Current through Register Vol. 35, No. 6, March 26, 2024
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 sender's 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
administrator's determination to grant or not grant a waiver or excuse pursuant
to this rule may, within seven days of receiving notice of the program
administrator's determination, appeal the determination to the sponsoring body
by serving notice of appeal to the sponsoring body's 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
administrator's 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 grantee's grant
administrator or primary contact;
(8) specify record keeping and reporting
requirements;
(9) specify the
amount, form and timing of the grantee's 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.
