Education Law Notes  

As you are aware from these pages, Connecticut’s General Assembly produced a plethora of bills affecting the schools during its 2019 regular session.  As they say in late night TV infomercials, yes, there’s more.  In a brief special session that was convened and adjourned on July 22, 2019, the General Assembly passed Senate Bill No. 1210, entitled “An Act Concerning Authorization of State Grant Commitments for School Building Projects”.  As its title tastefully and incisively suggests, the primary purpose of the bill (which was signed by the Governor on July 23, 2019) is to authorize state grant commitments for various specified school building projects in our state, as is usually done annually by our legislature.

In addition, the bill makes various (and conforming) changes to several school construction related laws. First, the bill makes it optional (as opposed to mandatory, as is currently required) for the Secretary of the Office of Policy and Management to provide comments and recommendations to the General Assembly with respect to the list of proposed school building projects.  The bill requires that any school building committee established by either a town or regional school district for the purpose of undertaking a building project where state grants are sought include at least one committee member with experience in the construction industry.

The bill revises the state grant reimbursement rate for “diversity school” construction projects from the current rate of 80% of the reasonable project costs to instead be based upon the school district’s standard reimbursement rate (which can vary from anywhere between 10% to 70% for new construction, based upon town wealth), plus an additional 10% on top of that.  A “diversity school” project is for the purpose of creating a new school in order to address racial disparities within a school district.  The bill expands the types of projects eligible for “emergency” construction grants (which do not require legislative approval) so as to permit such grants for school security projects, including but not limited to improvements to existing security infrastructure or installing new security infrastructure.

The bill makes several changes to the school construction procurement processes that specifically exist for architectural services, construction management services and other “project consultant” services.  Unlike the other provisions of this bill, which take effect upon passage (July 23, 2019), these procurement related provisions take effect on July 1, 2020.  With respect to architectural services, the bill makes a minor modification in the criteria used for determining which architect is the “most responsible and qualified proposer” so as to include the “organizational and team structure” of not only the entity submitting the proposal, but also any subcontractors used by it.  The bill further specifies that the process that governs the procurement of architectural services (i.e., a public selection process that leads to a pool of up to four “most responsible and qualified proposers”) will now also apply to contracts and orders for “other consultant services”, which include but are not limited to consultant services rendered by an owner’s representatives, construction administrators, program managers, environmental professionals, planners, and financial specialists.  The bill specifies that costs associated with an order or contract for such consultant services will NOT be eligible for state financial assistance unless the order or contract receives prior approval from the Department of Administrative Services (“DAS”).

Finally, the bill creates a separate procurement process for construction management services, which used to be governed by the same process as architectural services.  While most of the same requirements will apply, the bill will revise the criteria for selecting construction managers so as to include whether the proposer intends to self-perform any project element and the benefit to the “awarding authority” (i.e., the school district) that will result from such self-performance.  The bill allows an awarding authority, upon the written approval of the Commissioner of DAS, to permit a construction manager to self-perform a portion of the construction work if the awarding authority and the Commissioner determine that the construction manager can self-perform the work more cost effectively than by using a subcontractor.  The bill provides that all work not performed by the construction manager must be performed by trade subcontractors selected by a process approved by the awarding authority and the Commissioner.  The bill requires that the construction manager’s contract include a “guaranteed maximum price” for the cost of construction, which must be determined within 90 days after the selection of the trade subcontractors.  The bill states that construction shall not begin prior to the setting of the guaranteed maximum price, except for work relating to site preparation and demolition.

Impact/what does this mean?  Obviously, if your school district had a grant commitment approved, then your district may proceed to celebrate.  In addition, school districts should obviously pay attention to this bill if they are contemplating a school construction project.  Finally, school districts may need to revise any applicable policies governing the procurement processes for school construction projects.