Three acts of federal relief in response to COVID-19 have been created since 2020: The Coronavirus Response and Relief Supplemental Appropriations Act (“CRRSA Act”); The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”); and the American Rescue Plan Act of 2021 (“ARP Act”). The CARES Act established the Elementary and Secondary School Emergency Relief fund (“ESSER I”) and the Governor’s Emergency Education Relief fund (“GEER I”). The CRSSA Act established ESSER II and GEER II; and ARP Act established ESSER III.
Each of these acts authorize stimulus funding for schools, some of which can be used for construction. There are a myriad of unfamiliar rules that may apply to projects built using these funding sources. For example, when a project is funded in whole or in part by federal funds, the district may be subject to the federal contracting and procurement provisions found in the General Education Provisions Act (Public Law 103–382); federal Uniform Grant Guidance regulations; US Department of Education General Administrative Regulations; and the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards.
Some of these provisions may be unique to using federal funds, i.e. federal debarment certification, anti-lobbying certification, domestic preferences (2 CFR § 200.322) and the like, and may be passed through to contractors. However, compliance with federal requirements can be complicated as there are a number of federal provisions that overlap with state provisions, i.e. environmental protection, equal employment opportunity, work hours, safety and health standards, energy conservation, etc. Districts may require the assistance of consultants to ensure that compliance requirements are accurately reflected in vendor contracts and that any conflicts between state and federal requirements are clearly addressed in the contract.
If you have any questions regarding other project requirements when using federal funds, please contact a DWK attorney in our Business, Property and Construction Law Practice Group.