HOUSE BILL 276

57th legislature - STATE OF NEW MEXICO - first session, 2025

INTRODUCED BY

Joy Garratt and Patricia A. Lundstrom and Cathrynn N. Brown

and Michael Padilla and Art De La Cruz

 

 

FOR THE NEW MEXICO FINANCE AUTHORITY OVERSIGHT COMMITTEE

 

AN ACT

RELATING TO PUBLIC-PRIVATE PARTNERSHIPS; CREATING THE PUBLIC-PRIVATE PARTNERSHIP FUND AND THE PUBLIC-PRIVATE PARTNERSHIP PROGRAM; REQUIRING THE LOCAL GOVERNMENT DIVISION OF THE DEPARTMENT OF FINANCE AND ADMINISTRATION, IN CONSULTATION WITH THE NEW MEXICO FINANCE AUTHORITY, TO PROVIDE GRANTS TO PUBLIC PARTNERS TO COMPLETE BROADBAND PROJECTS AND TRANSPORTATION PROJECTS; REQUIRING RULEMAKING; PROVIDING THAT APPROPRIATIONS FROM THE PUBLIC PROJECT REVOLVING FUND MAY BE MADE TO THE PUBLIC-PRIVATE PARTNERSHIP FUND; EXEMPTING PUBLIC-PRIVATE PARTNERSHIP AGREEMENTS FROM THE PROCUREMENT CODE; MAKING AN APPROPRIATION.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. [NEW MATERIAL] PUBLIC-PRIVATE PARTNERSHIP FUND--CREATED--PURPOSE--PUBLIC-PRIVATE PARTNERSHIP PROGRAM--DISTRIBUTIONS.--

          A. As used in this section:

                (1) "authority" means the New Mexico finance authority;

                (2) "broadband project" means a project to develop, repair, replace or maintain the state facilities or infrastructure used to provide internet, including the electronics, equipment, transmission facilities, fiber-optic cables and any other item directly related to a system capable of transmission of internet protocol or other formatted data at current federal communications commission minimum speed standard, all of which will be owned and used by a provider of internet access services;

                (3) "division" means the local government division of the department of finance and administration;

                (4) "private partner" means an individual, a foreign or domestic corporation, a general partnership, a limited liability company, a limited partnership, a joint venture, a business trust, a public benefit corporation, a nonprofit entity or other private business entity or any combination thereof;

                (5) "public partner" means the state or any of its branches, agencies, departments, boards, instrumentalities or institutions and all political subdivisions of the state;                 (6) "public-private partnership" means an arrangement between one or more public partners and one or more private partners for the development of a broadband project or a transportation project; and

                (7) "transportation project" means studies, planning, design, construction and maintenance of transportation infrastructure located in this state.

          B. The "public-private partnership fund" is created as a nonreverting fund in the state treasury. The public-private partnership fund consists of distributions from the public project revolving fund, appropriations, income from investment of the public-private partnership fund, gifts, grants and donations. The division shall administer the public-private partnership fund, and money in the public-private partnership fund is appropriated to the division to administer the public-private partnership program. Disbursements from the public-private partnership fund shall be made by warrant of the secretary of finance and administration pursuant to vouchers signed by the director of the division or the director's designee.

          C. The "public-private partnership program" is created and shall be administered by the division. The division shall, in consultation with the authority, evaluate and provide grants to fund proposed transportation projects and broadband projects.

          D. A public partner shall apply to receive a grant on forms and in a manner prescribed by the division, which shall include the public-private partnership agreement executed by the public partner and private partner. When determining an award pursuant to this section, the division shall:

                (1) undertake a cost-benefit analysis of the proposed public-private partnership in comparison to a traditional project that is managed by a public partner;

                (2) determine whether the application of

procurement rules normally applicable to the public partner would delay or increase the cost of the proposed public project;

                (3) consider other financing available to complete the project, including matching financing provided by the private partner; and

                (4) consider the likelihood of the broadband project's or transportation project's completion.

          E. In addition to the requirements provided pursuant to Subsection D of this section, the division shall base its decision to award a grant for the completion of a:

                (1) broadband project on:

                     (a) whether the proposed project supports the expansion of broadband as estimated by the amount of private properties and commercial properties that would receive internet as a result of the project; or

                     (b) the need to develop, repair, replace or maintain the state facilities or infrastructure used to provide internet with existing broadband infrastructure based on the geographic area served by the project; and

                (2) transportation project on whether the project is necessary to study, plan, design, construct or maintain transportation infrastructure or facilities and is currently delayed by the public partner due to cost or the procurement process.

          F. The division shall promulgate rules to administer the public-private partnership program, including procedures:

                (1) for a public partner to apply for grants from the program;

                (2) to evaluate a proposed project; provided that the division shall:

                     (a) apply procurement, accounting and governmental conduct standards in evaluating a public partner's proposal and public-private partnership agreement;

                     (b) consider the recommendations of the authority; and

                     (c) ensure an expedited review process;

                (3) to award grants to a public partner to complete the public project; and

                (4) to safeguard public funds.

          G. The authority shall:

                (1) evaluate the financial risks of the proposed transportation project or broadband project; and

                (2) promulgate rules as necessary to recommend projects to the division.

          H. Money in the public-private partnership fund may be used to cover the administrative costs of the authority in complying with this section."

     SECTION 2. Section 6-21-6.1 NMSA 1978 (being Laws 1994, Chapter 145, Section 2, as amended) is amended to read:

     "6-21-6.1. PUBLIC PROJECT REVOLVING FUND--APPROPRIATIONS TO OTHER FUNDS.--

          A. At the end of each fiscal year, after all debt service charges, replenishment of reserves and administrative costs on all outstanding bonds, notes or other obligations payable from the public project revolving fund are satisfied, an aggregate amount not to exceed thirty-five percent of the governmental gross receipts tax proceeds distributed to the public project revolving fund in the preceding fiscal year less all debt service charges and administrative costs of the authority paid in the preceding fiscal year on bonds issued pursuant to this section may be appropriated by the legislature from the public project revolving fund to:

                (1) the following funds for local infrastructure financing:

                     (a) the wastewater facility construction loan fund for purposes of the Wastewater Facility Construction Loan Act;

                     (b) the rural infrastructure revolving loan fund for purposes of the Rural Infrastructure Act;

                     (c) the solid waste facility grant fund for purposes of the Solid Waste Act;

                     (d) the drinking water state revolving loan fund for purposes of the Drinking Water State Revolving Loan Fund Act;

                     (e) the water and wastewater project grant fund for purposes specified in the New Mexico Finance Authority Act; or

                     (f) the local government planning fund for purposes specified in the New Mexico Finance Authority Act; [or]

                 (2) the public-private partnership fund for purposes specified in Section 1 of this 2025 act; or

                [(2)] (3) the cultural affairs facilities infrastructure fund.

          B. The authority and the department of finance and administration in coordination with the New Mexico finance authority oversight committee may recommend annually to each regular session of the legislature amounts to be appropriated to the funds listed in Subsection A of this section."

     SECTION 3. Section 13-1-98 NMSA 1978 (being Laws 1984, Chapter 65, Section 71, as amended by Laws 2023, Chapter 149, Section 2 and by Laws 2023, Chapter 174, Section 1) is amended to read:

     "13-1-98. EXEMPTIONS FROM THE PROCUREMENT CODE.--The provisions of the Procurement Code shall not apply to:

          A. procurement of items of tangible personal property or services by a state agency or a local public body from a state agency, a local public body or external procurement unit except as otherwise provided in Sections 13-1-135 through 13-1-137 NMSA 1978;

          B. procurement of tangible personal property or services for the governor's mansion and grounds;

          C. printing and duplicating contracts involving materials that are required to be filed in connection with proceedings before administrative agencies or state or federal courts;

          D. purchases of publicly provided or publicly regulated gas, electricity, water, sewer and refuse collection services;

          E. purchases of books, periodicals, instructional materials and training materials in printed, digital or electronic format from the publishers, designated public-education-department-approved instructional material depositories or copyright holders thereof and purchases of print, digital or electronic format library materials by public, school and state libraries for access by the public;

          F. travel or shipping by common carrier or by private conveyance or to meals and lodging;

          G. purchase of livestock at auction rings or to the procurement of animals to be used for research and experimentation or exhibit;

          H. contracts with businesses for public school transportation services;

          I. procurement of tangible personal property or services, as defined by Sections 13-1-87 and 13-1-93 NMSA 1978, by the corrections industries division of the corrections department pursuant to rules adopted by the corrections industries commission, which shall be reviewed by the purchasing division of the general services department prior to adoption;

          J. purchases not exceeding ten thousand dollars ($10,000) consisting of magazine subscriptions, web-based or electronic subscriptions, conference registration fees and other similar purchases where prepayments are required;

          K. municipalities having adopted home rule charters and having enacted their own purchasing ordinances;

          L. the issuance, sale and delivery of public securities pursuant to the applicable authorizing statute, with the exception of bond attorneys and general financial consultants;

          M. contracts entered into by a local public body with a private independent contractor for the operation, or provision and operation, of a jail pursuant to Sections 33-3-26 and 33-3-27 NMSA 1978;

          N. contracts for maintenance of grounds and facilities at highway rest stops and other employment opportunities, excluding those intended for the direct care and support of persons with handicaps, entered into by state agencies with private, nonprofit, independent contractors who provide services to persons with handicaps;

          O. contracts and expenditures for services or items of tangible personal property to be paid or compensated by money or other property transferred to New Mexico law enforcement agencies by the United States department of justice drug enforcement administration;

          P. contracts for retirement and other benefits pursuant to Sections 22-11-47 through 22-11-52 NMSA 1978;

          Q. contracts with professional entertainers;

          R. contracts and expenditures for legal subscription and research services and litigation expenses in connection with proceedings before administrative agencies or state or federal courts, including experts, mediators, court reporters, process servers and witness fees, but not including attorney contracts;

          S. contracts for service relating to the design, engineering, financing, construction and acquisition of public improvements undertaken in improvement districts pursuant to Subsection L of Section 3-33-14.1 NMSA 1978 and in county improvement districts pursuant to Subsection L of Section 4-55A-12.1 NMSA 1978;

          T. works of art for museums or for display in public buildings or places;

          U. contracts entered into by a local public body with a person, firm, organization, corporation or association or a state educational institution named in Article 12, Section 11 of the constitution of New Mexico for the operation and maintenance of a hospital pursuant to Chapter 3, Article 44 NMSA 1978, lease or operation of a county hospital pursuant to the Hospital Funding Act or operation and maintenance of a hospital pursuant to the Special Hospital District Act;

          V. purchases of advertising in all media, including radio, television, print and electronic;

          W. purchases of promotional goods intended for resale by the tourism department;

          X. procurement of printing, publishing and distribution services for materials produced and intended for resale by the cultural affairs department;

          Y. procurement by or through the public education department from the federal department of education relating to parent training and information centers designed to increase parent participation, projects and initiatives designed to improve outcomes for students with disabilities and other projects and initiatives relating to the administration of improvement strategy programs pursuant to the federal Individuals with Disabilities Education Act; provided that the exemption applies only to procurement of services not to exceed two hundred thousand dollars ($200,000);

          Z. procurement of services from community rehabilitation programs or qualified individuals pursuant to the State Use Act;

          AA. purchases of products or services for eligible persons with disabilities pursuant to the federal Rehabilitation Act of 1973;

          BB. procurement, by either the department of health or Grant county or both, of tangible personal property, services or construction that are exempt from the Procurement Code pursuant to Section 9-7-6.5 NMSA 1978;

          CC. contracts for investment advisory services, investment management services or other investment-related services entered into by the educational retirement board, the state investment officer or the retirement board created pursuant to the Public Employees Retirement Act;

          DD. the purchase for resale by the state fair commission of feed and other items necessary for the upkeep of livestock;

          EE. contracts entered into by the crime victims reparation commission to distribute federal grants to assist victims of crime, including grants from the federal Victims of Crime Act of 1984 and the federal Violence Against Women Act of 1994;

          FF. procurement by or through the early childhood education and care department of early pre-kindergarten and pre-kindergarten services purchased pursuant to the Pre-Kindergarten Act;

          GG. procurement of services of commissioned advertising sales representatives for New Mexico magazine;

          HH. public-private partnership agreements for the performance of a broadband project or a transportation project pursuant to Section 1 of this 2025 act;

          [HH.] II. contracts entered into by the forestry division of the energy, minerals and natural resources department to distribute federal grants to nongovernmental entities and individuals selected through an application process conducted by the United States department of agriculture, the United States department of the interior or any division or bureau thereof for programs for wildfire prevention or protection, urban forestry, forest and watershed restoration and protection, reforestation or economic development projects to advance the use of trees and wood biomass for hazardous fuel reduction; and

          [II.] JJ. procurements exempt from the Procurement Code as otherwise provided by law."

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