A. To receive a resident business or resident veteran business preference pursuant to Section 13-1-21 NMSA 1978 or a resident contractor or resident veteran contractor preference pursuant to Section 13-4-2 NMSA 1978, a business or contractor shall submit with its bid or proposal a copy of a valid resident business certificate, valid resident veteran business certificate, valid resident contractor certificate or valid resident veteran contractor certificate issued by the taxation and revenue department.

B. An application for a resident business certificate shall include an affidavit from a certified public accountant setting forth that the business is licensed to do business in this state and that:

(1) the business has paid property taxes or rent on real property in the state and paid at least one other tax administered by the state in each of the three years immediately preceding the submission of the affidavit;

(2) if the business is a new business, the owner or majority of owners has paid property taxes or rent on real property in the state and has paid at least one other tax administered by the state in each of the three years immediately preceding the submission of the affidavit and has not applied for a resident business or resident contractor certificate pursuant to this section during that time period;

(3) if the business is a relocated business, at least eighty percent of the total personnel of the business in the year immediately preceding the submission of the affidavit were residents of the state and that, prior to the submission of the affidavit, the business either leased real property for ten years or purchased real property greater than one hundred thousand dollars ($100,000) in value in the state; or

(4) if the business is a previously certified business or was eligible for certification, the business has changed its name, has reorganized into one or more different legal entities, was purchased by another legal entity but operates in the state as substantially the same commercial enterprise or has merged with a different legal entity but operates in the state as substantially the same commercial enterprise.

C. An application for a resident veteran business certificate shall include the affidavit required by Subsection B of this section, an affidavit from a certified public accountant providing the previous year's annual revenues of the resident veteran business and:

(1) verification by the federal department of veterans affairs as being either a veteran-owned small business or a service-disabled veteran-owned small business; or

(2) verification of veteran status as indicated by the United States department of defense DD form 214 of release or discharge from active duty with an honorable discharge or of service-disabled veteran status by the department of veterans affairs and proof that a veteran or veterans own a majority of the business.

D. An application for a resident contractor certificate shall include an affidavit from a certified public accountant setting forth that the contractor is currently licensed as a contractor in this state and that:

(1) the contractor has:

(a) registered with the state at least one vehicle; and

(b) in each of the five years immediately preceding the submission of the affidavit: 1) paid property taxes or rent on real property in the state and paid at least one other tax administered by the state; and 2) paid unemployment insurance on at least three full-time employees who are residents of the state; provided that if a contractor is a legacy contractor, the requirement of at least three full-time employees who are residents of the state is waived;

(2) if the contractor is a new contractor, the owner or majority of owners has paid property taxes or rent on real property in the state and has paid at least one other tax administered by the state in each of the five years immediately preceding the submission of the affidavit and has not applied for a resident business or resident contractor certificate pursuant to this section during that time period;

(3) if the contractor is a relocated business, at least eighty percent of the total personnel of the business in the year immediately preceding the submission of the affidavit were residents of the state and that, prior to the submission of the affidavit, the contractor either leased real property for ten years or purchased real property greater than one hundred thousand dollars ($100,000) in value in the state; or

(4) if the contractor is a previously certified contractor or was eligible for certification, the contractor has changed its name, has reorganized into one or more different legal entities, was purchased by another legal entity but operates in the state as substantially the same enterprise or has merged with a different legal entity but operates in the state as substantially the same commercial enterprise.

E. An application for a resident veteran contractor certificate shall include the affidavit required by Subsection D of this section, an affidavit from a certified public accountant providing the previous year's annual revenues for the resident veteran contractor and:

(1) verification by the federal department of veterans affairs as being either a veteran-owned small business or a service-disabled veteran-owned small business; or

(2) verification of veteran status as indicated by the United States department of defense DD form 214 of release or discharge from active duty with an honorable discharge or of service-disabled veteran status by the department of veterans affairs and proof that a veteran or veterans own a majority of the business.

F. The taxation and revenue department shall prescribe the form and content of an application for certification and required affidavit. The taxation and revenue department shall examine the application and affidavit and, if necessary, may seek additional information to ensure that the business or contractor is eligible to receive the certificate pursuant to the provisions of this section. If the taxation and revenue department determines that an applicant is eligible, the department shall issue a certificate pursuant to the provisions of this section. If the taxation and revenue department determines that the applicant is not eligible, the department shall issue notification within thirty days. If no notification is provided by the department, the certificate is deemed approved. A certificate is valid for three years from the date of its issuance; provided that if there is a change of ownership of more than fifty percent, a resident business, resident veteran business, resident contractor or resident veteran contractor shall reapply for a certificate.

G. A business or contractor whose application for a certificate is denied has fifteen days from the date of the taxation and revenue department's decision to file an objection with the taxation and revenue department. The person filing the objection shall submit evidence to support the objection. The taxation and revenue department shall review the evidence and issue a decision within fifteen days of the filing of the objection.

H. If, following a hearing and an opportunity to be heard, the administrative hearings office finds that a business or contractor provided false information to the taxation and revenue department in order to obtain a certificate or that a business or contractor used a certificate to obtain a resident business, resident veteran business, resident contractor or resident veteran contractor preference for a bid or proposal and the resident business, resident veteran business, resident contractor or resident veteran contractor did not perform the percentage of the contract specified in the bid or proposal, the business or contractor:

(1) is not eligible to receive a certificate or a preference pursuant to Section 13-1-21 or 13-4-2 NMSA 1978 for a period of five years from the date on which the taxation and revenue department became aware of the submission of the false information or the failure to perform the contract as specified in the bid or proposal; and

(2) is subject to an administrative penalty of up to fifty thousand dollars ($50,000) for each violation.

I. In a decision issued pursuant to Subsection G or H of this section, the taxation and revenue department or administrative hearings office shall state the reasons for the action taken and inform an aggrieved business or contractor of the right to judicial review of the determination pursuant to the provisions of Section 39-3-1.1 NMSA 1978.

J. The taxation and revenue department may assess a reasonable fee for the issuance of a certificate not to exceed the actual cost of administering the taxation and revenue department's duties pursuant to this section.

K. The state auditor may audit or review the issuance or validity of certificates.

L. For purposes of this section:

(1) "new business" means a person that did not exist as a business in any form and that has been in existence for less than three years;

(2) "new contractor" means a person that did not exist as a business in any form and that has been in existence for less than five years;

(3) "legacy contractor" means a construction business that has been licensed in this state for ten consecutive years; and

(4) "relocated business" means a business that moved eighty percent of its total domestic personnel from another state to New Mexico in the past five years.

History: 1953 Comp., § 6-5-32.1, enacted by Laws 1969, ch. 184, § 1; 1979, ch. 72, § 2; 2011 (1st S.S.), ch. 3, § 2; 2012, ch. 56, § 3; 2015, ch. 73, § 24.

The 2015 amendment, effective July 1, 2015, provided that a business or contractor is ineligible to receive a certificate of preference and is subject to administrative penalties if the administrative hearings office makes a finding that the business or contractor provided false information to the taxation and revenue department or did not perform as specified in a bid or proposal; in the introductory paragraph of Subsection H, after "opportunity to be heard, the", deleted "taxation and revenue department" and added "administrative hearings office"; and in Subsection I, after "taxation and revenue department", added "or administrative hearings office".

The 2012 amendment, effective July 1, 2012, provided for certification of resident veteran businesses and resident veteran contractors; in the title, after "Resident business", deleted "and" and added "resident veteran business" and after "resident contractor", added "and resident veteran contractor"; in Subsection A, after "resident business", added "or resident veteran business", after "resident contractor", added "or resident veteran contractor", after "resident business certificate", added "valid resident veteran business certificate", and after "resident contractor certificate", added "or valid resident veteran contractor certificate"; added Subsections C and E; in Subsection F, in the first sentence, after "content of an application", added "for certification" and in the sixth sentence, after "resident business", added "resident veteran business" and after "resident contractor", added "or resident veteran contractor"; in Subsection H, after "obtain a resident business", deleted "or" and added "resident veteran business", after "resident veteran business, resident contractor", added "or resident veteran contractor", after "and the resident business", deleted "or" and added "resident veteran business, resident", and after "resident veteran business, resident contractor", added "or resident veteran contractor"; and in Subsection I, after "Subsection", deleted "E or F" and added "G or H".

The 2011 (1st. S.S.) amendment, effective October 5, 2011, provided for the certification of resident businesses and contractors by the taxation and revenue department; specified the qualifications for certification as a resident business or contactor; required businesses and contractors to submit a copy of a valid resident business or contractor certification with their bids or proposal as a condition to receiving the resident business and contractor preferences; provided for the review of denials of applications for certification; provided penalties for providing false information to obtain certification or for failure to perform the percentage of a contract specified in a bid or proposal; in the catchline, after "Resident business and", deleted "manufacturer", and added "resident contractor" and deleted "application; information"; deleted the former introductory paragraph and Subsections A through C, which provided for the certification of resident businesses and resident manufacturers and the issuance of a certification number by the state purchasing agent; and added new Subsections A through J.

Temporary provisions. — Laws 2011 (1st S.S.), ch. 3, § 7, effective October 5, 2011, provided that a certification as a resident business or resident manufacturer by the general services department that is in effect prior to the passage of this 2011 act is valid until January 1, 2012 for the purpose of obtaining a resident business preference pursuant to Section 13-1-21 NMSA 1978. A certification as a resident contractor by the general services department that is in effect prior to passage of this 2011 act is valid until January 1, 2012 for the purpose of obtaining a resident contractor preference pursuant to Section 13-4-2 NMSA 1978. After January 1, 2012, a certification as a resident business or resident contractor by the taxation and revenue department for the purpose of obtaining a resident business preference or a resident contractor preference is required for all bids and proposals.