Download 10.08.21 TEA Published Rule

Texas Education Agency published the final version of new school facilities standards on October 8 to implement requirements of SB 11 as enacted by the Texas Legislature in 2019. New TEA rule Sec. 61.1040 takes effect November 1. The rule updates standards for space for instructional facilities and implements new construction quality standards and compliance measures for the administration of school district contracts with design professionals and contractors. The rule also implements school safety standards for instructional facilities, which apply to a “school district” and an “open-enrollment charter school” district.

TEA’s new rule includes many specific provisions that give school districts clear guidance for complying with standards relating to educational adequacy, construction quality, and space – while also allowing for more design flexibility if a board of trustees has approved innovative instructional or operational practices that allow for the utilization of space in a non-traditional manner.

Many provisions of existing law are incorporated by reference in the rule, establishing best practices guidance for contract compliance and accountability. For example, the rules incorporate provisions of existing procurement law that were enacted by the Legislature as a means of protecting taxpayer investment in publicly funded facilities. Establishing high standards of integrity for construction quality for schools will help ensure school districts and communities receive the appropriate benefits from the investment of public funds in school facilities – and that students receive the educational experiences and outcomes intended from those investments.

Pay close attention to new “definitions” in the rule. The new standards apply to any “capital improvement project” that requires the hiring of a licensed architect or engineer, with specific standards established for projects defined as either “new construction,” “major renovation,” or “minor renovation” projects. New definitions such as these are foundational to understanding the new standards and requirements, and often contain key guidance not found elsewhere in the rule.

Use of current or new standards. A school district capital improvement project approved by a board of trustees after November 1, 2021, is subject to new TEA rule Sec. 61.1040 based on the following public board actions:

• Adoption of a fiscal year maintenance and operations budget delineating a capital improvement project title and budget;
• Approval of a bond election where a capital improvement project title and budget are delineated; or
• Full execution of a contract or amendment to an existing contract for a project.

For a capital improvement project approved by a school district prior to November 1, 2021, a school district may opt into the new rules – or may elect to operate under the old rules but also comply with the new safety and security requirements established in the rule.

Standards for educational adequacy require a long-range facility plan to be developed and maintained by a school district for all school facilities. School districts must also develop educational specifications for instructional facilities. The long-range facility plan must be presented to the board of trustees and made available to the prime design professional for the project. Plan may be a campus specific or district-wide plan and must be updated every five years and prior to the commencement of a subsequent capital improvement project.

Updated space requirements for instructional facilities and two methods of compliance are established in the rule allowing a school district to elect to comply with one of the two methods of compliance established for adequacy for space for instructional facilities. A school district must comply with the quantitative method of compliance unless the district’s board of trustees has approved a documented policy implementing innovative instructional or operational practices that utilize instructional space in a non-traditional manner.  

Quantitative Method of Compliance

• “Maximum student enrollment” must equal the “maximum instructional capacity”
• Must meet minimum aggregate square footage
• Stipulated space types are eligible to be used
• Libraries, cafeterias, and gymnasia are not eligible
• Increase in minimum space for middle school science laboratories

Qualitative Method of Compliance

• “Maximum student enrollment” may exceed the “maximum instructional capacity”
• Must meet minimum aggregate square footage
• Stipulated space types are eligible to be used
• Gymnasia are not eligible
• Allows campus-based aggregate for square footage

Highlights of Requirements Applying to All School Facility Design and Construction Projects

Administration requirements for all school facility contracts are established for school district procurement, contracting, management, and oversight of contracts for design professional services, other professional services, and construction services.

New compliance standards that apply to all school district capital improvement projects are established in the rule in subsections (d)(1), (e), (f), (j), and (k), and apply regardless of type of facility or type of construction delivery method used by the district. In addition to these rule provisions, instructional facilities must also comply with subsections (d)(2), (g), and either subsections (h) or subsection (i).

A “prime design professional” must be designated and contracted with by a school district for a capital improvement project, and a contract between a design professional and a school district must conform with applicable practice act requirements and rules established by TBAE and TBPE.

Official certification is required of all key members of design and construction team, including a school district as the facility owner, a design professional of record, a general contractor, a construction manager-at-risk, a design build team, a construction manager agent, and a prime contractor or subcontractor. A contractor must notarize their signature when providing payment certification as part of the certificate of substantial completion documentation process.

TEA must issue an updated “Certification Form” that includes written certification requirements for a design professional of record, a general contractor, construction manager-at-risk, a design build firm, a construction manager agent, and a prime contractor or subcontractor. Certifications are based on compliance with standards established in rule and in law and with the specific contract terms and deliverables.

Building code review now required for all projects. New construction quality standards require a school district to hire a “third-party code compliance officer” if no “authority having jurisdiction” conducts review of building code standards or provides certificate of occupancy. A third-party code compliance officer is required to conduct review based on applicable construction codes standards specified in the rule and must issue certificate of occupancy in certain cases. School districts must also contract to provide any materials or systems testing required for a project and must provide certification of payment for the school district’s separate consultants or contractors.

Safety and Security Standards Applicable to All Instructional Facility Projects

New safety and security standards for all instructional facilities incorporate provisions of existing law in the rule that require a school district to ensure adequate communications technology and infrastructure to allow for emergency response communications and to implement access control restrictions. The rule also enacts additional safety and security standards that school districts are required to implement at all instructional facilities as part of ongoing construction projects undertaken by the district.

• Standards for communications infrastructure include requirements for a school district to develop a multi-hazard plan to ensure communications technology and infrastructure are adequate to allow for communication during emergency; classroom access to landline telephone, cell phone, or other means to allow immediate contact with emergency first responders; and development of site plans for emergency response.

• Access control standards requiring the development of a document that designates each exterior door of an instructional facility as either a primary, secondary, or non-designated entrance. This document must be included in or added to the long-range facility plan.

• Additional safety and security standards established by rule must be implemented at all instructional facilities campus-wide as part of each capital improvement project, based on the “project construction budget” approved by a school district at completion of design development and prior to construction documents phase. 

• Compliance thresholds based on “project construction budget” are established to implement the following additional safety and security standards at all instructional facilities campus-wide:
  • Exterior door numbering for all exterior doors.
  • Security cameras at all primary and secondary entrances.
  • Visitor management for all primary entrances that include an unobstructed line of sight of approaching visitors through physical or digital means, a physical barrier that prevents unassisted access to the facility by a visitor, and a location for a visitor check-in and check-out process.

• Overview of project cost triggers established in the rulefor all capital improvement projects as a mechanism to implement additional safety and security standards:
  • Projects with project construction budget of $1M to $5M must comply with 1 additional requirement.
  • Projects with project construction budget of $5M to $10M must comply with 2 additional requirements.
  • Projects with project construction budget over $10M must comply with all additional safety and security requirements.
  • All projects must comply with communications infrastructure and access control requirements.