New Mexico § 13-4-36 - Substitution of subcontractor

§ 13-4-36. Substitution of subcontractor

A. No contractor whose bid is accepted shall substitute any person as subcontractor

in place of the subcontractor listed in the original bid, except that the using agency

shall consent to the substitution of another person as a subcontractor in the following

circumstances: (1) when the subcontractor listed in the bid, after having had a reasonable opportunity

to do so, fails or refuses to execute a written contract, when such written contract,

based upon the general terms, conditions, plans and specifications for the project

involved and the terms of such subcontractor's written bid, is presented to him by

the contractor; (2) when the subcontractor listed in the original bid becomes bankrupt or insolvent

prior to execution of a subcontract; (3) when the using agency refuses to approve the subcontractor listed in the original

bid, provided such approval has been reserved in the bidding documents; (4) when the subcontractor listed in the original bid fails or refuses to perform

his subcontract; (5) when the contractor demonstrates to the using agency or its duly authorized officer

that the name of the subcontractor was listed as the result of an inadvertent clerical

error; (6) when a bid alternate accepted by the using agency causes the listed subcontractor's

bid not to be low; (7) when the contractor can substantiate to the using agency that a listed subcontractor's

bid is incomplete; (8) when the listed subcontractor fails or refuses to meet the bond requirements of

the contractor; (9) when it is determined that the listed subcontractor does not have a proper license

to perform the work and the contractor has submitted the name of the subcontractor

along with proof that the subcontractor bid work for which he was not licensed by

the construction industries division of the regulation and licensing department;

or (10) when it is determined by the using agency, the prime contractor or the director

of the labor and industrial division of the labor department that a listed subcontractor

is not a registered subcontractor on the date bids are unconditionally accepted for

consideration. B. Prior to approval of the contractor's request for substitution of a subcontractor,

the using agency shall give notice in writing to the listed subcontractor of the contractor's

request to substitute and of the reasons for the request. The notice shall be served by certified or registered mail to the last known address

of the subcontractor. The listed subcontractor who has been so notified has five working days within which

to submit written objections to the substitution to the using agency. Failure to file written objections shall constitute the listed subcontractor's consent

to the substitution. If written objections are filed, the using agency shall give at least five working

days notice in writing to the listed subcontractor of a hearing by the using agency

on the contractor's request for substitution. C. No contractor whose bid is accepted shall permit any subcontract to be voluntarily

assigned or transferred or allow it to be performed by anyone other than the original

subcontractor listed in the original bid without the consent of the using agency. D. No contractor whose bid is accepted, other than in the performance of change orders

causing changes or deviations from the original contract, shall sublet or subcontract

any portion of the work in excess of the listing threshold as to which his original

bid did not designate a subcontractor unless: (1) the contractor fails to receive a bid for a category of work. Under such circumstances, the contractor may subcontract. The contractor shall designate on the listing form that no bid was received; or (2) the contractor fails to receive more than one bid for a category of work. Under such circumstances, the contractor may subcontract. The contractor shall state on the listing form that only one subcontractor's bid

was received, together with the name of the subcontractor. This designation shall not occur more than one time on the subcontractor list.