A. Except as otherwise provided in the Procurement Code, that code shall apply to every expenditure by state agencies and local public bodies for the procurement of items of tangible personal property, services and construction. That code also applies to concession contracts at the New Mexico state fair in excess of twenty thousand dollars ($20,000), whether those concession contracts generate revenue and earnings or expand funds.
B. When a procurement involves the expenditure of federal funds, the procurement shall be conducted in accordance with mandatory applicable federal law and regulations. When mandatory applicable federal law or regulations are inconsistent with the provisions of the Procurement Code, compliance with federal law or regulations shall be compliance with the Procurement Code.
History: Laws 1984, ch. 65, § 3; 1994, ch. 143, § 1; 2005, ch. 131, § 1.
The 2005 amendment, effective June 17, 2005, amended Subsection A to provide that the Procurement Code increase the applicability of the code for concession contracts at the state fair from ten to twenty thousand dollars.
The 1994 amendment, effective July 1, 1994, in Subsection A, deleted "and" preceding "construction" and added the language following "construction".
An incorporated electric cooperative is neither a state agency nor a local public body; therefore, the Procurement Code does not apply to it. Fratello v. Socorro Elec. Corp., 1988-NMSC-058, 107 N.M. 378, 758 P.2d 792.
Cooperative formed pursuant to the Joint Powers Agreements Act. — An agreement entered into by 30 school districts forming a cooperative pursuant to the Joint Powers Agreements Act, Section 11-1-1 NMSA 1978 et seq., for the purpose of procuring and delivering educational services, was required to comply with the provisions of the Procurement Code. State ex rel. Educ. Assmts. Sys. v. Cooperative Educ. Servs., 1993-NMCA-024, 115 N.M. 196, 848 P.2d 1123.
Applicable to municipalities. — The Procurement Code applies to all nonfederal expenditures by state agencies and local public bodies for the procurement of items of tangible personal property, services, and construction. Planning & Design Solutions v. City of Santa Fe, 1994-NMSC-112, 118 N.M. 707, 885 P.2d 628.
Private non-profit corporations. — The standard to be applied when determining whether private non-profit corporations that lease hospitals from government entities meet the definition of "local public bodies" under this section and are, therefore, subject to the Procurement Code is whether under the totality of the circumstances the private entity is so intertwined with a public entity that the private entity becomes an alter ego of the public entity. Memorial Med. Ctr. v. Tatsch Constr., Inc., 2000-NMSC-030, 129 N.M. 677, 12 P.3d 431.
The Procurement Code does not prohibit a business significantly owned by a legislator from applying for and receiving federal CARES relief funds. — The Procurement Code does not prohibit a business significantly owned by a legislator from applying for and receiving federal Coronavirus Aid, Relief, and Economic Security Act (CARES) relief funds, because CARES relief grants do not result in the acquisition of tangible personal property, services or construction. Accordingly, the Procurement Code does not apply to the application for CARES relief grants by a business in which the legislator has an interest. 2021 Op. Ethics Comm'n No. 2021-03.
Agreement to administer deferred compensation program. — The public employees' retirement board's administrator's agreement with the company provided professional services by administering and marketing the state's deferred compensation program must be let for proposals pursuant to the Procurement Code to the extent the administrator receives as compensation an amount exceeding $20,000, although the administrator's sole compensation under the contract derives from sales commission, etc., from the underwriter. 1987 Op. Att'y Gen. No. 87-35.
Federal law governed state agency on aging's designation of area agencies on aging, and such agencies need not qualify for sole source status under this article. 1987 Op. Att'y Gen. No. 87-72.
Purchase of computer voting devices. — Section 1-9-14 NMSA 1978, governing computer voting devices, does not bar application of the Procurement Code to the purchase of internal computers used to record and tabulate votes, and the Procurement Code applies to such machines used for such purposes after November 1, 1984, the effective date of the Procurement Code. 1988 Op. Att'y Gen. No. 88-68.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 64 Am. Jur. 2d Public Works and Contracts §§ 1, 29, 33, 66.
72 C.J.S. Public Contracts §§ 2 to 4, 6 to 8.
Structure New Mexico Statutes
Chapter 13 - Public Purchases and Property
Section 13-1-1 to 13-1-20 - Repealed.
Section 13-1-21 - Application of preferences.
Section 13-1-22 - Resident business and resident contractor certification. (Effective July 1, 2022.)
Section 13-1-23 to 13-1-27 - Repealed.
Section 13-1-28 - Short title.
Section 13-1-29 - Rules of construction; purposes.
Section 13-1-30 - Application of the code.
Section 13-1-30.1 - Standardized classification codes; applicability.
Section 13-1-31 - Definition; architectural services.
Section 13-1-32 - Definition; blind trust.
Section 13-1-33 - Definition; brand-name specification.
Section 13-1-34 - Definition; brand-name or equal specification.
Section 13-1-35 - Definition; business.
Section 13-1-36 - Definition; catalogue price.
Section 13-1-37 - Definition; central purchasing office.
Section 13-1-38 - Definition; change order.
Section 13-1-38.1 - Definition; chief procurement officer.
Section 13-1-39 - Definition; confidential information.
Section 13-1-40 - Definition; construction.
Section 13-1-40.1 - Definition; construction management and construction manager.
Section 13-1-41 - Definition; contract.
Section 13-1-42 - Definition; contract modification.
Section 13-1-43 - Definition; contractor.
Section 13-1-44 - Definition; cooperative procurement.
Section 13-1-45 - Definition; cost analysis.
Section 13-1-46 - Definition; cost data.
Section 13-1-47 - Definition; cost reimbursement contract.
Section 13-1-49 - Definition; data.
Section 13-1-50 - Definition; definite quantity contract.
Section 13-1-51 - Definition; designee.
Section 13-1-52 - Definition; determination.
Section 13-1-53 - Definition; direct or indirect participation.
Section 13-1-53.1 - Definition; electronic.
Section 13-1-54 - Definition; employee.
Section 13-1-55 - Definition; engineering services.
Section 13-1-56 - Definition; external procurement unit.
Section 13-1-56.1 - Recompiled.
Section 13-1-57 - Definition; financial interest.
Section 13-1-58 - Definition; firm fixed price contract.
Section 13-1-59 - Definition; gratuity.
Section 13-1-60 - Definition; heavy road equipment.
Section 13-1-61 - Definition; highway reconstruction.
Section 13-1-62 - Definition; immediate family.
Section 13-1-63 - Definition; indefinite quantity contract.
Section 13-1-64 - Definition; invitation for bids.
Section 13-1-65 - Definition; surveying services.
Section 13-1-66 - Definition; landscape architectural services.
Section 13-1-66.1 - Definition; local public works project.
Section 13-1-67 - Definition; local public body.
Section 13-1-68 - Definition; multi-term contract.
Section 13-1-69 - Definition; multiple source award.
Section 13-1-70 - Definition; notice of invitation for bids.
Section 13-1-70.1 - Definition; person.
Section 13-1-71 - Definition; price agreement.
Section 13-1-72 - Definition; price analysis.
Section 13-1-73 - Definition; pricing data.
Section 13-1-74 - Definition; procurement.
Section 13-1-75 - Definition; procurement officer.
Section 13-1-76 - Definition; professional services.
Section 13-1-77 - Definition; purchase order.
Section 13-1-78 - Definition; purchase request.
Section 13-1-79 - Definition; qualified products list.
Section 13-1-80 - Definition; regulation.
Section 13-1-81 - Definition; request for proposals.
Section 13-1-82 - Definition; responsible bidder.
Section 13-1-83 - Definition; responsible offeror.
Section 13-1-84 - Definition; responsive bid.
Section 13-1-85 - Definition; responsive offer.
Section 13-1-86 - Definition; secretary.
Section 13-1-86.1 - Duty to promulgate rules.
Section 13-1-87 - Definition; services.
Section 13-1-88 - Definition; small business.
Section 13-1-89 - Definition; specification.
Section 13-1-90 - Definition; state agency.
Section 13-1-91 - Definition; state public works project.
Section 13-1-92 - Definition; state purchasing agent.
Section 13-1-93 - Definition; tangible personal property.
Section 13-1-94 - Definition; using agency.
Section 13-1-95.1 - Electronic transmissions.
Section 13-1-95.2 - Chief procurement officers; reporting requirement; training; certification.
Section 13-1-95.3 - State agency; reporting required; in-state and out-of-state contracts.
Section 13-1-96 - Delegation of authority by the state purchasing agent.
Section 13-1-97 - Centralization of procurement authority.
Section 13-1-97.2 - Competitive sealed bids and proposals; record maintenance.
Section 13-1-98 - Exemptions from the Procurement Code.
Section 13-1-98.1 - Hospital and health care exemption.
Section 13-1-98.2 - Additional exemptions from the Procurement Code.
Section 13-1-99 - Excluded from central purchasing through the state purchasing agent.
Section 13-1-100 - Construction contracts; central purchasing office.
Section 13-1-100.1 - Construction contracts; construction management services.
Section 13-1-102 - Competitive sealed bids required.
Section 13-1-103 - Invitation for bids.
Section 13-1-104 - Competitive sealed bids; public notice.
Section 13-1-105 - Competitive sealed bids; receipt and acceptance of bids.
Section 13-1-106 - Competitive sealed bids; correction or withdrawal of bids.
Section 13-1-107 - Competitive sealed bids; bid opening.
Section 13-1-108 - Competitive sealed bids; award.
Section 13-1-108.1 - Recompiled.
Section 13-1-109 - Competitive sealed bids; multi-step sealed bidding.
Section 13-1-110 - Competitive sealed bids; identical bids.
Section 13-1-111 - Competitive sealed proposals; conditions for use.
Section 13-1-112 - Competitive sealed proposals; request for proposals.
Section 13-1-113 - Competitive sealed proposals; public notice.
Section 13-1-114 - Competitive sealed proposals; evaluation factors.
Section 13-1-115 - Competitive sealed proposals; negotiations.
Section 13-1-116 - Competitive sealed proposals; disclosure; record.
Section 13-1-117 - Competitive sealed proposals; award.
Section 13-1-118 - Competitive sealed proposals; professional services contracts; contract review.
Section 13-1-119.1 - Public works project delivery system; design and build projects authorized.
Section 13-1-119.2 - Design and build procurement for certain transportation projects.
Section 13-1-123 - Architectural, engineering, landscape architectural and surveying contracts.
Section 13-1-124 - Architect rate schedule.
Section 13-1-124.1 - Short title.
Section 13-1-124.2 - Applicability.
Section 13-1-124.3 - Definitions.
Section 13-1-124.5 - Responsibilities of construction manager at risk following award of project.
Section 13-1-125 - Small purchases.
Section 13-1-126 - Sole source procurement.
Section 13-1-126.1 - Sole source contracts; notice; protest.
Section 13-1-127 - Emergency procurement; required conditions; limitations; notice.
Section 13-1-129 - Procurement under existing contracts.
Section 13-1-130 - Purchases; antipoverty program business.
Section 13-1-131 - Rejection or cancellation of bids or requests for proposals; negotiations.
Section 13-1-132 - Irregularities in bids or proposals.
Section 13-1-133 - Responsibility of bidders and offerors.
Section 13-1-134 - Prequalification of bidders.
Section 13-1-135 - Cooperative procurement authorized.
Section 13-1-135.1 - Recycled content goods; cooperative procurement.
Section 13-1-136 - Cooperative procurement; reports required.
Section 13-1-137 - Sale, acquisition or use of property by a state agency or a local public body.
Section 13-1-138 - Cost or pricing data required.
Section 13-1-138.1 - Specification of certain components; separate pricing required.
Section 13-1-139 - Cost or pricing data not required.
Section 13-1-140 - Cost or pricing data; change orders or contract modifications.
Section 13-1-141 - Cost or pricing data; change orders; contract modifications; exceptions.
Section 13-1-142 - Cost or pricing data; certification required.
Section 13-1-143 - Cost or pricing data; price adjustment provision required.
Section 13-1-144 - Cost or price analysis.
Section 13-1-145 - Cost principles; regulations.
Section 13-1-146 - Requirement for bid security.
Section 13-1-146.1 - Directed suretyship prohibited; penalty.
Section 13-1-147 - Bid security; rejection of bids.
Section 13-1-148 - Bid and performance bonds; additional requirements.
Section 13-1-148.1 - Bonding of subcontractors.
Section 13-1-149 - Types of contracts.
Section 13-1-150 - Multi-term contracts; specified period.
Section 13-1-151 - Multi-term contracts; determination prior to use.
Section 13-1-152 - Multi-term contracts; cancellation due to unavailability of funds.
Section 13-1-152.1 - Water storage tank service contracts.
Section 13-1-153 - Multiple source award; limitations on use.
Section 13-1-154 - Multiple source award; determination required.
Section 13-1-156 - Trade or exchange of used items; appraisal required.
Section 13-1-157 - Receipt; inspection; acceptance or rejection of deliveries.
Section 13-1-158 - Payments for purchases.
Section 13-1-159 - Right to inspect plant.
Section 13-1-160 - Audit of cost or pricing data.
Section 13-1-161 - Contract audit.
Section 13-1-162 - State procurement standards and specifications committee; terms; staff.
Section 13-1-163 - Committee powers and duties; special committees; annual report.
Section 13-1-164 - Specifications; maximum practicable competition.
Section 13-1-165 - Brand-name specification; use.
Section 13-1-166 - Brand-name specification; competition.
Section 13-1-167 - Brand-name or equal specification; required characteristics.
Section 13-1-168 - Brand-name or equal specification; required language.
Section 13-1-169 - Purchase request; specifications; purchase orders.
Section 13-1-170 - Uniform contract clauses.
Section 13-1-171 - Price adjustments.
Section 13-1-172 - Right to protest.
Section 13-1-173 - Procurements after protest.
Section 13-1-174 - Authority to resolve protests.
Section 13-1-175 - Protest; determination.
Section 13-1-176 - Protest; notice of determination.
Section 13-1-177 - Authority to suspend or debar.
Section 13-1-178 - Causes for debarment or suspension; time limit.
Section 13-1-179 - Debarment or suspension; determination.
Section 13-1-180 - Debarment or suspension; notice of determination.
Section 13-1-180.1 - Continuation of current contracts; restrictions on subcontracting.
Section 13-1-181 - Remedies prior to execution of contract.
Section 13-1-182 - Ratification or termination after execution of contract.
Section 13-1-183 - Judicial review.
Section 13-1-184 - Assistance to small business; policy.
Section 13-1-185 - Assistance to small business; duties of the state purchasing agent.
Section 13-1-186 - Assistance to small business; bid bonds; reduction.
Section 13-1-187 - Small business; report to the legislature.
Section 13-1-188 - Public acquisition of American-made motor vehicles required.
Section 13-1-189 - Procurements pursuant to the Corrections Industries Act.
Section 13-1-190 - Unlawful employee participation prohibited.
Section 13-1-191 - Bribes; gratuities and kickbacks; contract reference required.
Section 13-1-191.1 - Campaign contribution disclosure and prohibition.
Section 13-1-192 - Contingent fees prohibited.
Section 13-1-193 - Contemporaneous employment prohibited.
Section 13-1-195 - Use of confidential information prohibited.
Section 13-1-196 - Civil penalty.
Section 13-1-196.1 - State ethics commission jurisdiction.
Section 13-1-197 - Recovery of value transferred or received; additional civil penalty.