2023 New Mexico Statutes › Chapter 13 - Public Purchases and Property › Article 1 - Procurement › Section 13-1-98 - Exemptions from the Procurement Code.

The provisions of the Procurement Code shall not apply to:
A. procurement of items of tangible personal property or services by a state agency or a local public body from a state agency, a local public body or external procurement unit except as otherwise provided in Sections 13-1-135 through 13-1-137 NMSA 1978;
B. procurement of tangible personal property or services for the governor's mansion and grounds;
C. printing and duplicating contracts involving materials that are required to be filed in connection with proceedings before administrative agencies or state or federal courts;
D. purchases of publicly provided or publicly regulated gas, electricity, water, sewer and refuse collection services;
E. purchases of books, periodicals, instructional materials and training materials in printed, digital or electronic format from the publishers, designated public-education-department-approved instructional material depositories or copyright holders thereof and purchases of print, digital or electronic format library materials by public, school and state libraries for access by the public;
F. travel or shipping by common carrier or by private conveyance or to meals and lodging;
G. purchase of livestock at auction rings or to the procurement of animals to be used for research and experimentation or exhibit;
H. contracts with businesses for public school transportation services;
I. procurement of tangible personal property or services, as defined by Sections 13-1-87 and 13-1-93 NMSA 1978, by the corrections industries division of the corrections department pursuant to rules adopted by the corrections industries commission, which shall be reviewed by the purchasing division of the general services department prior to adoption;
J. purchases not exceeding ten thousand dollars ($10,000) consisting of magazine subscriptions, web-based or electronic subscriptions, conference registration fees and other similar purchases where prepayments are required;
K. municipalities having adopted home rule charters and having enacted their own purchasing ordinances;
L. the issuance, sale and delivery of public securities pursuant to the applicable authorizing statute, with the exception of bond attorneys and general financial consultants;
M. contracts entered into by a local public body with a private independent contractor for the operation, or provision and operation, of a jail pursuant to Sections 33-3-26 and 33-3-27 NMSA 1978;
N. contracts for maintenance of grounds and facilities at highway rest stops and other employment opportunities, excluding those intended for the direct care and support of persons with handicaps, entered into by state agencies with private, nonprofit, independent contractors who provide services to persons with handicaps;
O. contracts and expenditures for services or items of tangible personal property to be paid or compensated by money or other property transferred to New Mexico law enforcement agencies by the United States department of justice drug enforcement administration;
P. contracts for retirement and other benefits pursuant to Sections 22-11-47 through 22-11-52 NMSA 1978;
Q. contracts with professional entertainers;
R. contracts and expenditures for legal subscription and research services and litigation expenses in connection with proceedings before administrative agencies or state or federal courts, including experts, mediators, court reporters, process servers and witness fees, but not including attorney contracts;
S. contracts for service relating to the design, engineering, financing, construction and acquisition of public improvements undertaken in improvement districts pursuant to Subsection L of Section 3-33-14.1 NMSA 1978 and in county improvement districts pursuant to Subsection L of Section 4-55A-12.1 NMSA 1978;
T. works of art for museums or for display in public buildings or places;
U. contracts entered into by a local public body with a person, firm, organization, corporation or association or a state educational institution named in Article 12, Section 11 of the constitution of New Mexico for the operation and maintenance of a hospital pursuant to Chapter 3, Article 44 NMSA 1978, lease or operation of a county hospital pursuant to the Hospital Funding Act [Chapter 4, Article 48B NMSA 1978] or operation and maintenance of a hospital pursuant to the Special Hospital District Act [Chapter 4, Article 48A NMSA 1978];
V. purchases of advertising in all media, including radio, television, print and electronic;
W. purchases of promotional goods intended for resale by the tourism department;
X. procurement of printing, publishing and distribution services for materials produced and intended for resale by the cultural affairs department;
Y. procurement by or through the public education department from the federal department of education relating to parent training and information centers designed to increase parent participation, projects and initiatives designed to improve outcomes for students with disabilities and other projects and initiatives relating to the administration of improvement strategy programs pursuant to the federal Individuals with Disabilities Education Act; provided that the exemption applies only to procurement of services not to exceed two hundred thousand dollars ($200,000);
Z. procurement of services from community rehabilitation programs or qualified individuals pursuant to the State Use Act [13-1C-1 to 13-1C-7 NMSA 1978];
AA. purchases of products or services for eligible persons with disabilities pursuant to the federal Rehabilitation Act of 1973;
BB. procurement, by either the department of health or Grant county or both, of tangible personal property, services or construction that are exempt from the Procurement Code pursuant to Section 9-7-6.5 NMSA 1978;
CC. contracts for investment advisory services, investment management services or other investment-related services entered into by the educational retirement board, the state investment officer or the retirement board created pursuant to the Public Employees Retirement Act [Chapter 10, Article 11 NMSA 1978];
DD. the purchase for resale by the state fair commission of feed and other items necessary for the upkeep of livestock;
EE. contracts entered into by the crime victims reparation commission to distribute federal grants to assist victims of crime, including grants from the federal Victims of Crime Act of 1984 and the federal Violence Against Women Act of 1994;
FF. procurement by or through the early childhood education and care department of early pre-kindergarten and pre-kindergarten services purchased pursuant to the Pre-Kindergarten Act [Chapter 32A, Article 23 NMSA 1978];
GG. procurement of services of commissioned advertising sales representatives for New Mexico magazine;
HH. contracts entered into by the forestry division of the energy, minerals and natural resources department to distribute federal grants to nongovernmental entities and individuals selected through an application process conducted by the United States department of agriculture, the United States department of the interior or any division or bureau thereof for programs for wildfire prevention or protection, urban forestry, forest and watershed restoration and protection, reforestation or economic development projects to advance the use of trees and wood biomass for hazardous fuel reduction; and
II. procurements exempt from the Procurement Code as otherwise provided by law.
History:
Laws 1984, ch. 65, § 71; 1987, ch. 6, § 1; 1987, ch. 348, § 2; 1990, ch. 73, § 1; 1991, ch. 78, § 1; 1991, ch. 118, § 1; 1994, ch. 143, § 2; 1999, ch. 258, § 2; 2001, ch. 291, § 8; 2001, ch. 292, § 3; 2001, ch. 305, § 28; 2001, ch. 312, § 13; 2004, ch. 62, § 1; 2005, ch. 23, § 2; 2005, ch. 317, §2; 2005, ch. 318, § 1; 2005, ch. 334, § 8; 2007, ch. 55, § 1; 2007, ch. 345, § 1; 2008, ch. 4, § 2; 2008, ch. 70, § 2; 2009, ch. 231, § 1; 2013, ch. 40, § 1; 2013, ch. 70, § 6; 2013, ch. 71, § 1; 2015, ch. 32, § 1; 2019, ch. 48, § 13; 2019, ch. 63, § 1; 2023, ch. 149, § 2; 2023, ch. 174, § 1.
ANNOTATIONS
2023 Multiple Amendments.
— Laws 2023, ch. 149, § 2 and Laws 2023, ch. 174, § 1, both effective June 16, 2023, enacted different amendments to this section that can be reconciled. Pursuant to 12-1-8 NMSA 1978, Laws 2023, ch. 174, § 1 as the last act signed by the governor is set out above and incorporates both amendments. The amendments enacted by Laws 2023, ch. 149, § 2 and Laws 2023, ch. 174, § 1 are described below. To view the session laws in their entirety,
see
the 2023 session laws on
NMOneSource.com
.
The nature of the difference between the amendments is that Laws 2023, ch. 149, § 2, provided exemptions from the Procurement Code for certain purchases of instructional materials, and Laws 2023, ch. 174, § 1, provided exemptions from the Procurement Code for contracts entered into by the forestry division of the energy, minerals and natural resources department to distribute federal grants to nongovernmental entities and individuals selected by the federal government for programs related to forestry.
Laws 2023, ch. 174, § 1,
effective June 16, 2023, provided exemptions from the Procurement Code for contracts entered into by the forestry division of the energy, minerals and natural resources department to distribute federal grants to nongovernmental entities and individuals selected by the federal government for programs related to forestry; and added a new Subsection HH and redesignated former Subsection HH as Subsection II.
Laws 2023, ch. 149, § 2,
effective June 16, 2023, provided exemptions from the Procurement Code for certain purchases of instructional materials; and in Subsection E, after "periodicals,", added "instructional materials", after "materials in printed", added "digital", and after "publishers", added "designated public-education-department-approved instructional material depositories".
2019 Amendments.
— Laws 2019, ch. 48, § 13, effective July 1, 2020, provided an exemption from the Procurement Code for purchases by or through the early childhood education care department of early pre-kindergarten services pursuant to the Pre-Kindergarten Act; and in Subsection FF, after "procurement by or through the", deleted "children, youth and families" and added "early childhood education and care", and after "department of", added "early pre-kindergarten and".
Laws 2019, ch. 63, § 1, effective June 14, 2019, provided exemptions from the Procurement Code for certain library materials and publishing and distribution services for material produced and intended for resale by the cultural affairs department; in Subsection E, after "copyright holders thereof", added "and purchases of print, digital or electronic format library materials by public, school and state libraries for access by the public"; and in Subsection X, after "printing", added "publishing and distribution".
The 2015 amendment,
effective June 19, 2015, exempted the procurement of services of commissioned advertising sales representatives for New Mexico magazine from the provisions of the Procurement Code; in Subsection EE, after "Act", added "of 1994"; and added Subsection GG, and redesignated the succeeding subsection accordingly.
The 2013 amendment,
effective June 14, 2013, in Subsection E, added "and training materials in printed or electronic format"; added Subsection FF; in Subsection J, at the beginning of the sentence, deleted "minor", changed "five thousand dollars ($5,000)" to "ten thousand dollars ($10,000)" and added "web-based or electronic subscriptions"; and in Subsection R, added "legal subscription and research services and".
The 2009 amendment,
effective July 1, 2009, added Subsection EE.
The 2008 amendment,
effective February 29, 2008, exempted the procurement of tangible personal property, services or construction to replace the Fort Bayard medical center.
The 2005 amendment,
effective June 17, 2005, added Subsection Z to exempt procurement from community rehabilitation programs or qualified individuals pursuant to the State Use Act; and added Subsection AA to exempt purchases of products for eligible persons with disabilities pursuant to the federal Rehabilitation Act of 1973.
The 2004 amendments,
effective July 1, 2004, added Subsections T through X.
The 2001 amendment,
effective June 15, 2001, added Subsection S.
The 1999 amendment,
effective June 18, 1999, substituted "commission" for "industries" in Subsection I, inserted "not exceeding five thousand dollars ($5,000)" in Subsection J, and added Subsection R.
The 1994 amendment,
effective July 1, 1994, added Subsection Q and made related stylistic changes.
The 1991 amendment,
effective July 1, 1991, added Subsections O and P.
Applicability.
— When a local public body acquires property or services from a joint procurement agency of local public bodies, the acquisition is not subject to any provisions of the Procurement Code except those set forth in Sections 13-1-135, 13-1-136, and 13-1-137; on the other hand, Section 13-1-98A does not exempt the procurement of goods or services by the joint agency from an outsider.
State ex rel. Educ. Assessments Sys. v. Coop. Educ. Servs.
, 1993-NMCA-024, 115 N.M. 196, 848 P.2d 1123.
Applicability of section to school districts.
— The provision of Section 22-5-4N NMSA 1978 of the [Public] School Code, requiring that contracts for expenditure of money be made in accordance with the Procurement Code, requires school boards to contract according to all but two sections of the entire Procurement Code; this means that all bidding requirements of the Code, including the exemptions in this section, apply to school district contracts.
Morningstar Water Users Ass'n v. Farmington Mun. Sch. Dist. No. 5
, 1995-NMSC-052, 120 N.M. 307, 901 P.2d 725.
Tariff permitting utility to recover costs of relocation
required by a local ordinance did not violate the New Mexico Procurement Code by failing to provide for the seeking of bids by local governments because it fell within the specific statutory exception for purchases of utility facilities.
City of Albuquerque v. New Mexico Pub. Regulation Comm'n
, 2003-NMSC-028, 134 N.M. 472, 79 P.3d 297.
Sale of water services by municipality to school district.
— A municipality and a school district fall within the definition of "local public bodies" in Section 13-1-67 NMSA 1978, and, thus, a transaction involving the purchase of water services by the school district from the water utility of the municipality is within the exemptions of Subsections A and D because the municipality is a local public body selling water services to another local public body and the school district is purchasing "publicly provided" water.
Morningstar Water Users Ass'n v. Farmington Mun. Sch. Dist. No. 5
, 1995-NMSC-052, 120 N.M. 307, 901 P.2d 725.
Emergency requirements not applicable to exempt transaction.
— The emergency provisions of Section 13-1-127 NMSA 1978 did not apply to a contract for the purchase of water services by a school district from the water utility of a municipality which was within the exemptions contained in Subsections A and D of this section.
Morningstar Water Users Ass'n v. Farmington Mun. Sch. Dist. No. 5
, 1995-NMSC-052, 120 N.M. 307, 901 P.2d 725.
Workers' compensation administration case manager's fee not exempt as a litigation expense.
— The services provided by a case manager under the worker's compensation administration (WCA) are not incurred in connection with litigation. A WCA case manager's fees are not an expense of litigation pursuant to Subsection R of this section, but are incurred following a determination that a worker is injured or disabled and entitled to benefits under the WCA, and ongoing coordination of the healthcare services is required.
Trace v. University of N.M. Hosp.
, 2015-NMCA-083.
In a workers' compensation case, where the case manager's contract with the workers' compensation administration, to coordinate health care services provided to worker, expired, the workers' compensation judge (WCJ) erred in finding that the case manager's services constituted a litigation expense exempt from the Procurement Code, and the WCJ was without statutory authority to order that the case manager continue providing services as worker's case manager in the absence of a contract under the Procurement Code.
Trace v. University of N.M. Hosp.
, 2015-NMCA-083.
The Procurement Code generally prohibits prepayment for the purchase of items of tangible personal property.
— Where the purchase of items of tangible personal property is subject to the Procurement Code, there is a general rule against prepayment. 2023 Op. Ethics Comm'n No. 2023-04.
A municipality's purchase of a firetruck is not exempt from the Procurement Code's general rule against prepayment.
— The Procurement Code generally prohibits prepayment for the purchase of items of tangible personal property, 13-1-158 NMSA 1978, an exception of which are those purchases that are excluded from the Procurement Code's scope, and therefore where a municipality is considering purchasing a firetruck, an item subject to the Procurement Code, under a statewide price agreement with the National Association of State Procurement Officials, the municipality may not prepay for the firetruck and may only pay for the truck after the municipality's central purchasing office certifies that the truck has been received and meets the specifications that the municipality bargained for. Moreover, the fact that the municipality could get a discount for prepayment and the fact that the vendor would provide the municipality with a performance bond following the receipt of any prepayment do not operate as exceptions to the Procurement Code's general rule against prepayment. 2023 Op. Ethics Comm'n No. 2023-04.
Self-dealing by non-state-employed council members does not violate the Procurement Code.
— The Procurement Code does not prohibit members of the New Mexico council for purchasing from persons with disabilities (council) from voting to approve a contract subject to the State Use Act, 13-1C-1 to 13-1C-7 NMSA 1978, between a state agency or local public body and a council member or a company in which the council member has a financial interest. Procurements under the State Use Act are exempt from the requirements of the Procurement Code, and therefore the Procurement Code's conflict of interest provisions do not prohibit a council member from participating in an award of a contract subject to the State Use Act. 2020 Op. Ethics Comm'n No. 2020-07.
Home rule municipality's sponsorship to planned parenthood of New Mexico does not implicate the Procurement Code.
— The Procurement Code, pursuant to 13-1-98(K) NMSA 1978, does not apply to municipalities having adopted home rule charters and having enacted their own purchasing ordinances, and therefore, where the Albuquerque city council passed a floor amendment to the city's operating budget bill, which added $250,000 for a council-directed sponsorship to planned parenthood of New Mexico, a private corporation, the Procurement Code was not implicated, because the city of Albuquerque has adopted a home rule charter and has enacted its own purchasing ordinance. The city's own procurement ordinance therefore governs all purchasing transactions of the city, including a transaction between the city of Albuquerque and planned parenthood of New Mexico, and shall serve to exempt the city from all provisions of the New Mexico Procurement Code. 2022 Op. Ethics Comm'n No. 2022-07.
Scope of exemption provision.
— Only when centralized control was thought to be harmful or unproductive of savings were exemptions allowed by the former Public Purchases Act. 1969 Op. Att'y Gen. No. 69-87.
When public notice and competitive bidding required.
— A professional legal services contract in excess of $1,000 between a state agency and legislator may be awarded only after public notice and competitive bidding. 1979 Op. Att'y Gen. No. 79-23.
Attempt to add exemption.
— Section 73-20-45H NMSA 1978 attempts to add an exemption to the former State Purchasing Act by reference to that act. Properly the State Purchasing Act should have been amended. 1967 Op. Att'y Gen. No. 67-110.
Effect.
— Section 73-20-45H NMSA 1978, having the same object as and being prior and repugnant to the former Public Purchases Act, is repealed by implication. 1967 Op. Att'y Gen. No. 67-110.
Jail facilities exemptions.
— Laws 1987, ch. 348, § 2 amended this section to permit local public bodies to enter into contracts with an independent contractor for construction and operation of a jail facility without competitive bidding. The financing and design of a jail facility are also exempt from this article, as long as the local public body does not have a direct contractual relationship with the parties responsible for designing and financing the facility. 1987 Op. Att'y Gen. No. 87-47.
Contract for professional services of insurance agency exempt.
— A contract whereby an insurance agency would provide technical or professional services to the central purchasing office of a local public body for a fee would have been exempt from the former Public Purchases Act. 1969 Op. Att'y Gen. No. 69-135.
Sale of manual by state employee.
— The Procurement Code does not apply to the sale of a manual by a state employee to the New Mexico state department of Public safety [public safety department], as long as the department purchases the manual from the copyright holder. 1988 Op. Att'y Gen. No. 88-42.