I hope everyone had a relaxing and restful Christmas break.  It’s hard to believe we are now in 2023 and in the second half of the school year!  Time flies when we are having fun, right?

I had the great opportunity of attending the Brustein and Manasevit Fall Forum in early December, and I want to share some of the information from that conference with you over the next month or so.  For those of you who may not know Brustein and Manasevit, they are education lawyers out of Washington, D.C.  They work closely with the U.S. Department of Education and stay up-to-date with what is happening in the department and in Congress.  I always learn something when I hear from the lawyers at Brustein and Manasevit.  The following information came from the presentation and slides presented at the conference.

ESSER Allowability

Even though Covid is not as threatening as it was when the ESSER grants were released, for ESSER funds to be allowable, they must always meet these requirements:

  • “Prevent, Prepare and Respond to Coronavirus
  • Be an allowable use of ESSER funds (any of the ESSER funds may be used to support all of the allowable uses of funds listed in any of the ESSER programs)
  • Be allowable under EDGAR (including in approved plan with prior approvals, as necessary).”

According to updated guidance, ESSER funds can also be used for “needs arising from or exacerbated by the COVID-19 pandemic, or to emerge stronger post-pandemic (to address pre-existing challenges that, if left unaddressed, will impede recovery from the pandemic) (12/29/21 ESSER FAQs)”.

As Federal Program Directors, we rarely worked with construction projects.  However, with the ESSER grants, we have found ourselves in a foreign territory of construction.  Brustein and Manasevit reminds us that ESSER expenditures for capital improvements must always have prior approval.  This would include making “additions, improvements, modifications, replacements, rearrangements, reinstallation, renovations, or alterations to capital assets that materially increase their value or useful life.”  These projects are done through contracts, and it falls on the federal programs department to “maintain oversight to ensure that contractors perform in accordance with the terms, conditions, and specifications of the contract.”  This means becoming familiar with all the applicable provisions in Part 200 Appendix II of EDGAR (2 CFR 200.327), which include the following.

  • Davis-Bacon Act
  • Contract Work Hours and Safety Standards Act
  • Clean Air Act
  • Federal Water Pollution Control Act
  • Byrd Anti-Lobbying Amendment

As we are all aware, ESSER had to be obligated by September 30, 2022, and the obligations dates for ESSER II is September 30, 2023, and ESSER ARP is September 30, 2024.   Remember obligation means the date orders are placed for property, services, and contracts.   Don’t forget that personnel obligation is when the services are performed.  This means that the last day to pay personnel is September 30.  The liquidation time frame is when the obligations must be paid for and funds drawn.  However, with ESSER I there is now the opportunity for late liquidation.   Late liquidation must be requested with documentation showing reasons the obligations were not paid out.  This is helpful when obligations such as technology orders or construction was not able to be completed, paid, and drawn down.

It seems to be the prevailing view there will be no extension of obligation deadlines for the remaining ESSER grants, unless Congress passes legislation.  However, federal program directors think the ESSER II and ESSER ARP will allow for late liquidation time frames as well.   It is recommended that you begin to document all attempts to complete contracts and purchases.  Ask the vendor for delivery dates and reasons for late deliveries/work completions.  Be sure to document everything.  September 30, 2023 will be here quickly, so see where you stand with expending ESSER II now.

Happy New Year!


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