TITLE 6 PRIMARY AND SECONDARY EDUCATION
CHAPTER 50 INSURANCE
PART 2 CONTRACTS
FOR PURCHASE OF PROFESSIONAL SERVICES AND INSURANCE
6.50.2.1 ISSUING
AGENCY: New Mexico Public School Insurance Authority.
[6.50.2.1 NMAC - Rp, 6 NMAC 50.2.1, 09/01/2014]
[The address of the New Mexico
Public School Insurance Authority is 410 Old Taos Highway, Santa Fe, New Mexico
87501.]
6.50.2.2 SCOPE: This
part applies to all school districts, charter schools, other educational
entities, eligible employees, eligible retired employees, eligible dependents,
eligible participating entity governing body members, and persons or entities
authorized to participate in the authority's employee benefits, risk-related and
due process reimbursement coverages.
[6.50.2.2 NMAC - Rp, 6 NMAC 50.2.2,
09/01/2014]
6.50.2.3 STATUTORY
AUTHORITY: Subsection D of Section 22-29-7 NMSA 1978, directs the authority
to promulgate necessary rules, regulations and procedures for the
implementation of the New Mexico Public School Insurance Authority Act, Section
22-29-1 et seq. NMSA 1978.
[6.50.2.3 NMAC - Rp, 6 NMAC 50.2.3,
09/01/2014]
6.50.2.4 DURATION: Permanent.
[6.50.2.4 NMAC - Rp, 6.50.2.4 NMAC,
09/01/2014]
6.50.2.5 EFFECTIVE
DATE: September
1, 2014 unless a later date is cited at the end of a
section.
[6.50.2.5 NMAC - Rp, 6 NMAC 50.2.5,
09/01/2014]
6.50.2.6 OBJECTIVE: The
objective of this part is to establish requirements for procurement of
professional services, consulting and insurance services for the authority. The
objective is to set out policies to stimulate maximum competition for provision
of these services. It is not the objective of this part to restate the
Procurement Code, Section 13-1-1 et seq., NMSA 1978, but only to supplement it
where necessary.
[6.50.2.6 NMAC - Rp, 6 NMAC 50.2.6,
09/01/2014]
6.50.2.7 DEFINITIONS: As
used in this part: "professional services" means the services of third party administrators,
insurance consultants, banks, underwriters, brokers, agents, architects,
archaeologists, artists, entertainers, auditors, engineers, clergymen, land
surveyors, landscape architects, medical arts practitioners, scientists,
management and systems analysts, certified public accountants, registered
public accountants, lawyers, psychologists, planners, photographers, pilots,
researchers, teachers, writers, interpreters, and persons or businesses
providing similar services.
[6.50.2.7 NMAC - Rp, 6 NMAC 50.2.7,
09/01/2014]
6.50.2.8 CONTRACT
APPROVAL:
A. Every
contract for professional services, consulting or insurance services shall be
approved by the board only after its general legal counsel has reviewed it and has
affirmed it is in compliance with appropriate
provisions of the Procurement Code, Section 13-1-1 et seq., NMSA 1978 and these
rules.
B. All
amendments to contracts for professional services, consulting or insurance
services shall also be subject to review and approval by the board's general
legal counsel as provided in these rules.
[6.50.2.8 NMAC - Rp, 6 NMAC 50.2.8,
09/01/2014]
6.50.2.9 CONTRACT
REQUIREMENTS:
A. All
contracts for professional services, consulting or insurance services shall be
in a form and contain such provisions as may be required by the board and its
general legal counsel.
B. Each
contract for professional services, consulting or insurance services shall
comply with the Governmental Conduct Act, Section 10-16-1 et seq. NMSA 1978. In particular the
provisions of Sections 10-16-7, 10-16-8 and 10-16-9 NMSA 1978 regarding
contracts between state agencies and public officers or employees of the state,
with the family of the public officer or employee or with a business in which
the public officer or employee or the family of the public officer or employee
shall be strictly observed. When
financial disclosure is required under the Financial Disclosure Act, Section
10-16A-1 et seq. NMSA 1978, the disclosure shall be filed with the secretary of
state.
[6.50.2.9 NMAC - Rp, 6 NMAC 50.2.9,
09/01/2014]
6.50.2.10 PROCEDURES FOR ENTERING INTO CONTRACTS:
A. Contracts
for professional services, consulting or insurance services shall be solicited,
negotiated and awarded through a competitive sealed proposal process in
accordance with the Procurement Code, Section 13-1-1 et seq., NMSA 1978. Sole source, emergency and small purchases
shall also be solicited, negotiated and awarded in accordance with the
Procurement Code, Section 13-1-1 et seq., NMSA 1978.
B. Proposals
shall be evaluated based on the requirements set forth in the invitation for
proposals, which requirements shall include criteria
for evaluating proposals such as
experience, both quantitative and qualitative, prior provision of similar
services, client references, price and any other considerations the authority
deems relevant. No criteria may be used
in proposal evaluations that are not set forth in the invitation for proposals.
The authority may provide that price is a factor, but
that a contract need not be awarded to the vendor proposing the lowest price.
The award shall be made to the responsible offeror or offerors whose proposal
is most advantageous to the authority, taking into consideration the evaluation
factors set forth in the request for proposals.
C. All
prospective contractors shall submit to the board a signed completed original
of a contract prepared by, reviewed and approved by the authority’s general
legal counsel. The contract form shall be submitted to and approved by the
board prior to initiating any action with prospective contractors for
contractual services and prior to beginning performance
of any services pursuant to the contract.
D. There
shall be no liability whatsoever by the authority, and there shall be no
services rendered unless those services have commenced after approval of a
contract for services by the board.
[6.50.2.10 NMAC-Rp, 6.50.2.10 NMAC,
09/01/2014]
6.50.2.11 MULTI-TERM CONTRACTS: Any multi-term contract for services (including the
furnishing of insurance) shall only be entered into pursuant to the provisions
of the Procurement Code, Section 13-1-150 NMSA 1978 as amended and
supplemented.
[6.50.2.11 NMAC - Rp, 6 NMAC 50.2.11,
09/01/2014]
6.50.2.12 RIGHT TO PROTEST:
Any offeror who is aggrieved in
connection with a solicitation or award of a contract may protest to the executive
director of the authority. The protest shall be submitted in writing within 15
calendar days after knowledge of the facts or occurrence
giving rise to the protest.
[6.50.2.12 NMAC - Rp, 6 NMAC 50.2.12,
09/01/2014]
6.50.2.13 FILING OF PROTEST:
A. Protests
must be in writing and addressed to the executive director.
B. The
protest shall:
(1) include
the name and address of the protestant;
(2) include
the solicitation number;
(3) provide
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;
(5) a
statement of the facts or occurrences giving rise to the protest; and
(6) specify
the ruling requested from the director.
C. No
formal pleading is required to initiate a protest, but protests shall be
concise, logically arranged, and direct.
[6.50.2.13 NMAC - Rp, 6 NMAC 50.2.13,
09/01/2014]
6.50.2.14 PROCUREMENTS AFTER PROTEST:
A. In
the event of a timely protest, as defined in 6.50.2.12 and 6.50.2.13 NMAC, the
executive director shall not proceed further with the procurement unless the
director makes a written determination that it is necessary to go forward with
the award of the contract to protect substantial interests of the authority.
Such written determination shall set forth the basis for the determination.
B. In
no circumstance will a procurement be halted after a contract has been awarded
merely because a protest has been filed.
C. 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.
[6.50.2.14 NMAC - Rp, 6 NMAC
50.2.14, 09/01/2014;
A, 12/10/2024]
6.50.2.15 PROCEDURE:
A. Upon
the filing of a timely protest, the burden is on the protestant to give notice
of the protest to and to cause service to be made (as provided in the Rules of
Civil Procedure) upon the contractor if award has been made or, if no award has
been made, notice to and service upon all bidders and offerors who appear to
have a substantial and reasonable prospect of receiving an award if the protest
is upheld or denied.
B. The
protestant and every business that receives notice pursuant to Subsection A of
6.50.2.15 NMAC will automatically be parties to any further proceedings before
the executive director. 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.
Intervenors 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.
C. The
executive director and all employees and the general legal counsel of the
authority are not parties to the proceedings.
[6.50.2.15 NMAC - Rp, 6 NMAC 50.2.15,
09/01/2014]
6.50.2.16 AUTHORITY TO RESOLVE PROTEST: The
executive director may take any action reasonably necessary to resolve a
protest regarding risk-related coverages. Such actions include, but are not
limited to, the following:
A. issue
a final written determination summarily dismissing the protest;
B. obtain
information from the staff of the state purchasing agent or state central
purchasing office;
C. require
the parties to produce information or witnesses under their control for
examination;
D. require
parties to express their positions on any issue in the proceeding;
E. require
parties to submit legal briefs on any issues in the proceeding;
F. establish
procedural schedules;
G. regulate
the course of the proceedings and the conduct of any participants;
H. receive, rule on, exclude or
limit evidence;
I. take
official notice of any fact that is among the traditional matters of official
or administrative notice;
J. conduct
hearings; and
K. take
any action reasonably necessary to compel discovery or
control the conduct of parties or witnesses.
[6.50.2.16 NMAC - Rp, 6 NMAC 50.2.16,
09/01/2014]
6.50.2.17 HEARINGS:
A. Hearings
are disfavored and will be held only when the executive director 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 executive director has absolute discretion in establishing the degree of
formality for any particular hearing. In no event is
the executive director required to adhere to formal rules of evidence or
procedure.
[6.50.2.17 NMAC - Rp, 6 NMAC 50.2.18,
09/01/2014]
6.50.2.18 RESOLUTION:
A. The
executive director shall, within 30 days after receipt of all information or
the date of any hearing, whichever is later, 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 parties.
[6.50.2.18 NMAC - Rp, 6 NMAC 50.2.19,
09/01/2014]
6.50.2.19 RELIEF:
A. If,
prior to award of a contract, the executive director makes a 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. If,
after an award of a contract, the executive director makes a
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:
(1) the contract may be
ratified, affirmed and revised to comply with law, provided that a determination is made that doing so is in the best
interests of the authority; or
(2) 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.
C. If, after an award of a
contract, the executive director makes a determination
that a solicitation or award of a contract is in violation of law or that the
business awarded the contract has acted fraudulently or in bad faith, the
contract shall be canceled.
D. Except
as provided in Paragraph (2) of Subsection B of 6.50.2.19 NMAC, the executive
director shall not award money damages or attorneys' fees.
[6.50.2.19 NMAC - Rp, 6 NMAC 50.2.20,
09/01/2014]
6.50.2.20 MOTION FOR RECONSIDERATION:
A. A
motion for reconsideration of a written determination issued pursuant to 6.50.2.18
NMAC, may be filed by any party 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. A
motion for reconsideration shall be filed not later than 10 days after receipt
of the written determination.
C. The
executive director shall issue a written response within 10 business days 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
parties.
[6.50.2.20 NMAC - Rp, 6 NMAC 50.2.21,
09/01/2014]
6.50.2.21 DESIGNEE:
A. At
any point during a protest proceeding the executive director or the board may
appoint a designee, to act in place of the executive
director. The designee will have all of the powers
described in these rules regarding protest procedures except the power to issue
a written determination under 6.50.2.18 NMAC. The designee only has authority
to recommend a resolution to the executive director under that section.
B. The
designee may be any person other than any person
having made a proposal in response to the request for proposal.
C. A
designee shall present a recommended written
resolution to the executive director or the board and mail a copy to each of
the parties. No party may appeal from the recommended resolution of the
designee.
D. The
executive director or the board 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 6.50.2.18 NMAC.
[6.50.2.21 NMAC - Rp, 6 NMAC 50.2.22,
09/01/2014]
6.50.2.22 FINAL DETERMINATION:
A. In
those proceedings in which no motion for reconsideration is filed, the written
determination issued pursuant to 6.50.2.18 NMAC shall be the final
determination for purposes of the time limits for seeking judicial review under
Section 13-1-183 NMSA 1978.
B. In
those proceedings in which a motion for reconsideration is filed, the written
response to the motion issued pursuant to Subsection C of 6.50.2.20 NMAC shall
be the final determination for purposes of the time limits for seeking judicial
review under Section 13-1-183 NMSA 1978.
[6.50.2.22 NMAC - Rp, 6 NMAC 50.2.23,
09/01/2014]
6.50.2.23 COPIES OF COMMUNICATIONS:
A. 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 executive director.
B. No
party shall submit any material, evidence, explanation, analysis, or advice,
whether written or oral, to the executive director or the board ex parte, regarding any matter at issue in a protest.
[6.50.2.23 NMAC - Rp, 6 NMAC 50.2.24,
09/01/2014]
6.50.2.24 PROTESTS
REGARDING HEALTH CARE CONTRACT PURCHASING: Protests
concerning the authority’s purchase of health care contracts shall be resolved
by the procurement manager pursuant to the Heath Care Purchasing Act, Section
13-7-1 et seq., NMSA 1978.
[6.50.2.24 NMAC - N, 09/01/2014]
6.50.2.25 CONTRACTS - AUDITS:
A. The
authority has the primary responsibility for contract compliance monitoring.
The board or its consultant if any, shall audit
contracts on a random basis to determine:
(1) if
the tasks called for in the scope of services have been performed;
(2) if
the contract was completed in time and within budget; and
(3) if
the services were performed to the satisfaction of the authority.
B. For
purposes of compliance with this provision, every contract shall require the
contractor to maintain detailed time records which indicate the date, time and
nature of services rendered.
[6.50.2.25 NMAC - Rp, 6 NMAC 50.2.25,
09/01/2014]
6.50.2.26 VOUCHER APPROVAL -- PROFESSIONAL SERVICES
A. No voucher for payment of
professional services will be approved by the board or its third-party
administrators, other than a payroll voucher or travel voucher, unless the
contract and any amendments to the contract have been approved where required
by these rules.
B. The
board or its third-party administrators shall not approve any voucher for the
payment of professional services unless the voucher certifies that the services
have been rendered.
[6.50.2.26 NMAC - Rp, 6 NMAC
50.2.26, 09/01/2014;
A, 12/10/2024]
History of 6.50.2 NMAC:
Pre-NMAC History: The material in this
part was derived from that previously filed with the State Records Center and
Archives under:
NMPSIA Rule 89-100, Contracts for
Purchase of Professional Services and Insurance, filed 3/27/1989.
NMPSIA Rule 93-5, Contracts for
Purchase of Professional Services and Insurance, filed 3/22/1993.
History of Repealed Material:
6 NMAC 50.2, Contracts for Purchase of Professional Services and Insurance, filed 10/1/1997 - Repealed effective 09/01/2014