Applying ESSER Funds to Your Facilities
School Administrator, October 2022
You should know that federal procurement regulations apply when procuring any property or services with federal funds. ESSER funds are authorized for construction projects if the project is needed to prevent, prepare for and respond to COVID-19.

Allowable uses of ESSER funds also specifically include testing, repairing and upgrading projects to improve air quality inside school buildings.

Additionally, school districts may use ESSER funds for related construction costs resulting from an eligible project, including compliance with all states’ building standards codes, such as structural, fire and life safety, access compliance and energy code compliance.

Defining Maintenance

All school districts that receive federal funds must adhere to the Education Department Code of Federal Regulations, Title 2, Part 200, which establishes uniform administrative requirements, cost principles and audit requirements for non-federal entities. This would revert you to your local regulations or state statutes. Your state may require preapproval for renovations and repairs that include HVAC, ventilation and air quality.

Maintenance is defined as ordinary upkeep or repairs necessary to preserve the structure in good condition. Factors you can use in determining whether a project constitutes maintenance or construction could be but are not limited to one-for-one replacement, also known as like for like, the scale or complexity of the project, including the amount of time and material required to complete the job, or the sheer physical size of the target object. Maintenance does not include work to remodel, modify, upgrade, perform major repairs or restore, even if the work is scheduled or periodic.

Construction, on the other hand, includes erecting or preparing to erect a structure, including a building, bridge, roadway, public utility facility or related appurtenance; remodeling, extending repairing or demolishing a system; or otherwise improving real property or appurtenance to real property through similar activities.

Rules Adherence

School districts also must follow applicable federal construction regulations, such as safety and health standards, energy conservation and Davis-Bacon prevailing wage rules. Additionally, the federal laws require that any contract for the procurement of services or property addresses the following provisions: administrative, contractual and legal remedies; Equal Employment Opportunity; Work Hours and Safety Standards Act; Clean Air Act; debarment and suspension; and the Byrd Anti-Lobbying Amendment.

—  RICHARD GAY