New
Mexico Register / Volume XXXVI, Issue 21 / November 4, 2025
TITLE 2 PUBLIC
FINANCE
CHAPTER 40 EXPENDITURE
OF PUBLIC FUNDS
PART 5
PURCHASING OF SERVICES FROM PERSONS WITH DISABILITIES
2.40.5.1
ISSUING AGENCY: New Mexico Council for Purchasing from
Persons with Disabilities, 435 Saint Michael’s Drive, Building D, Santa Fe, New
Mexico.
[2.40.5.1 NMAC -
Rp., 2.40.5.1, 11/4/2025]
2.40.5.2
SCOPE: All state agencies and local public bodies.
[2.40.5.2 NMAC -
Rp., 2.40.5.2, 11/4/2025]
2.40.5.3
STATUTORY AUTHORITY:
Section 13-1C-1 through Section 13-1C-7, NMSA 1978.
[2.40.5.3 NMAC - Rp., 2.40.5.3, 11/4/2025]
2.40.5.4 DURATION: Permanent.
[2.40.5.4 NMAC -
Rp., 2.40.5.4, 11/4/2025]
2.40.5.5
EFFECTIVE DATE: November
4, 2025, unless a later date is cited at the end of a section.
[2.40.5.5 NMAC -
Rp., 2.40.5.5, 11/4/2025]
2.40.5.6
OBJECTIVE: This regulation establishes certain
procedures with respect to purchasing of services from persons with
disabilities and clarifies which services provided by persons with disabilities
are suitable for sale to state agencies and local public bodies.
[2.40.5.6 NMAC -
Rp., 2.40.5.6, 11/4/2025]
2.40.5.7
DEFINITIONS:
A. “Appreciable contribution” means significant labor
of individuals with disabilities applied to a service.
B. “Brokering” means negotiating contracts, as an agency,
between organizations or individuals, not in the state use program. See Subsections C and D of 2.40.5.8 NMAC for
further information on brokering rules.
C. “Central nonprofit agency” means a nonprofit
agency approved pursuant to rules of the council to facilitate the equitable
distribution of orders and services of:
(1) qualified individuals; and
(2) community rehabilitation programs.
D. “Council” means the New Mexico council for
purchasing from persons with disabilities.
E. “Community rehabilitation program” means a
nonprofit entity:
(1) that is organized under the laws of
the United States or this state, operated in the interest of persons with
disabilities and operated so that no part of the income which inures to the
benefit of any shareholder or other person;
(2) that complies with applicable
occupational health and safety standards as required by federal or state law;
and
(3) that, in the provision of services
procured under the State Use Act, employs during the state fiscal year at least
the statutorily required percentile under Paragraph (3) of Subsection B of
Section 13-1C-3 NMSA 1978 persons with disabilities in direct labor for the
provision of services.
F. “Integration” means equal access for non-disabled
and individuals with disabilities: the process of ensuring employment
opportunities to all regardless of disability including the opportunity for
integration of disabled individuals with non-disabled individuals as defined in
the State Use Act Paragraph (8) of Subsection A of Section 13-1C-5 NMSA 1978.
G. “Local public body” means a political subdivision
of the state and political subdivision agencies, instrumentalities and
institutions.
H. “Persons with disabilities” means persons who have
a mental, intellectual or physical impairment that constitutes or results in
substantial impediment to employment as defined by the federal Rehabilitation
Act of 1973 and shall be certified eligible for participation by completing
council approved documentation through the central nonprofit agency, unless the
person has prior presumptive eligibility as follows. A person who is receiving, or has
received, services pursuant to an individualized plan for employment from a
state vocational rehabilitation agency or is assessed with a fifty percent or
more disability rating by the federal veterans affairs administration shall be
presumed to be a person with a disability, as shall a person who is receiving
supplemental security income or social security benefits based on
disability. A person who is
presumptively disabled in an individual who continues to meet the eligibility
criteria for the program that was the basis for the presumptive eligibility.
I. “Provider” means a community rehabilitation
program or qualified individual who has been approved to offer services under
contract to the central nonprofit agency, as allowed under the State Use Act
Paragraph (4) of Subsection A of Section 13-1C-5 NMSA 1978.
J. “Qualified individual” means a person with a
disability who is a business owner, or a business that is primarily owned and
operated by persons with disabilities that employs under State Use contracts at
least the statutorily required percentile under Paragraph (3) of Subsection B
of Section 13-1C-3 of the State Use Act NMSA 1978 persons with
disabilities in the provision of direct labor, which has been approved by the
council to provide services to state agencies and local public bodies.
K. “State use eligible services” means all services which
are to be provided by persons with disabilities and which the council
determines are suitable for sale to state agencies and local public bodies.
L. “State purchasing agent” means the director of the
state purchasing division of the general services department.
M. “State Use Act program” means a program enacted
through legislation by the New Mexico state legislature that allows meaningful
employment opportunities through state and local government contracts to
persons with disabilities.
N. “Value added” means direct labor involved in
delivering services performed by persons with disabilities.
[2.40.5.7 NMAC – Rp.
2.40.5.7 NMAC, 11/4/2025]
2.40.5.8
DETERMINATION OF
WHICH SERVICES PROVIDED BY PERSONS WITH DISABILITIES ARE SUITABLE FOR SALE TO
STATE AGENCIES AND LOCAL PUBLIC BODIES:
A. Services provided by persons with disabilities suitable
for sale to state agencies and local public bodies:
(1) must be within the competency of the
prospective provider;
(2) must have potential to provide
positive, integrated employment outcome for persons with disabilities;
(3) may be approved as statewide, or by
specific contract offering by a state agency or local public body;
(4) require the approval by the council
prior to being offered.
B. Council determination of suitability extends to specific
individual contracts procured under a given service; the council may accept or
reject a given contract as suitable based on criteria established under rule
and statute, such as meeting appreciable contribution requirements, ratio
requirements, impact or fair market pricing requirements.
C. Any potential contract that entails brokering solely on
the part of the community rehabilitation program is disallowed for the
State Use Act program. An appreciable contribution to the services must be made
by persons with disabilities employed by the provider.
D. The decision that the labor of persons with disabilities
constitutes appreciable contribution shall be at the discretion of the council.
[2.40.5.8 NMAC -
Rp., 2.40.5.8, 11/4/2025]
2.40.5.9
ESTABLISHING,
MAINTAINING AND PUBLISHING A LIST OF ALL SUITABLE SERVICES:
A. The council shall establish, approve and revise a list of
suitable services through a contract with a central nonprofit agency on an as
needed basis.
B. Copies of the list shall be published at the state
purchasing office and on-line at appropriate state websites, on a website
maintained by the central nonprofit agency, and may also be advertised in New
Mexico business publications.
C. The council requires that the central nonprofit agency to
establish procedures to submit a given service for council approval. The
central nonprofit agency shall be responsible for providing the council with
information to substantiate the conditions for service determination.
D. Once approved by the council, services shall be included
in a master list of approved services.
E. New services may be added to the list upon a majority
vote at any council meeting.
[2.40.4.9 NMAC -
Rp., 2.40.5.9, 11/4/2025]
2.40.5.10 ESTABLISHING
AND VERIFYING FAIR MARKET PRICE:
A. The council shall verify and revise the fair market
prices on an as needed basis.
B. The council shall revise the fair market prices in
accordance with the changing market conditions to ensure that contracted
services offer the best value for state agencies and local public bodies.
C. The pricing standard for services should be as close as
possible to prevailing market price not including the central nonprofit agency
fee.
D. The council shall set the price within a range submitted
by the central nonprofit agency taking into consideration the benefits
associated with employment of persons with disabilities.
E. Fair market price may be established based on:
(1) prices paid for similar services by
federal, state and local public bodies and by private businesses; or
(2) the actual cost of performing the
services at a community rehabilitation program, determined by use of a council
approved cost analysis worksheet, taking into consideration the benefits
associated with employing persons with disabilities; or
(3) any other accepted business method
acceptable to the council.
F. When considering a contract award, in order to ensure
that services offer the best value for state agencies and other public bodies,
the central nonprofit agency shall determine suitability of individual
contracts to be provided under each service, including, but not necessarily
limited to:
(1) external requirements that
proscribe the use of a specific provider, such as:
(a) contracts which must be awarded to
providers who are sanctioned by the federal corporation for national and
community services;
(b) mandated projects that must be
awarded to an area agency on aging pursuant to federal law;
(2) significant adverse impact to a state
agency or local public body, when contracting for professional services,
resulting in the loss of content knowledge associated with confidential,
proprietary, or attorney/client privileged information; in such instances the
state or local government’s central purchasing office shall notify the central
nonprofit in writing to initiate a council-approved appeals process to obtain a
council-approved exemption before initiating a contract award under the State
Procurement Rule.
G. The council chairperson shall have the authority to give
tentative approval for specific contracts for work by the central nonprofit
agency, between council meetings, subject to ratification by the full council
at its next scheduled meeting, when time is of the essence for the purchaser.
H. The council shall establish procedures for verifying fair
market price, which shall be published on the central nonprofit agency’s
website.
[2.40.5.10 NMAC -
Rp., 2.40.5.10, 11/4/2025]
2.40.5.11 PROCEDURE
TO CERTIFY ELIGIBLE COMMUNITY REHABILITATION PROGRAMS AND QUALIFIED
INDIVIDUALS: The
certification procedure to determine eligible provider members shall consist of
a two part process:
A. Certification of eligibility as a qualified individual
with a disability or community rehabilitation program as defined by statute by
the direct-service provider, reviewed with recommendation by the central
nonprofit agency and approved by the council.
B. Verification of ability to perform the service by the
direct-service provider and filed with and approved by the central nonprofit
agency.
C. The central nonprofit agency shall, on a regular basis or
at the request of the council, review and verify certifications.
D. The central nonprofit agency may, as a result of changing
compliance or eligibility, recommend decertification of a qualified individual
with a disability or community rehabilitation program with approval by the
council.
[2.40.5.11 NMAC -
Rp., 2.40.5.11, 11/4/2025]
2.40.5.12 PROCEDURE
FOR APPROVAL OF CENTRAL NON-PROFIT AGENCY:
A. The council shall
establish a procedure for approval of a central nonprofit agency that shall hold
contracts, facilitate the equitable distribution of orders for services to be
procured by state agencies and local public bodies and market approved services
to state agencies and local public bodies.
B. The council shall request proposals from applicants which
provide evidence that the central non-profit agency is a private, nonprofit
entity within the state which:
(1) has a mission which includes
employment of persons with disabilities;
(2) is not a direct-service provider;
(3) can negotiate contracts;
(4) has knowledge of state and local
governmental contracting policies and procedures;
(5) can demonstrate independence to
equitably distribute contracts for procured services;
(6) can manage the scale of operations
required; and
(7) has an approved operations manual
which details all policies and procedures for operation of the central
nonprofit agency.
C. Approval of the central nonprofit agency shall be by a
minimum of two-thirds majority vote of the council.
[2.40.5.12 NMAC -
Rp., 2.40.5.12, 11/4/2025]
2.40.5.13 PROCEDURES
FOR OPERATION OF CENTRAL NON-PROFIT AGENCY, INCLUDING FEE STRUCTURE:
A. The council shall
ensure that the central nonprofit agency has an approved operations manual that
details all policies and procedures for operation of the central nonprofit
agency.
B. The council shall establish a fee to be paid to the
central nonprofit agency on the basis of contracts procured from state agencies
and other local public bodies. The fee
will be added to the fair market price paid by the state agencies and local
public bodies.
[2.40.5.13 NMAC -
Rp., 2.40.5.13, 11/4/2025]
2.40.5.14 OTHER
MATTERS RELATED TO THE STATE USE ACT:
A. It is the council’s responsibility to identify, respond
to, and equitably distribute, to as broad a base of eligible participants as
possible, all relevant contract opportunities.
B. The council reserves the authority to make final contract
distribution decisions based on the above policy and process, as well as any
other unique factors or special circumstances.
The central non-profit agency shall establish an appeals process for
contract distribution or disputes, and for resolving price and quality-related
disputes between parties in the exercise and administration of the State Use
Act program, with the council being the final determining body. This process shall be applicable to state and
local public body purchasers obtaining services under the State Use Act
program, and nonprofit agencies and qualified individuals with a disability who
own businesses certified by New Mexico abilities and providing services under
state use contracts.
C. All regular meetings of the council shall include an agenda item for an open public forum. The council shall set aside a specific time at each meeting for the public, government officials, and businesses to address the council regarding any issues and concerns related to the State Use Act and its implementation. The council shall use this ongoing mechanism to solicit ongoing feedback, to promote the intention of the State Use Act to create employment opportunities for persons with disabilities, while promoting efficiency and best value for state and local government purchasing entities.
D. Meetings shall be conducted according to requirements of
the Open Meetings Act.
E. The council shall address any other
matter necessary to the proper administration of the State Use Act.
[2.40.5.14 NMAC -
Rp., 2.40.5.14, 11/4/2025]
2.40.5.15 INTEGRATION,
FAIR PAY AND ADDED VALUE:
A. The council shall ensure that the:
(1) work provides opportunities for
integration with non-disabled persons;
(2) work provides fair pay based on
prevailing wages;
(3) work provides equitable opportunities
for the employment of people with disabilities; and
(4) services provide added value.
B. Community rehabilitation programs and qualified
individuals must employ during the state fiscal year at least the statutorily
required percentile under Paragraph (3) of Subsection B of Section 13-1C-3 of
the State Use Act NMSA 1978 persons with disabilities in the provision
of direct labor. In determining ratio
calculation, all employees providing direct labor on all state use contracts
shall be counted. Hours of work shall be
used to determine compliance.
Hours of work shall use the standard full time equivalent of 2080 hours
per year equating to one person to calculate the ratio.
C. In the event of failure to meet the
ratio requirement, the council or central nonprofit agency may request a
remediation plan from the provider specifying actions and timelines to meet the
requirement, which shall be reported to the council. In the event of provider failure to provide
an adequate remediation plan, or meet remediation plan commitments, the council
may place a moratorium on new state use work by that provider, or assign the
contract to another provider, or failure to resolve persistent ratio problems
in a timely manner, ban the provider from eligibility to participate in the
State Use Act program for up to a two year period.
D. In exigent circumstances, the council may waive the labor
ratio or other requirements of the rules as considered appropriate under the
circumstances.
[2.40.5.15 NMAC -
Rp., 2.40.5.15, 11/4/2025]
2.40.5.16 RECORDS
CUSTODIAN AND PUBLIC INFORMATION REQUESTS:
A. The council shall appoint a records custodian
charged with storage and retrieval of all official documents, minutes of
meetings, and other related records as defined under the Inspection of Records
Act (IPRA) 14-2-12 NMSA 1978. The
custodian shall retrieve records under the request and direction of the council
and under response to IPRA records requests.
B. The council shall ensure:
(1) documentation provided under the
Inspection of Public Records Act (IPRA) Sections 14-2-1 through 14-2-12 NMSA
1978 shall not include personally identifiable information as defined in
Section 14-2-1.1 NMSA 1978.
(2) documentation provided under an
IPRA request additionally shall not include medical, occupational or
educational identifiable information as defined under the below statutory
protections:
(a) Health Insurance Portability and
Accountability Act of 1996 (HIPAA);
(b) Family Educational Rights and Privacy
Act of 1974 (FERPA);
(c) The Rehabilitation Act of 1973,
regulated under 34 CFR 361.38;
(d) Americans with Disabilities Act of
1990 (ADA); and
(e) Veteran’s Benefits Act of 2010.
[2.40.5.16 NMAC - N,
11/4/2025]
HISTORY OF 2.40.5 NMAC:
History of Repealed
Material:
2.40.5 NMAC,
Purchasing of Services from Persons with Disabilities, filed 3/15/2007, -
Repealed effective 11/4/2025