13-1-28.  Short title.

Amendment Notes. 

Notes to Decisions

      Generally.

There was nothing in the New Mexico Procurement Code which precluded a disappointed bidder from filing a common law claim against a third party who was alleged to have acted illegally or corrupted the procurement process. Davis & Assocs., Inc. v. Midcon, Inc., 1999-NMCA-047, 127 N.M. 134, 978 P.2d 341, 1999 N.M. App. LEXIS 17 (N.M. Ct. App. 1999).

Procurement Code is prophylactic against favoritism, nepotism, patronage, collusion, fraud, and corruption in the awarding of public contracts. Planning & Design Solutions v. City of Santa Fe, 1994-NMSC-112, 118 N.M. 707, 885 P.2d 628, 1994 N.M. LEXIS 420 (N.M. 1994).

Of all the interests involved in competitive bidding, the public interest is the most important. Planning & Design Solutions v. City of Santa Fe, 1994-NMSC-112, 118 N.M. 707, 885 P.2d 628, 1994 N.M. LEXIS 420 (N.M. 1994).

      Applicability.

Where a successful bidder had protested the plaintiff’s bid and had thereby been awarded the state construction contract, such protest was lawful under the Procurement Code, and the unsuccessful bidder had no right of action against the successful bidder for unjust enrichment. Davis & Assocs., Inc. v. Midcon, Inc., 1999-NMCA-047, 127 N.M. 134, 978 P.2d 341, 1999 N.M. App. LEXIS 17 (N.M. Ct. App. 1999).

Judgment granting contract damages to the vendor was improper because the trial court erroneously used the Procurement Code, to establish jurisdiction over an electric co-op that was neither a state agency nor a local public body. Fratello v. Socorro Elec. Coop., 1988-NMSC-058, 107 N.M. 378, 758 P.2d 792, 1988 N.M. LEXIS 208 (N.M. 1988).

      Compliance.

Where statutes and regulations define the rules of competitive bidding, those statutes and regulations will be construed strictly against the governmental entity that solicits the bids. Planning & Design Solutions v. City of Santa Fe, 1994-NMSC-112, 118 N.M. 707, 885 P.2d 628, 1994 N.M. LEXIS 420 (N.M. 1994).

      Construction with other law.

Deference to administrative discretion is based on judicial respect for separation of powers in government. Planning & Design Solutions v. City of Santa Fe, 1994-NMSC-112, 118 N.M. 707, 885 P.2d 628, 1994 N.M. LEXIS 420 (N.M. 1994).

      Contracts.

Public-works contracts that involve a municipality or municipalities will be interpreted under the same rules that govern contracts that involve private citizens. Planning & Design Solutions v. City of Santa Fe, 1994-NMSC-112, 118 N.M. 707, 885 P.2d 628, 1994 N.M. LEXIS 420 (N.M. 1994).

      Discretion.

Where rules and statutes grant discretion to municipalities to perform specific acts, the Supreme Court of New Mexico will not question those acts without proof of fraud, illegality, collusion, bad faith, arbitrary action, or abuse of power; in other words, it will not substitute judicial discretion for municipal administrative discretion. Planning & Design Solutions v. City of Santa Fe, 1994-NMSC-112, 118 N.M. 707, 885 P.2d 628, 1994 N.M. LEXIS 420 (N.M. 1994).

      Dismissal.

Corporation requested the trial court to declare null and void a school district’s contracts and agreements with a city for both the temporary and permanent water systems, and the trial court dismissed the corporation’s complaints, concluding that there were no violations of the New Mexico Procurement Code, and that the corporation was not entitled to relief. Morningstar Water Users Ass'n v. Farmington Mun. Sch. Dist. No. 5, 1995-NMSC-052, 120 N.M. 307, 901 P.2d 725, 1995 N.M. LEXIS 268 (N.M. 1995).

      Mandamus.

Trial court’s judgment that denied a bidder’s application for a writ of mandamus in connection to an award of a public work’s contract was affirmed; the New Mexico department of finance and administration and officials did not abuse their discretion in making the contract award based upon consideration of the lowest bid and the applicant’s compliance with the bid requirements. State ex rel. KNC, Inc. v. New Mexico Dep't of Fin. & Admin., Property Control Div., 1985-NMCA-057, 103 N.M. 167, 704 P.2d 79, 1985 N.M. App. LEXIS 576 (N.M. Ct. App. 1985).

      Public entity.

County hospital lessee was improperly found to be subject to the Public Works Minimum Wage Act and the Procurement Code. The applicable standard for determining whether private non-profit corporations that leased hospitals from government entities met the definition of “political subdivision” or “local public body,” was whether under the totality of the circumstances the private entity was so intertwined with a public entity that the private entity became an alter ego of the public entity. Memorial Med. Ctr. v. Tatsch Constr., Inc., 2000-NMSC-030, 2000-NMSC-030, 129 N.M. 677, 12 P.3d 431, 2000 N.M. LEXIS 386 (N.M. 2000).

OPINIONS OF ATTORNEY GENERAL

Analysis

      Applicability.

Section 1-9-14 NMSA 1978 does not bar application of the Procurement Code, to the purchase of internal computers used to record and tabulate votes. 1988 N.M. Op. Att'y Gen. No. 88-68, 1988 N.M. AG LEXIS 77.

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. The attorney general could not answer whether the initial purchase of such a manual in the amount of $400 requires any public bidding procedure, and whether subsequent purchases which may amount to more than $1,000 must be publicly bid given that the item being purchased is, on its face, unique and available from only one source, without examining the contract. No other statutory provisions affect, limit, or prohibit the transaction contemplated. 1988 N.M. Op. Att'y Gen. No. 88-42, 1988 N.M. AG LEXIS 41.

The acquisition of items of tangible personal property, services and construction by a local public body is governed by the Procurement Code. 1986 Attorney General Advisory Letter No. 86-04,  1986 N.M. AG LEXIS 8.

A state agency or local public body would expend money in adopting the cafeteria plan, under which participating employees are provided the opportunity to select certain non-taxable benefits and implementation of which requires the services of an insurer to issue insurance policies under the plan and an administrator to administer the plan on behalf of the employer. and the services provided thereunder, and therefore, consideration of the plan by a state entity or local public body would be governed by the provisions of the Procurement Code. 1986 Attorney General Advisory Letter No. 86-03,  1986 N.M. AG LEXIS 7.

The Procurement Code’s application with respect to certain Middle Rio Grande conservancy district employment contracts for the positions of secretary treasurer, engineer, general manager and attorney depends in each instance upon whether the district hires these individuals as employees or independent contractors when exercising their authority under  73-14-35B NMSA 1978. 1985 Attorney General Advisory Letter No. 85-01,  1985 N.M. AG LEXIS 10.

      Authority of legislature to accept services from nonprofit corporations.

There is no impediment to the legislature’s accepting staff support services for interim activities from a nonprofit corporation as long as the nonprofit corporation does not attempt to contribute funds directly to the legislature and the provision of staff support services by contract is consistent with the requirements of the New Mexico Procurement Code. If staff services were to be contributed in the form of a gift, however, the conflict of interest laws would have to be carefully scrutinized. 1985 N.M. Op. Att'y Gen. No. 85-2, 1985 N.M. AG LEXIS 7.

      Authority of local public body to trade equipment.

A local public body can trade its present equipment to a non-public entity for equipment of equal or greater value if it follows the appropriate procedures found in the Procurement Code. 1986 Attorney General Advisory Letter No. 86-04,  1986 N.M. AG LEXIS 8.