CS/CS/HB 190/a PUBLIC PRIVATE PARTNERSHIP AGREEMENTS

Rep Joy Garratt

Actions: [2] not prntd-HRC [3] w/drn-prntd-ref- HTPWC/HJC-HTPWC [5] DNP-CS/DP-HJC [9] DNP-CS/DP [14] fl/aa- PASSED/H (56-9) [9] SJC-SJC

Scheduled: Not Scheduled

 House Bill 190 (HB 190) This Legislation is related to procurement in the state of New Mexico, specifically introducing sections to the Procurement Code. The focus of these sections is on public-private partnerships (PPPs) for the development of public projects.  

 House Bill 190 (HB 190) The legislative act outlines various project delivery methods for public-private partnership agreements, including design and build, maintain, finance, operate, and concessions. 
•	Continuous oversight by the contracting public partner and performance of the public project are addressed, with recognition that it is considered a public work for specific purposes.  

Request for Proposals (RFP):  Public partners are required to request proposals for public-private partnership agreements using a competitive procurement process. 
•	The RFP must include proposed parameters, duties and responsibilities, plans for financing and operating the public project, and other relevant information.
•	Public notice of the RFP is mandated, and specific requirements for the notice period are outlined.

Unsolicited Proposals: Prospective private partners are allowed to submit unsolicited proposals to public partners or the division. 
•	The public partner has a specified time frame to consider further action on the proposal and must provide public notice. 
•	The notice allows for public comments and specifies different notice periods based on the valuation of the unsolicited proposal.

Division Rules: The division (board of finance division of the department of finance and administration) is empowered to promulgate rules for public-private partnership agreements, including when they may be used, minimum requirements, and standards to limit liability. 
•	The division also plays a role in receiving and approving public-private partnership agreements.  

Public-Private Partnership Agreement and Performance: The legislative act outlines various project delivery methods for public-private partnership agreements, including design and build, maintain, finance, operate, and concessions. 
•	Continuous oversight by the contracting public partner and performance of the public project are addressed, with recognition that it is considered a public work for specific purposes.  
 

 Floor Amendment 1 on February 6, 2024, in HTPWCF

HTPWCFla/SB 190: 
•	On page 3, strike lines 4 through 11 and insert in lieu thereof: 
•	"J.  "Public project" means the construction of: 
•	public transportation facilities or public transportation infrastructure other than a toll road;
•	broadband telecommunications network facilities; or
•	electric vehicle charging facilities;".
•	On page 9, between lines 7 and 8, insert: "B.  Public transportation facilities and public
 	transportation infrastructure shall be operated and maintained by the public partner.".
•	Re-letter the succeeding subsections accordingly. 

Floor Amendment 2 on February 8, 2024, in HTPWCF

HTPWCFla/HB 190:  On page 1, line 13, after the semicolon, insert
 "RESTRICTING CERTAIN ACTIONS AND CAMPAIGN CONTRIBUTIONS;".
•	On page 5, strike lines 8 through 25, strike page 6 and on
 page 7, strike lines 1 through 10 and insert in lieu thereof:
 "SECTION 3.  A new section of the Procurement Code is enacted
 	to read:  "[NEW MATERIAL] PUBLIC-PRIVATE PARTNERSHIP--CAMPAIGN
 	CONTRIBUTION RESTRICTIONS. -
•	As used in this section: (1) "officer" means an officer of a corporation
identified pursuant to Section 53-11-48 NMSA 1978; and  
(2)  "principal owner or shareholder" means a person 
 who owns five percent or more of the assets or net worth of a
 	private partner.
•	An elected official of a public partner shall not vote
 	on or participate in the discussion or review of a proposed
 	public-private partnership agreement if a board member, officer or
 	principal owner or shareholder of a private partner to the proposed
 	agreement has contributed to a political campaign for the elected
official within six years of the discussion, review or vote.
•	An elected official of a public partner shall not
 	accept campaign contributions from a private partner or a board
 	member, officer or principal owner or shareholder of a private
 partner for the duration of a public-private partnership
 

 Committee Substitute January 30, 2024, in HTPWC

HTPWCcs/HB 190:  This legislative document proposes amendments and additions to the Procurement Code in the state of New Mexico, specifically regarding public-private partnerships (PPP) for the development of public projects. 
Key Definitions:
•	Concession: Transfer of rights for the use or control of a public project by a public partner to a private partner for a defined term, in exchange for revenue.
•	Develop: Involves planning, designing, creating, financing, leasing, acquiring, installing, constructing, or expanding a public project.
•	Operate: Involves financing, maintaining, improving, equipping, modifying, repairing, or managing a public project.
•	Private Partner: Various entities or individuals engaged in a public-private partnership.
•	Proposal: A detailed plan for a public project submitted by a private partner, including costs, payment schedules, financing, deliverables, and project schedules.
•	Public Partner: A state agency or local public body.
•	Public-Private Partnership (PPP): An arrangement between public and private partners for the development of a public project.
•	Public Project: Includes the construction of public transportation facilities, broadband telecommunications network facilities, and electric vehicle charging facilities.

Procurement Process for PPPs and Request for Proposals (RFP):
•	Public partners must use a competitive procurement process for competitive sealed proposals or competitive sealed qualifications-based proposals.
•	RFP should include proposed parameters, duties, responsibilities, financing plans, and other relevant information.

Unsolicited Proposals:
•	Private partners can submit unsolicited proposals.
•	The public partner can consider further action on the proposal within 90 days and provide public notice.
•	Public notice periods vary based on the value of the unsolicited proposal.

Division Rules:
•	The Board of Finance Division of the Department of Finance and Administration shall promulgate rules for PPP agreements.
•	Rules include conditions for usage, contents of agreements, minimum requirements, and liability limitations.

PPP Agreement Evaluation and Performance:
•	PPP agreements can use various project delivery methods.
•	The division oversees private partner functions.
•	Public project performance under a PPP agreement is considered a public work.

Amendment to Section 13-1-150 NMSA 1978:
•	Specifies the maximum contract terms for items of tangible personal property, construction, or services, including professional services.
•	Introduces exceptions for certain contracts, including those related to the Public Facility Energy Efficiency and Water Conservation Act or the proposed PPP regulations.