Gallup State Veterans Cemetary Site Rehabilitation

PROCUREMENT # 71-35000-26-08804

INVITATION TO BID CONSTRUCTION CONTRACT

STATE OF NEW MEXICO

General Services Department

BID DUE DATE: October 13, 2026 TIME: 2:00pm

Procurement Specialist: Danette Medrano Contact Number: (505) 690-3578 Contact Email: danette.medrano@gsd.nm.gov

AGENCY (OWNER)/POINT OF CONTACT:

Name: Gabriela Flores Phone: 505-613-0373 E-mail: gabriela.flores@gsd.nm.gov

ARCHITECT/ENGINEER OF RECORD:

Name: Bohannan Huston Address: 7500 Jefferson St NE City, State, Zip Code: Albuquerque, NM 87109 Phone: 505-798-7945 E-mail: ypadilla@bhinc.com

Table of Contents

Instructions to Agency/User of ITB for Contraction Template

· Agency/User is responsible for completing all areas highlighted in green

· Agency/User is responsible for inserting all required documents as well as updating the index above and ensuring template formatting is correct

· Agency/User must ensure Times New Roman font in 12pt is used when completing highlighted green fields.

· Agency/User must insert pages numbers and ensure table of contents is accurate on draft submittal.

· SPD Buyer is responsible for completing all areas highlighted in blue.

· SPD buyer will ensure page numbers are correct and that the INDEX above has been updated once all information has been inserted by the Agency.

· SPD Buyer will remove this Text Box prior to Final Draft being completed.

· Yellow highlights remain on template.

SECTION 1 - INVITATION TO BID

1. INTRODUCTION

A. PURPOSE OF THIS INVITATION TO BID

The purpose of the Invitation to Bid (ITB) is to solicit sealed bids to establish a contract through competitive negotiations for the procurement of construction services for the removal and reconstruction of the damaged infrastructure located at the Gallup State Veterans Cemetery in Gallup, New Mexico.

B. SCOPE OF PROCUREMENT

Licensed geotechnical and civil engineers, in coordination with a landscape architect, have developed mitigation recommendations to address the identified site deficiencies and achieve the project objectives. Construction documents and supporting memorandums have been prepared to facilitate the removal of the existing infrastructure and the installation of replacement improvements in accordance with these recommendations.

The work includes:

· Removal and replacement of unsuitable subgrade materials;

· Removal and reconstruction of concrete improvements, including curbs, gutters, and flatwork;

· Removal and replacement of pavement sections impacted by settlement;

· Installation and/or modification of drainage infrastructure to improve site drainage performance;

· Regrading of the site as necessary to establish positive drainage;

· Replacement of turf, landscaping, and irrigation systems as specified by the construction documents.

All work shall be completed in accordance with the approved plans and specifications to restore site stability, improve drainage, and ensure the long-term safety and usability of the Gallup State Veterans Cemetery.

C.TERM

The term in the resulting may be up to four years.

This ITB will result in a single award.

This ITB will result in a contractual agreement between two parties; the procurement may ONLY be used by those two parties exclusively.

STATE PURCHASING DIVISION (GSD)

(505) 827-0472

BIDDER:

Name:

Address:

City, State, Zip Code:

Attn:

Phone:

E-mail:

C. INVITATION TO BID

CONSTRUCTION CONTRACT

PROCUREMENT NUMBER: 71-35000-26-08804

Sealed bid opening FORMAL

NM STATE PURCHASING DIVISION

PROJECT NAME: GALLUP STATE VETERANS CEMETARY SITE REHABILITATION

BID DUE DATE: October 13, 2026 TIME: 2:00pm

Procurement Specialist: Danette Medrano Contact Number: (505) 690-3578 Contact Email: danette.medrano@gsd.nm.gov

ARCHITECT/ENGINEER OF RECORD:

Name: Bohannan Huston Address: 7500 Jefferson St NE City, State, Zip Code: Albuquerque, NM 87109 Phone: 505-798-7945 E-mail: ypadilla@bhinc.com

IMPORTANT

Only Electronically submitted bids will be accepted. No hand-carried, mailed, carrier delivered, emailed, or faxed bids will be accepted.

AGENCY (OWNER)/POINT OF CONTACT:

Name: Gabriela Flores Phone: 505-613-0373 E-mail: gabriela.flores@gsd.nm.gov

Bids must be submitted electronically, via eProNM only. Please see Bid Submission Instructions on page 6.

Bids are subject to the “Terms and Conditions,” shown on the attached pages of this document, and any additional bidding instructions or requirements. The Terms and Conditions shall not be modified or supplemented.

NOTE: if you decide not to bid, do not return this document.

A business eligible for a New Mexico/Native American Resident Preference (Preference) must obtain a Preference certificate from the NM Taxation & Revenue Department. In order for the appropriate Preference to be applied to this solicitation, the expenditure for this solicitation cannot involve federal funds, and Bidder must submit a copy of its Preference certificate along with its response to the solicitation. Applicable Preferences will be applied to monetary values only, in accordance with §13-1-21 NMSA 1978, not percentage discounts or other non-monetary values. Additionally, only one submitted Preference will be applied per solicitation, not multiple. Applications are available for download at: http://www.tax.newmexico.gov/Businesses/in-state-veteran-preference-certification.aspx

Technical Online Bidding Questions:

(505) 795-1894 or (800) 233-1121 or you can contact the buyer listed on the ITB front page.

Bidder Instructions for Invitation to Bid (ITB) Viewing ITB:

1. Bidders can access active procurements at the following sites:

0. https://www.generalservices.state.nm.us/statepurchasing/active-procurements.aspx

0. https://bids.sciquest.com/apps/Router/PublicEvent?CustomerOrg=StateOfNewMexico

1. Complete bid documents as required by the ITB Specifications, and submit any required documentation, supporting materials, certificates, etc. in addition to the bid documents.

Submitting Bids:

Complete bid documents as required by the ITB Specifications, and submit any required documentation, supporting materials, certificates, etc. in addition to the bid documents.

· Electronic submissions through eProNM at the following site: https://bids.sciquest.com/apps/Router/PublicEvent?CustomerOrg=StateOfNewMexico Bids will be time-stamped in the system when Bidder clicks “OK” after “Review and Submit.” Such electronic submissions will be considered sealed bids in accordance with statute.

If an amendment is processed after bid is submitted, Bidders must resubmit their bid in order for it to be considered fully submitted. Note: It is the responsibility of the Bidder to ensure bids are correct and accurate before submission. By bidding electronically, you acknowledge any and all amendments and it is your responsibility to ensure your bid corresponds with any amendments.

It is the Bidder’s responsibility to ensure all documents are completely uploaded and submitted electronically via the eProNM system by the deadline set forth in this ITB. The eProNM system will automatically cease uploading data at the date and time of the deadline. Please ensure that you, as the Bidder, allow adequate time for large uploads and to fully complete your submittal by the deadline. A submission that is not both: (1) fully complete; and (2) received, via the eProNM system by the deadline, will be deemed late. Further, a submission that is not fully complete and received via the eProNM system by the deadline because the response was captured, blocked, filtered, quarantined or otherwise prevented from reaching the proper destination server by any anti-virus or other security software will be deemed late. In accordance with statute and rule, NO LATE BID CAN BE ACCEPTED.

Bid Opening:

Sealed bids will be publicly opened online via Microsoft Teams. Bids are subject to the “Terms and Conditions,” shown on the subsequent pages of this document, and any additional bidding instructions or requirements. NOTE: if you decide not to bid, do not return this ITB document.

https://teams.microsoft.com/l/meetup-join/19%3ameeting_Y2IyZTlhMjEtYWZlYS00Nzc4LThjOWQtMGI3MWQxMWNlMzhk%40thread.v2/0?context=%7b%22Tid%22%3a%2204aa6bf4-d436-426f-bfa4-04b7a70e60ff%22%2c%22Oid%22%3a%2251de2250-9e0b-4237-b5ee-d3e9e1e586fc%22%7d Meeting ID: 210 089 867 732

Passcode: 4W2kXN Download Teams | Join on the web Or call in (audio only) +1 505-312-4308,,45609571# United States, Albuquerque Phone Conference ID: 456 095 71#

THIS BID IS SUBJECT TO THE REQUIREMENTS OF THE BIDDING DOCUMENTS AS DEFINED IN THE "INSTRUCTIONS TO BIDDERS.”

THE BID FORM MUST BE ACCOMPANIED BY A SURETY BOND, SUBCONTRACTOR LISTING FORM, AND DOCUMENTS SPECIFIED IN THE "INSTRUCTIONS TO BIDDERS."

Bidding Documents: Bidding documents, plans, specifications, drawings etc. may be obtained from the Architect of Record. Incomplete sets will not be issued.

Bidding Documents may be obtained / reviewed at the following locations:

ARCHITECT/ENGINEER OF RECORD

Name: Bohannan Huston Address: 7500 Jefferson St NE City, State, Zip Code: Albuquerque, NM 87109 Phone: 505-823-1000 E-mail: ypadilla@bhinc.com

LINK TO BIDDING DOCUMENTS’ PLAN ROOM:

https://sfspublic.bhinc.com/?tk=TKypadillaD382026105539

The Bidding Documents contain a time for completion of the work and further impose liquidated damages for failure to complete the work within that time period.

Bids shall be presented in the form of a total Base Bid under a Lump Sum Contract plus any additive or deductive alternates that are selected by the Owner. A bid must be submitted on all bid items and alternates; segregated bids will not be accepted.

NOTE: Base Bid price shall not include state gross receipts or local options taxes. Taxes will be included in the Contracted Amount at prevailing rates as a separate item to be paid by Owner.

The submission of a Bid will constitute an incontrovertible representation by the Bidder that the Bidding Documents are sufficient in scope and detail to indicate and convey understanding of all terms and conditions for performance of the Work.

In submitting this bid, each Bidder must satisfy all terms and conditions of the Bidding Documents. No Bidder may withdraw his bid for 120 DAYS after the actual date of the opening thereof.

Wage Rates & Workforce Solutions Registration: Pursuant to the Public Works Minimum Wage Act, Section 13-4-10 to 13-4-17 NMSA 1978, all work covered by this Invitation to Bid shall be in accordance with applicable state laws and, if the bid amount is sixty thousand dollars ($60,000) or more, is subject to the minimum wage rate determination issued by the New Mexico Department of Workforce Solutions, Labor Relations Division, Public Works Unit. Section 13-4-13.1 requires Contractors when their bid is over $60,000 and subcontractors of all tiers when their portion of the work is over $60,000, to be registered with the Labor Relations Division of the Department of Solutions. This registration is available under the “Contractor Registration” section at the following website:

http://www.dws.state.nm.us/LaborRelations/LaborInformation/PublicWorks

There may be some administrative delay in processing your registration. Pursuant to Section 13-4-13.1 NMSA 1978, the State Purchasing Division cannot accept your bid if you are not registered at the time of bid opening.

Please direct all questions concerning registration to DWS at (505) 841-4400.

A completed Subcontractor Listing Form must accompany each bid.

Bonds: Bid Security

Bid security shall be required of bidders or offerors for construction contracts when the price is estimated by the procurement officer to exceed twenty-five thousand dollars ($25,000). Bid security in an amount equal to at least five percent of the amount of the bid shall be a bond provided by a surety company authorized to do business in this state and listed in the United States Treasury Department circular 570. The equivalent in cash or otherwise supplied in a form satisfactory to the State Purchasing Agent may be substituted with prior written permission from the State Purchasing Agent and received by the State Purchasing Agent prior to submission of bid for the bidder or offeror to be considered responsive.

A 100% Performance Bond and a 100% Payment and Materials Bond for the total contract amount, including appropriate New Mexico Gross Receipts Tax, executed by a surety company authorized to do business in the state of New Mexico and listed in the United States Treasury Department circular 570. shall be required from the successful Bidder prior to award of contract. A subcontractor shall provide performance and payment bonds if the subcontractor’s contract (to the Contractor) for work to be performed is $125,000 or more. Failure of a subcontractor to provide the required bonds shall not subject owner to any increase in cost due to approved substitution of subcontractor.

A Mandatory Pre-Bid Meeting will be held as follows:

DATE: September 24, 2026

TIME: 11:00am

LOCATION: 333 National Cemetery Dr. Gallup, New Mexico 87305

POINT OF CONTACT: Gabriela Flores

SEE APPENDIX A - D Appendices (page 89), as they must be included with Submittal by Agency.

· DEFINITIONS

· DETAILED SCOPE OF WORK

· SPECIFICATIONS/DELIVERABLES

· WAGE RATE DECISION

END OF INVITATION TO BID

SECTION 2 - INSTRUCTIONS TO BIDDERS

1.0 ITB DEFINITIONS AND TERMS

1.1 Terms used in these Bidding Documents which are defined in the Instructions to Bidders and in the Conditions of the Contract for Construction (General, Supplementary, and Other Conditions) have the meanings assigned to them in those documents.

A. ADDENDUM/(AMENDMENT): A written or graphic instrument issued prior to the opening of Bids which clarifies, corrects, or changes the Bidding Documents or Contract Documents. Plural: addenda.

B. ALTERNATE BID: Amount stated in the Bid as the sum to be added from the amount of the Base Bid if the corresponding change in the project scope, materials, and/or methods of construction is awarded by the Owner.

C. BASE BID: Amount stated in the Bid as the sum for which the Bidder intends to perform the work, excluding alternate Bids.

D. BID: The offer of the bidder submitted on the prescribed form setting forth the prices for the work to be performed in conformance with the Bidding Documents.

E. BID LOT: A major item of work for which a separate bid or proposal is requested.

F. BIDDER: One who submits a Bid directly to the Owner, as distinct from a subcontractor who submits a bid to a contractor.

G. BIDDING DOCUMENTS: The entire document and the draft contract documents.

H. BID FORM: 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.

I. BIDDING REQUIRED DOCUMENTS: To include: Notice of Invitation to Bid, Prebid Information, Instructions to Bidders, Information Available for Bidders, the Bid Form, Supplements to the Bid Form, and portions of Addenda relating to any of these, any other documents as listed in the Invitation to Bid.

J. INVITATION FOR BID: All documents including those attached or incorporated by reference or utilized for soliciting sealed bids.

K. RESPONSIBLE BIDDER: A Bidder who submits a Responsive Bid and who has furnished, when required, information and data to prove that his financial resources, production or service facilities, personnel, service reputation, and experience are adequate to make satisfactory delivery of the services, construction, or items of tangible personal property described in the Invitation for Bid.

L. RESPONSIVE BID: A bid which conforms in all material respects to the requirements set forth in the Invitation for Bid.

M. SUCCESSFUL BIDDER: The lowest Responsible Bidder to whom the Owner, on the basis of the Owner's evaluation, makes an award. A Successful Bidder does not become the contractor until an agreement with the Owner is signed.

2.0 EXAMINATION OF BIDDING DOCUMENTS AND PROJECT SITE

2.1 Before submitting a Bid, each Bidder should:

A. Examine the Bidding Documents thoroughly.

B. Visit the Project site to familiarize himself with local conditions that may in any manner affect cost, progress, or performance.

C. Familiarize himself with Federal, State, and local laws, ordinances, rules, and regulations that may in any manner affect cost, progress, or performance of the work; and

D. Study and carefully correlate the Bidder's observations with the Bidding Documents.

2.2 On request, the Owner will provide each Bidder access to the project site to conduct such investigations and tests as each Bidder deems necessary for submission of his Bid.

2.3 The lands upon which the Work is to be performed, rights‑of‑way for access thereto, and other lands designated for use by the Contractor in performing the work are identified in the Bidding Documents.

2.4 The submission of a Bid will constitute an incontrovertible representation by the Bidder that the Bidding Documents are sufficient in scope and detail to indicate and convey understanding of all terms and conditions for performance of the Work.

3.0 BIDDING DOCUMENTS

3.1 COPIES OF BIDDING DOCUMENTS

3.1.1 Complete sets of the Bidding Documents in the number and for the deposit sum, if any, stated in the Invitation may be obtained from the Architect/Engineer, Agency or Plan Room (unless another issuing office is designated in the Invitation for Bid). The deposit will be refunded to Bidders who submit a bona‑fide bid and return the bidding Documents in good and complete condition within fifteen (15) calendar days after opening of Bids.

3.1.2 Complete sets of Bidding Documents shall be used in preparing bids; neither the Owner nor the Architect/Engineer assumes responsibility for errors or misinterpretations resulting from the use of incomplete sets of Bidding Documents.

3.1.3 The Owner and the Architect/Engineer, in making copies of Bidding Documents available on the above terms, do so only for the purpose of obtaining Bids on the project and do not confer a license or grant for any other use.

3.2 INTERPRETATIONS

3.2.1 All questions about the meaning or intent of the Bidding Documents shall be submitted to the Procurement Specialist/Buyer in writing. Replies will be issued by Addenda. Questions received less than ten (10) days prior to the date for opening of Bids will not be answered. Only questions answered by formal written Addenda will be binding. Oral and other interpretations or clarifications will be without legal effect.

3.2.2 Bidders and Subcontractors shall promptly notify the SPD buyer of any ambiguity, inconsistency, or error which they may discover upon examination of the Bidding Documents or of the site and local conditions.

3.3 SUBSTITUTE MATERIAL AND EQUIPMENT

The contract, if awarded, will be on the basis of material and equipment described in the Drawings or specified in the Specifications without consideration of possible substitute or "or‑equal" items. Whenever it is indicated in the Drawings or specified in the Specifications that a substitute or "or‑equal" item of material or equipment may be furnished or used by the contractor if acceptable to the Architect/Engineer, application for such acceptance will not be considered by the Architect/Engineer unless submitted to the Architect/Engineer at least ten (10) days prior to the date for opening Bids. Any allowance of substitutions will be published to all prospective Bidders via addendum. The procedure for submittal of any such application by the Contractor and consideration by the Architect/Engineer is set forth in the Contract Documents.

3.4 ADDENDA (AMENDMENT)

3.4.1 Addenda/amendment will be issued by NM State Purchasing Division on their webpage.

3.4.2 Copies of Addenda/Amendment will be made available for inspection wherever Bidding Documents are on file for that purpose.

3.4.3 Addenda/Amendment may be made up to the date for receipt of Bids.

4.0 BIDDING PROCEDURES

4.1 FORM AND STYLE OF BIDS

4.1.1 Bids shall be submitted on forms identical to the form included with the Bidding Documents.

4.1.2 All blanks on the Bid Form shall be filled in.

4.1.3 Where so indicated by the makeup of the Bid Form, sums shall be expressed in both words and figures, and, in case of discrepancy between the two, the amount written in words shall govern.

4.1.4 All requested Additive or Deductive Alternate Bids shall be bid. If no change in the Base Bid is required, enter "No Change."

4.1.5 Each copy of the bid shall include the complete name of the Bidder and a statement that the Bidder is a sole proprietor, a partnership, a corporation, or some other legal entity. Each copy shall be signed by the person or persons legally authorized to bind the Bidder to a contract. A Bid by a corporation shall further give the state of incorporation and have the applicable New Mexico Certificate of Incorporation number or Certificate of Authority number. The Bid shall include the current contractor's license number and type, and the current Contractor's preference number. A bid submitted by an agent shall have a current Power of Attorney attached certifying the agent's authority to bind the Bidder.

4.1.6 The Bid shall contain an acknowledgment of receipt of all Addenda (the numbers of which shall be filled in on the Bid Form).

4.1.7 The address to which communications regarding the Bid are to be directed must be shown.

4.2 BID SECURITY (BID BOND)

4.2.1 Bid security in an amount equal to at least five percent (5%) of the amount of the Bid shall be a bond provided by a surety company authorized to do business in this New Mexico, or the equivalent in a cashier's check, or otherwise supplied in a form satisfactory to the Owner (Section 13‑1‑146, NMSA 1978) and approved in writing by the Owner in advance. All Bonds shall be executed by such sureties as are named in the current list of "Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies," as published in Circular 570 (amended) by the Audit Staff Bureau of Accounts, United States Treasury Department.

4.2.3 The Owner will have the right to retain the bid security of Bidders to whom an award is being considered until either:

A. The Contract has been executed and bonds have been furnished, B. The specified time has elapsed so that Bids may be withdrawn, or

C. All Bids have been rejected.

4.2.4 When the Bidding Documents require bid security, noncompliance by the Bidder requires that the Bid be rejected (13‑1‑147A, NMSA 1978).

4.2.5 If a Bidder is permitted to withdraw his Bid before award, no action shall take place against the Bidder or the bid security (13‑1‑147B, NMSA 1978).

4.2.6 The Owner may reduce bid security requirements authorized by the Procurement Code (13‑1‑28 to 13‑1‑199, NMSA 1978) to encourage procurement from small businesses. Reduction, if any, and the manner thereof will be stipulated in Paragraph 7. Reduction of the amount of bid security, if any, shall in no way reduce requirements for Performance, Payment, or other Bonds referenced in the Bidding Documents.

4.3 PREBID MEETING

4.3.1 The Agency may elect to conduct a Pre-bid Conference prior to the bid opening date stated in the Invitation to Bid

4.3.2 The Architect/Engineer of Record and his consultants, as applicable, shall be represented. Prospective Bidders, Prospective Subcontractors, and Prospective Vendors/Suppliers are encouraged to attend and should be prepared to ask questions regarding substitutions. The failure of a potential bidder, vendor/supplier to attend a mandatory prebid meeting prohibits them from submitting a bid response.

4.3.3 Questions and requests for clarification are to be presented in written form. Responses will be written and issued as Addenda. No verbal response shall be binding. Failure to submit questions regarding the specifications, scope of work or any bid document, shall be interpreted to mean that the bidding Documents are clear and acceptable to all nonparticipants at the Pre-bid Conference. Such clarity and acceptability shall be presumed with respect to all Bidders.

4.4 RESIDENT CONTRACTOR AND RESIDENT VETERAN CONTRACTOR'S PREFERENCE AND NATIVE AMERICAN PREFERENCE (if federal funds are utilized indicate that the preferences will not be considered due to the use of federal funds)

4.4.1 When Bids are received from nonresident contractors and resident contractors and the lowest responsible Bid is from a nonresident contractor, the contract shall be awarded to the resident contractor whose Bid is nearest to the bid price of the otherwise low nonresident contractor if the Bid price of the resident contractor is made lower than the Bid price of the nonresident contractor when multiplied by a factor of ninety-five one-hundredths.

4.4.2 No contractor shall be treated as a resident contractor in the awarding of public works contracts by the Owner unless the contractor has attached to the bid package a valid Certificate proving that the contractor and/or business is qualified with the State Tax and Revenue Department as a resident contractor or business pursuant to NMSA 13-1-21. The procedure for application and certification can be found at the State Taxation and Revenue website www.tax.newmexico.gov .

4.4.3 For all Resident Preference the certification Form from TRD must accompany the ITB Bid Form. The procedure for application and certification can be found at the State Taxation and Revenue website www.tax.newmexico.gov . Additionally, the Resident Veteran’s Preference Certification must accompany the Bid form. It will be used to determine the preference percentage that is applied to the Base Bid. The Resident Veteran Preference and the Resident Preference AND Native American Resident Preference will not be a combined percentage. The higher of the two will be applied for evaluation purposes only.

4.5 Preferences must be valid at time of bid in order to be considered.

4.6 SUBCONTRACTORS

4.6.1 The bidder shall list the Subcontractors he proposes to use for all trades or items on the Subcontractor Listing Form attached to the Bidding Documents. Pursuant to Chapter 18, Laws of 1988, 2nd Session; as follows:

AN ACT

Relating to construction industries; enacting the subcontractor fair practices act.

Be it enacted by the legislature of the state of New Mexico:

13-4-31. Short title.

Sections 1 through 12 [13-4-31 to 13-4-42 NMSA 1978] of this act may be cited as the "Subcontractors Fair Practices Act".

History: Laws 1988, ch. 18, § 1.

ANNOTATIONS

Meaning of "this act". — The term "this act" refers to Laws 1988, Chapter 18, §§ 1 to 12 of which appears as 13-4-31 to 13-4-42 NMSA 1978. Section 13 of Laws 1988, Chapter 18 appears as 13-4-43 NMSA 1978.

13-4-32. Legislative findings.

The legislature finds that the practices of bid shopping and bid peddling in connection with the construction, alteration and repair of public works projects often result in poor quality of material and workmanship to the detriment of the public, deprive the public of the full benefits of fair competition among contractors and subcontractors and lead to insolvencies and loss of wages to employees.

History: Laws 1988, ch. 18, § 2.

13-4-33. Definitions.

As used in the Subcontractors Fair Practices Act [13-4-31 to 13-4-42 NMSA 1978]:

A. "contractor" means the prime contractor on a public works construction project who contracts directly with the using agency;

B. "subcontractor" means a contractor who contracts directly with the contractor;

C. "listing threshold" means the dollar amount, stipulated in the bidding documents, above which subcontractors must be listed;

D. "notice" means information, advice or a written warning intended to apprise a contractor, subcontractor or using agency of some proceeding in which the contractor's, subcontractor's or using agency's interests are involved or to inform him of some fact that is his right to know. Notice may be sent to a contractor, subcontractor or using agency by certified or registered mail and shall be deemed to be completed upon date of mailing; and E. "using agency" means any state agency or local public body requiring services or construction.

History: Laws 1988, ch. 18, § 3; 1995, ch. 82, § 2.

ANNOTATIONS

The 1995 amendment, effective June 16, 1995, in Subsection D, substituted "subcontractor or using agency" for "or subcontractor" twice, substituted "the contractor's, subcontractor's or using agency's" for "his", and substituted "that" for "which".

13-4-34. Listing of subcontractors; requirements.

A. Any using agency taking bids for any public works construction project shall provide in the bidding documents prepared for that project a listing threshold which shall be five thousand dollars ($5,000) or one-half of one percent of the architect's or engineer's estimate of the total project cost, not including alternates, whichever is greater. If the bidding documents do not include a listing threshold, then the using agency shall supply the listing threshold. If the listing threshold has not been included, the bid opening shall be postponed until the using agency has complied with this section. Any contractor or subcontractor interested in bidding may apply to the district court in the county in which the project will be located for an injunction preventing the bid opening until the using agency has complied with this section. Any person submitting a bid shall in his bid set forth:

(1) the name and the city or county of the place of business of each subcontractor under subcontract to the contractor who will perform work or labor or render service to the contractor in or about the construction of the public works construction project in an amount in excess of the listing threshold; and

(2) the category of the work that will be done by each subcontractor. The contractor shall list only one subcontractor for each category as defined by the contractor in his bid.

B. A bid submitted by a contractor who fails to comply with the provisions of Subsection A of this section is a nonresponsive bid which shall not be accepted by a using agency.

History: Laws 1988, ch. 18, § 4; 1989, ch. 296, § 1; 1995, ch. 82, § 3.

ANNOTATIONS

The 1995 amendment, effective June 16, 1995, in Subsection A, inserted "not including alternates", added the second through fourth sentences, substituted in Paragraph A(1) "the city or county" for "location", and in Paragraph A(2) substituted "category" for "nature" and "that" for "which"; and in Subsection B, substituted "a contractor who" for "any person which".

Separate categories of work in one bid request. — Although there was only one invitation for bids, since it requested two distinct bids covering a single bid lot and a combination of that bid lot with another, the contractor should have listed the subcontractor who would perform each category of work. Dynacon, Inc. v. D & S Contracting, 1995-NMCA-071, 120 N.M. 170, 899 P.2d 613.

Written contract not required for listing as subcontractor. — The absence of a written contract between a general contractor and subcontractor at the time the general contractor submitted its bid did not mean that the general contractor was not obligated to list the subcontractor in the bid. Romero Excavation & Trucking, Inc. v. Bradley Constr., Inc., 1996-NMSC-010, 121 N.M. 471, 913 P.2d 659.

13-4-35. Exemption.

With the exclusion of that portion of work covering street lighting and traffic signals, the Subcontractors Fair Practices Act [13-4-31 to 13-4-42 NMSA 1978] shall not apply to contracts for the construction, improvement or repair of streets or highways, including bridges, underground utilities within easements including but not limited to water lines, sewer lines and storm sewer lines.

History: Laws 1988, ch. 18, § 5.

13-4-35.1. Application of act.

The Subcontractors Fair Practices Act [13-4-31 to 13-4-42 NMSA 1978] shall not apply to any transaction occurring after the contractor and the listed subcontractor have executed a subcontract unless subsequent action on the subcontract relates to subcontractor listing requirements.

History: Laws 1995, ch. 82, § 1.

13-4-36. Substitution of subcontractor.

A. No contractor whose bid is accepted shall substitute any person as subcontractor in place of the subcontractor listed in the original bid, except that the using agency shall consent to the substitution of another person as a subcontractor in the following circumstances:

(1) when the subcontractor listed in the bid, after having had a reasonable opportunity to do so, fails or refuses to execute a written contract, when such written contract, based upon the general terms, conditions, plans and specifications for the project involved and the terms of such subcontractor's written bid, is presented to him by the contractor;

(2) when the subcontractor listed in the original bid becomes bankrupt or insolvent prior to execution of a subcontract;

(3) when the using agency refuses to approve the subcontractor listed in the original bid, provided such approval has been reserved in the bidding documents;

(4) when the subcontractor listed in the original bid fails or refuses to perform his subcontract;

(5) when the contractor demonstrates to the using agency or its duly authorized officer that the name of the subcontractor was listed as the result of an inadvertent clerical error;

(6) when a bid alternate accepted by the using agency causes the listed subcontractor's bid not to be low;

(7) when the contractor can substantiate to the using agency that a listed subcontractor's bid is incomplete;

(8) when the listed subcontractor fails or refuses to meet the bond requirements of the contractor;

(9) when it is determined that the listed subcontractor does not have a proper license to perform the work and the contractor has submitted the name of the subcontractor along with proof that the subcontractor bid work for which he was not licensed by the construction industries division of the regulation and licensing department; or

(10) when it is determined by the using agency, the prime contractor or the director of the labor and industrial division of the labor department that a listed subcontractor is not a registered subcontractor on the date bids are unconditionally accepted for consideration.

B. Prior to approval of the contractor's request for substitution of a subcontractor, the using agency shall give notice in writing to the listed subcontractor of the contractor's request to substitute and of the reasons for the request. The notice shall be served by certified or registered mail to the last known address of the subcontractor. The listed subcontractor who has been so notified has five working days within which to submit written objections to the substitution to the using agency. Failure to file written objections shall constitute the listed subcontractor's consent to the substitution. If written objections are filed, the using agency shall give at least five working days notice in writing to the listed subcontractor of a hearing by the using agency on the contractor's request for substitution.

C. No contractor whose bid is accepted shall permit any subcontract to be voluntarily assigned or transferred or allow it to be performed by anyone other than the original subcontractor listed in the original bid without the consent of the using agency.

D. No contractor whose bid is accepted, other than in the performance of change orders causing changes or deviations from the original contract, shall sublet or subcontract any portion of the work in excess of the listing threshold as to which his original bid did not designate a subcontractor unless:

(1) the contractor fails to receive a bid for a category of work. Under such circumstances, the contractor may subcontract. The contractor shall designate on the listing form that no bid was received; or

(2) the contractor fails to receive more than one bid for a category of work. Under such circumstances, the contractor may subcontract. The contractor shall state on the listing form that only one subcontractor's bid was received, together with the name of the subcontractor. This designation shall not occur more than one time on the subcontractor list.

History: Laws 1988, ch. 18, § 6; 1995, ch. 82, § 4; 2005, ch. 98, § 3.

ANNOTATIONS

The 2005 amendment, effective June 17, 2005, added Subsection A(10) to permit the using agency to consent to the substitution of a subcontractor when it is determined that a listed subcontractor is not a registered subcontractor on the date bids are unconditionally accepted for consideration.

The 1995 amendment, effective June 16, 1995, in Paragraphs A(2) and A(4) substituted "subcontractor listed in the original bid" for "listed subcontractor", in Paragraph A(2) added "prior to execution of a subcontract", added Paragraph A(3), redesignated former Paragraphs A(3) to A(7) as paragraphs A(4) to A(8), in Paragraph A(6) substituted "listed" for "original low", added Paragraph A(9); in Subsection B inserted "of a subcontractor" in the first sentence; in Subsection D, inserted the Paragraph D(1) designation, added Paragraph D(2); and made minor stylistic changes throughout the section.

Bid alternates. — The provision of Subparagraph [Paragraph] A(6), concerning acceptance of a "bid alternate" by the using agency, did not apply to allow substitution of a listed contractor when the invitation for bids requested two distinct bids covering a single bid lot and a combination of that bid lot with another and the contractor was required to list the subcontractor who would perform each category of work. Dynacon, Inc. v. D & S Contracting, 1995-NMCA-071, 120 N.M. 170, 899 P.2d 613.

Contractor could not substitute itself for subcontractor. — Without proper approval by the using agency, a general contractor could not substitute itself for a listed contractor after the using agency had accepted the general contractor's bid. Romero Excavation & Trucking, Inc. v. Bradley Constr., Inc., 1996-NMSC-010, 121 N.M. 471, 913 P.2d 659.

13-4-3 Bond requirements.

A. It is the responsibility of each subcontractor submitting a bid to a contractor to be prepared to submit a faithful performance and payment bond if so requested by the contractor.

B. In the event any subcontractor submitting a bid to a contractor does not, upon the request of the contractor and at the expense of the contractor at the established charge or premium therefor, furnish to the contractor a bond issued by a corporate surety authorized to do business in New Mexico in accordance with the New Mexico Insurance Code [Chapter 59A NMSA 1978] and listed in the United States treasury department circular 570 wherein the contractor is named the obligee, guaranteeing prompt and faithful performance of the subcontract and the payment of all claims for labor and materials furnished or used in and about the work to be done and performed under the subcontract, the contractor may reject the bid and make a substitution of another subcontractor subject to the provisions of Section 13-4-36 NMSA 1978. Such bond may be required at the expense of the subcontractor only if the contractor in his written or published request for subcontract bids:

(1) specifies that the expense for the bond shall be borne by the subcontractor; and

(2) clearly specifies the amount and requirements of the bond.

History: Laws 1988, ch. 18, § 7; 1995, ch. 82, § 5.

ANNOTATIONS

The 1995 amendment, effective June 16, 1995, in Subsection A, substituted "a bid" for "bids" and inserted "a" preceding "faithful"; in Subsection B, substituted "a corporate" for "an admitted", and inserted the language beginning "authorized" and ending "circular 570"; and made minor stylistic changes throughout the section.

Am. Jur. 2d, A.L.R. and C.J.S. references. — State or local government's liability to subcontractors, laborers, or materialmen for failure to require general contractor to post bond, 54 A.L.R.5th 649.

13-4-38. Failure to specify subcontractor.

If a contractor fails to list a subcontractor in excess of the listing threshold and he does not state that no bid was received or that only one bid was received, he represents that he is fully qualified to perform that portion of the work himself and that he shall perform that portion of the work himself. If after the award of the contract the contractor subcontracts any portion of the work, except as provided in the Subcontractors Fair Practices Act [13-4-31 to 13-4-42 NMSA 1978], the contractor shall be guilty of violation of the Subcontractors Fair Practices Act and subject to the penalties provided in Section 13-4-41 NMSA 1978.

History: Laws 1988, ch. 18, § 8; 1995, ch. 82, § 6.

ANNOTATIONS

The 1995 amendment, effective June 16, 1995, in the first sentence, substituted "list" for "specify", inserted "and he does not state that no bid was received or that only one bid was received", inserted "of the work" following "portion" twice; and made minor stylistic changes throughout the section.

13-4-39. Inadvertent clerical error.

A. The contractor, as a condition to assert a claim of inadvertent clerical error in the listing of a subcontractor, shall, within four working days after the time of the prime bid opening by the using agency, give written notice to the using agency and to both the subcontractor he claims to have listed in error and the subcontractor who had bid to the contractor prior to bid opening.

B. Any listed subcontractor who has been notified by the contractor in accordance with the provisions of this section as to an inadvertent clerical error shall be allowed twelve working days from the time of the prime bid opening within which to submit to the using agency and to the contractor written objection to the contractor's claim of inadvertent clerical error. Failure of the listed subcontractor to file written notice within the twelve working days shall be primary evidence of his agreement that an inadvertent clerical error was made.

C. The using agency shall, in the absence of an objection to the contrary by the listed subcontractor in the original bid, consent to the substitution of the intended subcontractor if:

(1) the contractor, the listed subcontractor listed in error and the intended subcontractor each submit an affidavit to the using agency, along with such additional evidence as the parties may wish to submit, that an inadvertent clerical error was in fact made, provided that the affidavits from each of the three parties are filed within twelve working days from the time of the prime bid opening; or

(2) affidavits are filed by both the contractor and the intended subcontractor within the specified time but the subcontractor whom the contractor claims to have listed in error does not submit, within twelve working days from the time of prime bid opening, to the using agency and to the contractor written objection to the contractor's claim of inadvertent clerical error as provided in this section.

D. If affidavits are filed by both the contractor and the intended subcontractor but the listed subcontractor has, within twelve working days from the time of the prime bid opening, submitted to the using agency and to the contractor written objection to the contractor's claim of inadvertent clerical error, the using agency shall investigate the claims of the parties and hold a hearing to determine the validity of the claims, within thirty days after the receipt of the contractor's written objection. Any determination made shall be based on facts contained in the affidavits submitted by all three parties and supported by testimony under oath and subject to cross-examination. The using agency may, on its motion or that of any other party, admit testimony of other contractors, any bid registries or depositories or any other party in possession of facts that may have a bearing on the decision of the using agency.

History: Laws 1988, ch. 18, § 9; 1995, ch. 82, § 7.

ANNOTATIONS

The 1995 amendment, effective June 16, 1995, in Subsection A, substituted "four" for "two"; in Subsection B, substituted "twelve" for "six" two times; rewrote the beginning of Subsection C, in Paragraph C(1) inserted "listed" preceding the first "subcontractor" and substituted "twelve" for "eight", in Paragraph C(2) substituted "twelve" for "six" and inserted "from the time of prime bid opening"; in Subsection D, substituted "twelve" for "six", deleted "public" preceding "hearing", inserted "within thirty days after the receipt of the contractor's written objection"; and made minor stylistic changes throughout the section.

13-4-40. Emergency subcontracting.

Subcontracting any portion of the work in excess of the listing threshold as to which no subcontractor was designated in the original bid shall be permitted only in the case of public emergency or necessity and then only upon a written finding by the using agency setting forth the facts constituting the emergency or necessity.

History: Laws 1988, ch. 18, § 10.

13-4-41. Penalties.

A. When a contractor violates any provision of the Subcontractors Fair Practices Act [13-4-31 to 13-4-42 NMSA 1978] except Section 13-4-34 NMSA 1978, the using agency shall:

(1) in the case of a contractor who substitutes another subcontractor in violation of Section 13-4-36 NMSA 1978, for the subcontractor originally included in the bid, assess the contractor a penalty in an amount equal to the greater of ten percent of the amount bid by the listed subcontractor or the difference between the amount bid by the listed subcontractor and the amount bid by the substituted subcontractor;

(2) in the case of a contractor substituting a listed subcontractor for another subcontractor, and the substituted subcontractor knowingly participated in a violation of Section 13-4-36 NMSA 1978, assess the substituted subcontractor a penalty in an amount equal to the greater of ten percent of the amount bid by the listed subcontractor and the difference between the amount bid by the listed subcontractor and the substituted subcontractor; or

(3) in the case of a contractor who fails to list a subcontractor in excess of the listing threshold as defined in Section 13-4-38 NMSA 1978, assess the contractor a penalty of eight percent of the amount of the subcontract issued for the first violation and thirty percent of the amount of the subcontract issued for any violation thereafter, on any one project.

B. Penalties assessed pursuant to the provisions of this section shall be deposited into the fund from which the contract was awarded.

C. In a proceeding under this section, the contractor shall be entitled to a hearing after notice.

D. A violation of the provisions of the Subcontractors Fair Practices Act constitutes grounds for disciplinary action against a contractor or a subcontractor, pursuant to regulations of the construction industries division of the regulation and licensing department.

E. A contractor or a subcontractor who attempts to circumvent the provisions of the Subcontractors Fair Practices Act shall be subject to the penalties established pursuant to this section.

F. Any listed subcontractor removed in violation of the Subcontractors Fair Practices Act may bring an action in the district court for damages, injunctive or other relief.

History: Laws 1988, ch. 18, § 11; 1989, ch. 296, § 2; 1995, ch. 82, § 8.

4.7 SUBMISSION OF BIDS

4.7.1 Bids shall be submitted at the time and place indicated in the Invitation for Bid and may only be submitted electronically.

4.7.2 Bids received after the date and time for receipt of bids will not be considered.

4.7.3 The Bidder shall assume full responsibility for timely delivery of bids electronically.

4.7.4 Oral, hand-carried, carrier, telephonic, or telegraphic (faxed) bids are invalid and will not receive consideration.

4.8.4 After Bid Opening, no modifications in bid prices or other provisions of bids shall be permitted.