Procurement Code ethics an important protection against public corruption in New Mexico
The recently enacted State Budget includes record-setting amounts of hundreds of millions of dollars that will be awarded through public contracts. Public procurement ethics is an important part of governmental ethics in New Mexico that should be noted now before new contracts are awarded.
The New Mexico Procurement Code provides important protections against public corruption and the misuse of taxpayer dollars. The public and all government officials and employees should be well aware of the Code and honor both the letter and the spirit of the law to ensure ethical and fair dealings when contracting for the expenditure of public funds to provide services to New Mexicans.
The key purposes of the Code are stated in the law’s own words, right at the beginning of the statute: “The purposes of the Procurement Code are to provide for the fair and equitable treatment of all persons involved in public procurement, to maximize the purchasing value of public funds and to provide safeguards for maintaining a procurement system of quality and integrity.” Section 13-1-29 NMSA 1978.
In the nuts and bolts of the law, what this means is that once a decision is made to use either the competitive sealed bid or proposal process for public funds to be spent on goods or services, there has to be fair dealing by the government at each and every step of the way. The integrity of the public process has to be strictly adhered to; the public’s money should never be spent in a way a public official or employee wants simply to benefit a friend, colleague, relative, campaign contributor or anyone for any reason other than as the Procurement Code allows. And what the Code requires is a fair, competitive sealed bid or proposal evaluation process that picks winners based solely on the merits of their bid or proposal and track record of performance, with limited exceptions for small purchases, emergencies, sole source and contracts between public agencies.
It is unlawful for a public official or employee to arrange for a contract to go to a certain person or entity without regard to the objective, fair decision-making process the Code directs. And this applies up-and-down at every level of government in our State. As a general rule it applies to all state agencies, local school boards and municipalities; all County Commissioners; and all State elected and appointed public officials and employees, including the Governor, Lt. Governor, Attorney General, State Land Commissioner, State Auditor, State Treasurer and every Cabinet Secretary and Agency head throughout New Mexico.
For example, public officials cannot tell their employees before a bid or proposal is prepared and advertised who they want to be the winner of the project.
Nor can they short-circuit the Procurement Code’s requirements. In one case the governing body rejected the recommendation of the selection committee and ordered the evaluation criteria changed to award the contract to a local firm even though its proposal had not received the highest score. As the New Mexico Supreme Court stated in that case, “The Procurement Code protects against the evils of favoritism, nepotism, patronage, collusion, fraud, and corruption in the award of public contracts.” Planning & Design Solutions v. City of Santa Fe (1994). Public officials cannot disregard the evaluation criteria or the final scoring determination when an award is to be made. All public officials and employees, and the public, must follow the Procurement Code to fight corruption in New Mexico.
Mr. Bluestone and Mr. Rees are retired NM public sector attorneys. Mr. Bluestone is a former Chief Deputy Attorney General, and Mr. Rees specializes in public procurement law.
This article originally appeared on Las Cruces Sun-News: NM Procurement Code ethics an important protection against public corruption
