N.M. Admin. Code § 1.12.21.9 - MERIT BASED GRANT PROGRAMS

These additional rules apply to a merit based grant program.

A. Merit requirement. Unless the rules applicable to an assistance grant program apply, a grant program shall be merit based.

B. General merit standards. A merit based grant program shall be designed and conducted in a manner that encourages participation by applicants who are reasonably likely to accomplish the program purpose, who have the ability to satisfy award criteria, who have interests and capabilities aligned with the intended beneficiaries of the program and who have the interest and ability to sustain the program purpose;

(1) shall encourage contracting with state, local, minority, native American and woman owned enterprises;

(2) unless specified by a funding source, or good cause exists, shall not use eligibility or program specifications that favor a particular applicant. In this context, good cause means there is a compelling public interest that justifies favoring a particular applicant, but the program does not qualify to be established as an assistance grant program;

(3) shall, if lawful and reasonably practicable, be designed in a way that supports direct or indirect participation by local and small businesses;

(4) shall include a process that allows the sponsoring body to waive or defer a matching contribution upon a showing of good cause and where sufficient safeguards can be implemented to facilitate successful completion of the project.

(a) As used in this rule, safeguards may include, but are not limited to, financial guarantees by the grantee or third party, bond programs or bond program initiatives, enhanced contractor qualifications, or enhanced project oversight including increased reporting frequency.

(b) As used in this rule, good cause exists when an applicant submits a waiver request with an application articulating facts which show a legal or practical obstacle to appropriating or generating sufficient funding for the matching requirement using all reasonably available funding mechanisms. Obstacles to funding may include, but are not limited to, challenging socio-economic conditions within the proposed service area or community, poor subscriber revenue projections, limited investment opportunity or return expectations, or infeasibility of generating matching funds through tax or bond initiatives. A demonstration of a current lack of available funding, without more, will not establish good cause.

(c) A waiver request shall be submitted with an application, using a form or format specified by the sponsoring body, and shall include both the justification for the request and any safeguards the applicant is willing to implement to facilitate project completion.

(5) may include incentives for an application that maximizes or leverages alternative and supplemental funding sources for a program. Any available incentive shall be identified in the program NOFO.

(6) shall be designed and administered in a manner that maximizes transparency without sacrificing confidentiality or competitive processes.

C. Application period. Unless the program administrator finds good cause to shorten the application period, that period shall be no less than 30 days.

(1) For purposes of this rule, good cause includes, but is not limited to, any exigent circumstances relating to funding conditions, business need, cost savings, business conditions (including material, equipment and labor supply issues), program objectives or needs.

(2) A NOFO shall identify the good cause that justifies any application period less than 60 days.

(3) If allowed by the NOFO, a program administrator may accept, evaluate and award applications submitted earlier than the filing deadline.

D. NOFO. A merit based program shall be conducted pursuant to a NOFO, which shall:

(1) identify, with reasonable particularity, the purpose, scope, eligible entities, and eligible projects;

(2) be drafted or reviewed by a subject matter expert experienced with the type of project(s) eligible for funding, and in NOFO drafting;

(3) specify, with reasonable particularity, application requirements, including deadline, supporting documentation, eligibility criteria and submission requirements;

(4) specify the total funding available under the program and the maximum funding available for a single award;

(5) be timely published in a manner that is reasonably calculated to provide notice to potential applicants. At a minimum, every NOFO shall be published through a NOFO list service operated by the sponsoring body, on a designated location on the webpage of the sponsoring body and through each publication method required by other law;

(6) accept and consider applications from non-public entities to the extent allowable by law and the funding source;

(7) identify the program administrator;

(8) identify factor(s), if any, other than an application score, that may have bearing on application evaluation and selection;

(9) provide a streamlined mechanism, such as a frequently asked questions forum, for requesting and providing supplemental or clarifying information that may impact the award determination;

(10) specify match requirements, including match percentage and contribution timing; and

(11) if a match waiver is allowed under a program, specific standards for approving, and the process for requesting, a waiver.

E. Award agreement. To the extent permitted by program exigencies, a sponsoring body shall publish a template award agreement with the NOFO.

F. Application. Every merit based program shall require the submission of an application for evaluation and scoring. An application shall:

(1) seek the necessary information to enable a comprehensive scoring and evaluation of an applicant's potential to most effectively achieve program objectives and meet policy and compliance requirements.

(2) avoid, to the extent practical, requests for information that is likely to be considered confidential under state or federal law, and provide a process consistent with these rules for an applicant to request confidential treatment of required application material or information;

(3) be published with the NOFO;

(4) only be accepted in a specified digital format, unless a program administrator finds good cause to allow a specific applicant to submit a paper application;

(5) not request information about an applicant's status as a minority or small business enterprise unless pertinent to a scoring or award criterion;

(6) request the identification and qualification of a fiscal agent if required;

(7) require specific and detailed descriptions of the proposed service area and project deliverables.

(8) limit application submission requirements and processes to only those reasonably necessary to ensure a full and fair evaluation and avoid requirements or processes that are likely to be unduly burdensome to a potential applicant unless strictly necessary to obtain evaluative information.

(9) specify how an applicant can request pre-submission clarification of application requirements or processes.

G. Application pre-screening. The program administrator shall pre-screen each application to determine if it provides all requested information and supporting materials.

(1) If an application submitted in good faith is incomplete, the program administrator shall notify the applicant of the deficiency and allow the applicant an opportunity to cure the deficiency unless allowing that opportunity would be contrary to a material program objective.

(2) A program administrator may reject any application that remains incomplete after expiration of the specified cure period;

(3) A program administrator shall accept and proceed with scoring and evaluation of every materially complete application.

H. Scoring and evaluation. Every merit based program application shall be evaluated pursuant to a published scoring and evaluation guide.

(1) The scoring guide shall identify key selection criteria; provide a methodical, structured approach to comprehensively assess an applicant's potential to satisfy program and award requirements; and shall ensure all applications receive a consistent standard of evaluation and scoring.

(2) Each application shall be scored by multiple reviewers, as specified in the NOFO.

(a) A program may use multiple panels of reviewers of functionally comparable size.

(b) If all applications are not evaluated and scored by a single review panel, the program administrator or designee(s) shall conduct a final review which shall evaluate all application scores, conduct any application due diligence and make final award recommendations or decisions.

(3) If specified in the NOFO, a sponsoring agency may consider non-scored criteria in the award selection process, including, but not limited to:

(a) Geographic diversity: distributing awards to qualifying service areas across a State.

(b) Organizational diversity: distributing awards to a variety of qualifying entities.

(c) Synergy with state strategic priorities: consideration of other programs across the state aimed to foster economic and social development, and how broadband can advance those objectives and plans.

I. Reviewer qualification, selection and compensation. Each reviewer shall either be a subject matter expert specific to the program or specifically trained to evaluate and score program applications.

(1) The program administrator shall select and appoint the reviewers and shall provide or arrange for any required reviewer training.

(2) Subject to the terms of the funding source, and to all applicable procurement and personnel laws and policies, the sponsoring body shall determine whether reviewers will be contracted, employed or volunteers.

(3) Prior to selection, every prospective reviewer shall be required to disclose any facts and circumstances likely to create an actual or perceived financial conflict of interest.

(a) The program administrator shall determine whether a reviewer has a disqualifying financial conflict.

(b) In determining whether a reviewer has a disqualifying conflict, the program administrator shall evaluate whether the reviewer, or any entity affiliated with the reviewer, has a direct or indirect financial interest that may be impacted favorably or adversely by the reviewer's evaluation, score or recommendation.

J. Public comment. Unless good cause exists to eliminate a public comment period, or to shorten the allowed time for submitting comments, the sponsoring body shall publish a draft NOFO, and allow the public to comment on that draft and the proposed service area, for at least 10 days.

(1) The publication shall specify how, and by when, public comments may be submitted, any material limitations on comments, and the period of time allowed for the sponsoring body to review comments after expiration of the submission period.

(2) The sponsoring body shall accept and consider every timely submitted public comment before officially publishing a program NOFO and may revise the program documents in response to any comment before that publication. The sponsoring body may, but is not required to, provide responses to comments or offer an additional public comment period to address revisions made in response to prior public comments.

(3) A person who fails to offer comment during a public comment period waives any objection to the form of the published NOFO, and to the proposed service area, but shall not be barred from challenging the legal sufficiency of any NOFO terms or provisions.

(4) Any person, other than an employee or agent of the sponsoring body, shall be allowed to submit public comments.

K. Confidential information. A program administrator shall provide a process for an applicant to request confidential treatment of information required for an application.

(1) Subject to any program exigencies beyond the control of the sponsoring body, the confidentiality request process shall be prominently specified in the application form or on any web-based application portal.

(2) A request to treat application information as confidential shall be submitted as specified by the program administrator and supported by a declaration that provides sufficient factual information and legal authority to support the confidentiality request. A declaration form is available on DoIT's website.

(3) The program administrator shall refer each confidentiality request for a legal review by the sponsoring body's legal counsel or that person's designee.

(4) If the program administrator notifies the applicant that information will not be held confidential, the applicant shall be allowed at least five days from the date of the notice to appeal that determination pursuant to these rules. The information shall be treated confidentially pending the resolution of the appeal and any ensuing judicial review. If a determination that information in an application is not confidential becomes final the applicant may withdraw the application, or proceed with the application process, in which case the application will be a public record.

(5) An applicant who requests and receives confidential treatment of information is solely responsible for opposing any public record request, discovery request or subpoena for the information in any administrative or judicial forum. As soon as practical after receiving a request for confidential information, a program administrator shall attempt to notify the owner of the information of the request. However, neither the program administrator nor the sponsoring body shall be responsible for ensuring the applicant has sufficient time, means or opportunity to oppose the request, nor shall either be liable for any consequences resulting from the applicant's inability or failure to timely challenge the request, or for the administrative or judicial denial of any objection to disclosure.

Notes

N.M. Admin. Code § 1.12.21.9

Adopted by New Mexico Register, Volume XXXIV, Issue 07, April 11, 2023, eff. 4/11/2023