2.2.2.16

ANNUAL FINANCIAL PROCEDURES REQUIRED FOR LOCAL PUBLIC BODIES WITH ANNUAL REVENUES LESS THAN FIVE HUNDRED THOUSAND DOLLARS ($500,000) (TIERED SYSTEM):

1. A. Annual revenue and state funded capital outlay expenditures determine type of financial reporting: All local public bodies shall comply with the requirements of Section 6-6-3 NMSA 1978. Pursuant to Section 12-6-3 NMSA 1978, the annual revenue of a local public body determines the type of financial reporting a local public body shall submit to the OSA. Local public bodies are mutual domestic water consumers associations, land grants, incorporated municipalities, and special districts.

   1. (1) The annual revenue of a local public body shall be calculated on a cash basis as follows:

      1. (a) Revenue shall exclude capital outlay funds. OSA defines capital outlay funds as funds expended pursuant to the Property Control Act definition of a capital outlay project. Per section 15-3B-2 NMSA 1978 “Capital outlay project" means the acquisition, improvement, alteration or reconstruction of assets of a long-term character that are intended to continue to be held or used, including land, buildings, machinery, furniture and equipment. A “capital outlay project” includes all proposed expenditures related to the entire undertaking.
      2. (b) Revenue shall exclude federal or private grants. For the purpose of 2.2.2.16 NMAC “private grant” means funding provided by a non-governmental entity.
   2. (2) For the purposes of 2.2.2.16 NMAC “state funded capital outlay expenditures” are expenditures made pursuant to any funding provided by the New Mexico legislature for a capital outlay project as defined in the Property Control Act, Section 15-3B-2 NMSA 1978, either received directly by the local public body or disbursed through an administering agency.

2. B. Determination of revenue and services: Annually, following the procedures described in Subsection F of 2.2.2.8 NMAC, the state auditor shall provide local public bodies written authorization to obtain services to conduct a financial audit or other procedures. Upon receipt of the authorization, a local public body shall determine its annual revenue in accordance with Subsection A of 2.2.2.16 NMAC. The following requirements for financial reporting apply to the following annual revenue amounts (tiers):

   1. (1) if a local public body’s annual revenue is less than ten thousand dollars ($10,000) and the local public body did not directly expend at least fifty percent of, or the remainder of, a single capital outlay award, then the local public body is exempt from submitting a financial report to the state auditor, except as otherwise provided in Subsection C of 2.2.2.16 NMAC (tier one);
   2. (2) if a local public body’s annual revenue is ten thousand dollars ($10,000) or more but less than fifty thousand dollars ($50,000), then the local public body is exempt from submitting a financial report to the state auditor, except as otherwise provided in Subsection C of 2.2.2.16 NMAC (tier two);
   3. (3) if a local public body’s annual revenue is less than fifty thousand dollars ($50,000), and the local public body expended at least fifty percent of, or more of, a single capital outlay award during the fiscal year, then the local public body shall procure the services of an IPA for the performance of a tier three AUP engagement in accordance with the audit contract for a tier three AUP engagement;
   4. (4) if a local public body’s annual revenue is greater than fifty thousand dollars ($50,000) but less than two hundred-fifty thousand dollars ($250,000), then the local public body shall procure the services of an IPA for the performance of a tier four AUP engagement in accordance with the audit contract for a tier four AUP engagement;
   5. (5) if a local public body’s annual revenue is greater than fifty thousand dollars ($50,000) but less than two hundred-fifty thousand dollars ($250,000), and the local public body expended any capital outlay funds during the fiscal year, then the local public body shall procure the services of an IPA for the performance of a tier five AUP engagement in accordance with the audit contract for a tier five AUP engagement;
   6. (6) if a local public body’s annual revenue is two hundred-fifty thousand dollars ($250,000) or greater, but less than five hundred thousand dollars ($500,000), the local public body shall procure services of an IPA for the performance of a tier six AUP engagement in accordance with the audit contract for a tier six AUP engagement; the report shall include at a minimum, a compilation of financial statements and a financial report consistent with the agreed-upon procedures;
   7. (7) if a local public body’s annual revenue is five hundred thousand dollars ($500,000) or more, this section shall not apply and the local public body shall procure services of an IPA for the performance of a financial and compliance audit in accordance with other provisions of this rule;
   8. (8) notwithstanding the annual revenue of a local public body, if the local public body expended seven hundred-fifty thousand dollars ($750,000) or more of federal funds subject to a federal single audit during the fiscal year then the local public body shall procure a single audit.

3. C. Exemption from financial reporting: A local public body that is exempt from financial reporting to the state auditor pursuant to Subsection B of 2.2.2.16 NMAC shall submit written certification to LGD and the state auditor. The certification shall be provided on the form made by the state auditor, available through OSA-Connect. The local public body shall certify, at a minimum:

   1. (1) the local public body’s annual revenue for the fiscal year; and
   2. (2) that the local public body did not expend fifty percent of or the remainder of a single capital outlay award during the fiscal year.
   3. (3) The OSA will not accept the certification of exemption from financial reporting for the current year until the prior year certifications or AUP reports (whichever is appropriate) have been submitted.
4. D. Procurement of IPA services: A local public body required to obtain an AUP engagement shall procure the services of an IPA in accordance with Subsection F of 2.2.2.8 NMAC.
5. E. Access to Records and Documents: For any AUP the agency should produce all documents necessary to conduct the engagement.

6. F. Requirements of the IPA selected to perform the AUP:

   1. (1) The IPA shall provide the local public body with a dated engagement letter during the planning stages of the engagement, describing the services to be provided. See Subsection F of 2.2.2.10 NMAC for applicable restrictions on the engagement letter.
   2. (2) The IPA may not subcontract any portion of the services to be performed under the contract with the local public body except for the activation of a contingency subcontractor form in the event the IPA is unable to complete the engagement.
   3. (3) The IPA shall hold an entrance conference and an exit conference with the local public body. The entrance and exit conference shall occur in the forum agreed to by the local public body and the IPA, to include virtual or telephonic options. The OSA reserves the right to require an in-person entrance or exit conference. The OSA has the authority to notify the agency or IPA that the state auditor shall be informed of the date of the entrance conference, any progress meetings and the exit conference. If such notification is received, the IPA and agency shall invite the state auditor to attend all such conferences no later than 72 hours before the proposed conference or meeting.
   4. (4) The IPA shall submit the report to the OSA for review in accordance with the procedures described at Subsection B of 2.2.2.9 NMAC. Before submitting the report to OSA for review, the IPA shall review the report using the AUP report review guide available on the OSA’s website at www.saonm.org. The report shall be submitted to the OSA for review with the completed AUP report review guide. Once the AUP report is officially released to the agency by the state auditor (by a release letter) and the required waiting period of five calendar days has passed, unless waived by the agency in writing, the AUP report shall be presented by the IPA, to a quorum of the governing authority of the agency at a meeting held in accordance with the Open Meetings Act, if applicable. This requirement only applies to agencies with a governing authority, such as a board of directors, board of county commissioners, or city council, which is subject to the Open Meetings Act. The IPA shall ensure that the required communications to those charged with governance are made in accordance with AU-C 260.12 to 260.14.

7. G. Progress payments:

   1. (1) Progress payments up to ninety-five percent of the contract amount do not require state auditor approval and may be made by the local public body if the local public body ensures that progress payments made do not exceed the percentage of work completed by the IPA. If requested by the state auditor, the local public body shall provide the OSA a copy of the approved progress billing(s).

   2. (2) Final payments from ninety-five percent to one hundred percent may be made by the local public body pursuant to either of the following:

      1. (a) stated in the letter accompanying the release of the report to the agency, or
      2. (b) in the case of ongoing law enforcement investigations, stated in a letter prior to the release of the report to the agency. In this situation a letter releasing the report to the agency will be issued when it is appropriate to release the report.

8. H. Report due dates, notification letters and confidentiality:

   1. (1) For local public bodies with a June 30 fiscal year-end that qualify for the tiered system, the report or certification due date is December 15. Local public bodies with a fiscal year end other than June 30 shall submit the AUP report or certification no later than five months after the fiscal year-end. Late AUP reports (not the current reporting period) are due not more than six months after the date the contract was executed. An electronic copy of the report shall be submitted to the OSA. AUP reports submitted via fax or email shall not be accepted. A copy of the signed dated management representation letter shall be submitted with the report. If a due date falls on a weekend or holiday, or if the OSA is closed due to inclement weather, the report is due the following business day by 11:59 p.m. If the report is mailed to the state auditor, it shall be postmarked no later than the due date to be considered filed by the due date. If the due date falls on a weekend or holiday the audit report shall be postmarked by the following business day.
   2. (2) As soon as the IPA becomes aware that circumstances exist that will make the local public body’s AUP report be submitted after the applicable due date, the auditor shall notify the state auditor of the situation in writing. This notification shall consist of a letter, not an email. However, a scanned version of the official letter sent via email is acceptable. The late AUP notification letter is subject to the confidentiality requirements detailed at Subsection M of 2.2.2.10 NMAC. This does not prevent the state auditor from notifying the legislative finance committee or applicable oversight agency pursuant to Subsections F and G of Section 12-6-3 NMSA 1978. There shall be a separate notification for each late AUP report. The notification shall include a specific explanation regarding why the report will be late, when the IPA expects to submit the report and a concurring signature by the local public body. If the IPA will not meet the expected report submission date, then the IPA shall send a revised notification letter. In the event the contract was signed after the report due date, the notification letter shall still be submitted to the OSA explaining the reason the AUP report will be submitted after the report due date. The late report notification letter is not required if the report was submitted to the OSA for review by the deadline, and then rejected by the OSA, making the report late when resubmitted.
   3. (3) Local public body personnel shall not release information to the public relating to the AUP engagement until the report is released and has become a public record pursuant to Section 12-6-5 NMSA 1978. At all times during the engagement and after the AUP report becomes a public record, the IPA shall follow applicable professional standards and 2.2.2 NMAC regarding the release of any information relating to the AUP engagement.
9. I. Findings: All AUP engagements shall report as findings any fraud, illegal acts, non-compliance or internal control deficiencies, consistent with Section 12-6-5 NMSA 1978. The findings shall include the required content listed at Subparagraph (d) of Paragraph (1) of Subsection L of 2.2.2.10 NMAC.

10. J. Review of AUP reports and related workpapers: AUP shall be reviewed by the OSA for compliance with professional standards and the professional services contract. Noncompliant reports shall be rejected and not considered received. Such reports shall be returned to the firm and a copy of the rejection letter shall be sent to the local public body. If the OSA rejects and returns an AUP report to the IPA, the report shall be corrected and resubmitted to the OSA by the due date, or the IPA shall include a finding for non-compliance with the due date. The IPA shall submit an electronic version of the corrected rejected report for OSA review. The name of the electronic file shall be “corrected rejected report” followed by the agency name and fiscal year. The OSA encourages early submission of reports to avoid findings for late reports. After its review of the AUP report for compliance with professional standards and the professional services contract, the OSA shall authorize the IPA to print and submit the final report. An electronic version of the AUP report, in PDF format, as described at Subsection B of 2.2.2.9 NMAC, shall all be delivered to the OSA within five business days. The OSA shall not release the AUP report until the electronic version of the report is received by the OSA. The OSA shall provide the local public body with a letter authorizing the release of the report after the required five-day waiting period. Released reports may be selected by the OSA for comprehensive report and workpaper reviews. After such a comprehensive report and workpaper review is completed, the OSA shall issue a letter to advise the IPA about the results of the review. The IPA shall respond to all review comments as directed. If during the course of its review, the OSA finds significant deficiencies that warrant a determination that the engagement was not performed in accordance with provisions of the contract, applicable AICPA standards, or the requirements of this rule, any or all of the following action(s) may be taken:

    1. (1) the IPA may be required to correct the deficiencies in the report or audit documentation, and reissue the AUP report to the agency and any others receiving copies;
    2. (2) the IPA’s eligibility to perform future engagements may be limited in number or type of engagement pursuant to Subsection D of 2.2.2.8 NMAC;
    3. (3) for future reports, for some or all contracts, the IPA may be required to submit working papers with the reports for review by the OSA prior to the release of the report; or
    4. (4) the IPA may be referred to the New Mexico public accountancy board for possible licensure action.

11. K. IPA independence: IPAs shall maintain independence with respect to their client agencies in accordance with the requirements of the current government auditing standards.

    HISTORY of 2.2.2 NMAC:

    Pre-NMAC Regulatory Filing History: The material in this part was derived from that previously filed with the State Records Center and Archives under SA Rule No. 71-1, Regulations of State Auditor Relating to Audit Contracts with Independent Auditors by State Agencies, filed 5/14/1971; SA Rule No. 71-2, Regulations of State Auditor for Audits by Independent Auditors, filed 5/27/1971; SA Rule No. 72-1, Regulations of State Auditor Relating to Audit Contracts With Independent Auditors by Agencies of the State of New Mexico, filed 6/1/1972; SA Rule No. 72-2, Regulations of State Auditor for Audits by Independent Auditors, filed 6/1/1972; SA Rule No. 74-1, Regulations of State Auditor Relating to Reporting Statutory Violations, filed 2/28/1974; SA Rule No. 74-2, Rotation of Assignments, filed 2/28/1974; SA No. 78-1, Regulations Governing the Auditing of New Mexico Governmental Agencies, filed 11/3/1978; Amendment No. 1 to SA Rule 78-1, Regulations Governing the Auditing of New Mexico Governmental Agencies, filed 5/28/1980; SA Rule No. 82-1, Regulation Governing the Auditing of New Mexico Governmental Agencies, filed 12/17/1982; SA Rule No. 84-1, Regulations Governing the Auditing of Agencies of the State of New Mexico, filed 4/10/1984; SA Rule No. 85-1, Regulations Governing the Auditing of Agencies of the State of New Mexico, filed 1/28/1985; SA Rule No. 85-3, Regulation for State Agencies Concerning NCGA Statement No. 4 - Accounting and Financial Reporting Principles for Claims and Judgements and Compensated Absences, filed 4/16/1980; SA Rule No. 85-4, Regulations Governing the Auditing of Housing Authorities of the State of New Mexico, filed 6/12/1985; SA Rule No. 85-5, Regulations Pertaining to Single Audits of State Agencies and Local Public Bodies, filed 6/17/1985; SA Rule No. 85-6, Audits of Grants to Subrecipients, filed 6/17/1985; SA Rule 86-1, Regulations Governing the Audits of Agencies of the State of New Mexico, filed 1/20/1986; SA Rule No. 86-2, Regulation Governing Violations of Criminal Statutes in Connection with Financial Affairs, filed 3/20/1986; SA Rule No. 86-3, Professional Services Contracts, filed 7/9/1986; SA Rule 87-1, Regulations Governing the Audits of Agencies of the State of New Mexico, filed 2/13/1987; SA Rule 87-2, Approval of Audit Contracts, filed 4/2/1987; SA Rule 87-3, Audit Requirements for Deferred Compensation, Retirement Plans, Budget and Public Money for the State of New Mexico, filed 8/14/1987; SA Rule 88-1, Regulations Governing the Audits of Agencies of the State of New Mexico, filed 2/10/1988; SA Rule 89-1, Regulations Governing the Audits of Agencies of the State of New Mexico, filed 3/10/1989; SA Rule 90-1, Regulations Governing the Audits of Agencies of the State of New Mexico, filed 3/1/1990; SA Rule 90-3, Auditor's Responsibilities Related to Fees Collected on Convictions Relating to Intoxicating Liquor and Controlled Substances, filed 5/7/1990; SA Rule 91-1, Regulations Governing the Audits of Agencies of the State of New Mexico, filed 3/13/1991; SA Rule 92-1, Regulations Governing the Audits of Agencies of the State of New Mexico, filed 3/6/1992; SA Rule 93-1, Regulations Governing the Audits of Agencies of the State of New Mexico, filed 2/25/1993; SA Rule 94-1, Regulations Governing the Audits of Agencies of the State of New Mexico, filed 2/25/1994; Amendment 1 to SA Rule 94-1, Regulations Governing the Audits of Agencies of the State of New Mexico, filed 5/16/1994; SA Rule 95-1, Regulations Governing the Audits of Agencies of the State of New Mexico, filed 3/16/1995; and 2 NMAC 2.2, Requirements for Contracting and Conducting Audits of Agencies, filed 4/2/1996.

    History of Repealed Material:

    2 NMAC 2.2, Requirements for Contracting and Conducting Audits of Agencies - Repealed, 3/30/2001.

    2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies - Repealed, 3/29/2002.

    2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies - Repealed, 4/30/2003.

    2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies - Repealed, 3/31/2004.

    2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies - Repealed, 5/13/2005.

    2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies - Repealed, 3/16/2006.

    2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies - Repealed, 4/16/2007.

    2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies - Repealed, 4/15/2008.

    2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies - Repealed, 2/27/2009.

    2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies - Repealed, 2/12/2010.

    2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies - Repealed, 2/28/2011.

    2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies - Repealed, 2/15/2012.

    2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies - Repealed, 2/28/2013.

    2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies - Repealed, 2/28/2014.

    2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies - Repealed, 3/16/2015.

    2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies - Repealed, 3/15/2016.

    2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies - Repealed, 3/14/2017.

    2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies - Repealed, 2/27/2018.

    2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies - Repealed, 3/10/2020.

    2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies - Repealed, 3/23/2021.

    2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies - Repealed, 3/22/2022.

    2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies - Repealed, 3/28/2023.

    Other History:

    2 NMAC 2.2, Requirements for Contracting and Conducting Audits of Agencies, filed 3/13/1997, is replaced by 2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies, effective 3/20/2001.

    2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies, filed 3/15/2001, is replaced by 2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies, effective 3/29/2002.

    2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies, filed 3/19/2002, is replaced by 2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies, effective 4/30/2003.

    2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies, filed 4/15/2003, is replaced by 2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies, effective 3/31/2004.

    2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies, filed 3/16/2004, is replaced by 2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies, effective 5/13/2005.

    2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies, filed 5/2/2005, is replaced by 2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies, effective 3/31/2006..

    2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies, filed 3/16/2006, is replaced by 2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies, effective 4/16/2007.

    2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies, filed 4/2/2007, is replaced by 2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies, effective 4/15/2008.

    2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies, filed 4/12/2008, is replaced by 2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies, effective 2/27/2009.

    2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies, filed 2/17/2009, is replaced by 2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies, effective 2/12/2010.

    2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies, filed 2/1/2010, is replaced by 2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies, effective 2/28/2011.

    2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies, filed 2/15/2011, is replaced by 2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies, effective 2/15/2012.

    2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies, filed 2/1/2012, is replaced by 2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies, effective 2/28/2013.

    2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies, filed 2/15/2013, is replaced by 2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies, effective 2/28/2014.

    2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies, filed 2/13/2014, is replaced by 2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies, effective 3/16/2015.

    2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies, filed 3/2/2015, is replaced by 2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies, effective 3/15/2016.

    2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies, filed 3/1/2016, is replaced by 2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies, effective 3/14/2017.

    2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies, filed 3/1/2017, is replaced by 2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies, effective 2/27/2018.

    2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies, filed 2/15/2018, is replaced by 2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies, effective 3/10/2020.

    2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies, filed 2/27/2020, is replaced by 2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies, effective 3/23/2021.

    2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies, filed 3/11/2021, is replaced by 2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies, effective 3/22/2022

    2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies, filed 3/10/2022, is replaced by 2.2.2 NMAC Requirements for Contracting and Conducting Audits of Agencies, effective 3/28/2023.

[2.2.2.16 NMAC - Rp, 2.2.2.16 NMAC, 3/28/2023; A, 7/16/2024]