New Mexico Register / Volume XXXV, Issue 7 / April 9, 2024
This is an amendment to 1.12.21 NMAC, Sections 8 and 10, effective
04/09/2024.
1.12.21.8 GENERAL RULES: These rules
govern all subject grant programs:
A. Program
administrator. A sponsoring body shall designate at
least one person to serve as the program administrator for each grant program.
The sponsoring body for a program shall notify applicants and grantees (as
applicable) of any change to the program administrator(s) within 30 days of the
change.
(1) The program administrator for a
subject program shall be retained and subject to discharge by the sponsoring
body subject to the provisions of the State Personnel Act and procurement laws,
and to the advice and consent of the sponsoring body, as applicable.
(2) The program administrator shall
report to the sponsoring body for a subject grant program.
B. Program
purpose. A sponsoring body shall design a grant program to accomplish a
purpose authorized by the funding source and that conforms to all applicable
laws. The purpose and scope of a program shall be determined by the sponsoring
body. The program purpose shall be stated in the NOFO for a merit-based
program, and in the authorization order for an assistance grant program.
C. Appropriations. These rules do not apply to any appropriation
lawfully used by a sponsoring body:
(1) to fund program administration;
(2) for a purpose specified in a funding source;
(3) budgeted for a purpose other than program funding; or
(4) for contracting.
D. Notice. Whenever these rules require notice, the
required information shall be directed to the intended recipient(s) through e-mail,
or through first-class mail if no e-mail address is on file. Notice shall be
deemed delivered one day after transmission for e-mailed notice and three days
after posting for mailed notice.
E. Publication.
Whenever these rules require publication, the required information shall be
disseminated through mass communication channels reasonably calculated to reach
the intended recipients. Such channels shall include display on the public
notice section of the DoIT website, and may also include, but are not limited
to, website postings, text messaging, subscription list-serves, newspapers and social media outlets.
F. Service.
Whenever these rules require service,
that shall be accomplished either through e-mail or first-class mail to the
intended recipient. E-mail service shall be effective upon the senders receipt
of a return receipt, acknowledgment of receipt, or reply to the service e-mail.
Mail service shall be effective three days after posting.
G. Time.
In computing any period of time prescribed or
allowed by these rules:
(1) the day from which period of time
begins to run shall not be included. The last calendar day of the time period shall be included in the computation unless it
is a Saturday, Sunday or a day on which a legal holiday is observed. In such a
case, the period of time runs to the close of business
on the next regular workday. If the period is less than 11 days, a Saturday, Sunday or legal holiday is excluded from the computation.
(2) the time allowed to respond or do some other act within a
prescribed period after service of a notice, pleading or paper, and the service
is by first class mail, three calendar days shall be added to the prescribed
period.
H. Waiver
and variance. For good cause, a program administrator may waive, vary or excuse compliance with, any time limit or
ministerial requirement in these rules or of a NOFO. Upon a finding of good
cause, a program administrator may waive substantive requirements of a NOFO,
subject to veto of the sponsoring body within 30 days of receiving notice of
the waiver.
(1) A waiver shall only be valid if documented in a writing
physically or digitally signed by the program administrator.
(2) A person aggrieved by a program administrators
determination to grant or not grant a waiver or excuse pursuant to this rule
may, within seven days of receiving notice of the program administrators
determination, appeal the determination to the sponsoring body by serving
notice of appeal to the sponsoring bodys legal department or lawful designee.
(3) The sponsoring body shall have 10 days to affirm or
reverse any waiver-related appeal. A
reversal that results in granting a waiver request shall only be valid if
documented in a legally authorized written order or resolution, as applicable,
of the sponsoring body. If the
sponsoring body does not reverse a program administrators determination within 10 days
of receiving notice of the appeal, that determination is deemed affirmed.
I. Award
agreement. Every award agreement shall, where applicable:
(1) identify the grantor (sponsoring body) and the grantee;
(2) identify the funding source and award amount;
(3) specify the award deliverables, goals, standards
and benchmarks with sufficient particularity to verify performance and to
eliminate or minimize subjective assessments of performance;
(4) identify the program administrator;
(5) identify the administrative, financial, oversight and
verification standards and processes applicable to the award;
(6) specify tax reporting and payment obligations applicable
to the award;
(7) identify the grantees grant administrator or primary contact;
(8) specify record keeping and reporting requirements;
(9) specify the amount, form and
timing of the grantees matching contribution, if any;
(10) specify limitations on assignment or transfer of award
rights, obligations or deliverables;
(11) describe ownership rights to tangible or intangible property
created by the grantee pursuant to the award, including any limitations on the
right to voluntarily or involuntarily transfer any property created or
purchased with award funds, and reversion rights and triggers, if any;
(12) identify by citation or codified nomenclature any and all laws, regulations, and published guidance that
govern award administration or establish program compliance obligations;
(13) identify
by citation or codified nomenclature the procurement laws, if any, that apply
to contracting with award funds;
(14) specify contracting documentation requirements and
processes, including any approval or authorization requirements, and any
non-standard contracting limitations;
(15) consistent with the provisions of these rules, include terms
governing default; remedies; termination criteria and processes; recoupment;
cure processes and standards; choice of law; remedy limitations (if any); and
rehabilitation rights and processes;
(16) include pertinent disclaimers and notices concerning
compliance obligations, including tax payments, prevailing wage laws and
preferences;
(17) identify key deadlines;
(18) specify end user or customer service terms or conditions
applicable to the award, including price or discount agreements, service level
commitments, co-share or cooperation requirements;
(19) incorporate the terms and conditions of the NOFO;
(20) incorporate all statements and representations in the
application as actionable representations and warranties;
(21) include any other covenants or conditions required by the
funding source or pertinent to the requirements of a particular program.
(22) specify a process for the grantee to request modifications
or accommodations responsive to unexpected or changed circumstances during
project performance.
J. Disqualification
and debarment. A sponsoring body shall not make an award, or consider an
application for an award, made by any person who, within the preceding five
years, violated any federal, state or local law or
rule governing theft, fraud, misrepresentation, trade practices, undue
influence, business ethics, lobbying or political contributions.
(1) Subject to New Mexico laws governing res judicata, a
sponsoring body may treat a final judgment, order or
similar legal instrument against a person as conclusive or prima facie evidence
of a disqualifying violation.
(2) A sponsoring body may establish that a person has
committed a disqualifying violation after conducting a duly noticed hearing
with sufficient procedural safeguards to provide due process.
(3) Unless a disqualification or debarment is final by
operation of law, a person may challenge a disqualification or debarment
pursuant to the challenges and disputes section of these rules.
K. Grant
program coordination and collaboration. Where a funding source or
controlling law requires or contemplates coordination between DoIT, OBAE and
the council, these entities shall collaborate on the development, award and administration of a program subject to a specific
or generally applicable memorandum of understanding (MOU). A MOU may incorporate a responsibility matrix
that may be customized for a particular program. These rules do not preclude subject entities
from cooperating in the development or administration of a grant program in the
absence of a specific legal or program directive to do so.
L. Award
modification. A sponsoring body may increase an award for good cause and as
necessary to accomplish the project objectives.
A modified award shall be published in the same manner as publication of
the initial award. As used here, good
cause refers to an unexpected and unforeseeable change in economic
circumstances beyond the control of the awardee that would prevent completion
of the project if the award is not modified.
M. Tribal
collaboration. A sponsoring body shall comply with the NM State Tribal
Collaboration Act regarding Indian nations, tribes or pueblos in the
development or administration of programs subject to these rules that directly
affect American Indians. An applicant
who proposes to provide service on tribal lands, as identified in the project area,
must obtain a Certification of Consent from the tribal council, or authorized
tribal entity. The tribal consent must
note whether the project area is unserved or underserved, note how that
determination was made, and will disclose all tribally-approved state and
federal funded enforceable network buildout commitments.
[1.12.21.8 NMAC - N, 04/11/2023;
A, 04/09/2024]
1.12.21.10 ASSISTANCE GRANTS: These additional rules apply to assistance grant
programs.
A. Authorization.
An assistance grant is authorized if the:
(1) total available program funding does not exceed
$2,500,000,
(2) funding source specifies the grantee or subrecipient;
(3) funding source requires program funds to be fully expended
in fewer than 18 months;
(4) sponsoring body determines that the grantee or
subrecipient is the only person who can satisfy program requirements specified
by a funding source in a timely, correct and
cost-effective manner;
(5) delay inherent in the merit-based program would likely
create or exacerbate a threat to life, health, physical security, economic
security, cyber security or educational development of
state residents or to the State, or would likely delay meaningful mitigation of
such an existing threat; or
(6) grantee or subrecipient is a [governmental unit or
tribal government] local governmental unit, tribal unit, electric
cooperative, or telephone cooperative and the funding source does not
expressly require a competitive or merit based process.
B. Justification
order. An assistance grant shall be authorized by an order or resolution of
the sponsoring body, supported by findings and conclusions justifying an
assistance grant, and published at least 21 days before the award.
C. Grant
proposal. An assistance grant shall be based on a grant proposal presented
by the grantee or subrecipient that, at a minimum, includes:
(1) a detailed description of the proposed project, how the
project would accomplish a purpose specified in, and satisfy conditions of, the
funding source, the project timeline and the source and availability of other
funds required to complete the project;
(2) the identity, financial and performance qualifications of
each grantee, vendor or contractor who will be directly or indirectly receive
award funds, including qualifications of the project manager and all key
grantee, vendor and contractor personnel;
(3) the form and substance of each contract the grantee
proposes to procure with the award funds;
(4) the identify and qualifications of the grantees fiscal
agent, if required;
(5) sufficient information to establish that the proposal
meets an exception to the merit-based program; and
(6) any other information requested by the sponsoring body.
D. Match
requirement. Unless a funding source prohibits requiring a match, or
specifies a match requirement, a sponsoring body may specify match, and match
waiver, requirements. Match and match
waiver requirements shall be specified in the justification order and included
in the award agreement.
E. Contracting. To the largest extent possible, the
sponsoring body will encourage the funding program participation by New
Mexico-based organizations, organizations located (and hiring from) within the
proposed project footprint, woman and minority owned organizations, veteran
owned businesses and tribally-owned/based organizations and businesses.
[1.12.21.10 NMAC - N, 04/11/2023;
A, 04/09/2024]
History of 1.12.21
NMAC: [RESERVED]