4003.1: Bidding for Construction, Remodeling, Repair, or Related Projects Financed with Federal Funds
Applicability of the Policy
This policy applies only to construction and contracts undertaken with federal funds which are subject to the federal Uniform Grant Guidance (UGG) and other applicable federal law, including but not limited to the Education Department and General Administration Regulations (EDGAR) and the United States Department of Agriculture (USDA) regulations governing school food service programs. In the event this policy conflicts or is otherwise inconsistent with mandatory provisions of the UGG, EDGAR or other applicable federal law, the mandatory provisions of the laws shall control.
The ESU will also comply with the requirements of the public lettings laws (NEB. REV. STAT. §§ 73-101 through 73-106) when the contemplated expenditure for the complete project exceeds $109,000, the Political Subdivisions Construction Alternatives Act (NEB. REV. STAT. §§ 13-2901 through 13-2914), energy financing contracts (NEB. REV. STAT. §§ 66-1062 through 66-1066), other applicable state laws, and the board’s general policy on Bidding for Construction and Related Projects. In addition, all procurement and construction shall comply with the rules and requirements of 2 CFR part 200.317 through 200.326 and 34 CFR sections 75.601 through 75.615. In the event of a conflict between state and federal law, the more stringent requirement shall apply.
All projects undertaken pursuant to this policy will be subject to the following bond requirements
A bid guarantee from each bidder equivalent to five percent of the bid price. The “bid guarantee” must consist of a firm commitment such as a bid bond, certified check, or other negotiable instrument accompanying a bid as assurance that the bidder will, upon acceptance of the bid, execute such contractual documents as may be required within the time specified.
A performance bond on the part of the contractor for 100 percent of the contract price. A “performance bond” is one executed in connection with a contract to secure fulfillment of all the contractor's obligations under such contract.
A payment bond on the part of the contractor for 100 percent of the contract price. A “payment bond” is one executed in connection with a contract to assure payment as required by law of all persons supplying labor and material in the execution of the work provided for in the contract.
Construction Projects with an Anticipated Cost of under $250,000
Methods of Bidding/Soliciting Quotations or Estimates
The type of procedures required depends on the anticipated cost of the project.
- Construction with an Anticipated Cost of up to $10,000 (Micro-Purchases)
Micro-purchase means a purchase of supplies or services using simplified acquisition procedures, the annual aggregate amount of which does not exceed $10,000. Micro-purchases may be made or awarded without soliciting competitive quotations, to the extent ESU staff determine that the cost of the purchase is reasonable. For purposes of this policy “reasonable” means the purchase is comparable to market prices for the geographic area.
To the extent practicable, the ESU distributes micro-purchases equitably among qualified suppliers. The ESU will follow its standard policy on purchasing, which can be found earlier in this subsection. - Construction with an Anticipated Cost between $10,000 and $250,000 (Small Purchase Procedures)
For construction projects subject to this policy, small purchases are purchases that, in the aggregate amount, is more than $10,000 and less than $250,000 annually. For small purchases, price or rate quotes shall be obtained in advance from a reasonable number of qualified sources as detailed in the ESU’s standard policies on purchasing and on bid letting and contracts, which can be found earlier in this subsection.
Construction Projects with an estimated cost between $109,000 and over will be made pursuant to the ESU’s Policy on Bid Letting and Contracts.
Construction Projects with an Anticipated Cost Over $250,000
Sealed Bids: All constructions projects subject to this policy with an anticipated cost of $250,000 will be publicly solicited using the sealed bid method
- Bids must be solicited from an adequate number of known suppliers, providing them sufficient response time prior to the date set for opening the bids, for state, local, and tribal governments, the invitation for bids must be publicly advertised;
- The invitation for bids, which will include any specifications and pertinent attachments, must define the items or services in order for the bidder to properly respond;
- Sealed bids will be publicly opened in a place and at the specific time stated in the bid solicitation. Bidders shall be notified of the opening and invited to be present.
- The contract will be awarded to the lowest responsive and responsible bidder.
- Where specified in bidding documents, factors such as discounts, transportation cost, and life cycle costs must be considered in determining which bid is lowest.
- Payment discounts will only be used to determine the low bid when prior experience indicates that such discounts are usually taken advantage of.
- Any or all bids may be rejected if there is a sound documented reason.
- The board shall have discretion in determining which bidders are responsible and responsive and shall award the contract to the lowest, responsible, and responsive bidder whose bid meets the bid specifications. This means that the board will select the bid that offers the best value and award a contract based upon the amount of the bid and the bidder’s ability and capacity to carry on the work, its equipment and facilities, honesty, integrity, skills, business judgment, experience, equipment, facilities, financial stability, past performance, and other relevant factors.
- The board will generally complete its review of bids and select a vendor within 30 days of bid submission.
Advertising for Bids.
- The administrator or designee will arrange to advertise for bids by publishing notice in any newspaper of general circulation within the school ESU at least 7 calendar days prior to the date on which bids are due.
- Nothing shall prevent the administrator or designee from advertising in additional media outlets or for a longer period of time.
Bid Documents
- The bid documents shall identify the day upon which the bids shall be returned, received, or opened and shall identify the hour at which the bids will close or be received or opened.
- The bid documents shall also provide that such bids shall be opened simultaneously in the presence of the bidders or their representatives.
- Bids received after the date and time specified in the bid documents shall be returned to the bidder unopened.
- If bids are being opened on more than one contract, the board, in its discretion, may award each contract as the bids are opened.
- Sealed bids will be opened in a place and at the specific time stated in the bid solicitation. Bidders shall be notified of the opening and invited to be present.
- Bids will be reviewed by the Administrator and/or designee and submitted to the board for approval.
- The board shall have discretion in determining which bidders are responsible and responsive and shall award the contract to the lowest, responsible, and responsive bidder whose bid meets the bid specifications. This means that the board will select the bid that offers the best value and award a contract based upon the amount of the bid and the bidder’s ability and capacity to carry on the work, its equipment and facilities, honesty, integrity, skills, business judgment, experience, equipment, facilities, financial stability, past performance, and other relevant factors.
- The board will generally complete its review of bids and select a vendor within 30 days of bid submission.
The terms of any construction project undertaken pursuant to this policy will be memorialized in a written contract which has been reviewed by the ESU’s legal counsel and approved by the board.
Other Contract Matters.
Required Terms
The non-Federal entity's contracts must contain the applicable provisions required by section 200.326 and described in Appendix II to Part 200—Contract Provisions for non-Federal Entity Contracts Under Federal Awards. This includes a “Buy American” provision that provides that as appropriate and to the extent consistent with law, the ESU and contractor should, to the greatest extent practicable under a Federal award, provide a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States (including but not limited to iron, aluminum, steel, cement, and other manufactured products). The requirements of the Buy American provision must be included in all subawards including all contracts and purchase orders for work or products under this award.
Contracting with Certain Vendors
Pursuant to the standards contained in 2 C.F.R. § 200.321, the ESU will take all necessary affirmative steps to assure that minority businesses, women's business enterprises, and labor surplus area firms are used when possible and consistent with state law.
To the maximum extent practicable, the ESU food program shall purchase domestic commodities or products produced in the U.S. or processed in the U.S. substantially using agricultural commodities produced in the U.S.
Full and Open Competition
The ESU’s procurement transactions will be conducted in a manner providing full and open competition consistent with 2 C.F.R §200.319.
Debarment and Suspension
The ESU awards contracts only to responsible contractors possessing the ability to perform successfully under the terms and conditions of a proposed procurement. Consideration will be given to such matters as contractor integrity, compliance with public policy, record of past performance, and financial and technical resources.
The ESU may not subcontract with or award subgrants to any person or company who is debarred or suspended. For all contracts over $25,000 the ESU verifies that the vendor with whom the ESU intends to do business with is not excluded or disqualified. 2 C.F.R. Part 200, Appendix II(1) and 2 C.F.R. §§ 180.220 and 180.300.
The ESU will verify debarment or suspension by revising the excluded parties list on SAM.gov, collecting a certification through the bidding process, and/or by including a debarment and suspension provision in the bid and contract documents. The Administrator or his/her designee shall be responsible for such verification.
Settlements of Issues Arising Out of Contract
The ESU alone is responsible, in accordance with good administrative practice and sound business judgment, for the settlement of all contractual and administrative issues arising out of procurements. These issues include, but are not limited to, source evaluation, protests, disputes, and claims. These standards do not relieve the ESU of any contractual responsibilities under its contracts. Violations of law will be referred to the local, state, or federal authority having proper jurisdiction.
Record Keeping
- Record Retention
- The ESU maintains all records that fully show (1) the amount of funds under the grant or subgrant; (2) how the subgrantee uses those funds; (3) the total cost of each project; (4) the share of the total cost of each project provided from other sources; (5) other records to facilitate an effective audit; and (6) other records to show compliance with federal program requirements. 34 C.F.R. §§ 76.730-.731 and §§ 75.730-.731. The ESU also maintains records of significant project experiences and results. 34 C.F.R. § 75.732. These records and accounts must be retained and made available for programmatic or financial audit.
- The U.S. Department of Education is authorized to recover any federal funds misspent within 5 years before the receipt of a program determination letter. 34 C.F.R. § 81.31(c). Schedule 10 (Local School Districts) and Schedule 24 (Local Agencies General Records) of the Nebraska Records Management Division as approved by the Nebraska Secretary of State/State Records Administrator requires the ESU to maintain records regarding construction projects for a minimum of five (5) years after the sale or demolition of the building. However, if any litigation, claim, or audit is started before the expiration of the record retention period, the records will be retained until all litigation, claims, or audit findings involving the records have been resolved and final action taken. 2 C.F.R. § 200.333.
- Records will be destroyed in compliance with Schedule 10, Schedule 24, and State law. This includes the completion of a Records Disposition Report.
- Maintenance of Construction Records for Projects Financed with Federal Funds
- The ESU must maintain records sufficient to detail the history of all construction projects financed with federal funds. These records will include, but are not necessarily limited to the following: rationale for the method of construction, selection of contract type, contractor selection or rejection, the basis for the contract price (including a cost or price analysis), and verification that the contractor is not suspended or debarred.
- Retention of construction records shall be in accordance with applicable law and Board policy.
Conflict of Interest and Code of Conduct
Board and staff member conflicts of interest are governed by the district’s conflict of interest policies.
Contracts covered by this policy are subject to the following additional provisions.
- Employees, officers, and agents engaged in the selection, award, and/or administration of ESU contracts which are prohibited from engaging in such actions if a real or apparent conflict of interest is present.
- Such a conflict of interest would arise when the employee, officer, or agent, any member of his or her immediate family, his or her partner, or an organization which employs or is about to employ any of the parties indicated herein, has a financial or other interest in or a tangible personal benefit from a firm considered for a contract.
- The board may determine at its discretion that a financial interest is not substantial enough to give rise to a conflict of interest.
Favors and Gifts
The officers, employees, and agents of the ESU may neither solicit nor accept gratuities, favors, or anything of monetary value from contractors or parties to subcontracts, with the limited exception of unsolicited items of nominal value.
Enforcement
Disciplinary Actions will be applied for violations of such standards by officers, employees, or agents of the ESU at the board’s discretion.
Financial Management
Identification.
The ESU will identify, in its accounts, all federal awards received and expended and the federal programs under which they were received. Federal program and award identification include, as applicable, the CFDA title and number, federal award identification number and year, name of the federal agency, and, if applicable, name of the pass-through entity.
Financial Reporting
The ESU will make an accurate, current, and complete disclosure of the financial results of each federal award or program in accordance with the financial reporting requirements set forth in the Education Department General Administrative Regulations (EDGAR).
Accounting Records
The ESU maintains records which adequately identify the source and application of funds provided for federally-assisted activities. These records must contain information pertaining to grant or subgrant awards, authorizations, obligations, unobligated balances, assets, expenditures, income and interest and be supported by source documentation.
Internal Controls
The Administrator or his/her designee must maintain effective control and accountability for all funds, real and personal property, and other assets through board review and approval of claims, an annual audit of the ESU’s finances pursuant to the applicable Nebraska Department of Education and federal rules and regulations, and comparison of expenditures and outlays to budgeted amounts. The ESU adequately safeguards all such property and assures that it is used solely for authorized purposes.
Budget Control
Actual expenditures or outlays will be compared with budgeted amounts for each federal award at least annually and more often as required by law or deemed prudent by the board or administrative staff.
Payment Methods
The ESU will comply with applicable methods and procedures for payment that minimize the time elapsing between the transfer of funds and disbursement by the ESU, in accordance with the Cash Management Improvement Act at 31 CFR Part 205. Generally, the ESU receives payment from the Nebraska Department of Education on a reimbursement basis. 2 CFR § 200.305. However, if the ESU receives an advance in federal grant funds, the ESU will remit interest earned on the advanced payment quarterly to the federal agency. The ESU may retain interest amounts up to $500 per year for administrative expenses. 2 CFR § 200.305(b)(9).
Consistent with state and federal requirements, the ESU will maintain source documentation supporting the federal expenditures (invoices, time sheets, payroll stubs, etc.) and will make such documentation available for the Nebraska Department of Education to review upon request.
Allowability of Costs
Expenditures must be aligned with approved budgeted items. Any changes or variations from the state-approved budget and grant application need prior approval.
When determining how the ESU will spend its grant funds, the Administrator or his/her designee will review the proposed cost to determine whether it is an allowable use of federal grant funds before obligating and spending those funds on the proposed good or service. All costs supported by federal education funds must meet the standards outlined in EDGAR, 2 CFR Part 3474 and 2 CFR Part. The Administrator or his/her designee must consider these factors when making an allowability determination.
The Administrator or his/her designee will consider Part 200’s cost guidelines when federal grant funds are expended. The Administrator or his/her designee will also consider whether all state - and ESU-level requirements and policies regarding expenditures have been followed.
Use of Program Income – Deduction, Addition, or Cost Sharing or Matching
The default method for the use of program income for the ESU is the deduction method. 2 C.F.R. § 200.307(e). Under the deduction method, program income is deducted from total allowable costs to determine the net allowable costs. Program income will only be used for current costs unless the ESU is otherwise directed by the federal awarding agency or pass-through entity. 2 C.F.R. § 200.307(e)(1). The ESU may also request prior approval from the federal awarding agency to use the addition method. Under the addition method, program income may be added to the Federal award by the Federal agency and the non-Federal entity. The program income must then be used for the purposes and under the conditions of the Federal award. 2 C.F.R. § 200.307(e)(2). The ESU may also request prior approval from the federal awarding agency to use the cost sharing or matching method.
While the deduction method is the default method, the ESU always refers to the grant award notice prior to determining the appropriate use of program income.
Cost Sharing or Matching
For all Federal awards, any shared costs or matching funds and all contributions, including cash and third-party in-kind contributions, must be accepted as part of the non-Federal entity's cost sharing or matching when such contributions meet all of the following criteria:
- Are verifiable from the non-Federal entity's records;
- Are not included as contributions for any other Federal award;
- Are necessary and reasonable for accomplishment of project or program objectives;
- Are allowable under subpart E (Cost Principles) of this part;
- Are not paid by the Federal Government under another Federal award, except where the Federal statute authorizing a program specifically provides that Federal funds made available for such program can be applied to matching or cost sharing requirements of other Federal programs;
- Are provided for in the approved budget when required by the Federal awarding agency; and
- Conform to other provisions of this part, as applicable.
Documentation of Personnel Expenses
Records that reflect charges to federal awards for salaries and wages will comply with the rules and requirements of 2 CFR 200.430.
Other Contract Matters.
Required Terms
The non-Federal entity's contracts must contain the applicable provisions required by section 200.326 and described in Appendix II to Part 200—Contract Provisions for non-Federal Entity Contracts Under Federal Awards. This includes a “Buy American” provision that provides that as appropriate and to the extent consistent with law, the ESU and contractor should, to the greatest extent practicable under a Federal award, provide a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States (including but not limited to iron, aluminum, steel, cement, and other manufactured products). The requirements of the Buy American provision must be included in all subawards including all contracts and purchase orders for work or products under this award.
Contracting with Certain Vendors
Pursuant to the standards contained in 2 C.F.R. § 200.321, the ESU will take all necessary affirmative steps to assure that minority businesses, women's business enterprises, and labor surplus area firms are used when possible consistent with state law.
To the maximum extent practicable, the school food program shall purchase domestic commodities or products produced in US or processed in US substantially using agricultural commodities produced in US.
Record Keeping
- Record Retention
- The ESU maintains all records that fully show (1) the amount of funds under the grant or subgrant; (2) how the subgrantee uses those funds; (3) the total cost of each project; (4) the share of the total cost of each project provided from other sources; (5) other records to facilitate an effective audit; and (6) other records to show compliance with federal program requirements. 34 C.F.R. §§ 76.730-.731 and §§ 75.730-.731. The ESU also maintains records of significant project experiences and results. 34 C.F.R. § 75.732. These records and accounts must be retained and made available for programmatic or financial audit.
- The U.S. Department of Education is authorized to recover any federal funds misspent within 5 years before the receipt of a program determination letter. 34 C.F.R. § 81.31(c). Schedule 10 (Local School Districts) and Schedule 24 (Local Agencies General Records) of the Nebraska Records Management Division as approved by the Nebraska Secretary of State/State Records Administrator requires the ESU to maintain records regarding federal awards for a minimum of six (6) years. Consequently, the ESU shall retain records for a minimum of six (6) years from the date on which the final Financial Status Report is submitted, unless otherwise notified in writing to extend the retention period by the awarding agency, cognizant agency for audit, oversight agency for audit, or cognizant agency for indirect costs. However, if any litigation, claim, or audit is started before the expiration of the record retention period, the records will be retained until all litigation, claims, or audit findings involving the records have been resolved and final action taken. 2 C.F.R. § 200.333.
- Records will be destroyed in compliance with Schedule 10, Schedule 24, and State law. This includes the completion of a Records Disposition Report.
- Maintenance of Procurement Records
- The ESU must maintain records sufficient to detail the history of all procurements. These records will include, but are not necessarily limited to the following: rationale for the method of procurement, selection of contract type, contractor selection or rejection, the basis for the contract price (including a cost or price analysis), and verification that the contractor is not suspended or debarred.
- Retention of procurement records shall be in accordance with applicable law and Board policy.
Privacy
The ESU has protections in place to ensure that the personal information of both students and employees is protected. These include the use of passwords that are changed on a regular basis; staff training on the requirements of the Family Educational Rights and Privacy Act (FERPA) and State confidentiality requirements; and training on identifying whether an individual requesting access to records has the right to the documentation.
Adopted on: February 12, 2019
Reviewed on: Sept. 18, 2019
Revised on: Oct. 14, 2019
Revised on: August 9, 2021
Revised on: August 8, 2022
Reviewed on: Oct. 10, 2022
Revised on: Aug. 14, 2023