Current through Register Vol. 35, No. 18, September 24, 2024
A. Overview: This
section applies to chief procurement officers in all state agencies and local
public bodies.
(1) Statutory Authority. Under
Section
9-17-5
NMSA 1978 and the Procurement Code, Sections 13-1-1 et seq NMSA 1978, the
general services secretary has authority to promulgate rules and regulations
relating to this program.
(2)
Scope. The chief procurement officer registration, certification and
recertification training program is a state wide program administered by the
state purchasing agent. Each state agency and local public body shall provide
to the state purchasing agent the name of and all changes to 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. The state purchasing agent shall maintain a list of the names of chief
procurement officers reported to the state purchasing agent by state agencies
and local public bodies. The state purchasing agent shall make the list of
approved chief procurement officers available to the public through the web
site of the purchasing division of the general services department and in any
other appropriate form. It is a violation of statute if state agencies and
local public bodies do not have a chief procurement officer listed on the state
purchasing agent list before performing procurements. Section
13-1-98
NMSA 1978 shall not reduce the scope of duties, responsibilities or authority
of the state purchasing agent, nor shall such exemptions exclude state agencies
and local public bodies from the duties and responsibilities of providing the
state purchasing agent the name of its certified chief procurement officer. All
state agencies and local public bodies and their certified chief procurement
officers are required to comply with all requirements under Sections
13-1-28
through
13-1-199
NMSA 1978 (amended 2013).
B. Definitions:
(1)
"Approves" or "approved"
means a chief procurement officer has successfully completed the certification
or recertification training program administered by the state purchasing agent
and attested to by the issuance of a certificate signed by the state purchasing
agent.
(2)
"Conduct" or
"conducting" procurements means the act of preparing, advertising,
processing, and awarding procurements of any kind, including, but not limited
to, sole source, invitation to bid, request for proposals, and contracts under
state price agreements.
(3)
"Certification program" means the initial certification process
through passing an exam after completing course material and a test approved by
the general services secretary.
(4)
"Recertification program" means training that will include
affirmation of successfully completing course material approved by the general
services secretary.
C.
Mandatory identification of certified chief procurement officer: Each state
agency and local public body shall annually, on or before January 1st of each
year, and within 15 calendar days every time thereafter upon a vacancy or
extended absence of a certified chief procurement officer for more than two
weeks, provide to the state purchasing agent the name of the state agency or
local public body certified chief procurement officer and, if applicable,
information identifying the state agency or local public body central
purchasing office. Every state agency or local public body shall have a
certified chief procurement officer on the state purchasing agent list to
perform procurments. No agency shall conduct procurements until a certified
chief procurement officer is approved by the state purchasing agent. Upon a
vacancy or absence, the state agency or local public body shall have 90 days to
replace its certified chief procurement officer. In the event the initial 90
day period is to be exceeded, and upon good cause shown, to the satisfaction of
the state purchasing agent, an additional 90 days may be granted to the state
agency or local public body by the state purchasing agent to replace its
certified chief procurement officer. Examples of good cause would include
vacancies due to emergencies, death or resignation of a certified chief
procurement officer. Until a certified chief procurement officer is reported to
the state purchasing agent no procurements may be conducted and no duties,
responsibilities, and obligations may be performed as detailed in Subsection F
of 1.4.1.94 NMAC unless granted temporary authority by the state purchasing
agent.
D. Registration of chief
procurement officer with state purchasing agent: Each state agency or local
public body is responsible for registering its chief procurement officer and
ensuring the information on the state purchasing division website is current
and correct. The certified chief procurement officer, that has been reported by
the state agency or local public body to the state purchasing agent as provided
in Subsection C of 1.4.1.94 NMAC above, shall register with the state
purchasing agent through the state purchasing division's website. The state
agency or local public body shall provide all the required identification
information, including:
(1) certified chief
procurement officer name with title, phone number and email address;
(2) agency or entity name with full address
and registration date.
At the time of registering for the certification or
recertification program, the applicant shall execute a statement of personal
responsibility affirming:
(a) the
applicant is a current employee of a state agency or local public body and not
employed as an independent contractor;
(b) the applicant has not been convicted of a
felony unless pardoned by the governor; and
(c) any additional required information
specified by the state purchasing agent.
E. Chief procurement officer certification:
The state purchasing agent shall establish a certification and recertification
program for all chief procurement officers including the initial certification,
and recertification every two years, on or before the certification anniversary
date for each certified chief procurement officer. In order to be certified or
recertified, a chief procurement officer shall remain an employee of the state
agency or local public body, must not be convicted of a felony or behavior
unbecoming of a chief procurement officer with a record of performance that
establishes good moral character and competency, and shall obtain such training
as deemed appropriate by the secretary of the general services department and
pass a certification or recertification program, as appropriate, approved by
the secretary of the general services department. Subject to the provisions of
subsection J, the state purchasing agent may revoke a certification if shown
that the chief procurement officer has not maintained the standards for a chief
procurement officer. The secretary of the general services department reserves
the right to add separate certifications and recertifications of specialized
acquisitions under the procurement code as are deemed necessary or useful by
the secretary.
F. Certified chief
procurement officer duties, responsibilities and obligations: On and after July
1, 2015, only certified chief procurement officers may do the following, except
that persons using procurement cards may continue to issue purchase orders and
authorize small purchases:
(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.
G. Failure to identify and register a
certified chief procurement officer: In the event that the state agency or
local public body does not have a certified chief procurement officer
identified and registered in conformance with Section
13-1-95.2
NMSA 1978, pursuant to Section
13-1-97
NMSA 1978, procurement acts by that state agency or local public body may be
suspended at the discretion of the state purchasing agent.
H. Identification, registration and
certification violations: Any procurement act performed by a state agency or
local public body under the New Mexico procurement code that has not identified
and registered its certified chief procurement officer in conformance with
Section
13-1-95.2
NMSA 1978, may be deemed a procurement violation. For state agencies, such
procurement violation(s) may also result in a violation of the department of
finance and administration's Model Accounting Practices.
I. Delegation or sharing of certified chief
procurement officer duties: The sharing of a certified chief procurement
officer through mutual execution of a memorandum of agreement by the state
agency (agencies) or local public body(bodies) is allowed. A state agency or
local public body wanting to delegate or share a certified chief procurement
officer with another state agency or local public body shall: provide to the
state purchasing agent for such sharing arrangement, information identifying
the state agency or local public body central purchasing office, the name of
the state agency or local public body shared certified chief procurement
officer and the intergovernmental agreement supporting the arrangement. Chief
procurement officers may only be employees of the state or a local public body
and may not be third parties or temporary employees exept as otherwise provided
in this subsection.
J. Revocation
or suspension of certification:
(1) The state
purchasing agent may suspend or revoke certified chief procurement officer
certification in whole or in part, based on any action or conduct deemed
improper of a certified chief procurement officer, including but not limited to
severity or frequency of procurement violations, non-compliance with the
Governmental Conduct Act (Sections
10-16-1
through
10-16-18
NMSA 1978), lack of verification that the chief procurement officer has
successfully completed the certification or recertification program established
by the state purchasing agent; lack of verification of current employement by
the reporting state agency or local public body and not employed as an
independent contractor; lack of verification that the person has not been
convicted of a felony and behavior unbecoming of a chief procurement officer
with a record of performance that establishes competency.
(2) Due process procedures shall be initiated
by the state purchasing agent after reasonable notice to the certified chief
procurement officer involved as follows in this section. The state purchasing
agent or his designee shall cause written notice of the proposed revocation or
suspension of certification (the Action) to be sent by certified mail, return
receipt requested, to the certified chief procurement officer involved. The
notice shall contain the following statements:
(a) the action contemplated is for revocation
or suspension of certified chief procurement officer certification;
(b) the reasons for the action, which shall
include a summary of the certified chief procurement officer's conduct or
performance/nonperformance of his duties to which the action relates;
(c) the action is brought pursuant to the
provisions contained in Section
13-1-95.2
NMSA 1978 and the regulations promulgated thereunder;
(d) sufficient facts exist, unless rebutted,
to support the proposed revocation or suspension of certification and that the
state purchasing agent shall proceed to suspend or revoke certified chief
procurement officer certification in whole or in part unless the certified
chief procurement officer requests, in writing, a hearing within 15 consecutive
calendar days from the day the certified chief procurement officer receives the
notice of the proposed action;
(e)
the address where the certified chief procurement officer's request for hearing
shall be sent, and the name of the person to whom the request shall be sent;
and
(f) that if the certified chief
procurement officer fails to deliver a written request for a hearing to the
person designated within the 15 days required in Subparagraph (d) of this
Section, a final determination shall be made by the state purchasing
agent;
(g) upon receipt of a timely
request for hearing, the state purchasing agent will appoint a neutral hearing
officer and any such hearing officer so appointed will conduct the hearing and
recommend a final decision to the state purchasing agent. If no hearing officer
can be appointed in timely fashion, the state purchasing agent shall then act
as the hearing officer.
(3) If a hearing is requested, the hearing
officer shall send written notice to the certified chief procurement officer of
the time and the place of the hearing.
(4) Hearings, and any subsequent appeals,
shall conform to the standards, requirements, and process set forth for
protests under the procurement code, Sections
13-1-28
thru 13-1-199 NMSA 1978, and be as informal as may be reasonable and
appropriate under the circumstances. However, in no event shall the hearing
officer be required to adhere to formal rules of evidence or procedure. The
weight to be attached to evidence presented in any particular form will be
within the discretion of the hearing officer. Stipulations of fact agreed upon
by the participants may be regarded and used as evidence at the hearing. The
participants may stipulate the testimony that would be given by a witness as if
the witness were present. The hearing officer may require evidence in addition
to that offered by the participants. The state purchasing agent shall issue a
written determination regarding revocation or suspension of certification
following the hearing.
K. Reinstatement of certification:
(1) The state purchasing agent may reinstate
the certified chief procurement officer certification:
(a) in whole or in part;
(b) temporarily or permanently; or
(c) may limit the scope of duties as the
state purchasing agent deems appropriate.
(2) The state purchasing agent may require
successful completion of re-certificaton or proof of eligibility as a
pre-condition for reinstatement. This may include successful completion of the
certification program or recertification program.
(3) The state purchasing agent reserves the
right to adopt additional remedies into the program as deemed
appropriate.
L.
Coordination by the state purchasing agent: The state purchasing agent may
coordinate with the department of finance and administration regarding the
reporting of decisions and actions under this section for state agencies, and
with the local government division of the department of finance and
administration for local public bodies.
M. Policies from the state purchasing agent:
The state purchasing agent reserves the right to implement further policies to
give full effect to the certified chief procurement officer statutes and this
rule as required and necessary.
N.
Limitations: Nothing in these rules shall be deemed to be a limit on the
authority of the state purchasing agent to enact the purpose of these rules,
nor a limit on other legal liability of certified chief procurement officer for
their action or conduct.
