New Mexico Register / Volume XXIX,
Issue 16 / August 28, 2018
This is an
amendment to 18.27.5 NMAC, Sections 3, 7, 8, 11, 12, 13 and 15 effective 1/1/2019.
18.27.5.3 STATUTORY AUTHORITY: Section 13-1-82 NMSA 1978 (1984,
as amended through 2012) and Section 13-1-133 to -134 NMSA 1978 (1984, as
amended through 2012) Sections 67-3-2 (2003), 67-3-11 (2003), 67-3-14 (2003), and
67-3-43 (1983) NMSA 1978, 23 USC Section 112(b), 23 CFR Sections 635.110 and
635.114.
[18.27.5.3
NMAC - Rp, 18.27.5.3 NMAC, 1/1/2015; A, 1/1/2019]
18.27.5.7 DEFINITIONS:
A. This rule adopts the abbreviations,
symbols and definitions in the division 100-general provisions of the New
Mexico department of transportation current edition of the standard
specifications for highway and bridge construction and incorporates the same by
reference.
B. CID is the
abbreviation of construction industries division.
C. Compass form
means the New Mexico department of transportation form generated at project closure
that documents certain contractor performance measurement data.
D. Innovative
contracting is an alternate form of competitive bidding consistent with federal
and state procurement laws that can result in work being awarded to a
responsible bidder that may not submit the lowest monetary bid.
E. Modified bid
amount means the contractor’s bid multiplied by the contractor’s
prequalification factor rolling average or Pqfra. The modified bid amount will be used solely for
determining the apparent lowest responsible bidder. The modified bid amount
will not be used for payment.
F. Packet means the
current New Mexico department of transportation contractor prequalification application
from the office of inspector general.
G. Performance
factor or Pf means the numerical quantification of a contractor’s past
performance on closed projects for certain objectively measureable criteria.
H. Pf claim or Pfc means the performance measurement of a contractor’s
unsuccessful demand for reconsideration seeking additional compensation or
contract time beyond the cabinet secretary administrative remedy level.
I. Pf disincentive
or Pfd means the performance measurement of a
contractor’s quality of work related to certain contract items. Applicable contract items for disincentive are
the following sections 401 pavement smoothness measurement, 403 [and] open
graded friction course, 403 - a warm mix asphalt - open graded friction course,
404 rubberized open graded friction course, 416 minor paving, 417
miscellaneous paving, 423 hot mix asphalt - [superpave
qla and non-qla] major
paving, 424 warm mix asphalt [qla and
non-qla] - major paving, 450 [and] major
portland cement concrete pavement, 451 [qla and non-qla] minor
portland cement concrete pavement, 456 continuously
reinforced concrete pavement, and 901 quality control/quality assurance.
J. Pf liquidated
damages or Pfld means the performance measurement of
a contractor’s timely completion of the contract.
K. Pf
non-conformance or Pfn means the performance
measurement of a contractor’s compliance with the terms and conditions of the
contract.
L. Pf safety or Pfs means the performance measurement of a contractor’s
safety reflected by the contractor’s experience modifier rate or emr provided by the contractor’s bonding company.
M. Pf subcontractor or
Pfsc means the performance measurement of a
contractor’s prompt payment of its first tier subcontractors [or
suppliers].
N. Pqf rolling average or Pqfra means
the final measure of responsibility that is applied to the contractor’s bid resulting
in the modified bid amount.
O. Prequalification
factor year or Pqfyr means the yearly calculation of
a contractor’s performance factors.
P. Prequalification
factor or Pqf means the overall mathematical analysis
of the performance factors that measures contractor responsibility. Prequalification
factor is abbreviated Pqf.
Q. Prequalification
packet means the New Mexico department of transportation form submitted
annually.
R. [Responsibility
means an objective determination based on past performance by the New Mexico
department of transportation of the contractor’s capability in all respects to
perform fully and make satisfactory delivery the requirements of the contract
including the integrity and reliability that will assure good faith
performance.] Project closure means completion of the project and occurs
on the date that the state construction engineer or New Mexico department of
transportation designee signs the compass form.
S. [Rolling
average means a calculation to analyze data points by creating a series of
averages of different subsets of the full data set.] Responsibility
means an objective determination based on past performance by the New Mexico
department of transportation of the contractor’s capability in all respects to
perform fully and make satisfactory delivery the requirements of the contract
including the integrity and reliability that will assure good faith performance.
T. Rolling average
means a calculation to analyze data points by creating a series of averages of
different subsets of the full data set.
[18.27.5.7
NMAC - Rp, 18.27.5.7 NMAC, 1/1/2015; A, 1/1/2019]
18.27.5.8 PREQUALIFICATION PROCEDURE: The most current version of the prequalification
packet to obtain prequalified status [may] must be obtained from
the office of inspector general of the New Mexico department of transportation website.
Each contractor and subcontractor
seeking to become prequalified shall submit the prequalification packet and any
supporting information to the New Mexico department of transportation office of
inspector general [at the address] as indicated in the
prequalification packet. Deadlines are
calculated from the date office of inspector general receives the new or
renewal packet. Requests for
prequalification will not be processed without the submission of a timely,
complete and conforming packet. All
packets shall contain a complete affidavit, executed under penalty of perjury
by an authorized individual, certifying that the information contained in the
packet is true and correct. Untimely,
incomplete and non-conforming packets will not be processed.
A. Prequalified
status will be granted upon the approval of a timely, complete and conforming
prequalification packet by the office of inspector general.
B. An untimely,
incomplete, or nonconforming packet will result in delays affecting
prequalification status and will negatively impact the prime contractor’s
ability to bid on New Mexico department of transportation projects.
(1) Obtaining
prequalified status is a condition to submitting a bid. Prime contractors submitting a new
prequalification packet or renewal prequalification packet must [submit it]
be approved no later than seven calendar days before the opening
of any bid.
(2) Prime
contractors submitting a bid without timely obtaining prequalified status shall
result in a determination that its bid is non-responsive and the bid shall be
rejected.
C. Subcontractors, at
any tier, must obtain prequalified status before performing any work [or
supplying goods or services to] on the project.
[ (1) Subcontract
packets for subcontractors who fail to obtain prequalified status before
performing any work or supplying goods or services to the project shall be
rejected.
(2) ] Work
performed [or goods or services supplied] without prequalified status
shall be non-compensable.
D. For prime contractors and
subcontractors who are currently prequalified by the effective date of this
rule the applicant will not need to submit a new prequalification packet until
the anniversary date of their last packet.
E. For prime
contractors and subcontractors submitting [new] packets, within five calendar
days from the receipt of a [new] prequalification packet the office of
inspector general will provide notice of receipt of the packet.
(1) If
the packet submitted is complete and conforming then the office of inspector
general will provide written notice to the applicant of approved prequalified
status.
(2) If
the packet submitted is incomplete or does not conform to the requirements then
the office of inspector general will provide written notice to the applicant
that the packet will not be processed until the packet is complete and conforms
to the requirements.
(3) The
date of the written notice of approved prequalified status shall establish
prequalification eligibility for a period of one year. Prequalified status
shall automatically terminate if not renewed prior to the expiration date
established by the written notice of approved prequalification status.
F. Renewal packets
shall be submitted no [later than seven days] more than 30 calendar
days before the expiration date on the document published by the office of
inspector general titled prequalified contractors and subcontractors list. Prequalified status shall automatically terminate
for the failure to submit a timely, complete and conforming renewal packet. Prequalified status shall be re-established
upon the approval of a complete and conforming renewal packet.
G. Appeal of the
denial of prequalification eligibility based upon the receipt of untimely,
incomplete or non-conforming packet shall be submitted in writing to the office
of inspector general with supporting documentation within seven calendar
days of the denial of prequalified status. If the appeal is untimely the aggrieved party
waives the right to appeal. The inspector
general, or designee, will issue a final written decision upholding or
reversing the denial of prequalified status within seven calendar days
of the receipt of a timely appeal. The
inspector general’s decision constitutes the final action taken by the office
of inspector general related to a denial of prequalified status under this
section.
H. Obtaining prequalification
status, a performance factor, or a prequalification factor rolling average does
not grant a license do business, a right to bid or to be awarded a contract.
I. In the event a
contractor or subcontractor is suspended or debarred, its prequalification
status shall immediately and automatically terminate without further notice. In order to obtain renewed prequalification
status after a period of suspension or debarment a new complete and conforming
prequalification packet must be submitted and approved.
[18.27.5.8
NMAC - Rp, 18.27.5.8, 18.27.5.9, 18.27.5.10, 18.27.5.11, 18.27.5.12 NMAC, 1/1/2015;
A, 1/1/2019]
18.27.5.11 PREQUALIFICATION CALCULATION: The New Mexico department of transportation
will gather prime contractor performance data from each project upon project closure.
The data collected will be used to calculate
a yearly prequalification factor. The
prequalification factor rolling average will be applied to each prequalified
prime contractor to evaluate the prime contractor’s bid for department projects
as indicated in the invitation for bids.
A. The performance
factors are claims, disincentives, liquidated damages, non-conformance, safety,
and subcontractor.
(1) Pf
claim data will be documented on the compass form and will be collected from
the New Mexico department of transportation’s closed project records.
(2) Pf
disincentive data will be documented on the compass form and will be collected
from the New Mexico department of transportation’s closed project records
indicating whether disincentives were assessed on standard specification division
for surface treatment and pavements and division for quality criteria items.
(3) Pf
liquidated damages data will be documented on the compass form and will be
collected from the New Mexico department of transportation’s closed project
records indicating whether liquidated damages were assessed.
(4) Pf
non-conformance data will be documented on the compass form and will be
collected from the New Mexico department of transportation’s closed project
records indicating whether non-conformances were assessed.
(5) Pf
safety data will be the contractor’s experience modifier rating as reported on
its prequalification packet.
(6) Pf
subcontractor data will be documented on the compass form and will be collected
from the New Mexico department of transportation’s construction and civil
rights [state construction] bureau records indicating findings for
the failure to promptly pay subcontractors [or suppliers] without good
cause.
B. The performance
factors are assigned percentage values within the yearly prequalification factor
calculation.
(1) The
percentage associated with claims is [15%] fifteen percent.
(2) The
percentage associated with disincentives is [30%] thirty percent.
(3) The
percentage associated with the liquidated damages is [30%] thirty
percent.
(4) The
percentage associated with non-conformances is [10%] ten percent.
(5) The
percentage associated with safety is [5%] five percent.
(6) The
percentage associated with subcontractor is [10%] ten percent.
C. Pf claim or Pfc is calculated in the following manner:
(1) Claims
that are not pursued beyond the cabinet secretary administrative remedy level
will not be included in the calculation for Pf claim.
(2) For
claims that are pursued beyond the cabinet secretary administrative remedy
level a binary system will be used to assign a value of zero or one to evaluate
claims.
(a) Claims
resolved for the value of the claim or more brought beyond the cabinet
secretary level will be assigned a value of zero.
(b) Claims
resolved for less than the value of the claim brought beyond the cabinet
secretary level will be assigned a value of one.
(3) Pf
claim is calculated by adding the number one to the outcome of the sum of the
claim value divided by the sum of closed projects.
(4) Pf
claim resulting in a value of one will be assigned a bonus value for Pf claim
equal to 0.9.
(5) Pf
claim will then be multiplied by the percentage associated with Pf claim. The
resulting value will be incorporated into Pqfyr.
D. Pf disincentive
or Pfd is calculated in the following manner:
(1) For
each closed project:
(a) Sum
paid and accepted applicable contract items.
(b) Sum
of paid and accepted applicable contract items less applicable contract
disincentives.
(c) Divide
the total of Subparagraph (a) by the total of Subparagraph (b) of Paragraph (1)
of Subsection D of this Section.
(2) Sum
all closed projects of [Subsection D Paragraph (1) Subparagraph (c)] Subparagraph
(c) of Paragraph (1) of Subsection D of this Section.in a given year and
divide by the count of closed projects resulting in Pfd.
(3) Pf
disincentive resulting in a value of [zero or] exactly one with
paid and accepted applicable contact items will be assigned a bonus value
for Pf disincentive equal to 0.9.
(4) Pf
disincentive will then be multiplied by the percentage associated with Pf
disincentive. The resulting value will be incorporated into Pqfyr.
E. Pf liquidated
damages or Pfld has two separate methods of
calculation one for mandatory completion date projects and one for calendar or
working day projects:
(1) For
mandatory completion date projects liquidated damages equivalence is calculated:
(a) Subtract
the mandatory completion date including any awarded time from the notice to
proceed date to equate to a whole number.
(b) Subtract
the actual completion date from the notice to proceed date to equate to a whole
number.
(c) Divide
the total of Subparagraph (b) by the total of Subparagraph (a) of Paragraph (1)
of Subsection E of this Section.
(d) A
resulting value less than or equal to one from Subparagraph (c) of Paragraph
(1) of Subsection E of this Section will be assigned a bonus value equal to
0.9.
(2) For
calendar or working day projects liquidated damages equivalence is calculated:
(a) Sum
of the total days charged.
(b) Sum
of the total days contracted.
(c) Divide
the total of Subparagraph (a) by Subparagraph (b) of Paragraph (2) of
Subsection E of this Section.
(d) A
resulting value less than or equal to one from Subparagraph (c) of Paragraph (2)
of Subsection E of this Section will be assigned a bonus value equal to 0.9.
(3) Pf
liquidated damages for a given year is the calculated from all project liquidated
damages. Pf liquidated damages is the sum of liquidated damages equivalence for
mandatory completion date, calendar or working day projects divided by the
count of closed projects resulting in Pfld.
(4) Pf
liquidated damages will then be multiplied by the percentage associated with Pfld. The resulting
value will be incorporated into Pqfyr.
F. Pf non-conformance
or Pfn is calculated in the following manner:
(1) Sum
the number of progress payments per project.
(2) Sum
the number of progress payments without non-conformance.
(3) Divide
Paragraph (1) by Paragraph (2) of this Subsection.
(4) A
resulting value of one for Paragraph (3) of this Subsection will be assigned a
bonus value equal to 0.9.
(5) Sum
all closed projects of Paragraph (4) of this Subsection in a given year and
divide by the count of closed projects resulting in Pfn.
(6) Pf
non-conformance for a given year will then be multiplied by the percentage
associated with Pfn. The resulting value will be incorporated into Pqfyr.
G. The performance factor
for safety or Pfs is the contractor’s experience
modifier rate supplied annually by the contractor at the time of submission of
the prequalification packet.
(1) Pfs for a given year is the numerical value of the
contractor’s experience modifier rate.
(2) If
the experience modifier is equal to or less than one the Pfs
is assigned a value of 0.9.
(3) The
experience modifier rate is multiplied by the percentage associated with Pfs. The resulting
value will be incorporated into Pqfyr.
H. Pf subcontractor
or Pfsc is calculated in the following manner:
(1) Negative
findings against the prime contractor per project will result in a value of one
per finding.
(2) Pfsc for a given year is the sum of all negative findings
in the year.
(3) Zero
findings on all closed projects within the year will receive a bonus of Pf subcontractor
equal to 0.9.
(4) The
sum of Pfsc for a given year is multiplied by the
percentage associated with Pfsc. The resulting value
will be incorporated into Pqfyr.
I. The
contractor’s yearly performance factor is the sum of the individual performance
factors multiplied by their associated percentages.
J. The equation is
Pqfyr=Pfc*[15%] fifteen
percent+Pfd*[30%] thirty percent+Pfld*[30%]
thirty percent+Pfn*[10%] ten percent+Pfs*[5%]
five percent+Pfsc*[10%] ten percent.
K. In the absence
of data for any given year a contractor’s Pqfyr will
be assigned a value of one.
L. For joint
ventures the higher value of all joint venture applicant’s Pqfra
will be used for the modified bid amount.
M. The contractor’s
prequalification factor rolling average will be denoted as Pqfra.
(1) The
Pqfra will be calculated through the use of a rolling
average covering a period of three years. Each rolling average year will be assigned a
weighting factor and will be multiplied by the appropriate weighting factor
starting with the most recent year.
(2) The most recent year, denoted as Pqfyr
1, will be multiplied by the weighting factor of 0.9.
(3) The
preceding year, denoted as Pqfyr 2, will be
multiplied by the weighting factor of 0.6.
(4) The
preceding year, denoted as Pqfyr 3, will be
multiplied by the weighting factor of 0.3.
(5) The
sum of Pqfyr 1 through Pqfyr
3, is multiplied by their appropriate weighting factors
and then divided by the sum of all weighting factors to result in the
contractor’s overall Pqfra.
N. The equation for
Pqfra=(Pqfyr
1 * 0.9+Pqfyr 2 * 0.6+Pqfyr 3 *0.3)/(0.9+0.6+0.3).
O. All equations
and calculations whether interim or final will be rounded to the thousandths
place.
[18.27.5.11
NMAC - N, 1/1/2015; A, 1/1/2019]
18.27.5.12 POSTING, REVIEW AND APPLICATION OF
PREQUALIFICATION FACTOR: The
following procedures will apply to the posting, review and application of the
prequalification factor:
A. The Pqfra will be calculated once a year on projects closed
between January first and December thirty-first of the previous year.
B. The Pqfra will be posted on the office of inspector general
list titled prequalified contractors and subcontractors list by the second
Friday in January.
C. The Pqfra will be applied to a prime contractor’s bid(s)
beginning with the March bid opening until superseded by an updated Pqfra.
D. The Pqfra will be used to determine the modified bid amount.
E. A Pqfra may be re-calculated and reposted at times other than
the second Friday in January in order to implement the decision of a hearing
officer, a court order or a required correction.
[18.27.5.12
NMAC - N, 1/1/2015; A, 1/1/2019]
18.27.5.13 APPEAL PROCEDURE: In the event of the appeal of a
contractor’s prequalification factor the following procedures shall apply:
A. Only a
contractor disputing their own prequalification factor shall have the right to
appeal their factor to the New Mexico department of transportation under
this section.
B. To be considered
an appeal must conform in timing, form and service to all requirements in this
section or the appeal shall be rejected.
C. A contractor disputing
only the misapplication of its prequalification factor to their bid shall file
the appeal according to the bidding dispute resolution procedures in the
division 100-general provisions of the New Mexico department of
transportation current edition of the standard specifications for highway and
bridge construction [bidding dispute resolution procedures].
D. A contractor disputing
only the calculation of its prequalification factor shall file its appeal within
seven calendar days of the publication of their prequalification factor.
E. The appeal filed
must conform to the requirements below and contain the following information:
(1) The
appeal shall be in writing.
(2) Appeals
made by electronic mail shall not be considered.
(3) The
appeal shall clearly and concisely state the party’s right to appeal, the
grounds for appeal, the requested relief, and contain relevant laws, rules, regulations
and documents to support the appeal.
(a) Sufficient
copies of cited laws, rules, regulations, or documentary evidence shall be
included with the appeal.
(b) Supporting
documentary evidence not submitted at the time of filing the appeal shall be
submitted no later than five calendar days before the hearing.
(4) The
documents submitted in the appeal process shall not be considered confidential
and will be subject to the Inspection of Public Records Act, Sections 14-2-1 to
14-2-12 NMSA 1978 (1993, as amended through 2011).
F. Service of the
appeal shall occur as follows:
(1) A
contractor disputing its prequalification factor shall serve the appeal upon
the New Mexico department of transportation’s cabinet secretary. The contractor shall contemporaneously provide
a copy of the appeal to the office of the general counsel and the office of
inspector general at the respective address for each.
(2) Service
upon the cabinet secretary must be made either in person, by certified mail
return receipt requested, or by delivery by a nationally recognized courier.
(3) Service
must be made during regular business hours.
(4) Service
made outside of regular business hours will be considered effective the next
business day.
G. 10 calendar
days after receipt of a timely and complete appeal the cabinet secretary shall
provide the following:
(1) Notice
to all parties advising the parties that an informal hearing will be convened
and designating a neutral hearing officer or designating [himself] the
cabinet secretary themselves as the hearing officer.
(2) Within
seven calendar days of the cabinet secretary’s designation the hearing officer
will provide a notice to all parties of hearing with the date, time and
location of the hearing. The notice of
hearing will be provided no later than seven calendar days before the
chosen hearing date for the informal hearing.
H. The formal rules
of civil procedure, formal discovery processes, and the formal rules of
evidence shall not apply to the informal hearing.
(1) Any
party to the appeal may choose to have legal counsel present.
(2) The
hearing officer has the authority to determine the degree of formality of the
hearing.
(3) The
hearing officer has the authority to determine the total time allotted for the
informal hearing and how the time will be apportioned between the parties.
I. The hearing
officer shall be responsible for maintaining a record of the evidence and
proceedings.
(1) The
hearing officer will weigh the credibility of the evidence provided by both
parties.
(2) The
hearing officer may use any reliable information, no matter the source, in arriving
at a determination.
(3) If
the hearing officer uses information in the determination not provided by
either party then the hearing officer will allow a reasonable amount of time
for rebuttal from either party.
J. The hearing
officer shall issue a decision regarding the appeal within seven calendar
days of the hearing unless otherwise extended by the hearing officer in writing,
no extension shall exceed 21 calendar days from the hearing.
(1) The
hearing officer’s decision will constitute the final department action on the
appeal.
(2) No
further action on the appeal may be taken by the either party if the hearing
officer’s decision is accepted by both parties.
(3) If
[the appealing] either party does not fully accept the hearing
officer’s decision then [the appealing] that party may proceed
with [litigation] an appeal in state district court by filing the
appropriate pleadings.
K. Record of the
appeal through the hearing officer’s decision will be maintained by the office
of inspector general for seven years after the date of the informal hearing.
L. For bidding
purposes and during the period of appeal the contractor’s previous
prequalification factor will apply.
[18.27.5.13
NMAC - N, 1/1/2015; A, 1/1/2019]
18.27.5.15 [PREQUALIFICATION FOR
CONSOLIDATED COMPANIES, JOINT VENTURES AND OTHER SPECIAL BUSINESS FORMATIONS: The following
prequalification packet procedure and Pqfra will
apply to consolidated companies, consolidated companies related by common
ownership and joint ventures:
A. For consolidated
companies not related by common ownership and the parent company is not
included in the consolidation each subsidiary within the consolidated company
must be individually prequalified seven calendar days before a notice to
proceed will be issued for the project. The
Pqfra scores of the subsidiaries survive the merger
or consolidation and the highest Pqfra of the
subsidiaries joined by consolidation will be used for the modified bid amount.
B. For consolidated
companies related by common ownership each subsidiary and parent company in the
merger or consolidated company must be individually prequalified before a
notice to proceed will be issued for the project. The Pqfra scores of
the subsidiaries survive the merger or consolidation and the highest Pqfra of the subsidiaries or parent company joined by
consolidation will be used for the modified bid amount.
C. Each prime
contractor participating in the joint venture must be individually prequalified
seven days before bid opening to join forces as a joint venture for bidding and
performing work related to a single project. The joint venture itself need not prequalify.
(1) In
addition to being individually prequalified each prime contractor participating
in the joint venture shall file with the office of inspector general statement
of joint venture.
(2) For
joint ventures the higher value of all joint venture applicant’s Pqfra will be used for the modified bid amount.] PREQUALIFICATION FOR CONSOLIDATED
CORPORATIONS, MERGED CORPORATIONS, AND JOINT VENTURES: The following prequalification packet
procedure and Pqfra will apply to consolidated
corporations, merged corporations and joint ventures:
A. For a
consolidated corporation pursuant to Subsection A of 54-1A-303 NMSA 1978, or a
similar statutory provision, the new corporation must be prequalified no later
than seven calendar days before the opening of any bid.
B. For a merged
corporation pursuant to Subsection A of 54-1A-303 NMSA 1978, or a similar
statutory provision, the surviving corporation must be prequalified no later
than seven calendar days before the opening of any bid. The Pqfra score of
the surviving corporation will be the highest Pqfra
of the individual corporations who merged and will be used for the modified bid
amount.
C. Each prime
contractor participating in the joint venture must be individually prequalified
seven calendar days before bid opening to join forces as a joint venture for
bidding and performing work related to a single project. The joint venture itself need not prequalify.
(1) The
joint venture shall file with the office of inspector general at least seven
calendar days before the opening of any bid a completed statement of joint
venture form. The most current version
of the statement of joint venture form must be obtained from the New Mexico
department of transportation website.
(2) For
joint ventures the higher value of all joint venture applicant’s Pqfra will be used for the modified bid amount.
(3) Each
prime contractor participating in the joint venture will receive a compass form
for the project to be used in calculating the prime contractor’s individual
prequalification factor.
[18.27.5.15
NMAC - Rp, 18.27.5.15, 1/1/2015; A, 1/1/2019]