AGO IAL 040208b.

• Case Date: April 02, 2008
• Court: New Mexico

New Mexico Attorney Gen eral Opinions 2008. AGO IAL 040208b. April 2, 2008040208bThe Honorable Stuart Ingle New Mexico State Senator 2106 West University Drive Portales, NM 88130 Re: Opinion Request - Procurement Code Applicability to Municipal Solid Waste ContractsDear Senator Ingle: You requested our advice regarding the applicability of the Procurement Code, NMSA 1978, §§ 13-1-28 to -199 (1984, as amended through 2007), to municipal contracts for solid waste collection and hauling. According to your request and accompanying documentation, municipalities in the state are entering into multiple-year, exclusive contracts with private businesses for the provision of solid waste collection and disposal services. The contracts are awarded without following the provisions of the Procurement Code, including competitive bidding requirements and limitations on multi-term contracts. As discussed in more detail below, we believe that, except for home rule municipalities, municipal contracts with private businesses for solid waste collection and hauling are subject to the Procurement Code. "Except as otherwise provided in the Procurement Code," the Code applies "to every expenditure by state agencies and local public bodies for the procurement of tangible personal property, services and construction." NMSA 1978, § 13-1-30. In pertinent part, "procurement" means "purchasing, renting, leasing, lease purchasing or otherwise acquiring items of tangible personal property, services or construction." Id.§ 13-1-74(A). Accordingly, the Procurement Code applies to a municipality's purchase of solid waste collection and hauling services, unless the Code provides otherwise. Of the exceptions listed in the Procurement Code, two might apply to a municipality's purchase of solid waste collection and hauling. First, the Code does not apply to "municipalities having adopted home rule charters and having enacted their own purchasing ordinances." NMSA 1978, § 13-1-98(K). Under this exception, a home rule municipality's contract for solid waste collection and hauling services would not be covered by the Procurement Code, provided the municipality had adopted a purchasing ordinance under which it procured the services. The second applicable exception covers "purchases of publicly provided or publicly regulated gas, electricity, water, sewer and refuse collection...