TITLE 2 PUBLIC FINANCE
CHAPTER 40 EXPENDITURE
OF PUBLIC FUNDS
PART 5 PURCHASING
OF SERVICES FROM PERSONS WITH DISABILITIES
2.40.5.1 ISSUING
AGENCY: New Mexico Council
for Purchasing from Persons with Disabilities, 435 Saint Michael’s Drive, Building
D, Santa Fe, New Mexico.
[2.40.5.1 NMAC - N, 03/30/2007]
2.40.5.2 SCOPE:
All state agencies and local
public bodies.
[2.40.5.2 NMAC - N, 03/30/2007]
2.40.5.3 STATUTORY AUTHORITY: NMSA 1978, Section 13-1C-1 through Section
13-1C-7.
[2.40.5.3 NMAC - N, 03/30/2007]
2.40.5.4 DURATION: Permanent.
[2.40.5.4 NMAC - N, 03/30/2007]
2.40.5.5 EFFECTIVE
DATE: 03/30/2007, unless a
later date is cited at the end of a section.
[2.40.5.5 NMAC - N, 03/30/2007]
2.40.5.6 OBJECTIVE:
This regulation establishes
certain procedures with respect to purchasing of services from persons with
disabilities and clarifies which services provided by persons with disabilities
are suitable for sale to state agencies and local public bodies.
[2.40.5.6 NMAC - N, 03/30/2007]
2.40.5.7 DEFINITIONS:
A. “Appreciable contribution” means significant labor of
individuals with disabilities applied to a service.
B. “Brokering” means negotiating contracts, as an agency,
between organizations or individuals, for compensation.
C. “Central nonprofit agency” means a nonprofit agency
approved pursuant to rules of the council to facilitate the equitable
distribution of orders and services of:
(1) qualified
individuals; and
(2) community rehabilitation
programs.
D. “Council” means the New Mexico council for purchasing
from persons with disabilities.
E. “Community rehabilitation program” means a nonprofit
entity:
(1) that is organized under the laws of the
United States or this state, operated in the interest of person with
disabilities and operated so that no part of the income which inures to the
benefit of any shareholder or other person;
(2) that complies
with applicable occupational health and safety standards as required by federal
or state law; and
(3) that, in the
provision of services, whether or not procured under the State Use Act, employs
during the state fiscal year at least seventy-five percent (75%) persons with
disabilities in direct labor for the provision of services. Hours of work shall
be used to calculate number of persons working in order to determine compliance
to the seventy-five percent (75%) ratio, based on standard full time equivalent
of 2080 hours per year equating to one person.
F. “Integration” means equal access for non-disabled and
individuals with disabilities: the process of ensuring employment opportunities
to all regardless of disability.
G. “Local public body” means a political subdivision of the
state and political subdivision agencies, instrumentalities and institutions.
H. “Persons with disabilities” means persons who have a mental, intellectual or physical impairment that constitutes or results in substantial impediment to employment as defined by the federal Rehabilitation Act of 1973, and shall be certified eligible for participation by completing council approved documentation through the central nonprofit agency, unless the person has prior presumptive eligibility as follows. A person who is receiving services pursuant to an individualized plan for employment from the vocational rehabilitation division of the public education department or from the commission for the blind or the federal veterans affairs administration shall be presumed to be a person with a disability, as shall a person who is receiving supplemental security income or social security benefits based on disability.
I. “Provider” means a community rehabilitation program or
qualified individual who has been approved to offer services under contract to
the central nonprofit agency.
J. “Qualified individual” means a person with a disability
who is a business owner, or a business that is
primarily owned and operated by persons with disabilities that employs at least
seventy-five percent (75%) persons with disabilities in the provision of direct
labor, which has been approved by the council to provide services to state
agencies and local public bodies.
K. “State use eligible services” means all services which
are to be provided by persons with disabilities and which the council
determines are suitable for sale to state agencies and local public bodies.
L. “State purchasing agent” means the director of the state
purchasing division of the general services department.
M. “State Use Act program” means a program enacted through
legislation by the New Mexico state legislature that allows meaningful
employment opportunities through state and local government contracts to
persons with disabilities.
N. “Value added” means direct labor involved in delivering
services performed by persons with disabilities.
[2.40.5.7 NMAC - N, 03/30/3007; A, 01/15/2011]
2.40.5.8 DETERMINATION
OF WHICH SERVICES PROVIDED BY PERSONS WITH DISABILITIES ARE SUITABLE FOR SALE
TO STATE AGENCIES AND LOCAL PUBLIC BODIES:
A. Services provided by persons with disabilities suitable
for sale to state agencies and local public bodies:
(1) must be within
the competency of the prospective provider;
(2) must have
potential to provide positive, integrated employment outcome for persons with
disabilities;
(3) may be approved
as statewide, or by specific contract offering by a state agency or local public
body;
(4) require the approval by the council prior
to being offered.
B. Council determination of suitability extends to specific
individual contracts procured under a given service; the council may accept or
reject a given contract as suitable based on criteria established under rule
and statute, such as meeting appreciable contribution requirements, ratio
requirements, impact or fair market pricing requirements.
C. Any potential contract that entails brokering solely on
the part of the community rehabilitation program is not suitable for the State
Use Act program. An appreciable contribution to the services must be made by
persons with disabilities.
D. The decision that the labor of persons with disabilities
constitutes appreciable contribution shall be at the discretion of the council.
[2.40.5.8 NMAC - N, 03/30/2007; A, 01/15/2011]
2.40.5.9 ESTABLISHING,
MAINTAINING AND PUBLISHING OF A LIST OF ALL SUITABLE SERVCIES:
A. The council shall establish, approve and revise a list of
suitable services through a contract with a central nonprofit agency on an as
needed basis.
B. Copies of the list shall be published at the state
purchasing office and on-line at appropriate state websites, on a website
maintained by the central nonprofit agency, and may also be advertised in New
Mexico business publications.
C. The council requires that the central nonprofit agency to
establish procedures to submit a given service for council approval. The
central nonprofit agency shall be responsible for providing the council with
information to substantiate the conditions for service determination.
D. Once approved by the council, services shall be included
in a master list of approved services.
E. New services may be added to the list upon a majority
vote at any council meeting.
[2.40.4.9 NMAC - N, 03/30/2007; A, 01/15/2011]
2.40.5.10 ESTABLISHING
AND VERIFYING FAIR MARKET PRICE:
A. The council shall verify and revise the fair market
prices on an as needed basis.
B. The council shall revise the fair market prices in
accordance with the changing market conditions to ensure that contracted
services offer the best value for state agencies and local public bodies.
C. The pricing standard for services should be as close as
possible to prevailing market price not including the central nonprofit agency
fee.
D. The council shall set the price within a range submitted
by the central nonprofit agency taking into consideration the benefits
associated with employment of persons with disabilities.
E. Fair market price may be established based on:
(1) prices paid for
similar services by federal, state and local public bodies and by private
businesses; or
(2) the actual cost of performing the services
at a community rehabilitation program, determined by use of a council approved
cost analysis worksheet, taking into consideration the benefits associated with
employing persons with disabilities; or
(3)
any other accepted business method acceptable
to the council.
F. When considering a contract award, in order to ensure
that services offer the best value for state agencies and other public bodies,
the central nonprofit agency shall determine suitability of individual
contracts to be provided under each service, including, but not necessarily
limited to:
(1) external
requirements that proscribe the use of a specific provider, such as:
(a) contracts which
must be awarded to providers who are sanctioned by the federal corporation for
national and community services;
(b) mandated projects
that must be awarded to an area agency on aging pursuant to federal law;
(2) significant adverse impact to a state
agency or local public body, when contracting for professional services,
resulting in the loss of content knowledge associated with confidential,
proprietary, or attorney/client privileged information; in such instances the
government’s central purchasing office shall notify the central nonprofit in
writing prior to contract award.
G. The council chairperson shall have the authority to give
tentative approval for specific contracts for work by the central nonprofit
agency, between council meetings, subject to ratification by the full council
at its next scheduled meeting, when time is of the essence for the purchaser.
H. The council shall
establish procedures for verifying fair market price, which shall be published
on the central nonprofit agency’s website.
[2.40.5.10 NMAC - N, 03/30/2007; A, 01/15/2011]
2.40.5.11 PROCEDURE
TO CERTIFY ELIGIBLE COMMUNITY REHABILITATION PROGRAMS AND QUALIFIED
INDIVIDUALS: The
certification procedure to determine eligible provider members shall consist of
a two part process:
A. Certification of eligibility as a qualified individual
with a disability or community rehabilitation program as defined by statute.
B. Verification of ability to perform the service.
[2.40.5.11 NMAC - N, 03/30/2007; A, 01/15/2011]
2.40.5.12 PROCEDURE
FOR APPROVAL OF CENTRAL NON-PROFIT AGENCY:
A. The
council shall establish a procedure for approval of a central nonprofit agency that
shall hold contracts, facilitate the equitable distribution of orders for
services to be procured by state agencies and local public bodies and market
approved services to state agencies and local public bodies.
B. The council shall request proposals from applicants which
provide evidence that the central non-profit agency is a private, nonprofit
entity within the state which:
(1) has a mission which includes employment
of persons with disabilities;
(2) is not a direct-service provider;
(3) can negotiate
contracts;
(4) has knowledge of
state and local governmental contracting policies and procedures;
(5) can demonstrate
independence to equitably distribute contracts for procured services;
(6) can manage the
scale of operations required; and
(7) has an approved
operations manual which details all policies and procedures for operation of the
central nonprofit agency.
C. Approval of the central nonprofit agency shall be by a
minimum of two-thirds majority vote of the council.
[2.40.5.12 NMAC - N, 03/30/2007]
2.40.5.13 PROCEDURES
FOR OPERATION OF CENTRAL NON-PROFIT AGENCY, INCLUDING FEE STRUCTURE:
A. The
council shall ensure that the central nonprofit agency has an approved
operations manual that details all policies and procedures for operation of the
central nonprofit agency.
B. The council shall establish a fee to be paid to the
central nonprofit agency on the basis of contracts procured from state agencies
and other local public bodies. The fee will be added to the fair market price
paid by the state agencies and local public bodies.
[2.40.5.13 NMAC - N, 03/30/2007]
2.40.5.14 OTHER
MATTERS RELATED TO THE STATE USE ACT:
A. It is the council’s responsibility to identify, respond
to, and equitably distribute, to as broad a base of eligible participants as
possible, all relevant contract opportunities.
B. The council reserves the authority to make final contract
distribution decisions based on the above policy and process, as well as any
other unique factors or special circumstances. The central non-profit agency
shall establish an appeals process for contract distribution or disputes, and
for resolving price and quality-related disputes between parties in the
exercise and administration of the State Use Act program, with the council
being the final determining body. This process shall be applicable to state and
local public body purchasers obtaining services under the State Use Act
program, and nonprofit agencies and qualified individuals with a disability who
own businesses certified by New Mexico abilities and providing services under
state use contracts.
C. All regular meetings of the council shall include an agenda item for an open public forum. The council shall set aside a specific time at each meeting for the public, government officials, and businesses to address the council regarding any issues and concerns related to the State Use Act and its implementation. The council shall use this ongoing mechanism to solicit ongoing feedback, to promote the intention of the State Use Act to create employment opportunities for persons with disabilities, while promoting efficiency and best value for state and local government purchasing entities.
D. Meetings shall be conducted according to requirements of
the Open Meetings Act.
E. The council shall address any other
matter necessary to the proper administration of the State Use Act.
[2.40.5.14 NMAC - N, 03/30/2007; A, 01/15/2011]
2.40.5.15 INTEGRATION,
FAIR PAY AND ADDED VALUE:
A. The council shall ensure that
the:
(1) work provides
opportunities for integration with non-disabled persons;
(2) work provides
fair pay based on prevailing wages;
(3) work provides
equitable opportunities for the employment of people with disabilities; and
(4) services provide
added value.
B. Community rehabilitation programs and qualified
individuals must employ during the state fiscal year at least seventy-five
percent (75%) persons with disabilities in the provision of direct labor. In
determining ratio calculation, all employees providing direct labor on all
state use contracts shall be counted. Hours of work shall be used to calculate
the ratio.
C. In the event
of failure to meet the ratio requirement, the council may request a remediation
plan from the provider specifying actions and timelines to meet requirement,
which the council must approve. In the event of provider failure to provide an
adequate remediation plan, or meet remediation plan commitments, the council
may place a moratorium on new state use work by that provider, or assign the
contract to another provider, or in the event of persistent ratio problems, ban
the provider from eligibility to participate in the State Use Act program for
up to a two year period.
[2.40.5.15 NMAC - N, 03/30/2007; A, 01/15/2011]
HISTORY OF 2.40.5 NMAC: [RESERVED]