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.
ANNOTATIONSThe 1995 amendment, effective June 16, 1995, rewrote the beginning of Subsection A, deleted former Paragraph A(1), rewrote and redesignated former Paragraph A(2) as Paragraph A(1), added Paragraphs A(2) and A(3), added Subsections B and C, redesignated former Subsections B to D as Subsections D to E, and in Subsections D and E, inserted "or a subcontractor".