ESSER & HVAC: What college districts have to know | Bricker & Eckler LLP

At this point, it won’t come as a surprise to school districts to be recipients of federal grants from the Elementary and Secondary School Emergency Relief (ESSER) fund. By the end of March 2021, school districts have received two rounds of funding, known as ESSER I and ESSER II, respectively, and a third round of funding (ESSER III) is imminent. As a result, school districts are determining the best ways to spend these incoming funds.

The approving federal legislation explicitly allows the use of ESSER for “testing, repairing and upgrading projects to improve air quality in school buildings”. Many school districts have shown interest in using their ESSER funds on projects to improve HVAC.

However, there are a few important things that school districts need to consider when using these funds.

  1. The procurement must comply with state law.

This requirement is likely familiar to school districts, but should always be kept in mind. As a political subdivision, the school district must always comply with state procurement law. The “standard” procurement for school districts is provided for in Section 3313.46 of the Revised Code, which requires the school district to use sealed listings for contracts to “repair” or “upgrade” school buildings, including HVAC improvement projects. However, other state laws specify alternative procurement methods that the school district can use. For example, section 167.081 of the revised Code allows school districts to use cooperative purchasing by a government council rather than bidding on the project itself. The school district may also use alternative delivery models, such as: B. vulnerable site managers or planners who have to adhere to their own legal procurement methods.

  1. The procurement must comply with federal law.

Since the ESSER funding is a federal grant, the school district must also comply with federal law. Federal regulations, known as uniform guidelines, provide proprietary procurement methods that must be followed when non-federal agencies use federal funds. Fortunately, federal requirements are pretty much analogous to Ohio law. For example, for purchases over $ 250,000, the school district requires that the school district use either a sealed bidding process or a competitive application process. These options are consistent with the sealed tendering process of RC 3313.46 or the competitive bidding process of the site manager at risk or the construction regulations.

In addition, the uniform guide allows the use of cooperative purchasing programs – and expressly encourages them to do so. However, the underlying contract between the cooperative purchasing program and the HVAC contractor itself must have complied with the requirements of the Single Guidelines. It is ultimately the responsibility of the school district to confirm this federal compliance. As explained above, the cooperative purchasing program used must also comply with the requirements of state law.

  1. The federal wage applies to the project.

Finally, another federal law is affected. The Davis-Bacon Act applies to all contracts over $ 2,000 for the “construction, modification, or repair” of public buildings that are funded in whole or in part by federal funds. The Davis-Bacon Act requires the HVAC contractor to pay its workers local wages. Additionally, the Davis-Bacon Act requires certain contractual provisions to be included in the contract between the school district and the HVAC contractor.

Using ESSER funding for HVAC improvements is a great way for school districts to improve the air quality in their buildings to protect their students, employees, and the community. However, the use of these funds results in two procurement laws that the school district must comply with. Both can be checked by the auditors. School districts should work with legal counsel experienced in both state and federal public procurement law to ensure that the selection of an HVAC contractor, the contract with that contractor, and the approval committee decision comply with all applicable laws and are adequately documented.

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