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, 08-30-13]

 

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 state highway and transportation department;

                    (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, 08-30-13]

 

1.4.1.3                    STATUTORY AUTHORITY:  NMSA 1978,  9-17-5, 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, 08-30-13]

 

1.4.1.4                    DURATION:  Permanent.

[1.4.1.4 NMAC - Rp, 1.4.1.4 NMAC, 08-30-13]

 

1.4.1.5                    EFFECTIVE DATE:  August 30, 2013, unless a later date is cited at the end of a section.

[1.4.1.5 NMAC - Rp, 1.4.1.5 NMAC, 08-30-13]

 

1.4.1.6                    OBJECTIVE:  Section 13-1-29 C 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, 08-30-13]

 

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 or submits a quote in response to a call for formal or informal quotes.

                    (5)     “Central purchasing office” means that office within a state agency or a local public body responsible for the control of procurement of items of tangible personal property, services or construction.  “Central purchasing office” includes the purchasing division of the general services department.

                    (6)     “Chief information officer” means the administrative head of the department of information and technology.

                    (7)     “Chief procurement officer” means that person within a state agency’s or local public body’s central purchasing office who is responsible for the control of procurement of items of tangible personal property, services or construction.  “Chief procurement officer” includes the state purchasing agent.

                    (8)     “Competitive sealed bid” means the response from a bidder to an invitation to bid (ITB).

                    (9)     “Competitive sealed proposal” means the response from an offeror to a request for proposals (RFP).

                    (10)     “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.

                    (11)     “Information systems resources” means computer voice and data communications hardware and software including imaging systems, terminals, radio and communications networks and facilities as well as information systems services and professional services contracts required for the implementation, operation, maintenance or support of an executive branch state agency computer or communication system.

                    (12)     “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).

                    (13)     “Offeror” means one who submits a proposal in response to a request for proposals.

                    (14)     “Request for proposals (RFP)” means all documents, including those attached or incorporated by reference, used for soliciting competitive sealed proposals.

                    (15)     “Sole source” means tangible personal property, services or construction for which there is only one source and that source is unique and no other similar items of tangible personal property, services or construction can meet the intended purpose of the procurement.

[1.4.1.7 NMAC - Rp, 1.4.1.7 NMAC, 08-30-13]

 

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 13-1-135 and 13-1-136 NMSA 1978.

[1.4.1.8 NMAC - Rp, 1.4.1.8 NMAC, 08-30-13]

 

1.4.1.9                    INSPECTION OF PUBLIC RECORDS:  The inspection of public records is governed by the Inspection of Public Records Act, 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, 08-30-13]

 

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, 08-30-13]

 

1.4.1.11                 INDEMNIFICATION AND INSURANCE:

                A.            Tort liability. Except as provided for in the Tort Claims Act, 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. The indemnification and insurance provisions of contracts provided for in the Tort Claims Act shall be approved in writing by GSD's risk management division before they become effective.

                B.            Other risks. No contract governed by this rule shall contain any provision whereby a state agency agrees to indemnify or provide a contractor with insurance for non-tort risks unless the provision has been approved in writing by GSD's risk management division.

                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, 08-30-13]

 

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, 08-30-13]

 

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, 08-30-13]

 

1.4.1.15                 COMPETITIVE SEALED BIDS REQUIRED:  All procurement 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, 08-30-13]

 

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 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, 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 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 sign and submit along with all other necessary submissions. A bidder may submit a reasonable facsimile of the bid form. Oral, telephonic and telegraphic bids except as provided in this subsection are invalid and shall not be considered.  Telegraphic or bids sent via FAX to a third party and delivered in a sealed envelope to the location where bids are to be received by the date and time shown in the bid, will be accepted for consideration.

                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, 08-30-13]

 

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 once in at least three newspapers of general circulation in this state.

                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 involving the expenditure of more than  sixty thousand dollars ($60,000) 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. (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 at the office of the state purchasing agent.

[1.4.1.17 NMAC - Rp, 1.4.1.17 NMAC, 08-30-13]

 

1.4.1.18                 PRE-BID CONFERENCES:  Pre-bid conferences may be conducted to explain the procurement requirements. They shall be announced to all prospective bidders known to have received 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 unless a change is made by written amendment as provided in this rule.

[1.4.1.18 NMAC - Rp, 1.4.1.18 NMAC, 08-30-13]

 

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 telegram or telephone or 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, 08-30-13]

 

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 telegraphic 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, 08-30-13]

 

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.

                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, 08-30-13]

 

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.

                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. 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, 08-30-13]

 

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, 08-30-13]

 

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, 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 10 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 at the state purchasing agent's office.

[1.4.1.24 NMAC - Rn 1.4.1.24 NMAC, 08-30-13]

 

1.4.1.25                 STATUTORY PREFERENCES:  Statutory preferences to be applied in determining low bidder or low offeror.  New Mexico law provides certain statutory preferences to resident businesses, resident veteran businesses, resident contractors and resident veteran contractors as well as for recycled content goods (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 offeror.

[1.4.1.25 NMAC - Rp, 1.4.1.25 NMAC, 08-30-13]

 

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 13-1-153 and 13-1-154 NMSA 1978;

                    (2)     award to a resident business or a resident veteran business or a resident contractor or a resident veteran contractor if the identical low bids are submitted by a resident business or a resident veteran business or a resident contractor or a resident veteran contractor 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, 08-30-13]

 

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 offerors 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, 08-30-13]

 

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 13-1-158 NMSA 1978.

[1.4.1.28 NMAC - Rp, 1.4.1.28 NMAC, 08-30-13]

 

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 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 GSD 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 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 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, 08-30-13]

 

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 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: 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.  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 comparative judgmental evaluations to be made 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, 08-30-13]

 

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 reasonably susceptible 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, 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, should 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, 08-30-13]

 

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:

                    (1)     a one-page notice suitable for distribution that contains the procurement title, purpose statement, the issue date, the name of the agency conducting the procurement, the place where a copy of the RFP document may be obtained, the date and location of the pre-proposal conference, if one is held, the name, address and phone number of the procurement manager and the deadline for submission of proposals;

                    (2)     a completed state of New Mexico purchase document;

                    (3)     a list containing the names and addresses of suggested sources, 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.

                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 shall be delivered to the state purchasing agent not less than 15 calendar days prior to the date set for the issuance; 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.

                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 - Rn 1.4.1.32 NMAC, 08-30-13]

 

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.

[1.4.1.33 NMAC - Rp, 1.4.1.33 NMAC, 08-30-13]

 

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, 08-30-13]

 

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.

[1.4.1.35 NMAC - Rp, 1.4.1.35 NMAC, 08-30-13]

 

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, 08-30-13]

 

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. (See 1.4.1.35  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. 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, 08-30-13]

 

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.  Numerical rating systems 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.

                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 must be sent promptly 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, 08-30-13]

 

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, 08-30-13]

 

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, 08-30-13]

 

1.4.1.41                 BEST AND FINAL OFFERS:  Best and final offers in a request for proposals are strongly discouraged.  An offeror’s best offer should be included in that offeror’s original proposal.  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, 08-30-13]

 

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 proposal, but only if the unsigned proposal is 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, 08-30-13]

 

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 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 responsive 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 responsive 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, 08-30-13]

 

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, 08-30-13]

 

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, 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.

[1.4.1.45 NMAC - Rp, 1.4.1.45 NMAC, 08-30-13]

 

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 13-1-158 NMSA 1978.

[1.4.1.46 NMAC - Rp, 1.4.1.46 NMAC, 08-30-13]

 

1.4.1.47                 DFA CONTRACT REVIEW:  All contracts for professional services with state agencies shall be reviewed as to budget requirements by the department of finance and administration, if such review is required by DFA or subsequent DFA rules.

[1.4.1.47 NMAC - Rp, 1.4.1.47 NMAC, 08-30-13]

 

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 sixty thousand dollars ($60,000) and to the procurement of professional services having a value not exceeding sixty thousand dollars ($60,000) 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, 08-30-13]

 

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, 08-30-13]

 

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.

[1.4.1.50 NMAC -  Rp, 1.4.1.50 NMAC, 08-30-13]

 

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 sixty thousand dollars ($60,000), and in accordance with any procedures or processes set forth by the state purchasing agent, 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. If three written quotes cannot be obtained, the agency shall document the reasons and include the document in the procurement file. Such notations as “does not carry” or “did not return my phone call” do not qualify as a valid 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) resulting from the procurement.

                C.            Award.  Award shall be made to the 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, 08-30-13]

 

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 sixty thousand dollars ($60,000) except for the services of architects, engineers, landscape architects, or surveyors for state public works projects, as that term is defined in 13-1-91 NMSA 1978, in accordance with Subsections B, C, and D of this section and 2.40.2 through 2.40.17 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 potential 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, 08-30-13]

 

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, 08-30-13]

 

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.

                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, or a designee of either shall post notice of the intent to award a sole source contract on its website.  If a central purchasing office does not maintain a website, it may post the notice 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 by the state purchasing agent or a central purchasing office.

                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, 08-30-13]

 

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 minimum of three years. 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 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, 08-30-13]

 

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, 08-30-13]

 

1.4.1.59                 DEFINITION OF EMERGENCY CONDITIONS:  An emergency condition is a situation which creates a threat to public health, welfare, safety or property such as may arise by reason of floods, epidemics, riots, equipment failures or similar events. The existence of the emergency condition creates an immediate and serious need for services, construction or items of tangible personal property that cannot be met through normal procurement methods and the lack of which would seriously threaten:

                A.            the functioning of government;

                B.            the preservation or protection of property; or

                C.            the health or safety of any person.

[1.4.1.59 NMAC - Rp, 1.4.1.59 NMAC, 08-30-13]

 

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, 08-30-13]

 

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, 08-30-13]

 

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, 08-30-13]

 

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:

                    (1)     provide the information required by statute to the department of information technology for posting on the sunshine portal; and

                    (2)     forward the same information to the legislative finance committee.

[1.4.1.63 NMAC - Rp, 1.4.1.63 NMAC, 08-30-13]

 

1.4.1.64                 RECORDS OF EMERGENCY PROCUREMENTS:  The state purchasing agent or central purchasing office shall maintain records of emergency procurements for a minimum of three years. 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, 08-30-13]

 

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 13-1-135 NMSA 1978) or the state procurement card program (described in 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 13-1-135 NMSA 1978 or contracts which qualify under 13-1-129 NMSA 1978 is permitted and does not constitute “piggybacking.”

[1.4.1.65 NMAC - Rp, 1.4.1.65 NMAC, 08-30-13]

 

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, 08-30-13]

 

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, 08-30-13]

 

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, 08-30-13]

 

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, 08-30-13]

 

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, 08-30-13]

 

1.4.1.71                 REJECTION OF INDIVIDUAL BIDS OR PROPOSALS:

                A.            Reasons for rejection.

                    (1)     Bids.  As used in this section, "bid" includes both competitive sealed bids and small purchase quotations.  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" includes both competitive sealed proposals and small purchase offers.  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, 08-30-13]

 

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, 08-30-13]

 

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 items of tangible personal property.

                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, 08-30-13]

 

1.4.1.74                 SUMMARY:  Notwithstanding the requirements of 1.4.1.73 NMAC, if, after delivery and acceptance of goods, the goods or a portion thereof are 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, 08-30-13]

 

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, 08-30-13]

 

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, 08-30-13]

 

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, 08-30-13]

 

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, 08-30-13]

 

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, 08-30-13]

 

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, 08-30-13]

 

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, 08-30-13]

 

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.

[1.4.1.82 NMAC - Rp, 1.4.1.82 NMAC, 08-30-13]

 

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.

                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, 08-30-13]

 

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, 08-30-13]

 

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, 08-30-13]

 

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, 08-30-13]

 

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 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.

[1.4.1.87 NMAC - Rp, 1.4.1.87 NMAC, 08-30-13]

 

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, 08-30-13]

 

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 parties.

[1.4.1.89 NMAC - Rp, 1.4.1.89 NMAC, 08-30-13]

 

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 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 and mail a copy to each of the parties.  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, 08-30-13]

 

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 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 13-1-183 NMSA 1978.

[1.4.1.91 NMAC - Rp, 1.4.1.91 NMAC, 08-30-13]

 

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, 08-30-13]

 

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, 08-30-13]

 

1.4.1.94                 CHIEF PROCUREMENT OFFICER REGISTRATION AND CERTIFICATION:

                A.            Registration.  On or before January 1, 2014, and every time thereafter that a chief procurement officer is hired, each state agency and local public body shall provide to the state purchasing agent 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, if applicable.

                B.            Information required.  The information required from the state agency or local public body shall be submitted to the state purchasing agent through a database established by the state purchasing agent and made available on the state purchasing division’s website.  All required information must be submitted using this method.

                C.            Certification.  On or before January 1, 2015, the state purchasing agent shall establish a certification program for chief procurement officers that includes initial certification and recertification every two years for all chief procurement officers.  In order to be certified and recertified, a chief procurement officer shall obtain such education and training as deemed appropriate by the secretary of the general services department and pass a certification or recertification examination, as appropriate, approved by the secretary of the general services department.  Separate certifications designed by the state purchasing agent and approved by the secretary of the general services department may be required before a chief procurement officer may conduct specialized procurement processes such as qualifications-based proposals, design-and-build projects, construction manager-at-risk projects, and other such procurements as determined by the state purchasing agent and approved by the secretary of the general services department.  The secretary of the general services department reserves the right to add other elements to the required certification process as are deemed necessary or useful.

                D.            Chief procurement officer duties, responsibilities and obligations.  On and after July 1, 2015, only certified chief procurement officers may:

                    (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;

                    (4)     provided that, persons using procurement cards may continue to issue purchase orders and authorize small purchases.

[1.4.1.94 NMAC - N, 08-30-13]

 

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 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 13-1C-5 NMSA 1978;

                    (4)     provided that, under 13-1C-6 NMSA 1978, services provided pursuant to and facilities covered by 22-14-27 NMSA 1978 are excluded from procurement through the central non-profit agency.

                C.            Procurement of services pursuant to 13-1C-1 et. seq. NMSA 1978 are exempt from the Procurement Code.

[1.4.1.95 NMAC - N, 08-30-13]

 

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 11-21-84; superseded by Procurement Code Regulations, GSD Rule No. 87-601, filed 12-16-87; superseded by Procurement Code Regulations, GSD Rule No. 89-601, filed 12-01-89; superseded by Procurement Code Regulations, GSD Rule No. 93-601, filed 09-21-93; superseded by 1 NMAC 5.2, filed 01-15-98.

 

History of Repealed Material:

1.4.1 NMAC, Procurement Code Regulations (filed 11/01/2001) repealed 09-30-05.

1.4.1 NMAC, Procurement Code Regulations (filed 09/16/2005) repealed 08-30-13.

 

Other History:

GSD Rule No. 93-601 (filed 09-21-93) was renumbered, reformatted and amended to 1 NMAC 5.2, Procurement Code Regulations, effective 01-15-98.

1 NMAC 5.2, Procurement Code Regulations (filed 01-02-98) was renumbered, reformatted, amended and replaced to 1.4.1 NMAC, Procurement Code Regulations, effective 11-15-01.

1.4.1 NMAC, Procurement Code Regulations (filed 11/01/2001) was replaced by 1.4.1 NMAC, Procurement Code Regulations, effective 09-30-05.

1.4.1 NMAC, Procurement Code Regulations (filed 09/16/2005) was replaced by 1.4.1 NMAC, Procurement Code Regulations, effective 08-30-13.