ESSER Funded Construction

*Given the new guidance sent out from U.S. Education (see below), NHED is no longer approving new construction projects. 

The Federal definition of Construction can be found at the Code of Federal Regulations.

U.S. Department of Education sent out an updated guidance on allowable uses of ESSER funds in December of 2022; USED strongly discourages new construction projects, as this use of funds limits an LEA’s ability to meet other, more pressing needs related to the pandemic’s impact on learning and the emotional and mental health and well-being of our children and youth. Please see evidence from the guidance below:

“Expenditures of ESSER or GEER funds must meet the overall purpose of the CARES, CRRSA, or ARP Act programs. In addition, the Department discourages LEAs from using these funds for new construction, as this use of funds limits an LEA’s ability to meet other, more pressing needs related to the pandemic’s impact on learning and the emotional and mental health and well-being of our children and youth. It is the responsibility of the grantee and subgrantee to ensure that, among other Federal requirements, any project is targeted to the overall purpose of the ESSER or GEER program, which is “to prevent, prepare for, and respond to” COVID-19.” 

“In all cases, the Department strongly recommends that States and LEAs focus on evidence-based practices that promote safe, healthy, and supportive learning environments. A comprehensive approach should include efforts specific to:

• Implementing Multi-Tiered Systems of Support (e.g., Positive Behavioral Interventions and Supports), and other early intervention strategies.
• Providing integrated behavioral and mental health supports to educators and staff (e.g., hiring certified mental health professionals and behavior specialists).
• Working collaboratively with a diverse multidisciplinary team trained in youth development to create emergency plans and training exercises.
• Increasing professional development opportunities for faculty, staff, and community partners,  particularly around trauma-informed care and culturally and linguistically inclusive responses.
• Ensuring that prevention, protection, mitigation, response, and recovery activities consider the evidence base and are implemented in ways that respond to underserved students, protect students’ rights, and demonstrate respect for students’ dignity and potential.”

 “Under the interim final requirements, each LEA that receives ARP ESSER funds must develop a plan for its use of ARP ESSER funds and submit it to the SEA within a reasonable timeline determined by the SEA. The plan must contain, at a minimum, the extent to which and how the funds will be used to implement prevention and mitigation strategies that are, to the extent practicable, consistent with CDC guidance; how the LEA will use the funds it reserves under section 2001(e)(1) of the ARP Act to address the academic impact of lost instructional time; how the LEA will use its remaining ARP ESSER funds; and how the LEA will ensure the interventions it implements will respond to the social,  emotional, mental health, and academic needs of all students and particularly those students disproportionately impacted by the COVID-19 pandemic. In developing its plan, an LEA must engage in meaningful consultation with stakeholders including students; families; school and district administrators (including special education administrators); and teachers, principals, school leaders, other educators, school staff, and their unions. An LEA must also engage in meaningful consultation with each of the following to the extent present in or served by the LEA: Tribes; civil rights organizations (including disability rights organizations); and stakeholders representing the interests of children with disabilities, English learners, children experiencing homelessness, children and youth in foster care, migratory students, children who are incarcerated, and other underserved students.”

Please contact ESSER.Construction@doe.nh.gov with any questions.

Given the complexity of completing construction projects using Federal assistance funds, the New Hampshire Department of Education (NHED) has developed the following two-step process for approving Elementary and Secondary School Emergency Relief (ESSER I, ESSER II and ARP-ESSER) funded projects proposed by Districts. By implementing this two-step process, NHED anticipates providing Districts clarity as to the allowability of any proposed construction, and technical assistance relative to both Federal procurement requirements and design construction phase obligations.

While NHED has made significant progress with the U.S. Department of Education to reduce the regulatory process related to construction projects, several compliance requirements remain that districts should pay close attention to. In addition, we encourage districts to continue to recognize the difference between a project’s eligibility and compliance with these regulatory requirements.

Step 1. Conceptual Project Approval

As a pass-through entity for Federal education funds, NHED is charged with determining if a proposed construction project is allowable, necessary and reasonable in accordance with the specific ESSER program requirements as well as under the broader requirements of the Education Department General Administrative Regulations (EDGAR).

To this end, the district shall follow the following steps when seeking conceptual approval of a construction project.

1. The District shall complete a Request for Conceptual Approval of ESSER Funded Construction Project form as well as the SF-429 Cover Page and SF-429 Attachment B Form, and submit the completed form to ESSER.construction@doe.nh.gov. Following review of the form by NHED,  the District will be contacted to schedule a meeting (in-person or remote) to discuss the scope of the proposed project. Please be prepared to explain the relationship of the proposed project in meeting the ESSER fund requirements of being clearly related to preventing, preparing for, and/or responding to COVID-19.  Any draft plans, schematics, studies, etc. that the District can provide would be helpful in facilitating the final allowability determination. The District may invite any supporting professionals (architects, engineers, facility managers, etc. to the meeting) it may deem necessary to assist in its explanation of how the proposed project meets the requirement of preventing, preparing for, and/or responding to COVID-19 . The District is cautioned; however, that the expense of any such support is not considered an approved grant project cost unless prior written approval was obtained through the Grants Management System (GMS) process by NHED.
2. Following the completion of the above meeting, and any additional follow-up discussions, the District will be notified by NHED in writing that the project has been granted the status of “Conceptual Approval.” NHED will work with the District to develop appropriate language that clearly defines what parts of the proposed project are considered allowable and those that are not considered allowable (if any).
3. Once the District’s proposed construction activity is granted the status of “Conceptual Approval” in writing NHED, the District may proceed to Step 2.

Step 2. Project Design

1. In completing the project design and construction documents, the District shall meet the requirements of 34 CFR 75.601 through 34 CFR 75.618 as applicable.  The District shall complete the Request for Final Approval of ESSER Funded Construction Project form that will assist the District in understanding and fulfilling these requirements.
2. Following the review of the Request for Final Approval of ESSER Funded Construction Project document as prepared by the District, and any required supporting documentation, NHED will either approve or disapprove the application.

   If the District receives written final approval of their project, the District will create an activity for the project in the GMS and upload the following:

   • Request for Conceptual Eligibility Approval of ESSER Funded Construction Project; 
   • NHED's written conceptual eligibility approval correspondence back to the District;
   • Request for Final Approval of ESSER Funded Construction Project;
   • New Hampshire Division of Historical Resources Request for Project Review; and
   • Its submission to the New Hampshire State Fire Marshal’s Office.

   Once the documents are all uploaded into the GMS, NHED will then grant the project final approval through GMS. The District may then move forward with bidding the construction project, or simply move the project forward if a non-competitive procurement process was utilized.

   If the application is not approved, the District has the option of continuing to work with NHED to provide additional information, which may lead to approval, or to request a hearing in accordance with 34 CFR 76.401. Should the District request a hearing, NHED will provide written guidance as to the hearing process.

3. As it proceeds with the project, the District should be aware that it must meet all Federal compliance requirements related to vendor contract language, procurement, prevailing wages (Davis-Bacon), etc. The District is further reminded that it must meet all State laws pertaining to construction involving school facilities. NHED is available to assist the District with understanding its obligations relative to Federal compliance related to ESSER funded construction projects.

Procurement, Contract and Davis-Bacon Act Requirements

• NHED Procurement and Contract Checklist
• U.S. Department of Education Davis-Bacon Act Regulatory Update - Q&A
• U.S. Department of Education Davis-Bacon Act Certified Payroll Records - LEA Responsibilities

Real Property Reporting

For districts and schools that have undertaken ESSER-funded construction projects, federal regulation requires that the LEA file an annual report (SF-429 Attachment A Form) on the status of each real property in which the Federal Government retains an interest (i.e., each property on which ESSER-funded construction is in process or has been completed). In such cases that the Federal Government’s interest in the property extends 15 years or longer, federal regulation allows for the required reporting to occur on a multi-year basis instead of annually (2 CFR 200.330). An example of such a case would be an HVAC project that has a useful life of 15 years or longer.

The LEA will email the completed Real Property Status Report(s) to NHED at esser.construction@doe.nh.gov. NHED will receive each Real Property Status Report and retain the report per the federal requirement. 

• For those properties in which the Federal Government’s interest does not extend 15 years or longer, the Real Property Status Report will be due annually at the end of the state fiscal year (June 30) throughout the period of federal interest in the real property. The SF-429 instructions include guidance on defining the period of federal interest.
• For those properties in which the Federal Government’s interest extends 15 years or longer, the Real Property Status Report will be due every three years at the end of the state fiscal year (June 30). 

Real Property Reporting Documents:

• SF-429 Instructions 
• SF-429 Cover Page  
• SF-429 Attachment B Form – Request to Acquire, Improve, or Furnish
• SF-429 Attachment A Form – General Reporting
• SF-429 Attachment C Form – Disposition or Encumbrance Request

Note: Forms will need to be saved to the computer in order to be viewed.

For any questions regarding real property reporting requirements, please reach out to the team at esser.construction@doe.nh.gov. 
 

ESSER Construction, Part 1

Date: June 17, 2021 03:00 PM Eastern Time (US and Canada)

This meeting was held via Zoom

Meeting recording

ESSER Construction, Part 2 (application process)

Date: July 7, 2021 03:00 PM Eastern Time (US and Canada)

This meeting was held via Zoom

Meeting recording

Contact

ESSER.Construction@doe.nh.gov