2023 New Mexico Statutes › Chapter 13 - Public Purchases and Property › Article 1 - Procurement › Section 13-1-30 - Application of the code.

A. Except as otherwise provided in the Procurement Code, that code shall apply to every expenditure by state agencies and local public bodies for the procurement of items of tangible personal property, services and construction. That code also applies to concession contracts at the New Mexico state fair in excess of twenty thousand dollars ($20,000), whether those concession contracts generate revenue and earnings or expand funds.
B. When a procurement involves the expenditure of federal funds, the procurement shall be conducted in accordance with mandatory applicable federal law and regulations. When mandatory applicable federal law or regulations are inconsistent with the provisions of the Procurement Code, compliance with federal law or regulations shall be compliance with the Procurement Code.
History:
Laws 1984, ch. 65, § 3; 1994, ch. 143, § 1; 2005, ch. 131, § 1.
ANNOTATIONS
The 2005 amendment,
effective June 17, 2005, amended Subsection A to provide that the Procurement Code increase the applicability of the code for concession contracts at the state fair from ten to twenty thousand dollars.
The 1994 amendment,
effective July 1, 1994, in Subsection A, deleted "and" preceding "construction" and added the language following "construction".
An incorporated electric cooperative
is neither a state agency nor a local public body; therefore, the Procurement Code does not apply to it.
Fratello v. Socorro Elec. Corp.
, 1988-NMSC-058, 107 N.M. 378, 758 P.2d 792.
Cooperative formed pursuant to the Joint Powers Agreements Act.
— An agreement entered into by 30 school districts forming a cooperative pursuant to the Joint Powers Agreements Act, Section 11-1-1 NMSA 1978 et seq., for the purpose of procuring and delivering educational services, was required to comply with the provisions of the Procurement Code.
State ex rel. Educ. Assmts. Sys. v. Cooperative Educ. Servs.
, 1993-NMCA-024, 115 N.M. 196, 848 P.2d 1123.
Applicable to municipalities.
— The Procurement Code applies to all nonfederal expenditures by state agencies and local public bodies for the procurement of items of tangible personal property, services, and construction.
Planning & Design Solutions v. City of Santa Fe
, 1994-NMSC-112, 118 N.M. 707, 885 P.2d 628.
The Procurement Code applies to contingent-fee contracts for legal services.
— The proper procedure for expending public funds when a state agency recovers money from a court judgment or settlement, according to Ch. 6, Art. 10 NMSA 1978, generally requires that the recovered money, which belongs to the state agency, should be paid into the state treasury, and any payments of the lawyers' fees from public money should be made pursuant to legislative appropriation and further made upon warrants drawn by the secretary of the department of finance and administration upon the state treasury, but assuming that the state agency or local public body has the constitutional or statutory authority to enter into contingency-fee contracts for legal services, the Procurement Code applies to such agreements, because at the conclusion of a contingent-fee matter, when a lawyer withdraws their fee and any costs from the fund that the lawyer recovers for a state agency or a local public body, the government body makes an "expenditure" for legal services under 13-1-30(A) NMSA 1978, and the Procurement Code applies to every expenditure by state agencies and local public bodies for the procurement of tangible personal property, services, and construction. The application of the Procurement Code to a state agency's or local public body's selection of a contractor providing legal services necessarily includes the Procurement Code's central rule that government contracts be awarded following a competitive, sealed process and also includes several specific safeguards that are designed to deter conflicts of interest, undue influence,
quid pro quo
conduct, and the appearance thereof. 2023 Op. Ethics Comm'n No. 2023-07.
Private non-profit corporations.
— The standard to be applied when determining whether private non-profit corporations that lease hospitals from government entities meet the definition of "local public bodies" under this section and are, therefore, subject to the Procurement Code is whether under the totality of the circumstances the private entity is so intertwined with a public entity that the private entity becomes an alter ego of the public entity.
Memorial Med. Ctr. v. Tatsch Constr., Inc.
, 2000-NMSC-030, 129 N.M. 677, 12 P.3d 431.
The Procurement Code does not prohibit a business significantly owned by a legislator from applying for and receiving federal CARES relief funds.
— The Procurement Code does not prohibit a business significantly owned by a legislator from applying for and receiving federal Coronavirus Aid, Relief, and Economic Security Act (CARES) relief funds, because CARES relief grants do not result in the acquisition of tangible personal property, services or construction. Accordingly, the Procurement Code does not apply to the application for CARES relief grants by a business in which the legislator has an interest. 2021 Op. Ethics Comm'n No. 2021-03.
Agreement to administer deferred compensation program.
— The public employees' retirement board's administrator's agreement with the company provided professional services by administering and marketing the state's deferred compensation program must be let for proposals pursuant to the Procurement Code to the extent the administrator receives as compensation an amount exceeding $20,000, although the administrator's sole compensation under the contract derives from sales commission, etc., from the underwriter. 1987 Op. Att'y Gen. No. 87-35.
Federal law governed state agency on aging's designation of area agencies on aging,
and such agencies need not qualify for sole source status under this article. 1987 Op. Att'y Gen. No. 87-72.
Purchase of computer voting devices.
— Section 1-9-14 NMSA 1978, governing computer voting devices, does not bar application of the Procurement Code to the purchase of internal computers used to record and tabulate votes, and the Procurement Code applies to such machines used for such purposes after November 1, 1984, the effective date of the Procurement Code. 1988 Op. Att'y Gen. No. 88-68.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
64 Am. Jur. 2d Public Works and Contracts §§ 1, 29, 33, 66.
72 C.J.S. Public Contracts §§ 2 to 4, 6 to 8.