase.
[1.4.1.27 NMAC - Rp, 1.4.1.27
NMAC, 6/21/2022]
1.4.1.28 PAYMENTS
FOR PURCHASES: Contract clause. All contracts resulting from an invitation for
bids shall contain a clause allowing for late payment charges against the state
agency in the amount and under the conditions set forth in Section 13-1-158
NMSA 1978.
[1.4.1.28 NMAC - Rp, 1.4.1.28
NMAC, 6/21/2022]
1.4.1.29 APPLICATION
(COMPETITIVE SEALED PROPOSALS; 1.4.1.29-1.4.1.47 NMAC):
A. General: Except as provided in Subsections B and C of
this section, the provisions of 1.4.1.29 through 1.4.1.47 NMAC of this rule
apply to every procurement made by competitive sealed proposals.
B. Architects, engineers, landscape
architects and surveyors: The provisions
of 1.4.1.29 through 1.4.1.47 NMAC of this rule do not apply to the procurement
of professional services of architects, engineers, landscape architects and
surveyors for state public works projects or local public works projects. Except that when procuring such professional
services for state public works projects or local public works projects state
agencies and local public bodies shall comply with Section 13-1-120 through
13-1-124 NMSA 1978, competitive sealed qualifications-based proposals.
C. Procurement of professional services
by state agencies with rulemaking authority:
A state agency with rule making authority may adopt its own regulations
for the procurement of professional services by competitive sealed proposals
under the following conditions:
(1) the state agency must receive prior
written authorization from the general services department secretary;
(2) the state agency's proposed
regulations must provide that RFPs or notices thereof having a value exceeding sixty
thousand dollars ($60,000) will be provided to the state purchasing agent for
distribution to prospective offerors who have registered with the state
purchasing agent's office in accordance with the terms of Subsection B of
1.4.1.17 NMAC and Subsection A of 1.4.1.32 NMAC of this rule.
D. "Professional services" are
defined in Section 13-1-76 NMSA 1978: The
section of statute acknowledges the difficulty of any attempt made to recognize
and list each and every service that could conceivably fall within the
definition of "professional services". Instead, the statute provides in relevant
part that "...other persons or businesses providing similar professional
services to those listed may be designated as such by a determination issued by
the state purchasing agent or a central purchasing office." In instances where "...other persons or
businesses providing similar professional services...", as cited in Section
13-1-76, NMSA 1978, is not clearly defined, state agencies shall submit a
written request to the state purchasing agent for issuance of a determination
and a finding that the service is to be designated as a professional service. State agencies shall not make such a
determination independent of the state purchasing agent.
[1.4.1.29 NMAC - Rp, 1.4.1.29
NMAC, 6/21/2022]
1.4.1.30 GENERAL
DISCUSSION:
A. Use of competitive sealed proposals: When a state agency procures professional
services that are not related to a design and build project delivery system in
accordance with Section 13-1-119.1 NMSA 1978, or when the state purchasing
agent or a designee makes a determination that the use of competitive sealed
bids is either not practicable or not advantageous to the state, a procurement
shall be effected by competitive sealed proposals. Note well: Section 13-1-111 NMSA 1978 only authorizes
state agencies other than the state purchasing agent to procure professional
services by means of competitive sealed proposals. Section 13-1-111 NMSA 1978 does not authorize
state agencies to avoid centralized purchasing through the state purchasing
agent by issuing RFPs for items of tangible personal property, or
nonprofessional services.
B. Definitions: The words "practicable" and
"advantageous" are to be given ordinary dictionary meanings. The term "practicable" denotes what
may be accomplished or put into practical application. "Advantageous" denotes a judgmental
assessment of what is in the state's best interest. The use of competitive sealed bids may be
practicable, that is, reasonably possible, but not necessarily advantageous,
that is, in the state's best interest.
C. Proposals offer flexibility: The key element in determining
advantageousness is the need for flexibility.
The competitive sealed proposal method differs from the competitive
sealed bid method in two important ways:
(1) it permits discussions with competing
offerors and changes in their proposals including price; and;
(2) it allows more subjective evaluations
to be made in comparing acceptable offerors’ proposals with stated evaluation
criteria when selecting among acceptable proposals for award of a contract.
D. Determinations by category: The state purchasing agent may make
determinations by category of services or items of tangible personal property
that it is either not practicable or not advantageous to procure specified
types of service or items of tangible personal property by competitive sealed
bids in which case competitive sealed proposals shall be utilized. The state purchasing agent may modify or
revoke such determinations at any time.
[1.4.1.30 NMAC - Rp, 1.4.1.30
NMAC, 6/21/2022]
1.4.1.31 REQUEST
FOR PROPOSALS ("RFP"):
A. Initiation: The request for proposals ("RFP")
is used to initiate a competitive sealed proposal procurement. All state agencies shall follow published
guidelines and procedures issued by the state purchasing agent from development
stage through award of RFP-based procurements.
At a minimum the RFP shall include the following:
(1) the specifications for the services
or items of tangible personal property to be procured;
(2) all contractual terms and conditions
applicable to the procurement;
(3) instructions concerning the
submission and response to questions;
(4) the term of the contract and
conditions of renewal or extension, if any;
(5) instructions and information to
offerors, including the location where proposals are to be received and the
date, time and place where proposals are to be received and reviewed;
(6) all of the evaluation factors, and
the relative weights to be given to the factors in evaluating proposals;
(7) a statement that discussions may be
conducted with offerors who submit proposals determined to be potentially
acceptable of being selected for award, but that proposals may be accepted
without such discussions;
(8) a notice that the RFP may be canceled
and that any and all proposals may be rejected in whole or in part when it is
in the best interest of the state of New Mexico; and
(9) a statement of how proposed costs
should be submitted;
(10) a notice that reads substantially as
follows: The Procurement Code, Section 13-1-28
through 13-1-199 NMSA 1978, imposes civil, misdemeanor and felony criminal
penalties for its violation. In
addition, the New Mexico criminal statutes impose felony penalties for bribes,
gratuities and kick-backs.
B. Incorporation by reference: The RFP may incorporate documents by
reference, provided that the RFP specifies where such documents can be
obtained.
C. Form of proposal: The manner in which proposals are to be
submitted, including any forms for that purpose, must be designated in the RFP.
D. Proposal preparation time: 30 calendar days between the date of issue
and the proposal due date is the recommended minimum proposal preparation time. A longer preparation time may be required for
complex procurements or for procurements that require substantial offeror
resources to prepare an acceptable proposal.
[1.4.1.31 NMAC - Rp, 1.4.1.31
NMAC, 6/21/2022]
1.4.1.32 PUBLIC
NOTICE REQUEST FOR PROPOSAL:
A. Procurements by the state purchasing
agent: The state purchasing agent shall
give public notice of the RFP in the same manner as provided in 1.4.1.17 NMAC of
this rule. However, an RFP or a notice
shall be published not less than 20 days prior to the date set for receipt of
proposals unless a shorter time frame is requested and approval granted by the
state purchasing agent.
B. Procurements of all tangible
personal property or services: The
procurement manager shall deliver to the state purchasing agent or designee the
following listed items no later than 15 calendar days prior to the proposed
issue date (this requirement may be waived by the state purchasing agent at the
state purchasing agent’s discretion):
(1) the RFP authorization and plan
document, if required;
(2) a state of New Mexico requisition
completed according to state purchasing division processes;
(3) a list containing the names and
addresses of suggested vendors, if any;
(4) a copy of the complete RFP document;
for large or complex procurements, the draft RFP document shall be delivered to
the state purchasing agent for review at least thirty days prior to the
proposed issue date (this requirement may be waived by the state purchasing
agent at the state purchasing agent’s discretion).
C. Procurements of professional services
by other central purchasing offices: When
procuring professional services, central purchasing offices other than the
state purchasing agent shall provide the following notice:
(1) the RFP or a notice thereof shall be
published not less than 10 calendar days prior to the date set for the receipt
of proposals; it is recommended, however, that the time period between the
published date and the date set for receipt of proposals be no less than 20
days; the RFP or notice shall be published at least once in a newspaper of
general circulation in the area in which the central purchasing office is
located; if there is no newspaper of general circulation in the area, such
other notice may be given as is commercially reasonable; and
(2) a copy of the RFP and notice may be
delivered to the state purchasing agent not less than 15 calendar days prior to
the date set for the issuance; if so received, the state purchasing agent shall
distribute the RFP or notice to prospective offerors who have registered with
the state purchasing agent's office in accordance with the terms of Subsection
B of 1.4.1.17 NMAC of this rule and Subsection A of this section; and
(3) a copy of the RFP shall be made
available for public inspection at the central purchasing office or electronically
or online.
D. Additional notice: The requirements of Subsections A, B and C of
this section are in addition to any other procedures which may be adopted by
the state purchasing agent or central purchasing offices to notify prospective
offerors that proposals will be received, including but not limited to
publication in professional journals, if available.
[1.4.1.32 NMAC - Rp 1.4.1.32
NMAC, 6/21/2022]
1.4.1.33 PRE-PROPOSAL
CONFERENCES: Pre-proposal conferences may be conducted in
accordance with 1.4.1.18 NMAC of this rule.
Any such conference should be held prior to submission of initial
proposals. Other than for particular
procurements where an agency feels a pre-proposal conference is necessary (such
as for construction procurements where building walk-throughs or similar
activities would be required or other like procurements), it is strongly
recommended that pre-proposal conferences not be made mandatory so as to not
eliminate potential vendors prior to receiving bids or proposals.
[1.4.1.33 NMAC - Rp, 1.4.1.33
NMAC, 6/21/2022]
1.4.1.34 AMENDMENTS
TO THE REQUEST FOR PROPOSALS:
A. Prior to submission of proposals: Prior to submission of proposals, amendments
to the RFP may be made in accordance with 1.4.1.19 NMAC of this rule.
B. After submission of proposals: After submission of proposals, amendments to
the RFP shall be distributed only to short-listed offerors. The short-listed offerors shall be permitted
to submit new proposals or to amend those submitted. If in the opinion of the procurement officer
or procurement manager, a contemplated amendment will significantly change the
nature of the procurement, the RFP shall be canceled in accordance with
1.4.1.68 through 1.4.1.72 NMAC of this rule, and a new RFP issued.
[1.4.1.34 NMAC - Rp, 1.4.1.34
NMAC, 6/21/2022]
1.4.1.35 MODIFICATION
OR WITHDRAWAL OF PROPOSALS: Proposals may be modified or withdrawn prior
to the established due date in accordance with 1.4.1.20 NMAC of this rule. The established due date is either the time
and date announced for receipt of proposals or receipt of modifications to
proposals, if any; or, if discussions have begun, it is the time and date by
which best and final offers must be submitted by short-listed offerors. (NOTE:
if the time a proposal is due is listed as “3 p.m.” this means 3:00:00 and not
3:00:59.)
[1.4.1.35 NMAC - Rp, 1.4.1.35
NMAC, 6/21/2022]
1.4.1.36 LATE
PROPOSALS, LATE WITHDRAWALS AND LATE MODIFICATIONS: Any proposal,
withdrawal, or modification received after the established due date at the
place designated for receipt of proposals is late. (See 1.4.1.35 NMAC of this rule for the
definition of "established due date.") They may be considered only in
accordance with 1.4.1.21 NMAC of this rule.
[1.4.1.36 NMAC - Rp, 1.4.1.36
NMAC, 6/21/2022]
1.4.1.37 RECEIPT
AND OPENING OF PROPOSALS:
A. Receipt: Proposals and modifications shall be
time-stamped upon receipt and held in a secure place until the established due
date. This may be done entirely
electronically. (See 1.4.1.35 NMAC of
this rule for the definition of "established due date.")
B. Opening: Proposals shall not be opened publicly and
shall not be open to public inspection until after award of a contract. Award in this context means the final
required state agency signature on the contract(s) resulting from the
procurement. An offeror may request in
writing nondisclosure of confidential data.
Such data shall accompany the proposal and shall be readily separable
from the proposal in order to facilitate eventual public inspection of the
nonconfidential portion of the proposal.
[1.4.1.37 NMAC - Rp, 1.4.1.37
NMAC, 6/21/2022]
1.4.1.38 EVALUATION
OF PROPOSALS:
A. Evaluation factors: The evaluation shall be based on the
evaluation factors and the relative weights set forth in the RFP. Appropriate rating systems (numerical,
point-based, pass/fail, etc.) are required for requests for proposals-based
procurements.
B. Evaluation committee: The state agency management shall appoint an
evaluation committee prior to the due date for receipt of proposals. The size of the committee should be
manageable and include both user and technical support representatives. Contractor subject matter experts may be used
to advise the committee but cannot evaluate proposals.
C. Classified proposals: For the purpose of conducting discussions
under 1.4.1.39 NMAC of this rule, proposals shall be initially classified as:
(1) responsive;
(2) potentially responsive, that is,
reasonably susceptible of being made responsive; or
(3) non-responsive.
D. Disqualification: Non-responsive proposals are disqualified and
eliminated from further consideration. A
written determination in the form of a letter shall be sent to the disqualified
offeror setting forth the grounds for the disqualification, and made a part of
procurement file.
[1.4.1.38 NMAC - Rp, 1.4.1.38
NMAC, 6/21/2022]
1.4.1.39 PROPOSAL
DISCUSSIONS AND NEGOTIATIONS WITH INDIVIDUAL OFFERORS:
A. Discussions authorized: Discussions may be conducted with responsible
offerors who submit acceptable or responsive, potentially acceptable or
potentially responsive proposals.
B. Purposes of discussions: Discussions are held to clarify technical or
other aspects of the proposals.
C. Conduct of discussions: If during discussions there is a need for any
substantial clarification or change in the request for proposals, the request
for proposals shall be amended to incorporate such clarification or change. Any substantial oral clarification of a
proposal shall be reduced to writing by the offeror. Proposals may be accepted and evaluated
without such discussion. This is not an
opportunity for the offerors to amend the substance of their proposals.
D. Short list: All responsible offerors who submit acceptable
proposals are eligible for the short list.
If numerous acceptable proposals have been submitted, however, the
procurement officer or procurement manager may rank the proposals and select
the highest ranked proposals for the short list. Those responsible offerors who are selected
for the short list are the "short-listed offerors" or "finalist
offerors".
E. Competitive negotiations: Competitive negotiations may be held among the
short-listed offerors to:
(1) promote understanding of a state
agency's requirements and short-listed offerors' proposal; and
(2) facilitate arriving at a contract
that will be most advantageous to a state agency taking into consideration the
evaluation factors set forth in the RFP;
(3) except for circumstances and
situations otherwise approved by the state purchasing agent, negotiations of
the relevant terms and conditions as well as any other important factors in an
RFP and proposed contract are negotiated prior to award of a contract, not
after award.
F. Conduct of competitive negotiations: Short-listed offerors shall be accorded fair
and equal treatment with respect to any negotiations and revisions of proposals. The procurement officer should establish
procedures and schedules for conducting negotiations. If during discussions there is a need for any
substantial clarification of or change in the RFP, the RFP shall be amended to
incorporate such clarification or change.
Any substantial oral clarification of a proposal shall be reduced to
writing by the short-listed offeror.
[1.4.1.39 NMAC - Rp, 1.4.1.39
NMAC, 6/21/2022]
1.4.1.40 DISCLOSURE: The contents
of any proposal shall not be disclosed so as to be available to competing
offerors during the negotiation process and prior to award. Award in this context means the final required
state agency signature on the contract(s) resulting from the procurement.
[1.4.1.40 NMAC - Rp, 1.4.1.40
NMAC, 6/21/2022]
1.4.1.41 BEST
AND FINAL OFFERS: Best and final offers in a request for
proposals are sometimes appropriate and helpful. An offeror’s best offer should be included in
that offeror’s original proposal and no discussion or changes to that offer
should be allowed prior to selection of the offeror as the successful offeror
unless negotiations are undertaken pursuant to 1.4.1.39 NMAC of this rule. After such selection of a successful offeror or
offerors (for a multiple award procurement) and before final award, an agency
may negotiate with the selected successful offeror(s) for the best possible
terms for the state but such negotiations shall not change the successful
offeror’s or offerors’ (for a multiple award procurement) proposal(s) to the
detriment of the state. Award in this
context means the final required state agency signature on the contract(s)
resulting from the procurement.
[1.4.1.41 NMAC - Rp, 1.4.1.41
NMAC, 6/21/2022]
1.4.1.42 MISTAKES
IN PROPOSALS:
A. Modification or withdrawal of
proposals: Proposals may be modified or
withdrawn as provided in 1.4.1.35 NMAC of this rule.
B. Mistakes discovered after receipt of
proposals: This subsection sets forth
procedures to be applied in several situations in which mistakes in proposals
are discovered after receipt of proposals.
(1) Confirmation of proposal. When the procurement officer or procurement
manager knows or has reason to conclude before award that a mistake has been
made, the procurement officer or procurement manager should request the offeror
to confirm the proposal. If the offeror
alleges mistake, the proposal may be corrected or withdrawn during any
discussions that are held or if the conditions set forth in Subsection C of
this section are met.
(2) During negotiations. If best and final offers are requested in the
RFP, between the period of selecting short-listed/finalist offerors and the
date set for best and final offers, any short-listed or finalist offeror may
freely correct any mistake by modifying or withdrawing the proposal until the
time and date set for receipt of best and final offers.
C. Technical irregularities: Technical irregularities are matters of form
rather than substance evident from the proposal document, or insignificant
mistakes that can be waived or corrected without prejudice to other offerors;
that is, when there is no effect on price, quality or quantity. If discussions are not held or if best and
final offers upon which award will be made have been received, the procurement
officer or procurement manager may waive such irregularities or allow an
offeror to correct them if either is in the best interest of the state. Examples include, but are not limited to, the
failure of an offeror to:
(1) return the number of signed proposals
required by the RFP;
(2) sign the appropriate forms where
called for, but only if the unsigned forms are accompanied by other material
indicating the offeror's intent to be bound; or
(3) acknowledge receipt of an amendment
to the RFP, but only if:
(a) it is clear from
the proposal that the offeror received the amendment and intended to be bound
by its terms; or
(b) the amendment
involved had no effect on price, quality or quantity.
D. Correction of mistakes: If discussions are not held, or if the best
and final offers upon which award will be made have been received, mistakes
shall be corrected to the intended correct offer whenever the mistake and the
intended correct offer are clearly evident to the evaluation committee members
or the procurement officer or the procurement manager on the face of the
proposal, in which event the proposal may not be withdrawn.
E. Withdrawal of proposals: If discussions are not held, or if the best
and final offers upon which award will be made have been received, an offeror
alleging a material mistake of fact which makes a proposal non-responsive may
be permitted to withdraw the proposal if:
(1) the mistake is clearly evident to the
evaluation committee members or the procurement officer or the procurement
manager on the face of the proposal but the intended correct offer of the
offeror is not; or
(2) the offeror submits evidence which
clearly and convincingly demonstrates that a mistake was made.
F. Determination required: When a proposal is corrected or withdrawn, or
correction or withdrawal is denied under Subsections C through E of this
section, the procurement officer or procurement manager shall prepare a written
determination showing that the relief was granted or denied in accordance with
this section.
[1.4.1.42 NMAC - Rp, 1.4.1.42
NMAC, 6/21/2022]
1.4.1.43 AWARD:
PROFESSIONAL SERVICES:
A. Procedure: An award shall be made to the responsible
offeror whose proposal is most advantageous to a state agency, taking into
consideration the evaluation factors set forth in the RFP. The procurement officer shall make a written
determination in the form of an evaluation committee report showing the basis
on which an award was found to be most advantageous to a state agency based on
the factors set forth in the RFP. Award
in this context means the final required state agency signature on the
contract(s) resulting from the procurement.
B. Publicizing awards: The procurement manager or procurement
officer shall promptly provide all offerors who submitted proposals written
notice of the award. Award in this
context means the final required state agency signature on the contract(s) resulting
from the procurement.
C. Publicizing awards: The procurement manager or procurement
officer shall promptly provide all offerors who submitted proposals written
notice of the award which notice shall be sent via certified mail, return
receipt requested, and shall include the expiration date and time of the
protest period, if there was a change from the date and time published in the
RFP.
[1.4.1.43 NMAC - Rp, 1.4.1.43
NMAC, 6/21/2022]
1.4.1.44 AWARD:
ALL TANGIBLE PERSONAL PROPERTY OR SERVICES: (INCLUDES SOFTWARE, HARDWARE, NON-PROFESSIONAL SERVICES, etc):
A. Procedure: The award shall be made by the state
purchasing agent or designee to the responsible offeror whose proposal is most
advantageous to the state agency, taking into consideration the evaluation
factors set forth in the RFP. The
procurement manager shall make a written determination in the form of an
evaluation committee report showing the basis on which the recommended award
was found to be most advantageous to the state agency based on the factors set
forth in the RFP.
B. Publicizing awards: The procurement manager shall promptly
provide all offerors who submitted responsive proposals written notice of the
award. The written notice shall be sent
via certified mail, return receipt requested, and shall include the expiration
date and time of the protest period, if there was a change from the date and
time published in the RFP.
[1.4.1.44 NMAC - Rp, 1.4.1.44
NMAC, 6/21/2022]
1.4.1.45 PUBLIC
INSPECTION:
A. General: After award, any written determinations made
pursuant to these rules, the evaluation committee report and each proposal,
except those portions for which the offeror has made a written request for
confidentiality, shall be open to public inspection. Confidential data is normally restricted to
confidential financial information concerning the offeror's organization and
data that qualifies as a trade secret in accordance with the Uniform Trade
Secrets Act, Sections 57-3A-1 to 57-3A-7 NMSA 1978. The price of products offered or the cost of
services proposed may not be designated as confidential information. Award in this context means the final required
state agency signature on the contract(s) resulting from the procurement.
B. Confidential data: If a request is received for disclosure of
data, for which an offeror has made a written request for confidentiality, the
state purchasing agent or central purchasing office shall examine the offeror's
request and make a written determination that specifies which portions of the
proposal should be disclosed. If it is
determined that an offeror’s requested confidential data should be disclosed,
that offeror will receive reasonable notice in order to afford the offeror the
opportunity to take legal action to prevent the disclosure. Unless the offeror takes legal action to
prevent the disclosure, the data will be so disclosed. After award the proposal shall be open to
public inspection subject to any continuing prohibition on the disclosure of
confidential data. Award in this context
means the final required state agency signature on the contract(s) resulting
from the procurement.
[1.4.1.45 NMAC - Rp, 1.4.1.45
NMAC, 6/21/2022]
1.4.1.46 PAYMENTS
FOR PURCHASES: Contract clause. All contracts resulting from a request for
proposals shall contain a clause allowing for late payment charges against the
state agency in the amount and under the conditions set forth in Section 13-1-158
NMSA 1978.
[1.4.1.46 NMAC - Rp, 1.4.1.46
NMAC, 6/21/2022]
1.4.1.47 GSD
CONTRACT REVIEW: All contracts for professional services with
state agencies shall be reviewed as to all requirements as set forth in statute
and rule by the general services department, if such review is required by the
general services department or subsequent general services department rules.
[1.4.1.47 NMAC - Rp, 1.4.1.47
NMAC, 6/21/2022]
1.4.1.48 APPLICATION
(SMALL PURCHASES; 1.4.1.48 - 1.4.1.52 NMAC): The provisions of 1.4.1.48 through 1.4.1.52 NMAC
of this rule apply to the procurement of nonprofessional services, construction
or items of tangible personal property having a value not exceeding the value
set forth in statute for small purchases and to the procurement of professional
services having a value not exceeding the value set forth in statute for small
purchases of professional services, the use of a statewide price agreement, an
existing contract or the methods of procurement set forth in 1.4.1.50 through
1.4.1.52 NMAC of this rule provide alternatives to the competitive sealed bid
and competitive sealed proposal methods of procurement. If an existing statewide price agreement, an
existing contract or, the procurement methods set forth in 1.4.1.50 through
1.4.1.52 NMAC of this rule are not used, the competitive sealed bid or
competitive sealed proposal methods shall apply.
[1.4.1.48 NMAC - Rp, 1.4.1.48
NMAC, 6/21/2022]
1.4.1.49 DIVISION
OF REQUIREMENTS: Procurement requirements shall not be
artificially divided so as to constitute a small purchase under 1.4.1.48
through 1.4.1.52 NMAC of this rule.
[1.4.1.49 NMAC - Rp, 1.4.1.49
NMAC, 6/21/2022]
1.4.1.50 SMALL
PURCHASES OF $20,000 OR LESS: A state agency may procure services,
construction or items of tangible personal property having a value not
exceeding twenty thousand dollars ($20,000) by issuing a direct purchase order
to a contractor based upon the best obtainable price and in accordance with any
procedures or processes set forth by the state purchasing agent and the state
controller.
[1.4.1.50 NMAC - Rp, 1.4.1.50 NMAC, 6/21/2022]
1.4.1.51 SMALL
PURCHASES OF ITEMS OF TANGIBLE PERSONAL PROPERTY, CONSTRUCTION AND
NONPROFESSIONAL SERVICES:
A. Quotation to be obtained: Insofar as it is practical for small purchases
of nonprofessional services, construction or items of tangible personal
property having a value exceeding twenty thousand dollars ($20,000) but not
exceeding the value set forth in statute for small purchases, and in accordance
with any procedures or processes set forth by the state purchasing agent and
the state controller, no fewer than three businesses shall be solicited via
written requests containing the
specifications for the procurement to submit written quotations that are
recorded and placed in the procurement file.
Such notations as “does not carry” or “did not return my phone call” do
not qualify as a valid quotation. The
central nonprofit agency’s declining to offer to perform a particular service
does not qualify as a valid quotation; it is, in fact, the refusal to provide a
quotation. If the lowest quotation is
not acceptable, the central purchasing office must issue a written
determination as to the reasons for such a decision. These reasons must not be arbitrary or
capricious. The written determination
becomes a part of the procurement file.
B. Disclosure: Prior to award, the contents of any response
to a quotation shall not be disclosed to any other business from which the same
request for quotation is also being solicited.
Award in this context means the final required state agency signature on
the contract(s) or purchase order resulting from the procurement.
C. Award: Award shall be made to the responsible and
responsive business offering the lowest acceptable quotation.
D. Records: The names of the businesses submitting
quotations and the date and the amount of each quotation shall be recorded and
maintained as a public record.
[1.4.1.51 NMAC - Rp, 1.4.1.51
NMAC, 6/21/2022]
1.4.1.52 SMALL
PURCHASES OF PROFESSIONAL SERVICES:
A. Application: A central purchasing office may procure
professional services having a value not to exceed the value set forth in
statute for small purchases of professional services, except for the services
of architects, engineers, landscape architects, or surveyors for state public
works projects, as that term is defined in Section 13-1-91 NMSA 1978, in
accordance with Subsections B, C, and D of this section and 1.4.10 NMAC.
B. Examination of offeror list: Before contacting any business, a central
purchasing office is encouraged to examine the state purchasing agent's current
list of registered offerors, if any. Central
purchasing offices are encouraged to contact at least three businesses for
written offers before selecting a contractor.
C. Negotiations: A central purchasing office shall negotiate a
contract for the required services at a fair and reasonable price to the state
agency.
D. Disclosure: If more than one business is contacted, the
contents of the written or oral offer of one business shall not be disclosed to
another business until award is made. Award
in this context means the final required state agency signature on the
contract(s) resulting from the procurement.
[1.4.1.52 NMAC - Rp, 1.4.1.52
NMAC, 6/21/2022]
1.4.1.53 APPLICATION
(SOLE SOURCE PROCUREMENTS, 1.4.1.53 - 1.4.1.57 NMAC): The provisions
of 1.4.1.53 through 1.4.1.57 NMAC of this rule apply to all sole source
procurements unless emergency conditions exist as defined in 1.4.1.59 NMAC of
this rule.
[1.4.1.53 NMAC - Rp, 1.4.1.53
NMAC, 6/21/2022]
1.4.1.54 SOLE
SOURCE PROCUREMENT OF ITEMS OF TANGIBLE PERSONAL PROPERTY, CONSTRUCTION AND
NONPROFESSIONAL SERVICES:
A. Conditions for use: A contract may be awarded without competitive
sealed bids or competitive sealed proposals, regardless of the estimated cost,
when the state purchasing agent or a central purchasing office, employing due
diligence, determines, in writing, that:
(1) there is only one source for the
required service, construction or item of tangible personal property;
(2) the service, construction or item of
tangible personal property is unique and this uniqueness is substantially
related to the intended purpose of the contract; and
(3) other similar services, construction
or items of tangible personal property cannot meet the intended purpose of the
contract.
B. Request by using agency: Any request by a using agency that a
procurement be restricted to one potential contractor shall be accompanied by a
written explanation as to why no other will be suitable or acceptable to meet
the need. The written explanation shall
be made upon a form provided by the state purchasing agent and available
on-line.
C. Posting: Prior to the award of a sole source
procurement contract, the state purchasing agent or central purchasing office
shall:
(1) provide the information set forth in
statute and listed upon the form made available by the state purchasing agent
on the state purchasing agent’s website to the department of information
technology for posting on the sunshine portal; and
(2) forward the same information to the
legislative finance committee.
D. A local public body central
purchasing office, prior to award of a sole source contract, shall post the
information required by statute on the local public body website, if one exists,
and post the information required by statute on the state purchasing agent’s
website.
E. Negotiations: The state purchasing agent or a central
purchasing office shall conduct negotiations, as appropriate, as to price,
delivery and quantity, in order to obtain the price most advantageous to the
state.
F. Notice; protest: At least 30 days before a sole source
contract is awarded, the state purchasing agent, a central purchasing office, a
local public body, or a designee of any of these entities shall post notice of
the intent to award a sole source contract on its website if one exists, and
post the information required by statute on the state purchasing agent’s
website. Any qualified potential
contractor who was not awarded a sole source contract may protest to the state
purchasing agent or a central purchasing office. The protest shall be submitted:
(1) in writing; and
(2) within 15 calendar days of the notice
of intent to award a contract being posted on the state purchasing agent’s
website or a central purchasing office’s website, if it maintains one, or on a
local public body’s website, if it maintains one. (NOTE: the posting date should be the same on
all websites upon which it is posted. If
this is not the case, however, the 15 calendar period runs from the latest
posted date.)
G. Specifications: The state purchasing agent or a central
purchasing office shall not circumvent the sole source request and posting and
award process by narrowly drafting specifications so that only one
predetermined source would satisfy those specifications.
[1.4.1.54 NMAC - Rp, 1.4.1.54
NMAC, 6/21/2022]
1.4.1.55 [RESERVED]
1.4.1.56 [RESERVED]
1.4.1.57 RECORDS
OF SOLE SOURCE PROCUREMENTS: The state purchasing agent or central
purchasing office shall maintain records of sole source procurements for a period
as required by the commission of public records, state records center and
archives statutes and rules. The party
responsible for the procurement must retain the records. Posting such procurements on the state
purchasing agent’s website does not remove the central purchasing office’s or a
local public body’s responsibility to maintain these records if the central
purchasing office or a local public body was responsible for the procurement. The record of each such procurement shall be a
public record and shall contain:
A. the contractor's name and address;
B. the amount and term of the contract;
C. a listing of the services, construction,
or items of tangible personal property procured under the contract; and
D. the justification for the
procurement method which shall include any written determinations and written
approvals required by any provision of 1.4.1.53 through 1.4.1.57 NMAC of this
rule.
[1.4.1.57 NMAC - Rp, 1.4.1.57
NMAC, 6/21/2022]
1.4.1.58 APPLICATION
(EMERGENCY PROCUREMENTS, 1.4.1.58 - 1.4.1.64 NMAC): The provisions
of 1.4.1.58 through 1.4.1.64 NMAC of this rule
apply to every procurement made under emergency conditions that will not
permit other source selection methods to be used.
[1.4.1.58 NMAC - Rp, 1.4.1.58
NMAC, 6/21/2022]
1.4.1.59 DEFINITION
OF EMERGENCY CONDITIONS: Refer to Section 13-1-127 NMSA 1978 for
conditions allowing for the use of an emergency procurement.
[1.4.1.59 NMAC - Rp, 1.4.1.59
NMAC, 6/21/2022]
1.4.1.60 SCOPE
OF EMERGENCY PROCUREMENTS: Emergency procurements shall be limited to
those services, construction, or items of tangible personal property necessary
to meet the emergency. Such procurement
shall not include the purchase or lease-purchase of heavy road equipment.
[1.4.1.60 NMAC - Rp, 1.4.1.60
NMAC, 6/21/2022]
1.4.1.61 AUTHORITY
TO MAKE EMERGENCY PROCUREMENTS: The state purchasing agent or a central
purchasing office, employing due diligence, may make emergency procurements
when an emergency condition arises; provided that emergency procurements shall
be made with such competition as is practicable under the circumstances.
[1.4.1.61 NMAC - Rp, 1.4.1.61
NMAC, 6/21/2022]
1.4.1.62 PROCEDURE: The procedure
used shall be selected to assure that the required services, construction, or
items of tangible personal property are procured in time to meet the emergency.
Given this constraint, such competition
as is practicable shall be obtained.
[1.4.1.62 NMAC - Rp, 1.4.1.62
NMAC, 6/21/2022]
1.4.1.63 WRITTEN
DETERMINATION AND POSTING REQUIRED: A written determination of the basis for the
emergency procurement shall be made containing the information set forth in
statute and listed on the form issued by the state purchasing agent and
available on the state purchasing agent’s website. Within three business days of awarding an
emergency procurement, the awarding central purchasing office within a state
agency shall:
A. provide the information required by
statute to the department of information technology for posting on the sunshine
portal; and
B. forward the same information to the
legislative finance committee.
[1.4.1.63 NMAC - Rp, 1.4.1.63
NMAC, 6/21/2022]
1.4.1.64 RECORDS
OF EMERGENCY PROCUREMENTS: The state purchasing agent or central
purchasing office shall maintain records of emergency procurements for a period
as required by the commission of public records, state records center and
archives statutes and rules. The party
responsible for the procurement must retain the records. Posting such procurements on the state
purchasing agent’s website does not remove the central purchasing office’s
responsibility to maintain these records if the central purchasing office was
responsible for the procurement. The
record of each such procurement shall be a public record and shall contain:
A. the contractor's name and address;
B. the amount and term of the contract;
C. a listing of the services,
construction, or items of tangible personal property procured under the
contract; and
D. the justification for the
procurement method.
[1.4.1.64 NMAC - Rp, 1.4.1.64
NMAC, 6/21/2022]
1.4.1.65 PROCUREMENT
UNDER EXISTING CONTRACTS AUTHORIZED: The state purchasing agent or a central
purchasing office may contract for services, professional services,
construction, or items of tangible personal property without the use of
competitive sealed bids or competitive sealed proposals as follows:
A. at a price equal to or less than the
contractor's current federal supply contract (GSA), providing the contractor
has indicated in writing a willingness to extend the contract's pricing, terms
and conditions to the state agency and the purchase order adequately identifies
the contract relied upon; or
B. with a business which has a current
price agreement with the state purchasing agent or a central purchasing office
for the item, services, or construction meeting the same standards and
specifications as the items to be procured, if the following conditions are
met:
(1) the total quantity purchased does not
exceed the quantity which may be purchased under the applicable price
agreement; and
(2) the purchase order adequately
identifies the price agreement relied upon;
C. other than Subsection A and B of
this section and cooperative procurements as authorized by statute (and
described in Section 13-1-135 NMSA 1978) or the state procurement card program
(described in Section 6-5-9.1 NMSA 1978), no other procurement under existing
contracts is authorized; no central purchasing office of a state agency or any
other governmental entity may utilize a contract entered into by a different
state agency or other governmental entity if not involved in the procurement
itself (i.e., so-called “piggybacking” of contracts; the practice of
“piggybacking” is not allowed under the Procurement Code); purchases under
contracts developed through cooperative procurement authorized under Section 13-1-135
NMSA 1978 or contracts which qualify under Section 13-1-129 NMSA 1978 is
permitted and does not constitute “piggybacking.”
[1.4.1.65 NMAC - Rp, 1.4.1.65
NMAC, 6/21/2022]
1.4.1.66 LIMITATION
ON SUBSECTION A OF 1.4.1.65 OF THIS RULE RELATING TO GSA CONTRACTS: It should be
understood, the state is not authorized
to utilize a GSA contract per se. It is
imperative, therefore, that the contractor, not a dealer or distributor, who
has a current GSA contract indicate in writing a willingness to extend the
contract's pricing, terms and conditions to the state of New Mexico. Therefore, a state agency shall not procure
services, construction or items of tangible personal property directly under a
general services administration (GSA) contract. Rather, a state agency must procure pursuant
to a state purchasing agent price agreement which reflects the prices, terms
and conditions of the respective GSA contract.
If no such state purchasing agent price agreement exists, a state agency
may make a written request to the state purchasing agent for the issuance of
one. The request must be accompanied by
a current copy of the applicable GSA contract, a letter from the contractor
expressing a willingness to extend the contract's pricing, terms and conditions
to the state of New Mexico and a letter from the state agency indicating a
commitment to utilize the price agreement.
The state purchasing agent will ascertain whether it is current and
whether the proposed price is equal to or less than the federal supply contract
price. If everything is in order, the
state purchasing agent will issue a price agreement or purchase order
reflecting the prices, terms and conditions of the GSA contract. A state agency shall make no procurements from
the GSA contractor until a state purchasing agent price agreement has been
issued.
[1.4.1.66 NMAC - Rp, 1.4.1.66
NMAC, 6/21/2022]
1.4.1.67 COPIES
OF CONTRACTS AND PRICE AGREEMENTS: A central purchasing office shall retain for
public inspection and for the use of auditors a copy of each state purchasing
agent contract or current price agreement relied upon to make purchases without
seeking competitive bids.
[1.4.1.67 NMAC - Rp, 1.4.1.67
NMAC, 6/21/2022]
1.4.1.68 APPLICATION
(CANCELLATION OF SOLICITATIONS OR REJECTION OF BIDS OR PROPOSALS; 1.4.1.68 -
1.4.1.72 NMAC): The provisions of 1.4.1.68 through 1.4.1.72 NMAC
of this rule shall govern the cancellation of any solicitations whether issued
by the state purchasing agent under competitive sealed bids, competitive sealed
proposals, small purchases, or any other source selection method, and rejection
of bids or proposals in whole or in part.
[1.4.1.68 NMAC - Rp, 1.4.1.68
NMAC, 6/21/2022]
1.4.1.69 POLICY: Any
solicitation may be canceled or any or all bids or proposals may be rejected in
whole or in part when it is in the best interest of the state of New Mexico.
[1.4.1.69 NMAC - Rp, 1.4.1.69
NMAC, 6/21/2022]
1.4.1.70 CANCELLATION OF SOLICITATIONS OR REJECTION
OF ALL BIDS OR PROPOSALS:
A. Prior to opening:
(1) As used in this section,
"opening" means the date set for opening of bids or receipt of
proposals.
(2) Prior to opening, a solicitation may
be canceled in whole or in part when the state purchasing agent or central
purchasing office makes a written determination that such action is in the
state's best interest for reasons including but not limited to:
(a) the services,
construction, or items of tangible personal property are no longer required;
(b) the using agency
no longer can reasonably expect to fund the procurement; or
(c) proposed
amendments to the solicitation would significantly change the nature of the
procurement.
(3) When a solicitation is canceled prior
to opening, notice shall be sent to all businesses solicited. The notice shall:
(a) identify the
solicitation;
(b) briefly explain
the reason for cancellation; and
(c) where
appropriate, explain that an opportunity will be given to compete on any
resolicitation or any future procurements of similar services, construction, or
items of tangible personal property.
B. After opening:
(1) After opening but prior to award, all
bids or proposals may be rejected in whole or in part when the state purchasing
agent or central purchasing office makes a written determination that such
action is in the state's best interest for reasons including but not limited
to:
(a) all of the bids
and proposals are nonresponsive;
(b) the services,
construction, or items of tangible personal property are no longer required;
(c) ambiguous or
otherwise inadequate specifications were part of the solicitation;
(d) the solicitation
did not provide for consideration of all factors of significance to the using
agency;
(e) prices exceed
available funds and it would not be appropriate to adjust quantities to come
within available funds;
(f) all otherwise
acceptable bids or proposals received are at clearly unreasonable prices; or
(g) there is reason
to believe that the bids or proposals may not have been independently arrived
at in open competition, may have been collusive, or may have been submitted in
bad faith.
(2) A notice of rejection should be sent
to all businesses that submitted bids or proposals, and it shall conform to
Paragraph (3) of Subsection A of this section.
[1.4.1.70 NMAC - Rp, 1.4.1.70
NMAC, 6/21/2022]
1.4.1.71 REJECTION
OF INDIVIDUAL BIDS OR PROPOSALS:
A. Reasons for rejection:
(1) Bids.
As used in this section, "bid"means competitive sealed bids. Reasons for rejecting a bid shall include but
are not limited to:
(a) the business
that submitted the bid is nonresponsible as determined under 1.4.1.73 NMAC of
this rule;
(b) the bid is not
responsive; or
(c) the service,
construction, or item of tangible personal property offered in the bid is
unacceptable by reason of its failure to meet the requirements of the
specifications, or permissible alternates, or other acceptability criteria set
forth in the IFB.
(2) Proposals. As used in this section, "proposal" means
competitive sealed proposals. Unless the
solicitation states otherwise, proposals need not be unconditionally accepted
without alteration or correction and a using agency's stated requirements may
be revised or clarified after proposals are submitted. This flexibility must be considered in
determining whether reasons exist for rejecting all or any part of a proposal. Reasons for rejecting proposals include but
are not limited to:
(a) the business
that submitted the proposal is nonresponsible as determined under 1.4.1.75
through 1.4.1.79 NMAC of this rule;
(b) the proposal is
not responsive; or
(c) the proposed
price is clearly unreasonable; or
(d) the proposal
failed to adequately address one or more material mandatory requirements as set
forth in the request for proposals.
B. Written determination required: A written determination which contains the
reasons for the rejection of an individual bid or proposal shall be prepared by
the state purchasing agent or central purchasing office and made a part of the
procurement file.
[1.4.1.71 NMAC - Rp, 1.4.1.71
NMAC, 6/21/2022]
1.4.1.72 "ALL
OR NONE" BIDS: When the term "all or none" is used:
A. By the purchaser in a solicitation: A solicitation may require bidders to submit
bids or offers on all items listed in the solicitation, or may identify certain
groups of items in which all items must be bid.
If the solicitation is properly so limited, a bidder's failure to bid
all items identified as "all or none" items may render the bid
nonresponsive.
B. By the bidder or offeror, and not
the purchaser: If the bidder restricts
acceptance of the bid, or a portion thereof, by such a statement as "all
or none", the bidder has "qualified" the offer which may render
the bid as nonresponsive.
C. In instances as stated in both
Subsections A and B of this section such a bid or offer may be accepted only if
the state purchasing agent or a central purchasing office issues a
determination setting forth the basis for accepting the bid or offer as being
in the best interest of the state. Also
in both instances, the bid or offer is only eligible for award if it is the
overall low bid for the item or items so restricted.
[1.4.1.72 NMAC - Rp, 1.4.1.72
NMAC, 6/21/2022]
1.4.1.73 APPLICATION
(RECEIPT; INSPECTION; ACCEPTANCE OR REJECTION OF DELIVERIES; 1.4.1.73 -
1.4.1.74 NMAC): The using agency is responsible for
inspecting and accepting or rejecting deliveries.
A. The using agency shall determine
whether the quantity is as specified in the purchase order or contract.
B. The using agency shall determine
whether the quality conforms to the specifications referred to or included in
the purchase order or contract.
C. If inspection reveals that the
delivery does not meet or conform to the quantity or quality specified in the
purchase order or contract, the using agency shall notify the vendor that the
delivery has been rejected and shall order the vendor to promptly make a
satisfactory replacement or supplementary delivery.
D. In case the vendor fails to comply,
the using agency shall promptly file a purchasing complaint with the state
purchasing agent.
E. Also, in case the vendor fails to
comply, the using agency shall have no obligation to pay for the nonconforming delivery.
F. If the delivery does conform to the quantity
and quality specified in the purchase order or contract, the using agency shall
certify that delivery has been completed and is satisfactory.
[1.4.1.73 NMAC - Rp, 1.4.1.73
NMAC, 6/21/2022]
1.4.1.74 SUMMARY:
Notwithstanding the requirements of 1.4.1.73 NMAC, if, after delivery
and acceptance of the delivery, the delivery or a portion thereof is later
found to be non-conforming to the specifications referred to or included in the
purchase order or contract, such acceptance does not waive any rights or
remedies which are otherwise granted to the buyer in accordance with other
applicable sections of laws of New Mexico.
[1.4.1.74 NMAC - Rp, 1.4.1.74
NMAC, 6/21/2022]
1.4.1.75 APPLICATION
(RESPONSIBILITY OF BIDDERS AND OFFERORS; 1.4.1.75 - 1.4.1.79 NMAC): A
determination of responsibility or non-responsibility shall be governed by
1.4.1 75 through 1.4.1.79 NMAC.
[1.4.1.75 NMAC - Rp, 1.4.1.75
NMAC, 6/21/2022]
1.4.1.76 STANDARDS
OF RESPONSIBILITY:
A. Standards for bidders: Factors to be considered in determining
whether the standard of responsibility has been met include whether a bidder
has:
(1) submitted a responsive bid;
(2) adequate financial resources,
production or service facilities, personnel, service reputation and experience
to make satisfactory delivery of the services, construction, or items of
tangible personal property described in the IFB;
(3) a satisfactory record of performance;
(4) a satisfactory record of integrity;
(5) qualified legally to contract with
the state; and
(6) supplied all necessary information
and data in connection with any inquiry concerning responsibility.
B. Standards for offerors: Factors to be considered in determining
whether the standard of responsibility has been met include whether an offeror
has:
(1) submitted a responsive proposal;
(2) adequate financial resources,
production or service facilities, personnel, service reputation and experience
to make satisfactory delivery of the services or items of tangible personal
property described in the proposal;
(3) a satisfactory record of performance;
(4) a satisfactory record of integrity;
(5) qualified legally to contract with
the state; and
(6) supplied all necessary information
and data in connection with any inquiry concerning responsibility.
[1.4.1.76 NMAC -Rp, 1.4.1.76
NMAC, 6/21/2022]
1.4.1.77 ABILITY
TO MEET STANDARDS: A bidder or offeror may demonstrate the
availability of adequate financial resources, production or service facilities,
personnel and experience by submitting, upon request:
A. evidence that the bidder or offeror
possesses the necessary items;
B. acceptable plans to subcontract for
the necessary items; or
C. a documented commitment from, or
explicit arrangement with, a satisfactory source to provide the necessary
items.
[1.4.1.77 NMAC - Rp, 1.4.1.77
NMAC, 6/21/2022]
1.4.1.78 INQUIRY
BY PROCUREMENT OFFICER: Before awarding a contract, the procurement
officer or procurement manager must be satisfied that the bidder or offeror is
responsible. Therefore, a bidder or
offeror shall supply information and data requested by the procurement officer
concerning the responsibility of the bidder or offeror. The unreasonable failure of a bidder or
offeror to promptly supply information or data in connection with such an
inquiry is grounds for a determination that the bidder or offeror is not
responsible.
[1.4.1.78 NMAC - Rp, 1.4.1.78
NMAC, 6/21/2022]
1.4.1.79 DETERMINATION
REQUIRED: If a bidder or offeror who otherwise would
have been awarded a contract is found to be non-responsible, a written
determination, setting forth the basis of the finding, shall be prepared by the
state purchasing agent or central purchasing office. The written determination shall be made part
of the procurement file, and a copy of the determination shall be sent to the
non-responsible bidder or offeror.
[1.4.1.79 NMAC - Rp, 1.4.1.79
NMAC, 6/21/2022]
1.4.1.80 APPLICABILITY
(PROTESTS; 1.4.1.80 - 1.4.1.93 NMAC): The provisions of 1.4.1.80 through 1.4.1.93 NMAC
of this rule apply to all protests filed with the state purchasing agent and
all central purchasing offices that have not adopted regulations for resolving
protests. Central purchasing offices
with rulemaking authority, other than the state purchasing agent, may adopt
regulations for resolving protests filed within their jurisdictions.
[1.4.1.80 NMAC - Rp, 1.4.1.80
NMAC, 6/21/2022]
1.4.1.81 RIGHT
TO PROTEST: Any bidder or offeror who is aggrieved in
connection with a solicitation or award of a contract, including a sole source
procurement, may protest to the state purchasing agent or central purchasing
office.
[1.4.1.81 NMAC - Rp, 1.4.1.81
NMAC, 6/21/2022]
1.4.1.82 FILING
OF PROTEST:
A. Protest must be written: Protests must be in writing and addressed to
the state purchasing agent or central purchasing office, whichever has control
and administration over the procurement.
B. Contents: The
protest shall:
(1) include the name and address of the
protestant;
(2) include the solicitation number;
(3) contain a statement of the grounds
for protest;
(4) include supporting exhibits, evidence
or documents to substantiate any claim unless not available within the filing
time in which case the expected availability date shall be indicated; and
(5) specify the ruling requested from the
state purchasing agent or central purchasing office.
C. Pleadings: No formal pleading is required to initiate a
protest, but protests should be concise, logically arranged, and direct.
D. Time limit: Protests shall be submitted within 15 calendar
days after knowledge of the facts or occurrences giving rise to the protest. Any person or business that has been sent
written notice of any fact or occurrence is presumed to have knowledge of the
fact or occurrence. Posting on the state
purchasing division’s website is considered public notice in this regard as
well.
[1.4.1.82 NMAC - Rp, 1.4.1.82
NMAC, 6/21/2022]
1.4.1.83 PROCUREMENTS
AFTER PROTEST:
A. In the event of a timely protest, as
defined in Subsection D of 1.4.1.82 NMAC of this rule, the state purchasing
agent or central purchasing office shall not proceed further with the
procurement unless the state purchasing agent or central purchasing office
makes a written determination that the award of the contract is necessary to
protect substantial interests of a state agency. Such written determination should set forth
the basis for the determination. As used
in 1.4.1.80 through 1.4.1.93 NMAC of this rule, the point in time in which a
contract is awarded is that point at which a legally enforceable contract is
created unless the context clearly requires a different meaning. Award in this context means the final
required state agency signature on the contract(s) resulting from the
procurement.
B. A procurement shall not be halted
after a contract has been awarded merely because a protest has been filed. After a contract has been awarded, the state
purchasing agent or central purchasing office may, in its sole discretion, halt
a procurement in exceptional circumstances or for good cause shown.
[1.4.1.83 NMAC - Rp, 1.4.1.83
NMAC, 6/21/2022]
1.4.1.84 PROCEDURE:
A. Upon the filing of a timely protest,
the state purchasing agent or central purchasing office shall give notice of
the protest to the contractor if award has been made or, if no award has been
made, to all bidders or offerors who appear to have a substantial and
reasonable prospect of receiving an award if the protest is denied.
B. The protestant and every business
that receives notice pursuant to Subsection A of this section will
automatically be parties to any further proceedings before the state purchasing
agent or central purchasing office. In
addition, any other person or business may move to intervene at any time during
the course of the proceedings. Intervention
will be granted upon a showing of a substantial interest in the outcome of the
proceedings. Interveners shall accept
the status of the proceedings at the time of their intervention; in particular,
they must abide by all prior rulings and accept all previously established time
schedules. The state purchasing agent or
central purchasing office, and all employees thereof, are not parties to the
proceedings.
C. The state purchasing agent or
central purchasing office may take any action reasonably necessary to resolve a
protest. Such actions include, but are
not limited to, the following:
(1) issue a final written determination summarily
dismissing the protest;
(2) obtain information from the staff of
the state purchasing agent or central purchasing office;
(3) require parties to produce for
examination information or witnesses under their control;
(4) require parties to express their
positions on any issues in the proceedings;
(5) require parties to submit legal
briefs on any issues in the proceeding;
(6) establish procedural schedules;
(7) regulate the course of the
proceedings and the conduct of any participants;
(8) receive, rule on, exclude or limit
evidence;
(9) take official notice of any fact that
is among the traditional matters of official or administrative notice;
(10) conduct hearings; and
(11) take any action reasonably necessary to
compel discovery or control the conduct of parties or witnesses.
[1.4.1.84 NMAC - Rp, 1.4.1.84
NMAC, 6/21/2022]
1.4.1.85 DISCOVERY: Upon written
request of any party, or upon its own motion, the state purchasing agent or
central purchasing office may require parties to comply with discovery
requests.
[1.4.1.85 NMAC - Rp, 1.4.1.85
NMAC, 6/21/2022]
1.4.1.86 HEARINGS:
A. Hearings will be held only when the
state purchasing agent or central purchasing office determines that substantial
material factual issues are present that cannot be resolved satisfactorily
through an examination of written documents in the record. Any party may request a hearing, but such
requests shall be deemed denied unless specifically granted.
B. Hearings, when held, should be as
informal as practicable under the circumstances, but the state purchasing agent
or central purchasing office has absolute discretion in establishing the degree
of formality for any particular hearing. In no event is the state purchasing agent or
central purchasing office required to adhere to formal rules of evidence or
procedure.
[1.4.1.86 NMAC - Rp, 1.4.1.86
NMAC, 6/21/2022]
1.4.1.87 RESOLUTION:
A. The state purchasing agent or
central purchasing office shall promptly issue a written determination relating
to the protest. The determination shall:
(1) state the reasons for the action
taken; and
(2) inform the protestant of the right to
judicial review of the determination pursuant to Section 13-1-183 NMSA 1978.
B. A copy of the written determination
shall be sent immediately by certified mail, return receipt requested, to each
of the contractors, if award has been made or, if no award has been made, to
all bidders or offerors who appear to have a substantial and reasonable
prospect of receiving an award if the protest is denied.
[1.4.1.87 NMAC - Rp, 1.4.1.87
NMAC, 6/21/2022]
1.4.1.88 RELIEF:
A. Prior to award: If, prior to award, the state purchasing agent
or central purchasing office makes a written determination that a solicitation
or proposed award of a contract is in violation of law, then the solicitation
or proposed award shall be canceled.
B. After award:
(1) No fraud or bad faith. If, after an award, the state purchasing agent
or central purchasing office makes a written determination that a solicitation
or award of a contract is in violation of law and that the business awarded the
contract has not acted fraudulently or in bad faith:
(a) the contract may
be ratified, affirmed or revised to comply with law, provided that a written
determination is made that doing so is in the best interest of the state; or
(b) the contract may
be terminated, and the business awarded the contract shall be compensated for
the actual expenses reasonably incurred under the contract plus a reasonable
profit prior to termination.
(2) Fraud or bad faith. If, after an award, the state purchasing agent
or central purchasing office makes a written determination that a solicitation
or award of a contract is in violation of law and that the business awarded the
contract has acted fraudulently or in bad faith, the contract shall be
canceled.
C. Relief not allowed: Except as provided in Subparagraph (b) of
Paragraph (1) of Subsection B of this section, the state purchasing agent or
central purchasing office shall not award money damages or attorneys' fees.
[1.4.1.88 NMAC - Rp, 1.4.1.88
NMAC, 6/21/2022]
1.4.1.89 MOTION
FOR RECONSIDERATION:
A. Motion: A
motion for reconsideration of a written determination issued pursuant to
1.4.1.87 NMAC of this rule may be filed by any party or by any using agency
involved in the procurement. The motion
for reconsideration shall contain a detailed statement of the factual and legal
grounds upon which reversal or modification of the determination is deemed
warranted, specifying any errors of law made, or information not previously
considered.
B. When to file: A motion for reconsideration shall be filed
not later than seven calendar days after receipt of the written determination.
C. Response to motion: The state purchasing agent or central
purchasing office shall promptly issue a written response to the motion for
reconsideration. A copy of the written
response shall be sent immediately by certified mail, return receipt requested,
to each of the contractors, if award has been made or, if no award has been
made, to all bidders or offerors who appear to have a substantial and
reasonable prospect of receiving an award if the protest is denied.
[1.4.1.89 NMAC - Rp, 1.4.1.89
NMAC, 6/21/2022]
1.4.1.90 DESIGNEE:
A. Designation: At any point during a protest proceeding, the
state purchasing agent or central purchasing office may appoint a designee as
defined in Section 13-1-51 NMSA 1978 to preside over the proceeding. The designee will have all of the powers
described in 1.4.1.80 through 1.4.1.93 NMAC of this rule except the power to
issue a written determination under 1.4.1.87 NMAC of this rule. The designee only has authority to recommend a
resolution to the state purchasing agent or central purchasing office under
1.4.1.87 NMAC of this rule.
B. Who may be designated: Any person, other than the procurement
officer, procurement manager or other person not directly involved in the
procurement, may serve as a designee.
C. Recommended written determination: A designee shall present a recommended written
resolution to the state purchasing agent or central purchasing office. No party may appeal from the recommended
resolution of the designee.
D. Action by state purchasing agent or
central purchasing office: The state
purchasing agent or central purchasing office shall approve, disapprove or
modify the recommended resolution of the designee in writing. Such approval, disapproval or modification
shall be the written determination required by 1.4.1.87 NMAC of this rule. Any party may file a motion for
reconsideration of the written determination pursuant to 1.4.1.89 NMAC of this
rule.
[1.4.1.90 NMAC - Rp, 1.4.1.90
NMAC, 6/21/2022]
1.4.1.91 FINAL
DETERMINATION:
A. No motion for reconsideration: In those proceedings in which no motion for
reconsideration is filed, the written determination issued pursuant to 1.4.1.87
NMAC of this rule shall be the final determination for purposes of the time
limits for seeking judicial review under Section 13-1-183 NMSA 1978.
B. Motion for reconsideration: In those proceedings in which a motion for
reconsideration is filed, the written response to the motion issued pursuant to
1.4.1.89 NMAC of this rule shall be the final determination for purposes of the
time limits for seeking judicial review under Section 13-1-183 NMSA 1978.
[1.4.1.91 NMAC - Rp, 1.4.1.91
NMAC, 6/21/2022]
1.4.1.92 COPIES
OF COMMUNICATIONS:
A. Copies to be provided to parties: Each party to a protest proceeding shall
certify that it has provided every other party with copies of all documents or
correspondence addressed or delivered to the state purchasing agent or central purchasing
office.
B. Ex parte communications: No party shall submit to the state purchasing
agent or central purchasing office, ex
parte, any material, evidence, explanation, analysis, or advice, whether
written or oral, regarding any matter at issue in a protest.
[1.4.1.92 NMAC - Rp, 1.4.1.92
NMAC, 6/21/2022]
1.4.1.93 COUNTING
DAYS:
In computing any period of time prescribed in 1.4.1.80 through 1.4.1.93 NMAC
of this rule, the day of the event from which the designated period of time
begins to run shall not be included, but the last day of the period shall be
included unless it is a Saturday, a Sunday, or a legal holiday, in which event
the period shall run to the end of the next business day.
[1.4.1.93 NMAC - Rp, 1.4.1.93
NMAC, 6/21/2022]
1.4.1.94 CHIEF PROCUREMENT OFFICER REGISTRATION AND CERTIFICATION:
A. Overview: This section applies to chief procurement
officers in all state agencies and local public bodies.
(1) Statutory Authority. Under Section 9-17-5 NMSA 1978 and the
Procurement Code, Sections 13-1-1 et seq NMSA 1978 , the general services
secretary has authority to promulgate rules and regulations relating to this
program.
(2) Scope. The chief procurement officer registration,
certification and recertification training program is a state wide program
administered by the state purchasing agent. Each state agency and local public body shall
provide to the state purchasing agent the name of and all changes to the name
of the state agency's or local public body's chief procurement officer and
information identifying the state agency's or local public body's central
purchasing office. The state purchasing
agent shall maintain a list of the names of chief procurement officers reported
to the state purchasing agent by state agencies and local public bodies. The state purchasing agent shall make the list
of approved chief procurement officers available to the public through the web
site of the purchasing division of the general services department and in any
other appropriate form. It is a
violation of statute if state agencies and local public bodies do not have a
chief procurement officer listed on the state purchasing agent list before
performing procurements. Section 13-1-98
NMSA 1978 shall not reduce the scope of duties, responsibilities or authority
of the state purchasing agent, nor shall such exemptions exclude state agencies
and local public bodies from the duties and responsibilities of providing the
state purchasing agent the name of its certified chief procurement officer. All state agencies and local public bodies and
their certified chief procurement officers are required to comply with all
requirements under Sections 13-1-28 through 13-1-199 NMSA 1978 (amended 2013).
B. Definitions:
(1) “Approves” or “approved” means a
chief procurement officer has successfully completed the certification or
recertification training program administered by the state purchasing agent and
attested to by the issuance of a certificate signed by the state purchasing
agent.
(2) “Conduct” or “conducting”
procurements means the act of preparing, advertising, processing, and awarding
procurements of any kind, including, but not limited to, sole source,
invitation to bid, request for proposals, and contracts under state price
agreements.
(3) “Certification program” means the
initial certification process through passing an exam after completing course
material and a test approved by the general services secretary.
(4) “Recertification program” means
training that will include affirmation of successfully completing course
material approved by the general services secretary.
C. Mandatory identification of
certified chief procurement officer: Each state agency and local public body shall
annually, on or before January 1st of each year, and within 15 calendar days
every time thereafter upon a vacancy or extended absence of a certified chief
procurement officer for more than two weeks, provide to the state purchasing
agent the name of the state agency or local public body certified chief
procurement officer and, if applicable, information identifying the state
agency or local public body central purchasing office. Every state agency or local public body shall
have a certified chief procurement officer on the state purchasing agent list
to perform procurments. No agency shall
conduct procurements until a certified chief procurement officer is approved by
the state purchasing agent. Upon a
vacancy or absence, the state agency or local public body shall have 90 days to
replace its certified chief procurement officer. In the event the initial 90 day period is to
be exceeded, and upon good cause shown, to the satisfaction of the state
purchasing agent, an additional 90 days may be granted to the state agency or
local public body by the state purchasing agent to replace its certified chief
procurement officer. Examples of good
cause would include vacancies due to emergencies, death or resignation of a
certified chief procurement officer. Until a certified chief procurement officer is
reported to the state purchasing agent no procurements may be conducted and no
duties, responsibilities, and obligations may be performed as detailed in
Subsection F of 1.4.1.94 NMAC unless granted temporary authority by the state
purchasing agent.
D. Registration of chief procurement
officer with state purchasing agent: Each
state agency or local public body is responsible for registering its chief
procurement officer and ensuring the information on the state purchasing
division website is current and correct.
The certified chief procurement officer, that has been reported by the
state agency or local public body to the state purchasing agent as provided in
Subsection C of 1.4.1.94 NMAC above, shall register with the state purchasing
agent through the state purchasing division’s website. The state agency or local public body shall
provide all the required identification information, including:
(1) certified chief procurement officer
name with title, phone number and email address;
(2) agency or entity name with full
address and registration date.
At the time of registering
for the certification or recertification program, the applicant shall execute a
statement of personal responsibility affirming:
(a) the applicant is
a current employee of a state agency or local public body and not employed as
an independent contractor;
(b) the applicant
has not been convicted of a felony unless pardoned by the governor; and
(c) any additional
required information specified by the state purchasing agent.
E. Chief procurement officer
certification: The state purchasing
agent shall establish a certification and recertification program for all chief
procurement officers including the
initial certification, and recertification every two years, on or before the
certification anniversary date for each certified chief procurement officer. In order to be certified or recertified, a
chief procurement officer shall remain an employee of the state agency or local
public body, must not be convicted of a felony or behavior unbecoming of a
chief procurement officer with a record of performance that establishes good
moral character and competency, and shall obtain such training as deemed
appropriate by the secretary of the general services department and pass a
certification or recertification program, as appropriate, approved by the
secretary of the general services department.
Subject to the provisions of subsection J, the state purchasing agent
may revoke a certification if shown that the chief procurement officer has not
maintained the standards for a chief procurement officer. The secretary of the general services
department reserves the right to add separate certifications and
recertifications of specialized acquisitions under the procurement code as are
deemed necessary or useful by the secretary.
F. Certified chief procurement officer
duties, responsibilities and obligations:
On and after July 1, 2015, only certified chief procurement officers may
do the following, except that persons using procurement cards may continue to
issue purchase orders and authorize small purchases:
(1) make determinations, including
determinations regarding exemptions, pursuant to the Procurement Code;
(2) issue purchase orders and authorize
small purchases pursuant to the Procurement Code; and
(3) approve procurement pursuant to the
Procurement Code.
G. Failure to identify and register a
certified chief procurement officer: In
the event that the state agency or local public body does not have a certified
chief procurement officer identified and registered in conformance with Section
13-1-95.2 NMSA 1978, pursuant to Section 13-1-97 NMSA 1978, procurement acts by
that state agency or local public body may be suspended at the discretion of
the state purchasing agent.
H. Identification, registration and
certification violations: Any
procurement act performed by a state agency or local public body under the New
Mexico procurement code that has not identified and registered its certified chief
procurement officer in conformance with Section 13-1-95.2 NMSA 1978, may be
deemed a procurement violation. For
state agencies, such procurement violation(s) may also result in a violation of
the department of finance and administration’s Model Accounting Practices.
I. Delegation or sharing of certified
chief procurement officer duties: The
sharing of a certified chief procurement officer through mutual execution of a
memorandum of agreement by the state agency (agencies) or local public
body(bodies) is allowed. A state agency or local public body wanting to
delegate or share a certified chief procurement officer with another state
agency or local public body shall: provide to the state purchasing agent for
such sharing arrangement, information identifying the state agency or local
public body central purchasing office, the name of the state agency or local
public body shared certified chief procurement officer and the
intergovernmental agreement supporting the arrangement. Chief procurement officers may only be
employees of the state or a local public body and may not be third parties or
temporary employees exept as otherwise provided in this subsection.
J. Revocation or suspension of
certification:
(1) The state purchasing agent may
suspend or revoke certified chief procurement officer certification in whole or
in part, based on any action or conduct deemed improper of a certified chief
procurement officer, including but not limited to severity or frequency of
procurement violations, non-compliance with the Governmental Conduct Act
(Sections 10-16-1 through 10-16-18 NMSA 1978), lack of verification that the
chief procurement officer has successfully completed the certification or
recertification program established by the state purchasing agent; lack of verification of current employement
by the reporting state agency or local public body and not employed as an
independent contractor; lack of verification that the person has not been
convicted of a felony and behavior unbecoming of a chief procurement officer
with a record of performance that establishes competency.
(2) Due process procedures shall be
initiated by the state purchasing agent after reasonable notice to the
certified chief procurement officer involved as follows in this section. The state purchasing agent or his designee
shall cause written notice of the proposed revocation or suspension of
certification (the Action) to be sent by certified mail, return receipt
requested, to the certified chief procurement officer involved. The notice shall contain the following
statements:
(a) the action
contemplated is for revocation or suspension of certified chief procurement
officer certification;
(b) the reasons for
the action, which shall include a summary of the certified chief procurement
officer’s conduct or performance/nonperformance of his duties to which the action
relates;
(c) the action is
brought pursuant to the provisions contained in Section 13-1-95.2 NMSA 1978 and
the regulations promulgated thereunder;
(d) sufficient facts
exist, unless rebutted, to support the proposed revocation or suspension of
certification and that the state purchasing agent shall proceed to suspend or
revoke certified chief procurement officer certification in whole or in part
unless the certified chief procurement officer requests, in writing, a hearing
within 15 consecutive calendar days from the day the certified chief
procurement officer receives the notice of the proposed action;
(e) the address
where the certified chief procurement officer’s request for hearing shall be
sent, and the name of the person to whom the request shall be sent; and
(f) that if the
certified chief procurement officer fails to deliver a written request for a
hearing to the person designated within the 15 days required in Subparagraph
(d) of this Section, a final determination shall be made by the state
purchasing agent;
(g) upon receipt of
a timely request for hearing, the state purchasing agent will appoint a neutral
hearing officer and any such hearing officer so appointed will conduct the
hearing and recommend a final decision to the state purchasing agent. If no hearing officer can be appointed in
timely fashion, the state purchasing agent shall then act as the hearing
officer.
(3) If a hearing is requested, the
hearing officer shall send written notice to the certified chief procurement
officer of the time and the place of the hearing.
(4) Hearings, and any subsequent appeals,
shall conform to the standards, requirements, and process set forth for
protests under the procurement code, Sections 13-1-28 thru 13-1-199 NMSA 1978,
and be as informal as may be reasonable and appropriate under the circumstances.
However, in no event shall the hearing
officer be required to adhere to formal rules of evidence or procedure. The weight to be attached to evidence
presented in any particular form will be within the discretion of the hearing
officer. Stipulations of fact agreed
upon by the participants may be regarded and used as evidence at the hearing. The participants may stipulate the testimony
that would be given by a witness as if the witness were present. The hearing officer may require evidence in
addition to that offered by the participants. The state purchasing agent shall issue a
written determination regarding revocation or suspension of certification
following the hearing.
K. Reinstatement of certification:
(1) The state purchasing agent may
reinstate the certified chief procurement
officer certification:
(a) in whole or in
part;
(b) temporarily or
permanently; or
(c) may limit the
scope of duties as the state purchasing agent
deems appropriate.
(2) The state purchasing agent may
require successful completion of re-certificaton or proof of eligibility as a
pre-condition for reinstatement. This
may include successful completion of the certification program or
recertification program.
(3) The state purchasing agent reserves
the right to adopt additional remedies into the program as deemed appropriate.
L. Coordination by the state purchasing
agent: The state purchasing agent may
coordinate with the department of finance and administration regarding the
reporting of decisions and actions under this section for state agencies, and
with the local government division of the department of finance and
administration for local public bodies.
M. Policies from the state purchasing
agent: The state purchasing agent
reserves the right to implement further policies to give full effect to the
certified chief procurement officer statutes and this rule as required and
necessary.
N. Limitations: Nothing in these rules shall be deemed to be a
limit on the authority of the state purchasing agent to enact the purpose of
these rules, nor a limit on other legal liability of certified chief
procurement officer for their action or conduct.
[1.4.1.94 NMAC - Rp, 1.4.1.94
NMAC, 6/21/2022]
1.4.1.95 STATE
USE ACT:
A. Procurement of services: In regard to the procurement of services,
before utilizing any other procurement method allowed under the Procurement
Code, a state agency or local public body shall first offer the procurement to
the central non-profit agency under contract with the state. The central non-profit agency has the right
of first refusal for any procurement of services provided that the service is
stated on a list provided and published by the central non-profit agency and
provided that the provider can meet the time requirements of the state agency.
B. Central non-profit agency: The central non-profit agency shall:
(1) publish the list of services
available through the central non-profit agency on a website available to all
state agencies and local public bodies;
(2) ensure that all service providers on
this list meet the eligibility requirements to offer services under Section 13-1C-1
et. seq., NMSA 1978; and
(3) ensure that the prices offered to
state agencies and local public bodies reflect the fair market value of such
services in accordance with Section 13-1C-5 NMSA 1978;
(4) provided that, under Section 13-1C-6 NMSA 1978, services provided
pursuant to and facilities covered by Section 22-14-27 NMSA 1978 are excluded
from procurement through the central non-profit agency.
C. Procurement of services pursuant to Section
13-1C-1 et. seq., NMSA 1978 are exempt
from the Procurement Code.
[1.4.1.95 NMAC - Rp, 1.4.1.95
NMAC, 6/21/2022]
History of 1.4.1 NMAC:
Pre-NMAC History:
Laws of 1984, Chapter 65,
Section 1 enacted the Procurement Code to apply to every expenditure by state
agencies and local public bodies for the procurement of items of tangible
personal property, services and construction.
To implement the Code, and in
accordance with the statutory requirements applicable at the date and time, the
subject and material found in this rule was first filed with the state records
center and archives in 1984 as general services department (GSD) Procurement
Code Regulations, GSD Rule No. 84-611,
filed 11/21/1984; superseded by Procurement Code Regulations, GSD Rule No. 87-601, filed 12/16/1987; superseded by
Procurement Code Regulations, GSD Rule No.
89-601, filed 12/01/1989; superseded by Procurement Code Regulations,
GSD Rule No. 93-601, filed 09/21/1993;
superseded by 1 NMAC 5.2, filed 01/15/1998.
History of Repealed Material:
1.4.1 NMAC, Procurement Code
Regulations (filed 11/01/2001) repealed 09/30/2005.
1.4.1 NMAC, Procurement Code
Regulations (filed 09/16/2005) repealed 8/30/2013.
1.4.1 NMAC, Procurement Code
Regulations (filed 8/13/2013) repealed 6/21/2022.
Other History:
GSD Rule No. 93-601 (filed 09/21/1993) was renumbered,
reformatted and amended to 1 NMAC 5.2, Procurement Code Regulations, effective 01/15/1998.
1 NMAC 5.2, Procurement Code
Regulations (filed 01/02/1998) was renumbered, reformatted, amended and
replaced to 1.4.1 NMAC, Procurement Code Regulations, effective 11/15/2001.
1.4.1 NMAC, Procurement Code
Regulations (filed 11/01/2001) was replaced by 1.4.1 NMAC, Procurement Code
Regulations, effective 09/30/2005.
1.4.1 NMAC, Procurement Code
Regulations (filed 09/16/2005) was replaced by 1.4.1 NMAC, Procurement Code
Regulations, effective 8/30/2013.
1.4.1 NMAC, Procurement Code
Regulations (filed 8/13/2013) was replaced by 1.4.1 NMAC, Procurement Code
Regulations, effective 6/21/2022.