A. The corrections department may contract for the operation of any adult female facility or for housing adult female inmates in a private facility with a person or entity in the business of providing correctional or jail services to government entities.

B. The corrections department may contract with a person or entity in the business of providing correctional or jail services to government entities for:

(1) a correctional facility in Guadalupe county of not less than five hundred fifty and not more than two thousand two hundred beds;

(2) a correctional facility in Lea, Chaves or Santa Fe county of not less than one thousand two hundred and not more than two thousand two hundred beds;

(3) design and construction of a support services building, a laundry and an infirmary at the penitentiary of New Mexico in Santa Fe; or

(4) construction of a public facility to house a special incarceration alternative program for adult male and adult female felony offenders.

C. The authorization in Subsection B of this section for a correctional facility in Guadalupe county and a correctional facility in Lea, Chaves or Santa Fe county is contingent upon construction of both facilities, so that one of the facilities shall not be constructed unless both of the facilities are constructed, as nearly as practicable, simultaneously.

D. The corrections department shall solicit proposals and award any contract under this section in accordance with the provisions of the Procurement Code [13-1-28 to 13-1-199 NMSA 1978]. The contract shall include such terms and conditions as the corrections department may require after consultation with the general services department; provided that the terms and conditions shall include provisions:

(1) setting forth comprehensive standards for conditions of incarceration;

(2) that the contractor assumes all liability caused by or arising out of all aspects of the provision or operation of the facility;

(3) for liability insurance or other proof of financial responsibility acceptable to the general services department covering the contractor and its officers, employees and agents in an amount sufficient to cover all liability caused by or arising out of all aspects of the provision or operation of the facility;

(4) for termination for cause upon ninety days' notice to the contractor for failure to meet contract provisions when such failure seriously affects the availability or operation of the facility;

(5) that venue for the enforcement of the contract shall be in the district court for Santa Fe county;

(6) that continuation of the contract is subject to the availability of funds; and

(7) that compliance with the contract shall be monitored by the corrections department and the contract may be terminated for noncompliance.

E. When the contractor begins operation of a facility for which private contractor operation is authorized, the contractor's employees performing the functions of correctional officers shall be deemed correctional officers for the purposes of Sections 33-1-10 and 33-1-11 NMSA 1978 but for no other purpose of state law, unless specifically stated.

F. Any contract awarded pursuant to this section may include terms to provide for the renovation of the facility or for the construction of new buildings. Work performed pursuant to such terms and conditions shall not be considered a capital project or a state public works project as defined in Section 13-1-91 NMSA 1978 nor shall it be subject to the requirements of Section 13-1-150 NMSA 1978, review by the staff architect of the facilities management division of the general services department or regulation by the director of that division pursuant to Section 15-3B-6 NMSA 1978.

G. Any contract entered into by the corrections department with a private contractor to operate an existing facility shall include a provision securing the right of all persons employed by that facility prior to the effective date of that contract to be employed by that contractor in any position for which they qualify before that position is offered to any person not employed by that facility prior to that date.

History: Laws 1985, ch. 149, § 1; 1988, ch. 79, § 1; 1990, ch. 51, § 2; 1995, ch. 215, § 3; 2013, ch. 115, § 23.

The 2013 amendment, effective June 14, 2013, changed the name of the property control division of the general services department to the facilities management division; in Subsection F, deleted "property control" and added "facilities management" before "division", and in the second sentence, after "considered a capital project", deleted "as defined in Section 15-3-23.3 NMSA 1978", after "Section 13-1-150 NMSA 1978", deleted "or of the Capital Program Act", and after "general services department", deleted "pursuant to Section 15-3-20 NMSA 1978".

The 1995 amendment, effective June 16, 1995, rewrote Subsection B which read "The corrections department may contract for the construction of a private facility to house a special incarceration alternative program for adult male and adult female felony offenders with a person or entity in the business of providing correctional or jail services to government entities"; added Subsection C; redesignated former Subsections C through F as Subsections D through G; in Subsection D, substituted "or operation" for "and operation" near the end of Paragraphs (2) and (3) and inserted "availability or" near the end of Paragraph (4); substituted "a facility for which private contractor operation is authorized" for "the facility" in Subsection E; and substituted "public works project" for "capital project" in Subsection F.

The 1990 amendment, effective May 16, 1990, added present Subsection B; designated former Subsection A, beginning with the second sentence, as Subsection C; redesignated former Subsections B to D as present Subsections D to F; substituted "any contract under this section" for "the contract in" near the beginning of present Subsection C; and substituted "this section" for "Section 33-1-17 NMSA 1978" in the first sentence of present Subsection E.

This section does not require individual officer compliance with training requirements in order for the independent contractor employee to be considered a peace officer. State v. Young, 2004-NMSC-015, 135 N.M. 458, 90 P.3d 477.

Employee of corrections contractor not "public employee". — The employee of an independent corrections contractor is not a "public employee" immune from tort liability under the New Mexico Tort Claims Act, 41-4-1 NMSA 1978 et seq. Giron v. Corr. Corp. of Am., 14 F. Supp. 2d 1245 (D.N.M. 1998).

Law reviews. — For note and comment, "The Constitutionality of Faith-Based Prison Programs: A Real World Analysis Based in New Mexico," see 37 N.M. L. Rev. 487 (2007).