McNees Wallace & Nurick LLC
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Are your school district or
municipal clients spending federal ARPA dollars,
including ESSER money, on a construction and/or capital improvement
contract?
Do your clients rely on industry standard forms or engineers to
draft
bid and construction documents?
Have your clients considered the additional compliance
requirements
necessary to lawfully utilize federal ARPA funds for procurement or
construction?
When was the last time
your client revised their procurement contracts?
Now is the time for school districts and municipalities across
the Commonwealth to develop bid documents that are tailored to
address the additional compliance requirements necessitated by a
school district or municipality’s use of federal money. McNees
can work with solicitors and their clients to design documents to
adequately protect the school district or municipality’s
special interests. We find all too often that construction
documents are reused from prior procurements or from the
project’s design professional, which can lend to contract
documents that miss important provisions designed to protect
taxpayers and the school district or municipality. Even worse,
those documents may not be designed to appropriately distribute
risk amongst the project participants or account for concerns
related to procurement of materials and cost escalation. Moreover,
those documents just may not include the necessary information for
compliance with the applicable federal Uniform Guidance
requirements.
The implications for noncompliance with federal ARPA and ESSER
regulations and guidance are severe. In certain cases, the failure
to comply and/or an expenditure over a certain amount may result in
a federal audit of the school district or municipality’s
finances. In addition, noncompliance may result in the federal
government forcing the school district or municipality to pay back
the funds, lose the grant, and/or the loss of eligibility for
future federal funding, or in extreme cases, there could be a
waiver of governmental immunity and a finding of criminal
fraud.
Notwithstanding the above, and the serious repercussions for
noncompliance, it is best practice to conduct a comprehensive,
periodic review of procurement-related documents, because the
chance for error or provisions that go missing is quite high. The
McNees team can review and offer comments on the current draft
documents and/or prepare documents specifically tailored to
whatever project your clients have in mind, in consideration of the
revenue source that will be used to pay for that project. Because
of our experience, we can do this in an efficient and
cost-effective way.
A comprehensive review will include the following:
- Review of the standard Form of Request for Proposal
- Review of the proposed Form of Contract
- Review for compliance with state procurement law
requirement - Review for compliance with federal procurement law
requirements - Review for overall risk mitigation, including insurance,
indemnification, limitation and/or waiver of liability - Establish standard requirements for construction compared to
procurement of equipment or materials
For example, recently we worked with a school district before
the district went out for bids on a capital project. We uncovered
that construction documents the district was using were not
compliant with additional state and federal procurement
requirements. Moreover, those construction documents were drafted
in a way that did not protect the district should something go awry
during the construction project. Our team worked closely with the
district team to develop a set of documents that both met the new
federal requirements applicable to ESSER funds and included much
stronger language important for any construction project to protect
the district.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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