It is the duty of every office, department, institution, board, commission or other governing body or officer thereof of this state or of any political subdivision thereof to award all contracts for the construction of public works or for the repair, reconstruction, including highway reconstruction, demolition or alteration thereof, to a resident contractor whenever practicable.
History: Laws 1933, ch. 50, § 1; 1941 Comp., § 6-501; 1953 Comp., § 6-6-1; Laws 1965, ch. 185, § 1; 1984, ch. 66, § 1.
ANNOTATIONSCross references. — For county buildings upon change of county seat, see 4-34-3 NMSA 1978.
For contracts for courthouses, jails or bridges after approval of bond issue, see 4-49-14 NMSA 1978.
For employees to be residents, see 10-1-6 to 10-1-9 NMSA 1978.
Award to resident contractor is mandatory. — The formula in Section 13-4-2E NMSA 1978 is a working definition of practicality such that the "whenever practicable" of Section 13-4-1 NMSA 1978 is measured by the formula in Section 13-4-2E NMSA 1978 and if a resident contractor bids within five percent of a nonresident contractor, the governmental entity has no discretion but to award the contract to the resident contractor. Bradbury & Stamm Constr. v. Board of Cnty. Comm'rs of Bernalillo Cnty., 2001-NMCA-106, 131 N.M. 293, 35 P.3d 298.
Resident contractor construed. — The "whenever practicable" language of Section 13-4-1 is measured by the formula set out in Section 13-4-2(E), so that it is no longer necessary for a governmental entity to make a written finding why an award to the resident contractor is not 'practicable' under the circumstances," as prevailing authority before 1984 demanded; if a resident contractor does not bid within 5 percent of a nonresident contractor's low bid, the legislature has decided as a matter of law that the taxpayer will not be burdened with the additional expenditure of a local preference, and the governmental entity need not justify its decision to go out of state. Ballard v. Chavez, 1994-NMSC-007, 117 N.M. 1, 868 P.2d 646.
"Practicable" defined. — "Practicable" has been defined by the courts to mean something which is capable of being performed or effected under the prevailing circumstances. In making a determination of practicability or nonpracticability, the public body involved must necessarily consider the availability of funds, reliability of the contractor, time factors involved in the construction and other aspects incident to such construction project. 1965 Op. Att'y Gen. No. 65-05.
When written finding required. — An express written finding is required if a New Mexico contractor is not awarded such contract, spelling out the basis for such finding. 1965 Op. Att'y Gen. No. 65-05.
Effect on Ute dam contracts. — The provisions of this article have definite application to the proposed public works project for the construction of the Ute dam. Consequently, any contract executed in violation of this article is void and of no effect, unless a finding is made and a valid substantiation given as to why such award to a non-New Mexico contractor is not "practicable." 1962 Op. Att'y Gen. No. 62-80.
Effect on New Mexico interstate stream commission. — The provisions of this article have application to a proposed construction project to be awarded by the New Mexico interstate stream commission. 1962 Op. Att'y Gen. No. 62-80.
Legislative intent. — It is apparent that the legislature clearly intended that public construction projects come within the safeguards of the former Public Purchases Act, and be awarded whenever practicable to New Mexico contractors. 1962 Op. Att'y Gen. No. 62-80.
Preclusion from bidding. — New Mexico contractors may not properly be precluded from bidding upon public works construction projects financed from state funds. Under the former Public Purchases Act, however, the state purchasing agent was invested with certain discretion in the awarding or rejection of bids. 1962 Op. Att'y Gen. No. 62-80.
Law reviews. — For survey of construction law in New Mexico, see 18 N.M.L. Rev. 331 (1988).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 64 Am. Jur. 2d Public Works and Contracts §§ 66 to 69.
Equipment leasing expense as element of construction contractor's damages, 52 A.L.R.4th 712.
Construction and effect of "changed conditions" clause in public works or construction contract with state or its subdivision, 56 A.L.R.4th 1042.
Validity, construction, and effect of requirement under state statute or local ordinance giving local or locally qualified contractors a percentage preference in determining lowest bid, 89 A.L.R.4th 587.
What entities or projects are "public" for purposes of state statutes requiring payment of prevailing wages on public works projects, 5 A.L.R.5th 470.
Who is "employee," "workman," or the like, or contractor subject to state statute requiring payment of prevailing wages on public works projects, 5 A.L.R.5th 513.
What are "prevailing wages," or the like, for purposes of state statute requiring payment of prevailing wages on public works projects, 7 A.L.R.5th 400.
Employers subject to state statutes requiring payment of prevailing wages on public works projects, 7 A.L.R.5th 444.
What projects involve work subject to state statutes requiring payment of prevailing wages on public works projects, 10 A.L.R.5th 337.
Employees' private right of action to enforce state statute requiring payment of prevailing wages on public works projects, 10 A.L.R.5th 360.
Authority of state, municipality, or other governmental entity to accept late bids for public works contracts, 49 A.L.R.5th 747.
20 C.J.S. Counties § 162; 63 C.J.S. Municipal Corporations §§ 900, 901, 910; 72 Supp. C.J.S. Public Contracts §§ 12, 15, 16; 78 C.J.S. Schools and School Districts § 403; 81A C.J.S. States § 157.