This
rule was filed as 1 NMAC 5.21.
TITLE 1 GENERAL
GOVERNMENT ADMINISTRATION
CHAPTER
5 PUBLIC PROPERTY PROCUREMENT AND
MANAGEMENT
PART
21 STATE AGENCIES LEASING
REAL PROPERTY
1.5.21.1 ISSUING AGENCY:
General Services Department Property Control Division
[12/31/98; Recompiled 11/30/01]
1.5.21.2 SCOPE: All executive branch agencies except the state
land office.
A. General applicability. This rule applies to all leases and rentals
of space in public and private buildings, for periods exceeding ninety (90)
days, by state executive agencies other than the state land office.
B. Land leases: Leases of vacant land and leases of parking
space only are not covered by this rule.
[12/31/98; Recompiled 11/30/01]
1.5.21.3 STATUTORY AUTHORITY: Section 15-3-2 NMSA 1978, enacted by Laws
1968, Chapter 43, Section 2 and amended in subsequent years thereafter,
requires the Property Control Director to control the lease or rental of space
in private buildings and applies to all state executive agencies other than the
land office. (1978 Comp., Section
15-3-2; 1953 Comp., Section 6-2-26; enacted by Laws 1968, Chapter 43, Section
2; amended by Laws 1971, Chapter 285, Section 2; Laws 1973, Chapter 209,
Section 1; Laws 1977, Chapter 247, Section 69; Laws 1977, Chapter 385; Section
14; Laws 1978, Chapter 166, Section 14; and Laws 1980, Chapter 151, Section
16.)
[12/31/98; Recompiled 11/30/01]
1.5.21.4 DURATION: Permanent.
[12/31/98; Recompiled 11/30/01]
1.5.21.5 EFFECTIVE
DATE: December 31, 1998 unless a later date is cited
at the end of a section or paragraph.
[12/31/98; Recompiled 11/30/01]
1.5.21.6 OBJECTIVE: The objective of this rule is to establish a
fair, uniform, clear and effective process to regulate leasing property owned
by private entities as office space or special use facilities for state
executive agencies under jurisdiction of the property control division.
[12/31/98; Recompiled 11/30/01]
1.5.21.7 DEFINITIONS:
A. "Agency"
means a state executive agency other than the state land office seeking to
lease space.
B. "Agency
cost ceiling" means the estimated first-year annual cost which an
agency determines it can budget for a lease.
The agency shall provide this information to PCD using the appropriate
GSD form.
C. "Agency
RFP representative" means a person who serves on the selection
committee and who has been designated, in writing, by the agency head at the
beginning of each RFP to act on behalf of the agency as the sole contact in for
information from and about the agency during the RFP process.
D. "Agency
on-site lease monitor" means a person who has been designated by the
agency to fulfill the duties described in 1 NMAC 5.21.19.1 [now Subsection A of
1.5.21.19 NMAC].
E. "Bid
bond" means a negotiable security instrument required when proposals
are submitted to ensure a proposal for space can be delivered by the top-ranked
offeror. Bid bonds are returned to all
unsuccessful offerors when the top-ranked offeror selection is approved. (See 1 NMAC 5.21.9.8) [now Subsection H of
1.5.21.9 NMAC]
F. "BOMA
method" means the current, industry standard methodology for
calculating usable square footage (by the building owners and managers association).
G. "Desirable"
The terms "may", "can", "should",
"preferably", or "prefers" identify a desirable or discretionary
item or factor (as opposed to "mandatory").
H. "General
services department (GSD)" means the cabinet agency established in
Chapter 9, Article 17 NMSA 1978.
I. "Leasable
square feet (LSF)" means usable area, plus interior office
circulation, plus prorated common space, if applicable, which is what the
overall lease payments are based on and which defines the lease boundaries.
J. "Lease"
means the standard New Mexico lease of real property form provided by PCD.
K. "Lease
record drawings" means drawings prepared in accordance with PCD
requirements that address the agency lease requirements, building code
requirements, accessibility and applicable state and federal regulations.
L. "Mandatory" The terms "must",
"shall", "will", "is required", "are
required", "requires", identify a mandatory item or factor (as
opposed to "desirable").
Failure to meet a mandatory item or factor will result in the rejection
of the offeror's proposal.
M. "Performance
bond" means a bond required of the successful offeror to ensure
conformation of space required by the lease agreement is successfully
completed. The performance bond is
returned when the lease space is approved for occupancy. (See 1 NMAC 5.21.14.6) [now Subsection F of
1.5.21.14 NMAC]
N. "Principal
individual owners" means all majority stockholders, members of board
of directors, officers and partners.
O. "Property
control division (PCD)" means the division of the general services department
established in Chapter 15, Article 3 NMSA 1978 which is statutorily responsible
for controlling the lease or rental of space in buildings by state executive
agencies other than the state land office.
P. "Selection
committee" means a group of five (5) individuals, including a PCD
staff member and four (4) people assigned by an agency to develop RFP
evaluation criteria, review lease proposals, develop recommendations for the
agency, and select the top-ranked offeror. If an agency presents a compelling
reason in writing for less than four (4) agency representatives, the PCD director
may approve a selection committee of a total of three (3) individuals, one (1)
from PCD as the chair and two (2) assigned by the agency.
Q. "Short-term
lease" means a lease for a period that does not exceed one year,
including any renewal options.
R. "Special
use facility" means a facility other than an office building,
warehouse or storage space, which is unique, distinctly different and provides
for needs beyond those previously listed.
Examples include reintegration centers and hospitals.
S. "Storage
space" means space which is used for the bulk storage of materials and
which does not exceed 1,000 usable square feet or house employees.
T. "Usable
square feet (USF)" means the amount of specific floor area needed to
provide an employee or function of an agency with adequate space to perform
effectively. Usable square footage is
calculated using the BOMA method. Usable
square footage can be described as the area within the four walls which defines
a work space.
U. "Warehouse"
means a space used to store bulk products, materials or supplies or storage
space in excess of 1,000 usable square feet.
A warehouse may include space to house employees required for operation
of the warehouse.
[12/31/98; Recompiled 11/30/01]
1.5.21.8 PROPERTY
CONTROL DIVISION RESPONSIBILITIES:
A. Adequacy
of existing state facilities: The
PCD director shall determine whether existing state facilities are adequate for
an agency's needs before an agency is allowed to lease from any other
governmental entity or the private sector.
B. Lease
agreements: The PCD director shall
have final approval of all the leases, lease amendments, lease extensions,
exercise of options-to-renew and all other agreements subject to this
rule. No such agreement shall be valid or binding on the state of New Mexico or
any of its agencies unless it is in writing, signed by the appropriate parties
and approved in writing by the PCD director. The PCD director's signature shall not
signify that PCD is a party to an agreement, but only that PCD has authorized,
approved, and validated the agreement in compliance with statute and this rule.
C. Director's
designee: The PCD director may
assign a designee to act on his or her behalf in carrying out his or her duties
under this rule. Any such designation
shall be in writing.
[12/31/98; Recompiled 11/30/01]
1.5.21.9 COMMENCEMENT
OF LEASE PROCESS:
A. Competitive
sealed proposals: Except to the
extent that this rule conflicts with the Procurement Code and except for leases
excluded by this rule from the requirement of solicitation through competitive
sealed proposals, all leases shall be solicited in accordance with the
Procurement Code and applicable GSD regulations.
B. PCD
notice to agency: Approximately one
year prior to the expiration of an existing lease, PCD will notify an agency
that its lease is due to expire and will direct the agency to perform
procedures required by this rule.
C. Drafting
the RFP: The agency shall initiate
the lease process for office or warehouse space by submitting a space needs questionnaire
(GSD form) to PCD. PCD will prepare the
RFP draft to be considered by the selection committee. For new leases, the agency should begin the
RFP process six (6) to eighteen (18) months prior to occupancy, depending on
the size of the facility.
D. Selection
committee: The selection committee
is chaired by a PCD staff person, who shall guide the RFP process to conform
with this rule, provide lease process expertise to the agency members, and vote
in the case of a tie. The selection
committee will remain in effect until a lease is signed and the performance
bond is returned to the lessor.
E. Agency
cost ceiling (GSD form): The agency
shall submit its agency cost ceiling, as defined in 1 NMAC 5.21.7.2 [now Subsection
B of 1.5.21.7 NMAC], on the proper GSD form to PCD at the same time it submits
its space needs questionnaire.
Thereafter, if the agency changes its cost ceiling for any reason, the
agency shall notify PCD immediately using the proper GSD form.
F. RFP
review: PCD will review an agency's
proposed RFP and will require changes when the RFP is prepared
incorrectly. PCD will return the
proposed RFP to the agency for revisions.
G. RFP
approval: PCD will review the
selection committee's recommendations and return the final approved RFP to the
agency.
H. Bid
bond: A bid bond is bid security in
the dollar amount of five percent (5%) of the agency cost ceiling, not to
exceed $2,000. Submittal of a bid bond
is required with submittal of the lease proposal form. Form and sufficiency of the bid bond is
subject to PCD approval.
[12/31/98; Recompiled 11/30/01]
1.5.21.10 SOLICITATION OF PROPOSALS:
A. RFP
approval required: The agency shall
not solicit proposals until PCD has approved the agency's final RFP in writing
and has scheduled a proposal opening.
Only copies of the RFP showing PCD's approval may be issued.
B. Public
notice (GSD form): After approval of
the agency's RFP, GSD shall provide a copy of the public notice to potential
offerors on the public notice mailing list (see 1 NMAC 5.21.24.1 [now Subsection
A of 1.5.21.24 NMAC]. Potential offerors
are responsible for requesting approved RFP's and any amendments to the RFP
from PCD.
C. Advertising: The agency shall advertise in the "legal
notice" section of a local newspaper, in the area in which proposals are
requested, at least once within the week prior to release of the RFP. The agency shall utilize the standard public notice
(GSD form) for its advertisement.
D. Pre-proposal
conference: When an agency seeks to
lease 5,000 USF of space or more, PCD shall conduct a pre-proposal conference
in the city in which it seeks to lease space.
The pre-proposal conference shall be held no less than ten (10) calendar
days prior to the proposal deadline.
E. Amendments
to the RFP: Amendments to the RFP
shall be in writing and shall be issued in a timely manner in accordance with
the Procurement Code. The selection
committee shall submit amendments to PCD in writing which require PCD approval
before distribution by the selection committee to all entities who requested
copies of the RFP. Amendments will be
issued no later than five (5) working days prior to the deadline for proposal
submission, except an amendment withdrawing the RFP or one which includes
postponement of the date for proposal submission.
F. Proposal
submission deadline: Offerors shall
submit each proposal in a sealed envelope, clearly labeled with the RFP name
and number, on or before the date and time stated in the RFP. All proposals received after the deadline
shall be deemed non-responsive and returned unopened by PCD. All proposals will be opened at the same time
by more than one (1) PCD staff person, with a log of proposals opened which is
witnessed by at least two (2) PCD employees.
G. Ownership
disclosure: Any proposal that is
submitted in response to an RFP shall indicate the ownership of the facility
offered for lease. If the facility is
owned by a corporation or other legal entity, the proposal shall also indicate
the principal individual owners and percentages of their ownership.
H. Proposal
modifications: After a proposal is
submitted, an offeror shall not withdraw a building that has been offered or
attempt to substitute buildings or building sites on non-contiguous
properties. However, an offeror may
substitute locations within a building or building sites on contiguous
properties so long as the substitution is in the best interest of the agency
and the proposed cost is less than or equal to the original proposed cost. This is the only allowable substitution in
the original proposal.
I. Confidentiality
of proposal contents: Proposal
contents are confidential until an award is made.
J. Cancellation
of RFP: Only PCD may cancel an RFP
when it is in the best interest of the state to do so, by providing written
notice to all potential offerors of record.
K. Costs: Any costs to the offerors associated with
responding to the RFP and/or reaching final approval of a lease shall be borne
solely by the offeror.
[12/31/98; Recompiled 11/30/01]
1.5.21.11 EVALUATION OF PROPOSALS:
A. Mandatory
requirements: PCD shall review
proposals to ensure all mandatory requirements are met, and will forward all
responsive proposals to the selection committee for evaluation.
B. Evaluation
criteria: The RFP will contain and
describe all evaluation criteria, and at least the following standard
criteria: "cost",
"utilities", "lease term", "geographic
preference", and "quality of lease space". It may contain "other needs" and/or
"proposal incentives", which must be defined specific to that
RFP. Geographic preference must contain
a statement showing how the specifics of this criteria are relevant to the
service delivery requirements of the user agency.
C. Evaluation
points: Each RFP will contain a
total of 100 points. PCD will assign at
least 80 points for the evaluation criteria, and the agency may choose to
assign up to 20 points to the standard criteria, or to "other needs"
and/or "proposal incentives".
D. Evaluation: The selection committee shall evaluate each
proposal, taking into consideration the criteria set forth in the RFP. The committee shall conduct on-site
inspections and interviews with each offeror who submits a responsive proposal
as part of its evaluation. The committee
may request clarification from any or all offerors. All clarifications shall be
requested and submitted in writing to the selection committee, within deadlines
set by the committee. The director may
waive, in writing, any irregularity based on written proof that the irregularity
is technical in nature.
E. Ranking: After the selection committee has completed
on-site inspections and received any clarifications requested, the committee
shall rank proposals based upon the evaluation points in the RFP.
F. Ranking
report: The selection committee
shall submit the results of the ranking in a report to PCD. The report shall include the following
information and attachments:
(1) Information:
(a) names of selection committee members;
(b) copies of any amendments to the RFP;
(c) name of each offeror;
(d) address of each proposed facility,
including suite and/or floor number;
(e) usable square footage of each facility;
(f) leasable square footage of each facility;
(g) annual and total term cost of each
facility;
(h) lease term;
(i) agency cost ceiling amount;
(j) description of the review process,
including any clarifications, and the rating process;
(k) a certification that the selected facility
meets the agency’s space needs; and
(l) a justification for the recommendation.
(2) Attachments:
(a) proposal rating and ranking form for leased
office space (GSD form);
(b) rating and ranking summary form (GSD
form); and
(c) agency cost evaluation form (GSD form).
G. Nonresponsive proposals: If PCD receives only nonresponsive proposals,
PCD may re-solicit proposals. Before
re-solicitation, PCD may require that the RFP be modified in order to assure a
competitive process.
H. Ranking
approval: PCD shall review and
approve in writing the selection committee’s ranking report. PCD may request additional information from
the selection committee to complete its review.
I. Offeror
notification: After the selection
committee has received written approval from PCD of the ranking report, the
selection committee shall notify each offeror of the ranking. The top ranked
offeror shall be notified by the selection committee to proceed with record
drawings in accordance with 1 NMAC 5.21.13 [1.5.21.13 NMAC]. The notification shall be in writing and
within fifteen (15) calendar days of receipt of PCD’s approval.
J. Protests: Any offeror who is aggrieved in connection
with the solicitation or award of a lease may protest to the director of
PCD. All protests to PCD shall be in
writing. Protests shall be governed by
the New Mexico Procurement Code Sections 13-1-172 through 13-1-176 and 13-1-183
NMSA 1978 and applicable GSD regulations.
[12/31/98; Recompiled 11/30/01]
1.5.21.12 EXEMPTIONS FROM COMPETITIVE
SEALED PROPOSAL PROCESS:
A. General: The types of leases that are listed in this section
are exempt from the competitive sealed proposal process. They are not exempt, however, from building
code or accessibility requirements.
B. Storage
leases: The agency is not required
to solicit competitive sealed proposals for storage leases. The agency shall
attempt to receive a minimum of three (3) written quotations and shall submit
the following information for each quotation along with the proposed lease, for
PCD’s approval:
(1) agency cost ceiling form
(GSD form);
(2) proposed lessor’s name;
(3) address of facility;
(4) size of facility;
(5) cost of facility per month
or year;
(6)
lease term; and
(7) recommendation and
justification by the agency.
C. Leases
for less than $10,000 per year, not to exceed $50,000 total term or less than
2,000 usable square feet:
(1) The agency is not required to seek
competitive sealed proposals for leases when the annual lease cost, less
janitorial and utility expenses, will be less than $10,000 or when the size of
the facility will be less than the 2,000 usable square feet. The annual lease cost for any year of the
lease shall not exceed $10,000, and the total term shall not exceed
$50,000. The agency shall complete the
RFP form and submit it to PCD for review and approval. The RFP form will be used by the agency as
the basis for negotiations with the proposed lessor. The agency shall request PCD approval of the
lease pursuant to 1 NMAC 5.21.13 and 5.21.14 [now 1.5.21.13 and 1.5.21.14
NMAC], by recommending the facility which the agency deems to be the most
satisfactory for its needs. The agency
shall attempt to receive a minimum of three (3) written quotations and justify
the selection to PCD by providing, at a minimum, the following information for
each facility that the agency has considered:
(a) agency cost ceiling form (GSD form);
(b) description of the agency’s needs;
(c) proposed lessor’s name;
(d) address of facility, including suite or
floor number;
(e) size of facility;
(f) annual and total term cost of facility;
and
(g) selection criteria and justification for
selecting the facility.
(2)
A diagram of the floor plan, with dimensions showing USF, adequate for
PCD review shall be submitted for the top-ranked facility to PCD. The diagram may be submitted to PCD after the
agency’s recommendation.
D. Short-term
leases: For short-term leases, as defined in 1 NMAC 5.21.7.14 [now Subsection
Q of 1.5.21.7 NMAC], an agency shall proceed in accordance with 1 NMAC
5.21.12.3 [now Subsection C of 1.5.21.12 NMAC].
E. Special
use facilities: The agency may
submit a written request to PCD to designate a facility as a special use
facility, as defined in 1 NMAC 5.21.7.15 [now Subsection R of 1.5.21.7
NMAC]. PCD will determine if the
facility is appropriately defined as a special use facility and if
accessibility is required. Only
unoccupied and non-public special use facilities will not require compliance
with accessibility requirements. The
agency may then select a facility appropriate to its needs and submit its
selection and justification in accordance with 1 NMAC 5.21.12.3 [now Subsection
C of 1.5.21.12 NMAC].
F. Lease
with any other governmental entities:
The agency may lease space from another governmental entity without
soliciting competitive sealed proposals.
The agency shall request authorization from PCD to lease space from another
governmental entity. PCD shall evaluate
whether the proposed facility complies with applicable building codes and
accessibility standards. A diagram of
the floor plan, with dimensions showing USF, adequate for PCD review shall be
submitted for the facility to PCD. If
PCD approves the agency’s request, the agency may utilize the standard New
Mexico lease of real property form or the other governmental entity's form, if
approved by PCD. The PCD Director’s
signature is not required on the lease.
However, a copy of the lease shall be maintained on file at PCD.
G. Leases
outside the state of New Mexico: For
leases outside the boundaries of the state of New Mexico, agencies shall
proceed in accordance with 1 NMAC 5.21.12.3 [now Subsection C of 1.5.21.12
NMAC], except that applicable local building codes shall apply.
[12/31/98; Recompiled 11/30/01]
1.5.21.13 RECORD DRAWINGS:
A. Submittal
to PCD: After the selection
committee has notified each offeror of its ranking in accordance with 1 NMAC
5.21.11.9 [now Subsection I of 1.5.21.11 NMAC], the first ranked offeror shall
develop record drawings for review by PCD.
Prior to the submittal, the selection committee may meet with the
offeror or the architect to develop a partial layout which best meets its needs. If after ninety (90) calendar days the
offeror has failed to provide record drawings, the proposal shall be deemed
nonresponsive. In that event, the
selection committee shall proceed to the second-ranked offeror or recommend
cancellation of the RFP.
B. PCD
review: PCD shall review record
drawings with respect to layout, applicable codes, accessibility standards and
general compliance with the RFP. If the
selection committee, an offeror or architect chooses, he or she may request a
meeting with PCD’s plan review staff to review drawing contents and required
graphic information. PCD may make
recommendations as necessary.
C. Insufficient
for review: Record drawings which
are insufficient for review shall be returned to the selection committee along
with any pertinent information the agency should provide to the offeror or
architect. The offeror shall resubmit
the revised drawings within thirty (30) calendar days of receipt of the
insufficient drawings, or the proposal shall be deemed nonresponsive.
D. Disapproval:
(1) If record drawings do not comply with
applicable codes or accessibility standards, PCD will disapprove them and
return them to the selection committee.
The selection committee must then decide on one of the following courses
of action:
(a) continue considering the first-ranked
proposal;
(b) deem the first-ranked proposal
nonresponsive and request the second-ranked offeror to develop record drawings;
or
(c) recommend PCD cancel the RFP.
(2) If the agency requests the
first-ranked offeror to correct the deficiencies, the offeror shall modify the
record drawings and resubmit them for review.
Either the selection committee or PCD may recommend a meeting with the
various parties to resolve any outstanding issues.
E. Building
codes: If an existing condition does
not appear to comply with an applicable building code, PCD may require
submittal of a copy of the building permit issued by the local code authority
and certificate of occupancy or other documentation as required prior to
approval of the lease.
[12/31/98; Recompiled 11/30/01]
1.5.21.14 FINAL APPROVAL AND PROCESSING OF
LEASE:
A. PCD
authorization to enter lease: PCD
shall give written authorization to the agency to proceed to enter into a lease
before the agency may enter into a lease agreement.
B. Lease:
(1) After receiving written authorization to
enter into a lease, the agency shall complete three (3) originally-signed
standard New Mexico lease of real property forms (GSD forms) and submit them to
PCD for review and approval. Each lease
shall include, as a minimum, the following attachments:
(a) RFP and amendments to the RFP;
(b) proposed lessor's proposal and any
clarifications or certifications;
(c) certificate of insurance;
(d) approved record drawings; and
(e) performance bond.
(2) An agency that does not
regularly perform leasing tasks may request PCD to complete the lease
forms. The agency will be responsible
for acquiring all signatures, notarizations, and copies of all attachments and
forms.
C. Performance
bond: A performance bond in the
amount equivalent to twenty-five percent (25%) of the lessee's total first year
lease payment shall be submitted by the lessor with the signed lease. The performance bond secures the lessor's
performance to provide lease space in conformance with the approved lease
record drawings and lease agreement. The
bond shall be returned to the lessor upon agency and PCD acceptance of the
lease space for occupancy. In the event
that the lessor fails to provide the lease space conforming to the lease record
drawings in the time period specified in the lease agreement, the bond shall be
forfeited to the agency.
D. Conflict
of interest: Any lease which may
violate the Conflict of Interest Act, Sections 10-16-1 through 10-16-15 NMSA
1978, shall be reviewed and approved by the attorney general prior to approval
by the PCD director.
E. Final
approval: Once the PCD director
approves a lease, PCD will keep one copy of the lease and provide one copy to
the agency and one copy to the lessor.
F. Occupancy: No agency shall occupy the leased premises
until a lease or lease amendment, approved by PCD, has been executed.
[12/31/98; Recompiled 11/30/01]
1.5.21.15 LEASE TERM:
A. Minimum: No minimum lease term is required. Leases for less than ninety (90) days are
exempted from this rule.
B. Maximum: PCD will not approve any lease which exceeds
a total term of twenty (20) years, including all options-to-renew (examples of
acceptable terms are ten (10) years with one ten-year (10) option, or twenty
years with no option).
C. Options
to purchase: Any proposal which
includes an option to purchase shall be deemed nonresponsive and shall be
rejected.
[12/31/98; Recompiled 11/30/01]
1.5.21.16 LEASE AMENDMENTS:
A. General: Any lease may be amended, except as described
below.
B. Limitations: No lease may be amended
(1) to increase the usable
square footage by more than
(a) fifty percent (50%) for leases greater
than 5,000 usable square feet;
(b) sixty percent (60%) for leases less than
5,000 but greater than 1,000 usable square feet: or
(c) seventy-five percent (75%) for leases less
than 1,000 usable square feet.
(2) by more than the initial
term, and no total amended term, including all extensions and options to renew,
shall be more than a total of twenty (20) years.
(3) No lease may be amended
three (3) months prior to its expiration without the agency beginning the RFP
process.
C. Building
codes and accessibility: The PCD
Director may disapprove any amendment when existing leased space does not
comply with building code requirements or accessibility standards.
D. Time
frame: All amendments shall be
submitted to PCD for approval at least fifteen (15) working days prior to the
effective date of the amendment.
[12/31/98; Recompiled 11/30/01]
1.5.21.17 MONTH-TO-MONTH TENANCIES AND
OPTIONS-TO-RENEW:
A. Month-to-month
tenancies: Whenever the agency
requires a month-to month tenancy because the agency is unable to complete the
RFP process in a timely manner, the agency shall request and receive written
approval for a month-to-month tenancy from PCD.
Term: No month-to-month tenancy shall exceed six
(6) months from the date of expiration of a lease without the agency beginning
the RFP process, unless the agency has submitted and PCD has approved a written
justification.
B. Options-to-renew: The agency with an option-to-renew in its
lease may renew the lease upon approval by PCD which may include building code
compliance and accessibility. If PCD
disapproves a building for failure to meet any requirement, the agency shall
solicit proposals as required by this rule.
(1) Requests: In order to
exercise an option-to-renew, the agency shall submit a written request to PCD
which certifies that the existing lease continues to meet the requirements of
the agency. Approved record drawings shall be submitted if they are not on file
with PCD.
(2) Time frame: The agency shall
submit a written request to PCD six (6) months prior to expiration of the lease
for review of the request.
(3) Approval: Upon approval by
the PCD director, an agency shall notify the lessor at least thirty (30) days
prior to the expiration of its lease that the agency is exercising its
option-to-renew.
(4) Insurance: When the agency
exercises an option-to-renew, the lessor shall submit an updated certificate of
insurance to PCD.
[12/31/98; Recompiled 11/30/01]
1.5.21.18 INSURANCE AND INDEMNIFICATION:
A. Insurance
provisions: All leases between the
agency and a private lessor shall contain insurance provisions that have been
approved by GSD's risk management division.
B. Indemnification: No lease governed by this rule shall contain
any provision whereby the agency agrees to defend, indemnify or provide tort
liability insurance for any lessor.
C. Lease
provisions void: Any insurance or
indemnification provision in any lease executed in violation of this section
shall be void and of no effect.
[12/31/98; Recompiled 11/30/01]
1.5.21.19 OCCUPANCY:
A. Agency
on-site lease monitor: Upon occupancy, the agency shall designate an
employee as the agency on-site lease monitor.
The agency on-site lease monitor shall be the local liaison with PCD and
shall be responsible for at least the following:
(1) compliance of lease terms;
(2) maintenance and janitorial
agreements;
(3) internal employee
complaints;
(4) monthly inspections; and
(5) maintenance of records of correspondence.
B. Requests
to a lessor: All requests to a
lessor shall be in writing and refer to specific provisions of the lease.
C. Maintenance: The lessor shall be responsible for interior
and exterior maintenance, unless otherwise specified in the lease.
(1) Monthly inspections: The
agency should inspect the entire facility monthly using the PCD lease facility inspection
form (GSD form) to determine maintenance compliance.
(2) Report: The agency should notify a lessor in writing
of any problems and should request that the lessor initiate appropriate action
within a specified time frame.
(3) Refusal: If a lessor does
not agree to perform required maintenance, the agency shall document in writing
the refusal and any reasons given.
(4) Second opportunity: An
agency may offer a lessor a second opportunity, if appropriate, and again
follow the procedures of 1 NMAC 5.2.19.4.2 [now Paragraph (2) of Subsection D
of 1.5.2.19 NMAC].
(5) Failure: If, after written
notification, the lessor fails to perform required maintenance, the agency may
abate rent, or perform the maintenance and withhold the cost of the maintenance
from the lessor, in accordance with the standard New Mexico lease of real property
form (GSD form).
D. Legal
counsel review: PCD recommends that
the agency consult legal counsel before abating rent.
E. PCD
notification: The agency shall
submit copies to PCD of all correspondence and documents.
[12/31/98; Recompiled 11/30/01]
1.5.21.20 EARLY TERMINATION:
A. Agency
request: An agency that wishes to
terminate a lease before the end of the lease term shall make a written request
to PCD. The request shall include copies
of all correspondence and documents which relate to the matter.
B. PCD
approval: The PCD director shall
have final approval of any early lease termination by the agency. No early lease termination shall be effective
unless it has been approved by the PCD director, and no approval shall be
effective unless it is in writing.
[12/31/98; Recompiled 11/30/01]
1.5.21.21 FAILURE TO COMPLY WITH THIS RULE:
A. Agency: If the agency fails to comply with this rule,
PCD may reject and disapprove a proposed lease until the rule has been followed
properly.
B. Firm: Any business, whether an individual or firm,
that violates any provision of this rule or violates the provisions of a lease
may be suspended or debarred in accordance with Sections 13-1-177 through
13-1-180 and 13-1-183 NMSA 1978.
[12/31/98; Recompiled 11/30/01]
1.5.21.22 WAIVERS:
A. Authorized
waivers: The PCD director may grant
full or partial waivers, in writing, of any section or provision of this rule,
except as noted in 1 NMAC 5.21.22.3 [now Subsection C of 1.5.21.22 NMAC], when
the agency certifies, in writing, that an emergency condition exists. When an agency certifies to an emergency
condition, it must include a written description of what the emergency is and
why it is recommending a waiver. An
emergency condition is one that creates an immediate and serious need that
cannot be met through normal leasing methods and that would seriously threaten:
(1) the functioning of government;
(2) the preservation or
protection of property; or
(3) the health and safety of
any person.
B. Short-term
lease: When PCD grants a waiver, PCD
may require that the lease be a short-term lease, as defined in 1 NMAC
5.21.7.14 [now Subsection Q of 1.5.21.7 NMAC]. An agency's application for a
waiver shall include written justification for the length of the proposed
lease.
C. Waiver
conditions: The PCD has no authority
to waive federal requirements under the American with Disabilities Act.
[12/31/98; Recompiled 11/30/01]
1.5.21.23 STANDARD GSD FORMS: PCD will develop and adopt standard forms for
use in the lease process. PCD will
provide each agency a copy of these forms as they are adopted. Standard forms shall be utilized by an agency
during the lease process, unless written approval is given by PCD to modify a
form.
[12/31/98; Recompiled 11/30/01]
1.5.21.24 MAILING LIST:
A. Method: Any potential offeror may submit an
application (GSD form) to GSD's state purchasing division for placement on the public
notice mailing list. The state purchasing
division sends all potential offerors who are on the mailing list copies of the
public notice for all RFP's issued in the counties for which they have applied.
B. Fee: GSD's state purchasing division charges for
each application at the rates established by that office.
[12/31/98; Recompiled 11/30/01]
1.5.21.25 PROPERTY CONTROL DIVISION FEE
SCHEDULE: PCD charges by
the page for copies of GSD rules, documents, forms, drawings, lease inventory,
and other printed material associated with this rule. The charge shall be based on a fee schedule
issued by PCD and based on costs to PCD.
[12/31/98; Recompiled 11/30/01]
HISTORY OF 1.5.21 NMAC:
Pre-NMAC
History: The material
found in this part was derived from that previously filed with the State
Records Center and Archives under:
GSD Rule 84-501, State Agencies Leasing Non-State
Property, filed 4/4/84.
GSD Rule 84-502, State Agencies Leasing Non-State
Property, filed 11/27/84.
GSD Rule 85-502, State Agencies Leasing Real Property, filed
9/11/85.
Amendment No. 1 to GSD Rule 85-502, filed 10/24/86.
GSD Rule 88-501, State Agencies Leasing Real Property, filed
8/18/88.
GSD Rule 92-501, State Agencies Leasing Real Property, filed
12/16/92.
History of Repealed Material: [RESERVED]