/>iIn New Mexico, vendors who compete for public contracts have legal recourse if they believe that a government solicitation or contract award was improper. The New Mexico Procurement Code provides a formal bid protest process that allows “aggrieved” bidders or offerors to challenge procurement decisions made by state agencies or local public bodies. This post provides an overview of that process, including important deadlines, procedures, and potential remedies.
Who Can File a Bid Protest?
Any bidder or offeror who is aggrieved in connection with a solicitation or contract award may file a protest. An “aggrieved” party is typically one who claims that the procurement process was flawed in a way that affected their ability to win the contract — for example, through unfair evaluation criteria, improper award decisions, or procedural violations.
How and When to File
Under Section 13-1-172 NMSA 1978, a protest must:
- Be submitted in writing;
- Be delivered to the state purchasing agent or the appropriate central purchasing office; and
- Be filed within fifteen (15) calendar days after the protester first knew (or should have known) the facts giving rise to the protest.
This strict deadline means that prospective protesters must act quickly once they are aware of the issue — such as learning of an award decision or a potentially problematic solicitation term.
Automatic Stay of Procurement
When a timely protest is filed, the procurement process is generally halted. Specifically, the state purchasing agent or central purchasing office is prohibited from proceeding further unless they determine that continuing with the award is necessary to protect substantial interests of the agency or local public body. This safeguard ensures that procurement decisions are not finalized before potential violations are reviewed.
Authority to Resolve the Protest
The state purchasing agent, central purchasing office, or their designee has the authority to take any action reasonably necessary to resolve the protest. However, their authority does not include the power to award money damages or attorneys’ fees.
Resolution must follow applicable regulations promulgated by the relevant oversight body —whether it be the state’s General Services Department, a local government entity, or another authorized central purchasing office.
Determination and Notification
Once the protest has been reviewed, the deciding authority must issue a written determination that:
- States the reasons for the action taken, and
- Informs the protestant of their right to judicial review under Section 13-1-183 NMSA 1978.
This determination must be promptly issued and immediately mailed to the protester and all other bidders or offerors involved in the procurement, as required under Section 13-1-175 NMSA 1978.
Judicial Review
If a protester is dissatisfied with the decision, they may seek judicial review under Section 39-3-1.1 NMSA 1978, which governs how administrative decisions are challenged in court. This typically involves filing a petition in the appropriate state district court.
While the Procurement Code allows for judicial review, it does not authorize courts to award monetary damages as a remedy for bid protests. Relief is generally limited to declaratory or injunctive actions — such as setting aside an award or requiring a new solicitation.
Conclusion
New Mexico’s bid protest framework under the Procurement Code is designed to ensure transparency, accountability, and fairness in public procurements. By allowing aggrieved bidders to challenge potentially improper decisions, the system fosters competition and helps safeguard taxpayer dollars. However, contractors must act swiftly and follow procedural requirements closely to preserve their protest rights.
Government contractors in New Mexico should familiarize themselves with these rules and consult counsel promptly if they believe grounds exist for a protest. Early engagement can make the difference between a successful challenge and a missed opportunity.
