Current through Register Vol. 35, No. 18, September 24, 2024
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.
