ESSER Use of Funds FAQs on School Construction (Department of Education, June 17, 2021)

Summary

Slides titled Elementary and Secondary School Emergency Relief (ESSER) Program Use of Funds FAQs School Construction, dated June 17, 2021, from the United States Department of Education. They answer questions on the process for prior approval of LEA capital expenditures, including HVAC projects, and say the process is left to the discretion of the SEA. They state that SEA prior approval is not required before LEA bidding is advertised, that SEA approval can come at any point until reimbursement using ESSER funds occurs, and that NEPA is not applicable to LEA construction projects funded with ESSER funds.

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Issuer: Congressional materials
Document type: Department Of Education Here Www Ed Gov 13C66F80Ff
Case: Department Of Education Here Www Ed Gov 13C66F80Ff

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“ESSER Use of Funds FAQs on School Construction (Department of Education, June 17, 2021).” Original at www.ed.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/department-of-education-here-www-ed-gov-13c66f80ff/, SHA-256 d100a6396bc31eedd14a05605832504a8a3f84306e8fb4caa7f54081c11a01c9.

Full text

U.S. Department of Education

Elementary and Secondary
School Emergency Relief
(ESSER) Program

Use of Funds FAQs
School Construction

June 17, 2021

1
U.S. Department of Education

Process for Prior Approval
Does the Department determine the process that States must use for granting
prior approval to their LEAs for capital expenditures?
• No. The process an SEA uses for granting prior approval to an LEA to use ESSER funds for capital
expenditures (including HVAC projects) such as minor remodeling, renovation, or construction is
left to the discretion of the SEA. Neither the Department nor the Uniform Guidance specifies the
process that must be used.

• An SEA has the flexibility to establish its own reasonable process that ensures that the
expenditures meet the applicable statutory and regulatory requirements, including those in
Subpart E of the Uniform Guidance (2 CFR Part 200).

2
U.S. Department of Education

Process for Prior Approval
Does the Department determine the process that States must use for granting
prior approval to their LEAs for capital expenditures? (continued)
• For example, an SEA could:
• Use or modify the current procedures that it already uses for prior approval categories for other Federal
programs under the Uniform Guidance.
• Consider getting a building expert (engineer, inspector, architect) who knows applicable State, local, and
Federal requirements to assist with its review of prior approval requests. The expert could be acquired on
a limited basis through procurement or perhaps an interagency agreement with another State agency,
such as a Public Works office or another agency with authority over facilities.
• Consult with other States that have facilities programs for suggestions on how to implement an efficient
process for prior approvals for facilities expenditures.
• (continued on next page)

3
U.S. Department of Education

Process for Prior Approval
Does the Department determine the process that States must use for granting
prior approval to their LEAs for capital expenditures? (continued)
• For example, an SEA could:
• Develop a checklist of items that an LEA seeking prior approval should provide. This could include:
• The name of the school facility the LEA is proposing to repair, construct, or modernize.
• The identification of the LEA’s interest in, or authority over, the school facility involved, such as an ownership interest or a lease
arrangement.
• Sources and amounts of funds available for the proposed project.
• A statement signed by an appropriate independent local official that: (1) the renovation or construction project meets the applicable
Federal, State, or local requirements with respect to health and safety, environmental standards, Historic Preservation, and other
requirements (see FAQ B-6 and 34 CFR Part 75) and (2) any deficiency that requires renovation or construction is necessary (e.g.,
because it threatens the health and safety of occupants of the facility or prevents the use of the facility). An appropriate local official
may include a local building inspector, a licensed architect, or a licensed structural engineer.
• A description of the need for funds as related to COVID-19 including a cost estimate and other details needed to support the
reasonableness and allowability of the expenditure under the applicable statute ARP Act and cost principles in the Uniform
Guidance (e.g., the original construction date and the dates and descriptions of any other major renovations of the school facility).
• Applicable assurances and certifications (see FAQ B-6 for applicable requirements that must be met for any renovation or
construction project).

4
U.S. Department of Education

Process for Prior Approval
Does the Department determine the process that States must use for granting
prior approval to their LEAs for capital expenditures? (continued)
• Please note that some HVAC upgrades may constitute “minor remodeling” and the Department’s
applicable regulations regarding construction at 34 CFR §§ 76.600 and 75.600-75.618 would not
apply.

• Minor remodeling means minor alterations in a previously completed building, for purposes
associated with the coronavirus. The term also includes the extension of utility lines, such as water
and electricity, from points beyond the confines of the space in which the minor remodeling is
undertaken but within the confines of the previously completed building.

• The term does not include permanent building construction, structural alterations to buildings,
building maintenance, or repairs. However, minor remodeling projects that constitute capital
assets under the Uniform Guidance still require prior approval consistent with 2 CFR 200.439.

5
U.S. Department of Education

Prior Approval and Bidding
Is SEA prior approval required before LEA bidding is advertised?
• No. SEA prior approval is not required before LEA bidding is advertised under applicable
Department requirements.

• The provisions in 34 CFR §§ 75.600-617 are “as applicable” and every provision does not apply to
every project. Some have cited 34 CFR § 75.605, which states in relevant part that: “Before
construction is advertised or placed on the market for bidding, the grantee shall get approval by
the Secretary of the final working drawings and specifications.”

• This provision applies to direct construction projects that require approval from the Department,
not those that require approval under the Uniform Guidance from an SEA. Therefore, an LEA
ESSER project that an SEA is approving and has been initiated or is already underway should not
have to be rebid.

6
U.S. Department of Education

Prior Approval Timeline
When must SEA prior approval occur?
• SEA approval can come at any point in the project timeline until the point that reimbursement
using ESSER funds occurs.

• As described in the response to the first question, States have the flexibility to develop or refine
their own prior approval processes to ensure that an allowable expenditure is reasonable and
necessary and is otherwise in line with program, Uniform Guidance, and other applicable
requirements. Ideally the SEA review process is complete as soon as possible on a project’s
timeline, but a State may utilize this flexibility at any point in the project process.

• This continuum includes up until the point when the Federal funds are actually approved for
reimbursement.

7
U.S. Department of Education

Applicability of NEPA
Is NEPA applicable to LEA construction projects funded with ESSER funds?
• No. NEPA is not applicable to LEA construction projects that are funded with ESSER funds.

• 34 CFR § 75.601 requires an applicant to submit an environmental assessment of the impact on
the proposed construction that is consistent with relevant provisions of the National
Environmental Policy Act (NEPA). This provision only applies to construction projects that are
operated and managed by the Department and require direct approval from the Department.
Due to the nature of the ESSER funds, the Department does not: have a decision-making role in
planning the specific projects, or directly manage the implementation or procurement for LEA
projects such as the HVAC projects, or have the power to act on any environmental effects
revealed by an environmental assessment.

8
U.S. Department of Education

Applicability of NEPA
Is NEPA applicable to LEA construction projects funded with ESSER funds?
(continued)
• In addition, the Department does not exercise control over the use of the funds for any
individual project, as long as the project continues to meet all statutory and other applicable
requirements (such as the Uniform Guidance and the Department’s administrative regulations).
As a result, these types of LEA ESSER projects are not considered as a “major Federal action”
under the NEPA provisions and are not subject to 34 CFR§ 75.601.

• While NEPA is not applicable, the Department highly encourages States to require some type of
environmental assessment for LEA projects that involve breaking new ground such as for
expanding the size of an existing facility or replacing an outdated facility. This may already be
required by some State laws and is a prudent step that would help to assess any potential
environmental ramifications of expanding or replacing school facilities and ensure compliance
with any applicable State, local or Federal environmental requirements.

• .
9
U.S. Department of Education

If you have questions that are
not addressed in this FAQ
document, please send them to
your State email box,
[STATE].oese@ed.gov

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