Mira Consulting, Inc. v. Board of Educ.
2017 NMCA 9
| N.M. Ct. App. | 2016Background
- Mira Consulting, a for-profit dental provider, responded to an Albuquerque Public Schools (APS) Request for Information (RFI) seeking dental service providers for the 2014–2015 school year. The RFI required services be provided at no cost to APS and instructed selected vendors to bill Medicaid, other third-party payers, or provide services pro bono.
- Four vendors submitted information; Mira and Smiles for New Mexico Kids were selected, with Mira assigned 68 schools and Smiles 30.
- Mira filed a bid protest with APS’s procurement division challenging the school distribution and proximity issues; APS contended the New Mexico Procurement Code did not apply because APS would not expend funds.
- Mira sued for a declaratory judgment that the RFI and selection were subject to the Procurement Code. The district court granted APS’s Rule 1-012(B)(6) motion to dismiss for failure to state a claim.
- The Court of Appeals reviewed statutory construction de novo and considered whether the Procurement Code’s applicability is limited to transactions involving expenditures by public bodies, and whether non-expenditure concession arrangements fall within the Code.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Procurement Code applies to APS’s RFI/selection process | The Code applies because §13-1-30(A) says it applies to "every expenditure," and APS’s use of RFI/RFP-like procedures should bring it within the Code | The Code applies only to transactions involving an expenditure; APS’s RFI is a concession arrangement with no APS expenditure | The Code does not apply; RFI is a concession-like, non-expenditure arrangement outside the Procurement Code exception |
| Whether the RFI’s use of RFP-like procedures transforms a non-covered transaction into a covered procurement | Mira: APS’s solicitation resembled an RFP so Procurement Code provisions (e.g., RFP rules) should apply | APS: The form or methods used cannot expand Code coverage beyond §13-1-30(A)’s expenditure requirement | Court: Methods do not alter coverage; substance controls and RFI expressly stated APS would not pay vendors |
| Whether the Court should treat Mira as an "alter ego" or public entity analog under Memorial Medical Center | Mira: its close relationship with APS and role providing services to APS students requires Code protection | APS: Mira is an independent third-party provider billing Medicaid/third parties; not an alter ego of APS | Court: Memorial Medical Center’s alter-ego rationale does not apply; Mira is not acting as APS’s alter ego or procuring services on APS’s behalf |
| Whether courts should judicially expand the Procurement Code to cover concession contracts generally | Mira: policy and fairness favor applying Procurement Code to such concessions | APS: Any expansion is legislative, not judicial | Court: Policy arguments are for the legislature; courts must apply statute as written and not expand coverage |
Key Cases Cited
- Kayak Ctr. at Wickford Cove, LLC v. Town of Narragansett, 116 A.3d 250 (R.I. 2015) (held procurement statute did not apply to concession contracts that generated revenue rather than public expenditures)
- Indep. Taxicab Ass’n of Columbus v. Columbus Green Cabs, Inc., 616 N.E.2d 1144 (Ohio Ct. App. 1992) (where city was granting management/license rather than purchasing services, competitive-bid rules did not apply)
- Memorial Medical Ctr., Inc. v. Tatsch Constr., Inc., 12 P.3d 431 (N.M. 2000) (discusses when a private entity may be treated as a public entity for Procurement Code purposes under an alter-ego/functional-equivalence analysis)
- State v. Greenwood, 271 P.3d 753 (N.M. Ct. App. 2012) (courts should construe statutes as written and not add language the legislature omitted)