N.M. Admin. Code § 17.7.3.14 - INDEPENDENT MONITOR
A. Scope
and purpose: The independent monitor's role is to help the commission determine
that the request for proposals design and execution is fair, competitive, and
transparent. The independent monitor shall advise the commission and report on
the RFP process, but the independent monitor shall not make or participate in
the public utility's decisions regarding the procurement process or the
selection of resources.
B.
Following commission acceptance of a public utility's statement of need and
action plan, the commission shall appoint an independent monitor to monitor the
procurement process of a public utility for competitive resource procurements
pursuant to
17.7.3.12 NMAC. The independent
monitor, as provided in this Section, shall assist the commission in ensuring
that all such processes are reasonable and competitively fair and shall report
to the commission regarding those matters as provided in this rule. The
commission may appoint an IM for emergency procurements pursuant to
17.7.3.17 NMAC.
C. The commission shall, through its
designee:
(1) undertake a process consistent
with state purchasing rules and commission policies in recommending a pool of
qualified IMs;
(2) develop an RFP,
including the scope, terms of work, and evaluation process to score the RFP
responses;
(3) receive, review,
score, and rank the RFP responses;
(4) confer with the public utility on the
recommendation of the IM;
(5)
recommend qualified bidders to the commission for appointment as the IM;
and
(6) administer the contract
with the appointed IM, including: confirming that contract deliverables are
met, reviewing invoices and related contract performance, and approving utility
invoices after staff's review and approval.
D. In selecting the IM, the commission,
through its designee, may solicit recommendations of the names of independent
firms or individuals that demonstrate independence from public utilities
supplying electric service in the state, their affiliates, and likely bidders,
and demonstrate the qualifications, expertise, and experience to perform the
functions of an IM as provided in this rule.
(1) The IM shall provide a statement of
interest to the commission which discloses any contracts or other economic
arrangements of any kind between the IM and any investor-owned electric utility
or affiliate within the last four years.
(2) The IM shall notify the commission and
utility of any perceived or actual conflicts that arise during the course of
the procurement process.
E. The commission, through its designee,
shall develop a standard form of contract between an IM and the commission that
requires the IM to perform the functions of an IM as provided in this rule in a
manner that is not subject to the control of the public utility. The standard
form of contract between an IM and the commission for IM services as provided
for in this rule shall include, but shall not be limited to, the identification
of the IM's functions and scope of work as provided in Subsection G of
17.7.3.14 NMAC.
F. Funding for the services of the IM shall
be paid by the utility and treated as a regulatory asset to be recovered
through rates established in the utility's next general rate
proceeding.
G. Duties of the
independent monitor:
(1) The IM shall file a
minimum of two reports with the commission. The first report shall analyze the
RFP design (design report). The final report shall review the fairness of the
RFP execution (final report).
(a) In the
design report, the IM shall report to the commission on RFP design within 28
days of the public utility's provision of RFP documents pursuant to Subsection
C of 17.7.3.12 NMAC. The IM shall
analyze the proposed RFP, including but not limited to its scope, instructions,
conditions for eligible proposals, specifications, time schedules, disclosure
of bid evaluation methods, and term sheets. The RFP design report shall state
whether the contents of the proposed RFP comply with the requirements of
17.7.3.10 NMAC through
17.7.3.12 NMAC and are otherwise
reasonable, competitively fair, designed to promote a robust bid response, and
designed to identify a utility's most cost-effective option among resource
alternatives to meet its service needs in compliance with this rule.
(b) In the final report, the IM shall, within
30 days of the utility's submission of its shortlist to the IM, review and
report on the reasonableness, competitiveness, and fairness of the utility's
solicitation, evaluation, and procurement processes, including but not limited
to bid screening, comparison, evaluation, and short-listing criteria.
(i) The IM shall state whether the RFP
process implemented by the public utility complied with the requirements of
17.7.3.11 NMAC and
17.7.3.12 NMAC.
(ii) The IM's report shall also provide
summary information on the results of the bids, including the number of bids
sorted by the following criteria: by resource type, capacity or energy, price
range by resource type, and whether there were any deficiencies in those
respects that should be addressed by the commission in a future proceeding for
approval of the solicited projects. The commission may rely on that opinion to
request that the utility make modifications in a timely manner.
(2) At any point during
the public utility's RFP process the IM may notify the commission and the
utility of any deficiency as contemplated in Subsection G of
17.7.3.14
NMAC.
H. The public
utility shall provide the IM with prompt and continuing access to all
documents, data, assumptions, models, specific model inputs, bidding and
weighting criteria used, and any other relevant information reviewed, produced,
or relied on by the public utility in the preparation and conduct of its
competitive resource procurement process.
I. All communications, including but not
limited to reports pursuant to this Section, provided by the IM to the
commission, shall be made part of the commission's public records in a timely
manner in the public utility's most recent IRP docket.
(1) The public utility, commission utility
division staff, and any parties to the public utility's most recent IRP docket
may comment within 14 days of the filing of the design report to the public
record. After the design report comment deadline of 14 days, the utility may
issue the RFP.
(2) In any
proceeding filed by a public utility for approvals stemming from its
solicitation made pursuant to the RFP process as described in
17.7.3.12 NMAC, the commission may
rely upon any reports or findings of the IM assigned to monitor that
solicitation as evidence, provided that such evidence shall not be conclusive
as to whether or not a resource proposed by the utility shall be
approved.
J. All
communications between the public utility and any bidders shall be shared at
the same time with the IM. Commission utility division staff and any parties
are restricted from initiating contacts with the independent monitor. The
independent monitor may initiate contact with the utility, commission utility
division staff, and any parties.
(1) For all
contacts with the public utility, commission utility division staff, and any
parties in the resource plan proceeding, the independent monitor shall maintain
a log that briefly identifies the entities communicating with the IM, the date
and duration of the communication, the means of communication, the topics
discussed, and the materials exchanged, if any.
(2) The communications log shall be contained
in the IM's report to the commission pursuant to Subparagraph (b) of Paragraph
(1) of Subsection G of
17.7.3.14
NMAC.
K. The independent
monitor shall serve as an advisor to the commission and shall not be a party to
the proceedings in accordance with
1.2.3.9 NMAC. As such, the
independent monitor shall not be subject to discovery nor cross-examination at
hearing, if one is held, but the public utility, commission utility division
staff, and any parties shall have the opportunity to respond to any reports or
findings of the IM pursuant to Paragraph (1) of Subsection I of
17.7.3.14 NMAC.
L. The commission shall not appoint an
independent monitor for a utility's procurement for which the commission grants
a variance pursuant to Subsection D of
17.7.3.17 NMAC.
Notes
State regulations are updated quarterly; we currently have two versions available. Below is a comparison between our most recent version and the prior quarterly release. More comparison features will be added as we have more versions to compare.
No prior version found.