# COMAR Title 14 — Independent Agencies

## Subtitle 39 — Interagency Commission on School Construction

### Chapter 01 — Terminology

**Authority:** Education Article, §§4-126, 5-112, and 5-301—5-321, Annotated Code of Maryland

**Administrative History:** Effective date: May 21, 2007 (34:10 Md. R. 891)

**Administrative History:** Regulation .01B amended effective November 2, 2009 (36:22 Md. R. 1725)

**Administrative History:** COMAR 23.03.01 recodified to be COMAR 14.39.01 under new subtitle, Interagency Commission on School Construction, effective November 4, 2019 (46:22 Md. R. 979)

**Administrative History:** Regulation .01B amended effective November 4, 2019 (46:22 Md. R. 979); June 28, 2021 (48:13 Md. R. 509); July 7, 2025 (52:13 Md. R. 656)

#### Regulation .01 Definitions.

*COMAR 14.39.01.01*

A. In this subtitle, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Alternative education” means a public elementary or secondary school or program that addresses the needs of students that typically cannot be met in a regular school program and is designed to meet the needs of students with academic difficulties and/or discipline problems, and temporarily provide students with specialized instructional and/or behavioral supports for a specified time period before returning to their home school.

  (2) “Best value” means the expected outcome of a procurement that provides the greatest overall benefit in response to the requirement with consideration given to the quantities involved, the time required for delivery, the purpose for which required, the competency and responsibility of the bidder, the ability of the bidder to perform satisfactory service, the plan for utilization of minority contractors, and the price offered by the bidder.

  (3) “Bid” means a statement of price, terms of sale, schedule, and description of the supplies, services, construction, or construction-related services offered by a bidder in response to an invitation for bids.

  (4) “Capital maintenance” means projects that involve the major repair, alteration, and replacement of building systems, equipment, finishes, and components, including their removal and disposal, and are sometimes referred to as “systemic renovation” projects.

  (5) Competitive Negotiation.

    (a) “Competitive negotiation” means a method of source selection that permits offerors to:

      (i) Demonstrate creativity, experience, and knowledge; and

      (ii) Submit proposals that vary widely in scope, cost, and other factors.

    (b) “Competitive negotiation” allows negotiating between the LEA and the qualified offerors with the objective that the final proposal should be the most advantageous to the LEA.

  (6) “Competitive sealed bidding” means a process of procurement in which bidders provide fixed prices in response to a scope of work established by the LEA that is defined in advance.

  (7) Construction.

    (a) “Construction” means the process of building, altering, repairing, improving, or demolishing any structure, building, or other improvement to real property.

    (b) “Construction” includes any major work necessary to repair, replace, prevent damage to, or sustain existing components of an improvement to real property.

    (c) “Construction” does not include:

      (i) The maintenance or routine operation of an existing improvement to real property; or

      (ii) Activities related to an energy performance contract.

  (8) “Construction management agency (CMA)” means a project delivery method in which the LEA:

    (a) Directly contracts with trade contractors; and

    (b) Performs one of the following:

      (i) Engages a construction manager as its agent to manage the project; or

      (ii) Acts as the construction manager.

  (9) “Construction management at-risk (CMR)” means a project delivery method in which the LEA engages a construction manager to contract directly with trade contractors and provide a guaranteed maximum price for project procurement and construction.

  (10) “Constructor” means the builder of a facility.

  (11) “Cooperative-use space” means areas in a school that serve as shared or co-located spaces in which both the LEA and non-LEA organizations deliver programs and/or services.

  (12) “County” includes Baltimore City.

  (13) “Day” means calendar day unless otherwise designated.

  (14) Design-Build.

    (a) “Design-build” means a project delivery method in which a single entity is contractually responsible for both design and construction of a project.

    (b) “Design-build” may include finance-design-build and other contracts that include services in addition to design and construction.

  (15) “Donation” means a contribution of cash or gift in kind from a private entity to a public school system or a local government, with no consideration required of the recipient.

  (16) “eMaryland Marketplace” means the State electronic procurement system.

  (17) “Forward-funded project” means a school construction project that the State has approved for planning and for which the LEA has paid some portion of the State share with local funds.

  (18) “Free and reduced-price meal percentage” means the number of students eligible in the previous year for free and reduced-price meals, divided by the full-time equivalent enrollment from the previous year.

  (19) “Funding approval” means pending the availability of funds, the State commits to fund, in the next fiscal year, the entire or a portion of the State share of eligible costs for a school construction project.

  (20) “Furniture, Fixtures, and Equipment (FF&E)” means a category of items such as chairs, desks, movable equipment, and fixed components that are required for the delivery of education within a school facility and are normally not included in the construction contract.

  (21) “Gift in kind” means a contribution of materials, labor, services, equipment, or land from a private entity to a public school system or a local government, with no consideration required of the recipient.

  (22) “Guaranteed maximum price (GMP)” means an arrangement between the LEA and the construction manager at risk in which the total amount payable to the construction manager at risk for the project is restricted to a preagreed maximum and includes the cost of construction and construction management services that is generally determined before the design and construction documents are complete.

  (23) “High performance school” means a school building that satisfies the definition of a high performance building under State Finance and Procurement Article, §3-602.1, Annotated Code of Maryland, and is:

    (a) A school building that meets or exceeds the current version of the U.S. Green Building Council's Leadership in Energy and Environmental Design (LEED) for schools green building rating system silver rating;

    (b) A school building that achieves at least a comparable numeric rating according to a nationally recognized, accepted, and appropriate numeric sustainable development rating system, guideline, or standard approved by the Secretary of Budget and Management and the Secretary of General Services; or

    (c) A school building that complies with a nationally recognized and accepted green building code, guideline, or standard reviewed and recommended by the Maryland Green Building Council and approved by the Secretary of Budget and Management and the Secretary of General Services.

  (24) “IAC” means the Interagency Commission on School Construction.

  (25) “IAC” or its designee means a member of the IAC or a staff member, respectively, of the Maryland State Department of Education, the Department of General Services, or the Maryland Department of Planning who has been specifically designated to act in the place of the IAC member, or the Executive Director of the Public School Construction Program.

  (26) “Invitation for bids (IFB)” means the document used for soliciting bids under procurement by competitive sealed bidding.

  (27) “Job order contracting (JOC)” means a project delivery method in which the LEA selects a contractor through a competitive procurement process based on a multiplier or coefficient that:

    (a) Reflects the bidder's determination of the actual cost to perform the work plus overhead and profit; and

    (b) Is applied to a fixed-price list of construction items and activities.

  (28) “LEA” means the local education agency or its designee.

  (29) “Local board” means the board of education of a county and includes the Baltimore City Board of School Commissioners

  (30) “Locally funded project” means a school construction project that has been designed, built, or occupied prior to the State approval of planning.

  (31) “Maintenance” means routine, preventative, or corrective activities that are performed to a facility to:

    (a) Continue operations or upkeep;

    (b) Prevent deterioration; or

    (c) Correct a deficiency.

  (32) Minority Business Enterprise (MBE).

    (a) “Minority business enterprise” means a legal entity, other than a joint venture, organized to engage in commercial transactions, that is:

      (i) At least 51 percent owned and controlled by one or more individuals who are socially and economically disadvantaged;

      (ii) Managed by, and whose daily business operations are controlled by, one or more of the socially and economically disadvantaged individuals who own it; and

      (iii) Certified as a Minority Business Enterprise by the Maryland Department of Transportation.

    (b) “Minority business enterprise (MBE)” includes a not-for-profit entity organized to promote the interests of physically or mentally disabled individuals.

  (33) “Multistep sealed bidding” means a multiphase process in which bidders submit a technical offer (statement of qualifications) and a second phase in which those bidders who are determined qualified during the first phase may have price bids considered.

  (34) “Offeror” means an entity that responds to a request for proposals.

  (35) “Planning approval” means, pending the availability of funds, the State commits to fund the State share of eligible costs for a school construction project in some future fiscal years.

  (36) “Prevailing wage rate” means the hourly rate of wages paid in the locality as determined by the State Commissioner of Labor and Industry under State Finance and Procurement Article, §17-208, Annotated Code of Maryland.

  (37) “Priority funding” area means an area designated by a county or a municipal corporation in accordance with State Finance and Procurement Article, §§5-7B-02 and 5-7B-03, Annotated Code of Maryland.

  (38) “Proposal” means the response by an offeror to a request for proposals.

  (39) “Quality based selection” means a method of source selection based on a combination of qualification and cost factors.

  (40) “Renewal” means a capital improvement project for an existing school that, on completion, results in a like-new operational condition for the school as defined by the Commission.

  (41) “Renovation” means a construction project to upgrade an existing building and site, or a portion of a building and site, to improve a school facility’s educational, building performance, and/or aesthetic qualities but which does not achieve a renewal or like-new condition.

  (42) “Responsible” means an entity that has:

    (a) The capability in all respects to perform fully the contract requirements; and

    (b) The integrity and reliability that shall assure good faith performance.

  (43) “Responsive” means a bid submitted in response to an invitation for bids that conforms in all material respects to the requirements contained in the invitation for bids.

  (44) Request for Proposals.

    (a) “Request for proposals” means any documents used for soliciting proposals from offerors.

    (b) “Request for proposals” may request the offeror's price and terms for the proposed contract, a description of technical expertise, work experience, and any other information.

  (45) “Request for qualifications” means any documents used to solicit statements of qualifications including experience, references, team composition, financial stability and condition, and availability of equipment from bidders.

  (46) “Solicited” means an invitation for bid, request for proposals, request for qualifications, or other formal notification to the public of the owner's interest in receiving prices, other information, or both, for a proposed public school construction project or related services, which contains all relevant information to allow members of the public to submit responsive and responsible bids, offers, or proposals.

  (47) “Special education classroom” means a classroom that is used primarily for students who are instructed for more than 60 percent of the day outside of regular classrooms.

  (48) “State” means the government of the State of Maryland.

  (49) “Trade contract” means a contract for specialized construction work including, but not limited to, electrical, plumbing, and carpentry.

  (50) “Trade package” means solicitation documents for a trade contract.

  (51) “Unsolicited proposal” means a written proposal for an original or innovative idea that is submitted on the initiative of the offeror for the purpose of obtaining a contract with the LEA.

### Chapter 02 — Administration of the Public School Construction Program

**Authority:** Education Article, §§2-303, 4-126, 5-112, and 5-303 and 5-308; State Finance and Procurement Article, §5-7B-07; Annotated Code of Maryland;Ch. 32, §5, Acts of 2022

**Administrative History:** Effective date: May 21, 2007 (34:10 Md. R. 891)

**Administrative History:** Regulation .01B amended effective November 2, 2009 (36:22 Md. R. 1725)

**Administrative History:** Regulation .01-1 adopted effective November 2, 2009 (36:22 Md. R. 1725)

**Administrative History:** Regulation .02A amended effective November 2, 2009 (36:22 Md. R. 1725)

**Administrative History:** Regulation .03 amended effective November 2, 2009 (36:22 Md. R. 1725); November 14, 2011 (38:23 Md. R. 1423)

**Administrative History:** Regulation .04C amended effective November 2, 2009 (36:22 Md. R. 1725)

**Administrative History:** Regulation .04F adopted effective November 2, 2009 (36:22 Md. R. 1725)

**Administrative History:** Regulation .05B amended effective November 14, 2011 (38:23 Md. R. 1423); September 28, 2015 (42:19 Md. R. 1229)

**Administrative History:** Regulation .05B, C amended effective November 2, 2009 (36:22 Md. R. 1725); February 26, 2018 (45:4 Md. R. 208)

**Administrative History:** Regulation .06 amended effective March 22, 2010 (37:6 Md. R. 480)

**Administrative History:** Regulation .06H amended effective September 28, 2015 (42:19 Md. R. 1229)

**Administrative History:** Regulation .11 amended effective November 2, 2009 (36:22 Md. R. 1725)

**Administrative History:** Regulation .11I amended effective August 1, 2016 (43:15 Md. R. 865)

**Administrative History:** Regulation .11J adopted effective September 11, 2017 (44:18 Md. R. 866)

**Administrative History:** Regulation .12 amended effective November 2, 2009 (36:22 Md. R. 1725)

**Administrative History:** Regulation .12B amended effective September 11, 2017 (44:18 Md. R. 866)

**Administrative History:** Regulation .13 amended effective November 14, 2011 (38:23 Md. R. 1423)

**Administrative History:** Regulation .13A, B amended effective November 2, 2009 (36:22 Md. R. 1725)

**Administrative History:** Regulation .14 amended effective November 2, 2009 (36:22 Md. R. 1725)

**Administrative History:** Regulation .15B amended effective November 2, 2009 (36:22 Md. R. 1725)

**Administrative History:** Regulation .16 amended effective November 2, 2009 (36:22 Md. R. 1725)

**Administrative History:** Regulation .23D amended effective November 2, 2009 (36:22 Md. R. 1725)

**Administrative History:** Regulation .24E, F repealed effective November 2, 2009 (36:22 Md. R. 1725)

**Administrative History:** Regulation .24-1 adopted effective November 2, 2009 (36:22 Md. R. 1725)

**Administrative History:** Regulation .28 adopted effective November 14, 2011 (38:23 Md. R. 1423)

**Administrative History:** Regulation .29 adopted effective November 14, 2011 (38:23 Md. R. 1423)

**Administrative History:** Regulation .29 amended effective November 24, 2014 (41:23 Md. R. 1376)

**Administrative History:** COMAR 23.03.02 recodified to be COMAR 14.39.02 under new subtitle, Interagency Commission on School Construction, effective November 4, 2019 (46:22 Md. R. 979)

**Administrative History:** Chapter revised effective November 4, 2019 (46:22 Md. R. 979)

**Administrative History:** Regulation .05B, C amended effective October 5, 2020 (47:20 Md. R. 876)

**Administrative History:** Regulation .06 amended effective October 5, 2020 (47:20 Md. R. 876)

**Administrative History:** Chapter revised effective June 28, 2021 (48:13 Md. R. 509)

**Administrative History:** Regulation .05 amended effective October 17, 2022 (49:21 Md. R. 951)

**Administrative History:** Regulation .05B, F amended effective November 13, 2023 (50:22 Md. R. 977)

**Administrative History:** Regulation .06 amended effective February 6, 2023 (50:2 Md. R. 51)

**Administrative History:** Chapter revised effective August 5, 2024 (51:15 Md. R. 711)

**Administrative History:** Regulation .04 amended effective July 7, 2025 (52:13 Md. R. 656)

**Administrative History:** Regulation .05B, C amended effective July 7, 2025 (52:13 Md. R. 656); May 11, 2026 (53:9 Md. R. 414)

**Administrative History:** Regulation .05F amended effective January 20, 2025 (52:1 Md. R. 19)

**Administrative History:** Regulation .07 amended effective July 7, 2025 (52:13 Md. R. 656)

**Administrative History:** Regulation .08A, C amended effective May 11, 2026 (53:9 Md. R. 414)

**Administrative History:** Regulation .08B, C amended effective July 7, 2025 (52:13 Md. R. 656)

**Administrative History:** Regulation .08D adopted effective May 11, 2026 (53:9 Md. R. 414)

**Administrative History:** Regulation .09 amended effective July 7, 2025 (52:13 Md. R. 656)

**Administrative History:** Regulation .10A amended effective May 11, 2026 (53:9 Md. R. 414)

**Administrative History:** Regulation .11A amended effective May 11, 2026 (53:9 Md. R. 414)

**Administrative History:** Regulation .12 amended effective July 7, 2025 (52:13 Md. R. 656)

**Administrative History:** Regulation .13D, E amended effective July 7, 2025 (52:13 Md. R. 656)

**Administrative History:** Regulation .14 amended effective July 7, 2025 (52:13 Md. R. 656)

**Administrative History:** Regulation .15 amended effective July 7, 2025 (52:13 Md. R. 656)

**Administrative History:** Regulation .16 amended effective July 7, 2025 (52:13 Md. R. 656)

**Administrative History:** Regulation .17D, H amended effective July 7, 2025 (52:13 Md. R. 656)

**Administrative History:** Regulation .18D amended effective July 7, 2025 (52:13 Md. R. 656)

**Administrative History:** Regulation .20 amended effective July 7, 2025 (52:13 Md. R. 656)

**Administrative History:** Regulation .32D amended effective July 7, 2025 (52:13 Md. R. 656)

**Administrative History:** Regulation .33 adopted effective July 7, 2025 (52:13 Md. R. 656):

#### Regulation .01 Incorporation by Reference.

*COMAR 14.39.02.01*

The Interagency Commission on School Construction Gross Area Baseline Per Student Square Footage Allowances (September 14, 2023) is incorporated by reference.

#### Regulation .02 Facility Database.

*COMAR 14.39.02.02*

The LEA shall update the IAC facility inventory when a State-funded project is substantially complete.

#### Regulation .03 Local Educational Facilities Master Plan.

*COMAR 14.39.02.03*

A. A local educational facilities master plan is a written plan that includes:

  (1) Educational goals, standards, and guidelines;

  (2) Community analysis, concluding that the plan conforms to the adopted county and municipal comprehensive plan and growth management strategies;

  (3) An inventory and evaluation of existing school buildings;

  (4) Current and projected enrollment data;

  (5) Analysis of future school facility needs;

  (6) Policies for co-location, shared use, and shared cost of existing and planned school facilities;

  (7) Policies to address school capacity needs in planned growth areas or to address adequate public facilities ordinance requirements; and

  (8) Policies addressing current and planned transportation for students, administrators, and teachers per school.

B. Annually by the date the IAC specifies, each LEA shall submit to the IAC an educational facilities master plan that its local board has approved.

C. The IAC or its designee shall:

  (1) Review each local educational facilities master plan; and

  (2) Notify the LEA in writing of objections or exceptions to the plan.

D. The local educational facilities master plan together with any LEA amendments and IAC or its designee comments is the plan of record.

E. The IAC may disapprove any school construction project that is not consistent with the plan of record.

#### Regulation .04 Capital Improvement Program.

*COMAR 14.39.02.04*

A. Local Submissions.

  (1) Annually by the date the IAC specifies, each LEA with approval from its local board shall submit to the IAC a local capital improvement program for the next fiscal year that identifies and prioritizes:

    (a) New construction projects, including replacement schools and additions, renewal projects, renovation projects, and capital maintenance projects, that are proposed for local planning approval;

    (b) New construction projects, including replacement schools and additions, renewal projects, and renovation projects, that are proposed for project development and design funding;

    (c) New construction projects, including replacement schools and additions, renewal projects, renovation projects, capital maintenance projects, and relocatable facilities that are proposed for funding approval; and

    (d) New construction projects, including replacement schools and additions, renewal projects, and renovation projects, that the LEA has locally funded and for which the LEA seeks planning approval and funding approval.

  (2) Annually by the date the IAC specifies, each LEA with approval from its local board shall submit to the IAC a local capital improvement program which shall be:

    (a) Consistent with the educational facilities master plan of record; and

    (b) Approved by the county governing body.

B. IAC Review.

  (1) Project Development and Design Funding Approval. The IAC or its designee shall evaluate the merits of project development and design funding requests contained in the local capital improvement programs using the following factors as applicable and rank the requests on a Statewide basis using the following factors:

    (a) State educational priorities;

    (b) Enrollment projections, that is, the extent to which 7-year enrollment projections exceed the State-rated capacity for the applicable schools;

    (c) Average year of completed construction of the building;

    (d) The rehabilitation of existing schools to ensure that facilities in established neighborhoods are of equal quality to new schools, including location of a new school or a replacement school that adds capacity within a priority funding area;

    (e) The number of students who receive special education services, who are eligible for free and reduced price meals, or who are English-language learners;

    (f) Analysis of the feasibility studies required for projects in which an LEA seeks to abandon an existing school building or demolish more than 50 percent of the gross square footage;

    (g) Documentation for renovation projects for which the State has provided funding for projects within the past 15 years;

    (h) Adequacy of maintenance programs;

    (i) Justification for the transfer of a school building in the same geographic area by a local board to the county government because the property was determined no longer needed for school purposes;

    (j) Progress on previously approved projects;

    (k) Evidence of high performance school design;

    (l) For locally funded projects for which State planning and funding approval is sought, application of the State's Minority Business Enterprise Program and prevailing wage rates;

    (m) Statewide needs measured against the potential for future capacity for State funding; and

    (n) Other factors considered appropriate.

  (2) Local Planning Approval. The IAC or its designee shall evaluate the merits of local planning approval requests contained in the local capital improvement programs using the factors in §B(1) of this regulation as applicable and rank the requests on a Statewide basis using the factors in §B(1)(a)—(e) of this regulation.

  (3) Funding Approval. The IAC shall evaluate funding approval requests contained in the local capital improvement programs using the following factors when applicable:

    (a) Status of planning approval.

    (b) Enrollment projections, that is, the extent to which 7-year enrollment projections exceed the State-rated capacity for the applicable schools;

    (c) Adequacy of maintenance programs;

    (d) Adequacy of project description;

    (e) Adequacy of project cost estimate;

    (f) Progress on project design and anticipated bid date;

    (g) The rehabilitation of existing schools to ensure that facilities in established neighborhoods are of equal quality to new schools;

    (h) Location of a new school or a replacement school that adds capacity within a priority funding area;

    (i) Statewide needs measured against the capacity for State funding;

    (j) For relocatable facilities, the review criteria in Regulation .16 of this chapter;

    (k) Progress on previously approved projects;

    (l) Evidence of high performance school design;

    (m) For locally funded projects for which State planning and funding approval is sought, application of the State's Minority Business Enterprise Program and prevailing wage rates;

    (n) Recurring or unresolved audit exceptions; and

    (o) Other factors considered appropriate.

  (4) After initial review of the local capital improvement programs, the IAC shall:

    (a) Notify the LEAs of preliminary recommendations; and

    (b) Allow LEA representatives to present information pertaining to projects that were not recommended for approval by IAC staff for inclusion in the State capital improvement program.

C. Priority Funding Area Review.

  (1) Except as provided in §C(3) of this regulation, when an LEA proposes to build a new school or to increase the State-rated capacity of a replacement school outside of a priority funding area, the LEA shall request a waiver in accordance with Regulation .29 of this chapter for approval of planning and funding.

  (2) Unless a waiver is granted under Regulation .30 of this chapter, a new school or a replacement school that adds capacity proposed for planning and funding approval shall be in a priority funding area.

  (3) The following school construction projects are not subject to the requirement of §C(1) of this regulation:

    (a) A locally funded project that was funded by an LEA prior to or in Fiscal Year 2012;

    (b) A public school construction project that was approved for planning in an annual capital improvement program prior to or in Fiscal Year 2012;

    (c) A replacement school on the same site when there is no increase of capacity; or

    (d) A renewal, renovation, addition, or capital maintenance renovation project.

D. Preliminary State Capital Improvement Program.

  (1) By December 31 annually, the IAC shall approve a preliminary State capital improvement program for the following fiscal year that:

    (a) Identifies new construction projects, including replacement schools and additions, renewal projects, renovation projects, capital maintenance renovation projects, and relocatable facilities recommended for local planning approval, project development and design funding approval, or funding approval;

    (b) Identifies a maximum State construction allocation for each project; and

    (c) Totals 75 percent of the preliminary school construction allocation, as determined under State Finance and Procurement Article, §8-113, Annotated Code of Maryland.

  (2) A capital maintenance project solicited before IAC approval is eligible for State funding if it has design development and construction document approvals by the IAC and was deemed eligible but deferred due to fiscal constraints in a prior year CIP.

E. Interim State Capital Improvement Program.

  (1) Before March 1 of each year, the IAC shall submit to the presiding officers and the budget committees of the General Assembly and the Department of Legislative Services an interim State capital improvement program that totals 90 percent of the anticipated final capital budget by proposing:

    (a) New construction projects, including replacement schools and additions;

    (b) Renewal projects;

    (c) Renovation projects;

    (d) Capital maintenance projects;

    (e) Relocatable facilities; and

    (f) A maximum State construction allocation for each project.

  (2) The IAC shall take into account:

    (a) The preliminary State capital improvement program;

    (b) Additional information the LEAs provide;

    (c) The anticipated final capital budget for public school construction;

    (d) Funds added from the Statewide contingency account; and

    (e) Other information the IAC considers appropriate.

  (3) A capital maintenance project solicited before IAC approval is eligible for State funding if it has design development and construction document approvals by the IAC and was deemed eligible but deferred due to fiscal constraints in a prior CIP year.

F. Final State Capital Improvement Program IAC Approval.

  (1) After May 1 and before June 1, provided that the capital budget is approved during the regular General Assembly Session, the IAC shall approve a final State capital improvement program that identifies new construction projects, including replacement schools and additions, renewal projects, renovation projects, capital maintenance projects, and relocatable facilities recommended for planning approval or funding approval and that identifies a maximum State construction allocation for each project.

  (2) The approval shall take into account:

    (a) The preliminary State capital improvement program;

    (b) Additional information the LEAs provide;

    (c) The final capital budget for public school construction;

    (d) Funds added from the Statewide contingency account;

    (e) Requirements in the capital budget bill; and

    (f) Other information the IAC considers appropriate.

  (3) A systemic renovation project solicited before IAC approval is eligible for State funding if it has design development and construction document approvals by the IAC and was deemed eligible but deferred due to fiscal constraints in a prior year CIP.

G. Revisions. After IAC approval of the final State capital improvement program, the program may be revised only upon IAC review and approval.

#### Regulation .05 State-Rated Capacity.

*COMAR 14.39.02.05*

A. Definition. In this regulation, State-rated capacity means the number of students that the IAC or its designee determines that an individual school has the physical capacity to enroll.

B. Elementary Schools.

  (1) For the purposes of determining State-rated capacity, elementary schools are schools enrolling students in one or more grades from prekindergarten through grade 6, but no grades higher than grade 6.

  (2) An elementary-school classroom is a space in which the majority of the school day is spent in instruction of the core curriculum.

  (3) Elementary school students who circulate through the school to different classrooms for their core curriculum, rather than spending the majority of the school day in a single classroom and leaving the classroom only for special courses (art, music, physical education, and similar), should be considered middle school students for the purposes of calculating State-rated capacity.

  (4) For the purposes of measuring utilization of facilities and allocating State capital dollars for projects in a manner most equitable to the local school systems of the State, the IAC shall count capacity of elementary school classrooms as follows:

    (a) Prekindergarten classroom — 20;

    (b) Kindergarten classroom —  22;

    (c) Grades 1 through 5 classroom — 23;

    (d) Grade 6 classroom:

      (i) If located in an elementary school—23; or

      (ii) If located in an elementary/middle school, or a secondary school—25;

    (e) Special education classroom—10; and

    (f) Alternative education classroom—10.

  (5) State rated capacity for an individual elementary school is calculated according to the following formula:

    (a) Multiply the number of classrooms in each grade by the approved capacity for that grade; and

    (b) Then add the resulting products.

  (6) Open-space classroom capacity is calculated according to the following formula:

    (a) Divide the open space area by a square foot number the IAC determines;

    (b) Next, round the quotient to the nearest whole number; and

    (c) Then, multiply the rounded quotient by the State-approved capacity for the elementary grade.

C. Secondary Schools.

  (1) For purposes of determining State-rated capacity, secondary schools are schools enrolling students in one or more grades from 6 through 12.

  (2) Classrooms.

    (a) A secondary-school classroom is a space in which any scheduled instruction takes place.

    (b) Secondary-school classrooms include but are not limited to laboratories, career technology rooms, music rooms, art rooms, consumer science rooms, gymnasiums, and auxiliary physical education classrooms. One physical education classroom up to 2,500 net square feet which contains specialized equipment hat cannot be stored or relocated may be excluded in facilities functioning as a high school serving grades 9—12, or a middle high school serving grades 6—12, upon application to and approval of the IAC or its designee.

    (c) Auxiliary gymnasiums up to 6,000 net square feet count as one teaching station. A gymnasium over 6,000 net square feet and up to 13,000 net square feet counts as two classrooms. A gymnasium exceeding 13,000 net square feet counts as three classrooms.

  (3) For the purposes of measuring utilization of facilities and allocating State capital dollars for projects in a manner most equitable to the local school systems of the State, the IAC shall count capacity of secondary school classrooms as follows:

    (a) Grades 6 through 12 classroom—25;

    (b) Special education classroom—10; and

    (c) Alternative education classroom—10.

  (4) State-rated capacity for an individual secondary school is calculated according to the following formula:

    (a) For regular classrooms:

      (i) Multiply the number of regular classrooms by the approved capacity;

      (ii) Next, add the resulting products; and

      (iii) Then, multiply this sum by 85 percent;

    (b) For special education classrooms, multiply the number of special education classrooms by the approved capacity; and

    (c) Then, add results from §C(4)(a) and (b) of this regulation.

  (5) Open-space classroom capacity is calculated according to the following formula:

    (a) Divide the open space area by a square foot number the IAC determines;

    (b) Next, round the quotient to the nearest whole number;

    (c) Then, multiply the rounded quotient by the State-approved capacity for the secondary grade; and

    (d) Finally, multiply by 85 percent.

D. Career and Technology Programs.

  (1) Career and technology programs are occupational programs approved by the Maryland State Department of Education.

  (2) The approved capacity for a career and technology classroom is as the IAC or its designee determines on a case-by-case basis.

  (3) State-rated capacity for an individual career and technology program is calculated according to the following formula:

    (a) Multiply the number of classrooms by the approved capacity for that career and technology classroom;

    (b) Next, add the resulting products; and

    (c) Then, multiply by 85 percent.

E. The IAC or its designee shall determine on a case-by-case basis the State-rated capacity for a school that is not defined in §§B, C, and D of this regulation.

F. Cooperative use space dedicated in a written agreement to use by a non-LEA entity may not be included in the State-rated capacity unless that space is used for LEA educational purposes during the LEA’s standard school operating hours.

#### Regulation .06 State Cost Share Percentage.

*COMAR 14.39.02.06*

A. The State may fund eligible costs of approved public school construction projects according to the State cost share percentage established in this regulation.

B. Percentages.

  (1) The minimum State share of public school construction funding for eligible costs of approved projects is 50 percent.

  (2) Reductions in the cost share may not exceed 5 percent.

  (3) Reduction in the cost share of 4 percent or more shall be phased in over the 2-year period with a reduction of 2 percentage points in the first year and the remaining 2 or 3 percentage points in the second year.

  (4) The maximum State share of public school construction funding is 100 percent of eligible costs of approved projects.

  (5) The State share percentage for the Maryland School for the Blind shall be 93 percent of eligible costs of approved projects.

C. Revisions to Percentages.

  (1) By October 2018 and every 2 years thereafter, the IAC shall update, approve, and publish to the IAC’s website the cost share percentage to be applied to projects submitted for approval in the Fiscal Year.

  (2) The IAC shall use the formula in §D of this regulation to recommend revisions to the State cost share percentage for each county.

D. LEA State Cost Share. The IAC shall add the following amounts to calculate the recommended revised cost share amounts:

  (1) The LEA's current State share of the Foundation program divided by the Foundation program of the LEA as defined under Education Article, §5-202, Annotated Code of Maryland;

  (2) The current amount of State aid provided to the LEA by the guaranteed tax base program as defined under Education Article, §5-210, Annotated Code of Maryland, divided by the Foundation program of the LEA;

  (3) 20 percent of the amount by which the LEA's free and reduced price meal percentage exceeds the Statewide free and reduced price meal percentage in the prior school year;

  (4) 5 percent if the county where the LEA is located is a Tier I county that has an unemployment rate greater than the average rate or number of percentage points identified in Economic Development Article, §1-101, Annotated Code of Maryland, or has met the average rate or number of percentage points identified in Economic Development Article, §1-101, Annotated Code of Maryland, at some time during the preceding 24-month period;

  (5) 5 percent if the county where the LEA is located is a Tier I county that has a median household income level below the level identified in Economic Development Article, §1-101, Annotated Code of Maryland, or has had a median household income level below the level identified in Economic Development Article, §1-101, Annotated Code of Maryland, at some time during the preceding 24-month period;

  (6) The difference between the percent growth in the LEA's full-time equivalent enrollment, as defined by Education Article, §5-202, Annotated Code of Maryland, from the 6th prior year to the prior year, and the percent growth in the Statewide full-time equivalent enrollment from the 6th prior year to the prior year, provided this calculation results in a positive number; and

  (7) 10 times the amount by which the county's and local board’s total outstanding school construction debt at the end of the 2nd prior fiscal year plus the county's total school construction expenditures from its operating budget from the 4th to the 2nd prior fiscal years exceeds 1 percent of the county wealth, as defined by Education Article, §5-202, Annotated Code of Maryland, for the prior fiscal year.

E. Project Based Add-Ons to State Cost Share. The IAC shall add the following amounts to an LEA’s State Cost share of a proposed school construction project as applicable:

  (1) 10 percentage points if the proposed school construction project, when the LEA submits the project for approval to the IAC, is at a school with a concentration of poverty level, as defined in Education Article, §5-223, Annotated Code of Maryland, of 80 percent or greater;

  (2) 5 percentage points if the proposed school construction project, when the LEA submits the project for approval to the IAC, is at a school with a concentration of poverty level, as defined in Education Article, §5-223, Annotated Code of Maryland, of less than 80 percent but greater than 55 percent;

  (3) 5 percentage points if the proposed school construction project is at a school that, in the most recent school maintenance effectiveness assessment by the IAC, received an assessment rating of:

    (a) Good;

    (b) Superior; or

    (c) Adequate and the school's most recent school facility assessment average percentage of expected useful lifespan is at least 120 percent; and

  (4) 5 percentage points if the proposed school construction project is a net-zero school.

F. For FY 2025 and 2026, the State share percentages of public school construction funding for eligible costs of approved projects are as follows:

#### Regulation .07 Maximum State Construction Allocation.

*COMAR 14.39.02.07*

A. The maximum State construction allocation is the maximum amount the State may fund of eligible costs for each public school construction project.

B. The maximum State construction allocation for each approved public school construction project is set in the State capital improvement program.

C. The maximum State construction allocation is set at the first year of construction funding approval.

D. The actual funding is based on the costs of approved contracts and may be less than the maximum State construction allocation.

E. Gross Area Baselines.

  (1) The gross area baseline is the product of the approved student enrollment and the baseline gross square footage per student, and may be adjusted by the IAC on a case-by-case basis, based upon presented evidence of program need.

  (2) The approved student enrollment may be reduced only if the sum of available seat count in all adjacent schools is 15 percent or more of the project school’s enrollment.

  (3) The baseline gross square footage per student is set by the IAC and may be adjusted by the IAC on a case-by-case basis, based upon presented evidence of program need.

  (4) Gross Area Baseline Concentration of Poverty Add-On. School projects with a concentration of poverty level above 55 percent are eligible for a concentration of poverty square footage add-on, upon submission of a concentration of poverty square footage usage plan, based upon the following:

    (a) School projects with an eligible enrollment of fewer than 600 students are eligible for a concentration of poverty add-on of up to 1,000 square feet plus the concentration of poverty level percentage points above 55 percent multiplied by 60 square feet, up to a maximum of 1,500 square feet.

    (b) School projects with an eligible enrollment between 600 and 900 students are eligible for a concentration of poverty add-on of up to 1,500 square feet plus the concentration of poverty level percentage points above 55 percent multiplied by 60 square feet, up to a maximum of 2,000 square feet.

    (c) School projects with an eligible enrollment of more than 900 students are eligible for a concentration of poverty add-on of up to 2,000 square feet plus the concentration of poverty level percentage points above 55 percent multiplied by 60 square feet, up to a maximum of 2,500 square feet.

  (5) Gross Area Baseline English Learner Add-On. School projects with an English learner population above 10 percent are eligible for an English learner square footage add-on, based upon the following:

    (a) School projects with an eligible enrollment of fewer than 600 students are eligible for an English learner add-on of 500 square feet plus the number of percentage points of the project school populations of English learners above 10 percent, multiplied by 25 square feet, up to a maximum of 1,500 square feet.

    (b) School projects with an eligible enrollment between 600 and 900 students are eligible for an English learner add-on of 1,000 square feet plus the number of percentage points of the project school populations of English learners above 10 percent, multiplied by 25 square feet, up to a maximum of 2,000 square feet.

    (c) School projects with an eligible enrollment of more than 900 students are eligible for an English learner add-on of 1,500 square feet plus the number of percentage points of the project school populations of English learners above 10 percent, multiplied by 25 square feet, up to a maximum of 2,500 square feet.

  (6) Gross Area Baseline Career and Technology Education Add-On. School projects approved for Career and Technology Education programs are eligible for a Career and Technology Education square footage add-on based upon the program size. Program sizes shall be regularly reviewed and updated by the IAC and published to the IAC website. Square footage allocations for program sizes are as follows:

    (a) Extra small Career and Technology Education programs receive an add-on of 500 gross square feet.

    (b) Small Career and Technology Education programs receive an add-on of 1,000 gross square feet.

    (c) Medium Career and Technology Education programs receive an add-on of 3,000 gross square feet.

    (d) Large Career and Technology Education programs receive an add-on of 4,000 gross square feet.

    (e) Extra large Career and Technology Education programs receive an add-on of 6,000 gross square feet.

F. The average Statewide per-square-foot school building cost that applies to each annual capital improvement program:

  (1) Is established by July of the calendar year in which applications are submitted;

  (2) Is based on:

    (a) Bids received for new school construction in the prior year; and

    (b) Cost information derived from industry sources;

  (3) May be adjusted by the IAC to reflect market conditions before submission of the final State capital improvement program; and

  (4) Projects that qualify for the Net-zero State Cost Share add-on pursuant to COMAR 14.39.02.06E(4) for which the applicant project receives a State cost share of 96 percent or greater in accordance with COMAR 14.39.02.06F and including the State Cost Share add-ons pursuant to COMAR 14.39.02.06E(1)—(3), may be eligible for an increase to the cost-per-square-foot described in this regulation equal to the value of a 5 percentage point increase in the State Cost Share for the project minus the value of the difference between 100 percent and the applicant project State cost share including add-ons pursuant to COMAR 14.39.02.06E(1)—(3).

G. New Construction. The maximum State construction allocation for new construction is calculated according to either:

  (1) The following formula:

    (a) Multiply the lesser of the gross area baseline or the actual project gross area by the average Statewide per square foot school building cost, which is based on bids received for new school construction in the prior year and cost information derived from industry sources;

    (b) Next, add site development costs, figured as a percentage of the building cost set forth in §F(1)(a) of this regulation;

    (c) Finally, multiply by the State cost share percentage; or

  (2) The estimated or actual cost of construction multiplied by the State cost share percentage, not to exceed the amount calculated in §G(1) of this regulation.

H. Renewal.

  (1) The maximum State construction allocation for projects proposed to renew buildings or portions of buildings, 16 years or older, is calculated according to either:

    (a) The following formula:

      (i) Beginning with the oldest portion of the building, and using the gross area baseline as the upper limit, determine the eligible square footage of the renewal categorized according to the age group of the building portion containing the renewal;

      (ii) Multiply the eligible square footage for each age group by the average Statewide per square-foot building cost, and then multiply each product by the percentage in §H(1)(a)(iii) of this regulation;

      (iii) Age of building portion containing the renewal as measured from January 1 following the IAC December 31 submission of the preliminary State capital improvement program: 40 years or older—100 percent;31 to 39 years—85 percent; 26 to 30 years—75 percent; 21 to 25 years—65 percent; 16 to 20 years—50 percent; and 0 to 15 years—0 percent.

      (iv) Add the products calculated in §H(1)(a)(ii) of this regulation;

      (v) Next, add site development costs, figured as a percentage of total building costs set forth in §H(1)(a)(iv) of this regulation; and

      (vi) Finally, multiply by the State cost share percentage; or

    (b) The estimated or actual cost of construction multiplied by the State cost share percentage, not to exceed the amount calculated in §H(1)(a) of this regulation.

  (2) Adjustments to the Maximum State Construction Allocation for Renovation Projects. The IAC may:

    (a) Subtract funding from the maximum State construction allocation that the State has approved for other projects less than 16 years old at that school; and

    (b) Adjust the maximum State construction allocation for renovation of a building that exceeds the gross area baseline.

  (3) The State may not further participate in funding projects in the school within 15 years after the project is placed in service.

I. Renovation.

  (1) The estimated cost of construction of a renovation may not exceed the estimated cost of construction for a renewal.

  (2) The maximum State construction allocation for a renovation is calculated by multiplying the estimated costs of construction, including site work, by the State cost share percentage.

  (3) At the time of contract award, the actual funding is based on the costs of items eligible for State participation, up to the maximum State construction allocation.

  (4) Adjustments to Maximum State Construction Allocation for a Renovation.

    (a) The IAC may subtract from the maximum State construction allocation funding approved for other projects not older than 15 years old at that school.

    (b) If projects in the school have been funded within the previous 15 years, the LEA shall provide documentation to identify all previously funded scopes of work that may be replaced or upgraded in the renovation.

  (5) For a renovation, the new average year of completed construction of the building or portion of the building is determined by the average year of completed construction of the original building, plus the year of completed construction of the renovation, divided by 2.

  (6) The State may further participate in funding projects in the school within 15 years after the project is placed in service.

J. Addition. When a project involves an addition only, the IAC at its discretion may calculate the maximum State construction allocation according to either:

  (1) The following formula:

    (a) Subtract the existing square footage from the gross area baseline; and

    (b) Then use the lesser of that amount or the actual area of the addition when calculating the maximum State construction allocation according to §E of this regulation; or

  (2) The estimated or actual cost of construction multiplied by the State cost share percentage.

K. Addition in Conjunction with Renewal or Renovation. When an addition involves both an addition and a renovation or a renewal, the maximum State construction allocation is established by adding the renewal or renovation maximum State construction allocation calculated according to §G or H of this regulation and the addition (new construction) maximum State construction allocation calculated according to §J of this regulation.

L. Replacement.

  (1) An LEA that proposes to abandon a facility or demolish more than 50 percent of the gross square footage of a facility shall submit a feasibility study to the reasonable satisfaction of the IAC.

  (2) Based on the review of the feasibility study, the IAC may set the maximum State construction allocation for a replacement school based on the cost of renovating an existing school according to §H of this regulation, or the cost of building a new school according to §G of this regulation.

  (3) If the State approves renovating or renewing an existing school and the LEA builds a replacement school, the IAC may reduce the maximum State construction allocation for that project by 15 percent.

  (4) The IAC or its designee may waive the requirement for a feasibility study on submission of supporting documentation.

M. Forward-Funded Project. If the maximum State construction allocation for a forward-funded project is calculated according to the formulas in §G, H, or I of this regulation, the following factors shall be applied:

  (1) Gross area baseline that applied on the bid-opening date, using the 7-year enrollment projections applied as follows:

    (a) If the bid opening was between October 1 and March 31, the prior September 30 enrollment is used as the approved student enrollment; and

    (b) If the bid opening was between April 1 and September 30, the September 30 enrollment at the end of that time frame is used as the approved student enrollment;

  (2) Average square foot school building cost published by the IAC or its designee for the July that falls within the calendar year of the bid-opening date;

  (3) State cost share percentage that applied on the bid-opening date; and

  (4) For a renovation project, the amount of the awarded scope of work, not to exceed the maximum State construction allocation as developed in §H(1)(a) of this regulation.

N. Cooperative Use Space.

  (1) The maximum State construction allocation for an approved project may include the State's share of eligible costs to construct or renovate up to 3,000 gross square feet of co-located or shared space to support LEA or community initiatives to serve school children and the general community.

  (2) This cooperative use space is in addition to the size of typical school-function areas provided by the LEA.

  (3) There shall be a written agreement between the county board and the space occupant that establishes the term and conditions.

#### Regulation .08 Changes to the Maximum State Construction Allocation.

*COMAR 14.39.02.08*

After the IAC sets the maximum State construction allocation in the State capital improvement program:

A. The IAC may reduce the maximum State construction allocation if a local board changes a board decision which served as justification for setting the approved scope of the project.

B. The IAC may increase the maximum State construction allocation for a capital maintenance project when:

  (1) The LEA submits:

    (a) The final project scope of work; and

    (b) A cost estimate developed by a design professional licensed in the State of Maryland or the bid tabulation for the project;

  (2) The LEA documents that the:

    (a) LEA has taken reasonable actions to reduce construction costs; and

    (b) Construction costs have resulted from exceptional circumstances; and

  (3) The IAC determines that:

    (a) The requested scope of work is eligible for State funding; and

    (b) The scope of work and associated costs are reasonable.

C. The IAC may increase the maximum State construction allocation for a project other than a capital maintenance project if the LEA documents that the:

  (1) Project has critical impact on the LEA's budget;

  (2) LEA has taken reasonable actions to reduce construction costs; and

  (3) Construction costs that have resulted from exceptional circumstances or circumstances that are different from those that confront most projects in the State or region.

D. The IAC may increase the maximum State construction allocation for a project that qualifies for the net zero add-on as described in COMAR 14.39.02.06E(4) after the establishment of the maximum State construction allocation upon submission of acceptable documentation to become eligible for the add-on, and only up to the amount that the project would have been eligible for had the net zero add-on been in place at the time of establishment of the maximum State construction allocation.

#### Regulation .09 Project Development and Design Funding Allocation.

*COMAR 14.39.02.09*

A. The project development and design funding allocation is the maximum amount the State may fund of eligible project development and design costs for a public school construction project.

B. The project development and design funding allocation for each approved public school project is set in the State capital improvement program.

C. The project development and design funding allocation may not exceed 10 percent of a preliminary maximum State construction allocation as set forth in Regulation .06 of this chapter and as calculated in the year of the request for project development and design funding.

#### Regulation .10 Rescinding Planning Approval.

*COMAR 14.39.02.10*

A. If, within 2 years after a project is approved for planning, no part of the project is under contract, the IAC may determine the project to be abandoned and rescind the planning approval.

B. An LEA that seeks reapproval of a project whose planning approval has been rescinded shall submit a new planning request in a future local capital improvement program.

#### Regulation .11 Rescinding Funding Approval.

*COMAR 14.39.02.11*

A. If, within 2 years after funding is made available for a project, no part of the project is under contract, the IAC shall determine that the project is abandoned and rescind the funding approval.

B. When the IAC rescinds funding approval, the IAC shall reserve the funding for another eligible project in the county in the current fiscal year or for eligible projects in the county in the next fiscal year.

C. Funds reserved for a county that have not been used to place a project under contract within 2 years of the date the funds were reserved shall be available for any project approved in a future State capital improvement program.

D. An LEA that seeks reapproval of a project whose funding approval has been rescinded shall submit a new funding request in a future local capital improvement program.

#### Regulation .12 Eligible Expenditures.

*COMAR 14.39.02.12*

The following expenditures may be eligible for State funding:

A. Planning, including feasibility studies, programs, educational specifications, equipment specifications, and other planning work that occurs prior to the start of design.

B. Design expenses and other ancillary costs, including architectural and engineering fees, construction management services, geotechnical surveys, and other services necessary to complete the architectural specifications for a school project.

C. New construction, as follows:

  (1) Construction of a new school facility, that is, work necessary to construct a new school facility, including building and site development;

  (2) Additions to an existing facility, that is, work necessary to increase space at an existing school facility, including:

    (a) Building and site development; and

    (b) Work to physically integrate the addition into the existing school;

  (3) Replacement of a building or building portion, that is, work necessary to reconstruct a school facility that cannot be economically repaired or renovated, including building and site development; and

  (4) Modular construction, that is, factory-fabricated structures that have the same quality systems and materials as used for permanent school construction and that meet the standards of the COMAR 05.02.04;

D. Renewal or renovation, that is, the work necessary to restore and modernize an existing school facility or a portion of a facility that is 16 years or older;

E. Capital maintenance projects as set forth in Regulation .16 of this chapter;

F. State-owned relocatable facilities as set forth in Regulation .16 of this chapter;

G. Temporary facilities, including utilities and relocatable facilities, that are necessary on-site during construction of a State-funded project;

H. Equipment and furnishings as defined by the IAC;

I. Real time utilities metering measurement and verification equipment as defined by the IAC;

J. Off-site development costs required by local, State, or federal agencies;

K. Emergency repairs as set forth in Regulation .17 of this chapter;

L. E-rate eligible special construction broadband infrastructure projects, including offsite development costs, for E-rate eligible applicants consistent with 47 C.F.R. 54.505, through the State funding of grants to local boards of education.

#### Regulation .13 Ineligible Expenditures.

*COMAR 14.39.02.13*

The following expenditures are ineligible for State funding:

A. Site acquisition;

B. Offsite development costs except those listed as eligible in Regulation .10 of this chapter;

C. Master plans;

D. Projects proposed in buildings or portions of buildings that have been constructed or renovated within 15 years, except that building or portion of a building in which a renovation was performed is eligible for additional work within 15 years of the date that the renovation construction was completed;

E. Capital maintenance projects to replace, upgrade, or renovate building systems that have been replaced, upgraded, or renovated within 15 years;

F. Ancillary construction costs such as:

  (1) Permits;

  (2) Bid advertising;

  (3) Water and sewer connection charges;

  (4) Models; or

  (5) Renderings;

G. Leasing or purchasing school facilities except as provided in COMAR 14.39.05;

H. Construction inspection services;

I. Relocation costs for site occupants;

J. Salaries of local employees;

K. Construction of administrative or support facilities, including regional or central administrative offices, warehousing, resource, printing, vehicle storage, and maintenance facilities;

L. Equipment, furnishings, and artwork with a median useful life of less than 15 years as defined by the IAC;

M. Maintenance; and

N. Temporary storage.

#### Regulation .14 School Site Selection.

*COMAR 14.39.02.14*

A. An LEA shall submit a proposed site to the Interagency Commission on School Construction for:

  (1) Acquisition of a new site planned for a new or replacement school that will be requested for Local Planning approval within 3 years;

  (2) Use of an existing site for a new school or a replacement school that adds capacity; or

  (3) Redesignation of an existing site for a new school or a replacement school that adds capacity.

B. Unless a waiver is granted in accordance with Regulation .31 of this chapter, a proposed site for a new school or a replacement school that adds capacity shall be in a priority funding area.

C. The IAC and State Superintendent of Schools shall approve or disapprove an LEA's school site selection based on:

  (1) Consistency with the county comprehensive plan;

  (2) The growth element of applicable municipal comprehensive plans;

  (3) Available sewer and water service;

  (4) Transportation options; and

  (5) The State's economic growth policies to ensure that facilities in established neighborhoods are of equal quality to new schools, including location of a new school or a replacement school that adds capacity within a priority funding area.

D. Before submitting the request for site approval to the IAC, the LEA shall:

  (1) Submit the school site selection to the Maryland Department of Planning for State Clearinghouse review; [and]

  (2) Resolve any issues brought up in the State Clearinghouse Review; and

  (3) Submit the school site selection to the State Superintendent for approval or disapproval in accordance with Education Article, §2-303(f), Annotated Code of Maryland.

E. When submitting the site for IAC approval, the LEA shall include:

  (1) The local board of education’s approval of the school site acquisition;

  (2) The State Superintendent’s approval of the school site acquisition; and

  (3) For a new school or a replacement school that adds capacity located outside of a priority funding area, a request for a waiver in accordance with Regulation .31 of this chapter.

F. The IAC may recommend including a project for planning approval in the State capital improvement program only if the school site has been approved or re-approved by the IAC and the State Superintendent in the preceding 3 years.

G. Priority Funding Area Review.

  (1) Except as provided in §G(2) of this regulation, priority funding area review shall be conducted by the IAC for sites for new schools and replacement schools that add capacity and are proposed outside of priority funding areas, including review of requests for:

    (a) Acquisition of new sites for new schools or replacement schools that add capacity;

    (b) Reapproval of existing sites that were initially approved after the effective date of this regulation; or

    (c) Redesignation of existing sites that were initially approved after the effective date of this regulation.

  (2) The following sites for school construction projects are not subject to priority funding area review:

    (a) A site for a replacement school when there is no increase of capacity; or

    (b) A site granted a Priority Funding Area Waiver in accordance with Regulation .31 of this chapter.

#### Regulation .15 New Construction, Renewal, and Renovation Projects.

*COMAR 14.39.02.15*

A. This regulation applies to new construction, renewal, and renovation projects approved in the State capital improvement program.

B. Architects and Engineers. The LEA shall ensure that:

  (1) The plans, specifications, and related documents are developed under the supervision and responsibility of an architect or engineer who is licensed to practice in the State, unless waived by the IAC or its designee;

  (2) Unless waived by the IAC or its designee, the design of site development or structural, mechanical, or electrical systems includes the design services of a professional engineer licensed to practice in the State with experience in civil, structural, mechanical, or electrical engineering;

  (3) The architect/engineer agreement includes:

    (a) Cost control provisions;

    (b) Assurance that the project design is in accordance with the Department of General Services procedure manual for professional services standards for energy conservation, life cycle costs analysis, and roofing; and

    (c) IAC or its designee review and approval of the schematic, design development, and construction documents as required.

C. Educational Specifications.

  (1) Unless an LEA is certified to complete review of educational specifications as provided by Education Article §5-314, Annotated Code of Maryland, the LEA shall submit the projects educational specifications to the IAC for every new construction, renewal, renovation, and renovation addition project approved in the State capital improvement program.

  (2) The IAC or its designee shall notify the LEA of concerns and recommendations about the educational specifications.

  (3) The LEA shall resolve the IAC's issues to the reasonable satisfaction of the IAC or its designee.

D. Feasibility Studies.

  (1) An LEA that proposes to renew or renovate more than 25 percent of the gross square footage of a facility shall submit a feasibility study.

  (2) The IAC or its designee shall notify the LEA of concerns and recommendations about the feasibility study.

  (3) The LEA shall resolve the IAC’s issues to the reasonable satisfaction of the IAC or its designee.

E. Cost Analysis. An LEA that proposes to renew a facility shall produce evidence that the renewal is more cost effective than a new or replacement school.

F. Schematic Designs, Design Development Documents, and Construction Documents.

  (1) Unless the LEA is certified to complete review of schematic design, design development, and construction documents as provided by Education Article §5-314, Annotated Code of Maryland, the LEA shall submit to the IAC or its designee for review and approval of:

    (a) Schematic designs, before the LEA proceeds to design development documents;

    (b) Design development documents, before the LEA proceeds to construction documents; and

    (c) Construction documents, before the LEA issues the solicitation.

  (2) The LEA shall submit to the IAC or its designee for review and approval information regarding the consistency of the project with the Department of General Services procedure manual for professional services standards for energy conservation, life cycle cost analysis, and roofing.

  (3) Schematic designs, design development documents, and construction documents must be approved by local boards of education prior to their submission to the IAC.

G. For new school construction projects that utilize State funding, the LEA shall include waste disposal infrastructure in the design documents submitted to the commission that includes a sink for liquid waste and a place for the disposal of:

  (1) Trash;

  (2) Recyclables; and

  (3) Food scraps.

H. Pedestrian Safety Plans.

  (1) Definitions.

    (a) “High-Density county” refers to one of the following jurisdictions:

      (i) Anne Arundel County;

      (ii) Baltimore City;

      (iii) Baltimore County;

      (iv) Howard County;

      (v) Montgomery County; or

      (vi) Prince George’s County.

    (b) “Low-Density County” means any county in the State of Maryland not listed in §H(1)(a) of this regulation.

  (2) A County Board in a high-density county seeking State funds for a new school, renewal, or addition to an existing school that would increase the capacity of the school by more than 100 students shall submit a pedestrian safety plan to the IAC.

  (3) A County Board in a low-density county seeking State funds for a project in a city with more than 10,000 residents for a new school, renewal, or addition to an existing school that would increase the capacity by more than 100 students shall submit a pedestrian safety plan to the IAC.

  (4) A pedestrian safety plan shall:

    (a) Be developed in collaboration with:

      (i) The County Department of Transportation or equivalent agency of the jurisdiction of the County Board submitting the plan; and,

      (ii) The State Highway Administration;

    (b) Be limited to the area surrounding the school for which the County Board will not provide transportation to students;

    (c) Identify existing and potential safe routes for students to walk or bike to school;

    (d) Evaluate the infrastructure, including sidewalk infrastructure, along existing and potential pedestrian or cyclist routes to the school to determine whether increased capacity is necessary;

    (e) Analyze existing and potential school zones, including the need for expanding school zones on State and county roads; and

    (f) Include documentation of public participation and input related to the pedestrian safety plan, including minutes from a public hearing or meeting and written comments.

  (5) The IAC shall approve a pedestrian safety plan if the plan complies with §H(4) of this regulation.

I. Procurement. The LEA shall procure construction in compliance with COMAR 14.39.03. The IAC may rescind project approval if the procurement does not comply with these requirements.

J. Construction Inspection. The LEA shall ensure that each construction project is adequately inspected.

K. Change Orders. The LEA shall maintain contingency funds for change orders. The LEA may issue change orders without prior approval of the IAC or its designees.

L. State Payments.

  (1) The LEA shall submit to the IAC requests for payment.

  (2) The IAC or its designee shall review the request for payment for determination of whether the request constitutes an eligible expense and whether payment is within the maximum State construction allocation.

  (3) The State may:

    (a) Make payment directly to the contractor or vendor;

    (b) Reimburse the LEA if documentation indicates that the contractor or vendor has been paid the amount requested for reimbursement; or

    (c) Make payment to an entity identified by the LEA.

M. Project Close-Out. Not later than 180 days after final payment to the contractors, the LEA shall submit to the IAC:

  (1) A close-out cost summary using a form provided by the IAC; and

  (2) The following information:

    (a) Contractor's final requisition including a listing of all approved change orders;

    (b) The architect's certificate of completion; and

    (c) The LEA's certificate of acceptance.

#### Regulation .16 Capital Maintenance Projects.

*COMAR 14.39.02.16*

A. This regulation applies to capital maintenance projects approved in the State capital improvement program. Capital maintenance projects may also be referred to as “systemic renovation” projects.

B. A capital maintenance project:

  (1) Extends for at least 15 years the life of a properly maintained school building or component that is 16 years old or older;

  (2) Installs, upgrades, replaces, or renovates one of the following building systems or system components:

    (a) Architectural and structural;

    (b) Mechanical;

    (c) Plumbing;

    (d) Electrical;

    (e) Fire safety;

    (f) Communications; and

    (g) Vertical conveying systems; and

  (3) May include reasonably related components of other building systems as determined by the IAC or its designee.

C. Requests.

  (1) An LEA may submit a request to the IAC to fund a capital maintenance project in the following circumstances:

    (a) The project has not been released for solicitation; or

    (b) The project has been released for solicitation after being deemed eligible but deferred due to fiscal constraints by the IAC in a prior fiscal year and has design development and construction document approvals by the IAC.

  (2) The request may only be for eligible expenditures in a project for which the total estimated construction cost is:

    (a) At least $200,000; or

    (b) Less than $200,000 but more than $100,000 when the LEA does not have any capital maintenance project requests that exceed $200,000 in estimated construction costs.

  (3) A county board may bundle, for approval and procurement purposes:

    (a) Similar capital maintenance projects at different schools; and

    (b) Interrelated capital maintenance projects at a single school.

D. Procedures. The requirements of Regulation .15B, F, and I—M of this chapter and COMAR 14.39.03 apply to capital maintenance projects approved in the State capital improvement program.

#### Regulation .17 State-Owned Relocatable Facilities.

*COMAR 14.39.02.17*

A. This regulation applies to State-owned relocatable projects approved in the State capital improvement program.

B. A relocatable project is one in which the State:

  (1) Provides a relocatable facility to an LEA, including moving and installing the facility; and

  (2) Contributes funding only to the initial installation and the final removal of the relocatable facility.

C. Requests.

  (1) An LEA may submit a request to the IAC for relocatable facilities in its local capital improvement program.

  (2) The request may only be to fund installation of relocatables for the relief of overcrowding, special programs, interim classroom facilities while an approved school construction project is constructed, or an emergency.

D. IAC Review. The IAC shall evaluate relocatable facilities funding requests using the following factors:

  (1) The proposed use of the facility at a public school;

  (2) Whether the relocatable facility will be in use for at least 2 years after installation at the requested site; and

  (3) Whether the relocatable facility can be installed in a manner that will not interfere with work associated with proposed renovations, additions, or new construction.

E. Procedures. The provisions of Regulation .14B, E(1) and (2)(b), and F—I of this chapter apply to relocatable facility projects approved in the State capital improvement program.

F. LEA Responsibility After Installation.

  (1) After installation, the LEA is responsible for obtaining appropriate insurance and maintaining the relocatable facility. These include:

    (a) Property damage insurance at least in replacement value amount, naming the State and the LEA as payees;

    (b) Personal liability insurance;

    (c) Drawings, specifications, operating instructions, warranties, and keys associated with the installation; and

    (d) A log of completed maintenance.

  (2) The LEA shall comply with the Federal Asbestos Hazard Emergency Response Act.

G. Repairs After Installation.

  (1) Except as provided in §G(2) of this regulation, the State may contribute funds, up to the State cost share, toward renovation of relocatable facilities.

  (2) The State may not contribute funds for renovation necessary because of vandalism or lack of proper maintenance.

H. Surplus Property. The IAC may declare a State-owned relocatable facility to be surplus property.

  (1) LEAs who request the disposal of a State-owned relocatable facility must have the request approved by the IAC prior to the disposal of the unit.

  (2) All disposals of State-owned property, including relocatable facilities, are required to follow the Maryland Department of General Services’ disposal procedure.

#### Regulation .18 Emergency Repairs.

*COMAR 14.39.02.18*

A. An emergency condition is a condition in a school building or on school grounds that:

  (1) Presents an immediate health or safety hazard, or a threat of severe damage to the school building or grounds; and

  (2) Could not have been reasonably foreseen through regular inspections or corrected through a regular preventive maintenance program.

B. The IAC may fund eligible costs of correcting an emergency condition according to the State cost share percentage established in Regulation .05 of this chapter. Funding for emergency repairs is separate from the State capital improvement program.

C. Requests.

  (1) An LEA shall submit a request to the IAC for funds to correct an emergency condition not later than 6 months after project completion.

  (2) The request may only be for eligible costs that total at least $10,000.

D. Funding. The IAC may:

  (1) Provide the funds to the LEA in advance of the project start or after project completion; and

  (2) Determine whether the emergency repair funds will be deducted from the maximum State construction allocation for future building renewals and renovations based on the nature and cost of the emergency repairs.

#### Regulation .19 Maintenance.

*COMAR 14.39.02.19*

A. Comprehensive Maintenance Plan.

  (1) A comprehensive maintenance plan is a written plan approved by the local board of education that describes a strategy for maintaining public school facilities.

  (2) Annually, each LEA shall submit to the IAC a comprehensive maintenance plan that is compatible with the local educational facilities master plan and the local capital improvement program.

  (3) The IAC or its designee shall notify the LEA of concerns and recommendations about the comprehensive maintenance plan.

  (4) The LEA shall resolve the IAC's issues to the reasonable satisfaction of the IAC or its designee.

B. The IAC may determine a project is ineligible for planning approval or funding approval for an existing school if:

  (1) The school is not properly maintained; or

  (2) The LEA does not have an adequate preventive maintenance program.

C. Maintenance Surveys.

  (1) Annual Surveys.

    (a) The IAC shall annually survey the maintenance conditions at selected schools in each LEA. The survey shall rate:

      (i) Buildings and site components at the schools surveyed; and

      (ii) Each school overall.

    (b) Within 45 days of receiving notice from the IAC or its designee that a school has been rated less than adequate in any category of building or site component, the LEA shall submit to the IAC a plan of how and when the deficiencies will be corrected.

    (c) If a condition is identified that presents a hazard to occupants of the building or the threat of serious damage to the building, the LEA shall take immediate corrective action and notify the IAC of the steps it has taken.

  (2) Annual Report. The IAC shall annually publish a report summarizing the annual surveys.

#### Regulation .20 Aging Schools Program.

*COMAR 14.39.02.20*

A. There is an Aging Schools Program. The Aging Schools Program is separate from the State capital improvement program.

B. Purpose. An LEA may use Aging Schools Program funds for capital improvements, repairs, and deferred maintenance of school buildings or building components that are 16 years old or older.

C. Funding.

  (1) Allocations for each LEA are set forth in Education Article §5-324, Annotated Code of Maryland.

  (2) The State cost share percentage does not apply to projects funded through the Aging Schools Program. The State may fund all eligible costs of an approved Aging Schools Program project. An LEA may provide additional funds to increase the scope of work or cost for an approved project.

  (3) An LEA may not use Aging Schools Program funds to supplement the State allocation received for any other project.

D. Requests. An LEA may submit a request to the IAC for allocated funds for an Aging Schools Program project at any time during the fiscal year of the allocation.

E. IAC Review. The IAC or its designee shall evaluate Aging Schools Program project requests using the following factors:

  (1) Type of work;

  (2) Age of the building or building component;

  (3) State capital improvement program;

  (4) Local capital improvement program;

  (5) School's current and projected enrollments; and

  (6) Maryland Historic Trust review, if applicable.

F. Procurement. The LEA shall procure construction in compliance with COMAR 14.39.03.

G. State Payment. The LEA shall submit to the IAC one request for payment per contract. The IAC or its designee shall review the request for payment for determination of whether the request comprises eligible expenditures and whether payment is within the allocation. The State shall pay the LEA through a single reimbursement at project completion.

H. Ineligible Expenditures. The following expenditures are ineligible for funding under the Aging Schools Program:

  (1) Expenditures set forth in Regulation .12 of this chapter, except maintenance; and

  (2) Improvements to or the movement of relocatable facilities.

#### Regulation .21 School Safety Grant Program.

*COMAR 14.39.02.21*

A. There is a School Safety Grant Program. The School Safety Grant Program is separate from the State capital improvement program.

B. Purpose. An LEA may use the School Safety Grant Program to complete eligible school safety and security projects as identified by the IAC in consultation with the Center for School Safety.

C. LEAs shall follow the Administrative Procedure Guide School Safety Grant Program.

D. Procurement. The LEA shall procure construction in compliance with COMAR 14.39.03.

#### Regulation .22 Change in School Status.

*COMAR 14.39.02.22*

A. An LEA shall report to the IAC changes in:

  (1) A school name; and

  (2) Use of a school when the school will be used for educational purposes other than as a school or when a school will be left vacant, as provided in Regulations .23 and .24 of this chapter.

B. The LEA shall request State approval to:

  (1) Grant easements or rights-of-way on school property;

  (2) Lease a portion of a school, as provided in Regulations .23 and .24 of this chapter; and

  (3) Transfer a school site or a school building when the school is no longer needed for school purposes, as provided in Regulation .24 of this chapter.

#### Regulation .23 Temporary or Partial Change in School Use.

*COMAR 14.39.02.23*

A. When an LEA uses more than 10 percent of a school building for educational purposes other than as a school for 5 years or less, the LEA shall notify the IAC of the use, the anticipated time for the use, and the expected date for reactivation as a school.

B. When an LEA leases more than 10 percent of a school building for 5 years or less:

  (1) The LEA shall request IAC approval to lease by providing the IAC the information in §A of this regulation and a copy of the proposed lease; and

  (2) The IAC may require the LEA to:

    (a) Pay the State a proportional share of the lease proceeds based on the proportion of the State's investment in the school; and

    (b) Assume the outstanding debt remaining for bonds, the proceeds of which were used to construct or renovate the school.

C. When an LEA leaves more than 10 percent of a school building vacant for 5 years or less:

  (1) The LEA shall report the vacancy to the IAC by providing the information in §A of this regulation; and

  (2) The IAC may require the LEA to assume the outstanding debt remaining for bonds, the proceeds of which were used to construct or renovate the school.

#### Regulation .24 Non-Public School Use Exceeding 5 Years.

*COMAR 14.39.02.24*

When the LEA uses more than 10 percent of a school building other than as a public school for more than 5 years and the State has debt remaining for bonds, the proceeds of which were used to construct or renovate that school, the IAC may require the LEA to pay a proportion of any lease proceeds and assume the remaining State debt, all calculated as of the date the LEA first began to use the school for purposes other than as a school.

#### Regulation .25 Local Board Transfer of School Property to County Government.

*COMAR 14.39.02.25*

A. Definitions.

  (1) In this chapter, the following terms have the meanings indicated.

  (2) Terms Defined.

    (a) “School property” means any land, school site, or school building;

    (b) ” Local board transfer to county government” includes, in the case of Baltimore City, the City's change of the dedicated use of the property.

B. Local Board Transfer to County Government.

  (1) If, with the approval of the State Superintendent of Schools, a local board determines that any school property is no longer needed for school purposes, the local board shall transfer the property to the county government.

  (2) The local board shall submit a request to the IAC for approval to transfer the school property to the county government.

C. The IAC may approve, disapprove, or conditionally approve the request to transfer the school property to the county government. The IAC may require that the transfer documents specifically incorporate the conditions.

D. The local board shall affirm in the request that the county concurs with the local board's intention to transfer the property and commits to repayment of outstanding bond debt if repayment is required.

#### Regulation .26 County Government Disposition of School Property.

*COMAR 14.39.02.26*

A. Definition.

  (1) In this regulation, the following term has the meaning indicated.

  (2) Term Defined. “School property” means any land, school site, or school building.

B. A county government:

  (1) May use, sell, lease, or otherwise dispose of, except by gift, any former school property in accordance with this regulation; and

  (2) Is encouraged to use the State Clearinghouse or similar procedures to make government agencies aware of the availability of former school property.

C. A county government proposing to dispose of former school property shall submit to the IAC a request for approval to dispose. The IAC shall review the request and may approve, disapprove, or conditionally approve the request to dispose of the former school property. The IAC may require that the disposition documents specifically incorporate the conditions.

#### Regulation .27 Assumption of State Debt, Capital Lease Financing Balances, and Disposition Proceeds.

*COMAR 14.39.02.27*

A. Pursuant to Education Article, §5-308, Annotated Code of Maryland, the IAC:

  (1) Shall require reimbursement of debt service from a county for a school property that:

    (a) Is sold by the county government; or

    (b) Meets all the following:

      (i) Was initially constructed or substantially altered by additions, alterations, or renovations, and the cost of the construction at the time of execution exceeded $100,000, and the work was accomplished after February 1, 1971;

      (ii) Is no longer used for school purposes;

      (iii) Has had title transferred to county government;

      (iv) Is being used for local governmental purposes by the State or county, or by any instrumentality of the State or county other than public education; and

      (v) Has outstanding debt that exceeds $5,000;

  (2) May require reimbursement of debt service or capital lease financing balances, or both, from a county for a school property that:

    (a) Has remaining State debt for bonds or capital lease financing balances;

    (b) Is no longer used for school purposes;

    (c) Has had title transferred to county government; and

    (d) Is not being used for local governmental purposes by the State or county, or by any instrumentality of the State or county.

B. Reimbursement for Transferred School Building.

  (1) A county government is not required to reimburse the State for outstanding debt service for a school building that is transferred to the county government in accordance with §A of this regulation until 2 years after the school building is transferred.

  (2) After the 2-year period ends, the county government shall reimburse the State for outstanding debt service for a school building in the amount that the county government would have been required to pay when the school building was transferred to the county.

C. The IAC may require the county to pay the State a proportional share of the disposition proceeds based on the proportion of the State's investment in the school property.

D. The IAC may establish any method of payment of the bond debt or the disposition proceeds including a lump sum payment or an assumption or re-assumption of existing bond debt.

#### Regulation .28 Audits.

*COMAR 14.39.02.28*

A. The IAC or its designee may conduct financial audits and compliance audits of each LEA that receives State funds.

B. Audit items may include:

  (1) Transactions and balances reported on financial reports and close-out forms;

  (2) LEA internal controls and management authorizations;

  (3) Items ineligible for State participation; and

  (4) Compliance with 'IAC regulations and IAC policies and procedures.

C. The LEA shall reconcile audit exceptions and back charges to the IAC's or its designee's satisfaction.

#### Regulation .29 Reconsideration.

*COMAR 14.39.02.29*

A. Reconsideration of Staff Determination.

  (1) An LEA dissatisfied with a determination made by the IAC’s designee may request the IAC to reconsider the determination.

  (2) The LEA shall submit a written request for reconsideration to the IAC within 45 calendar days of the designee’s decisions.

  (3) The written request for reconsideration shall include all additional information and documentation the LEA wants the IAC to consider.

  (4) The IAC’s designee may submit to the IAC additional information and documentation it wants the IAC to consider in support of its determination.

  (5) The IAC will notify the LEA of its decision.

B. Reconsideration of IAC Determination.

  (1) An LEA dissatisfied with a determination made by the IAC, including determination of projects that were not approved by the IAC, may appeal the decision to the IAC in writing.

  (2) The appeal shall be received by the IAC no later than 45 days following the IAC determination.

  (3) The written appeal shall contain:

    (a) The IAC determination from which the appeal is being taken, including funding requests for projects that were not approved by the IAC;

    (b) Reasons in support of the appeal;

    (c) A statement of the result sought; and

    (d) Any supporting documents, exhibits, and affidavits.

  (4) Oral Argument.

    (a) In its written appeal, the LEA may request to present oral argument to the IAC.

    (b) Oral argument will not be allowed without a written request to the IAC.

    (c) If oral argument is requested, the IAC shall notify the LEA of the date that the argument will be heard.

  (5) The IAC shall issue a decision to the LEA.

C. The IAC’s decision is a final decision of the agency.

#### Regulation .30 Waiver.

*COMAR 14.39.02.30*

The IAC may waive or vary particular provisions of this chapter to the extent that the waiver or variance is not inconsistent with State statutes if:

A. In the IAC's determination, the application of a regulation in a specific case or in an emergency situation would be inequitable or contrary to the purposes of State law; and

B. The Office of the Attorney General approves the waiver for form and legal sufficiency.

#### Regulation .31 Priority Funding Area Waiver Criteria.

*COMAR 14.39.02.31*

A. In accordance with State Finance and Procurement Article, §5-7B-07, Annotated Code of Maryland, it is the policy of the State to ensure sufficient conditions in existing schools as well as new facilities.

B. Waiver Procedure.

  (1) An LEA may request a waiver for approval of planning and funding, or of a site, for a new school or a replacement school that adds capacity located outside of a priority funding area.

  (2) On confirmation by the Maryland Department of Planning that the proposed new school or a replacement school that adds capacity, or the site for same, is outside a priority funding area, the designees shall make a recommendation to the IAC.

  (3) Based on the recommendation of the IAC designees, the IAC shall consider whether to grant a waiver for approval of planning and funding, or of a site, for a new school or a replacement school that adds capacity outside of a priority funding area.

  (4) After considering the criteria for a waiver in §B of this regulation, the IAC may:

    (a) Approve planning and funding, or of a site, for the new school or the replacement school that adds capacity;

    (b) Approve planning and funding, or of a site, for the new school or the replacement school that adds capacity with conditions; or

    (c) Deny planning and funding, or of a site, for the new school or the replacement school that adds capacity.

  (5) When considering whether to grant a waiver for a new school or a replacement school that adds capacity outside of a priority funding area, the IAC may consult with the Smart Growth Subcabinet.

C. The IAC shall consider the following factors when determining whether to grant a waiver to the requirement that a site for a new school or for a replacement school that adds capacity, or a new school or a replacement school that adds capacity that is requested for approval of State planning and funding, be located inside a priority funding area:

  (1) Evidence of efforts made by the LEA and the local government to secure a site within a priority funding area that is of a size, location, and configuration that can support the proposed educational program and serve an appropriate student body. For each evaluated site, criteria that must be considered include:

    (a) Costs of each site, including both quantifiable first costs and life cycle costs analysis (LCCA) inclusive of transportation costs, and non-quantifiable costs such as administrative inefficiencies or lost teaching time, in order to demonstrate that sites within the priority funding area are more costly than those outside the priority funding areas; and

    (b) Benefits of each site, including the impact of the proposed site on community life, walkability of students, access to public transportation, and access of students to educational programs and non-curricular activities;

  (2) Evidence that if a site outside a priority funding area is selected because of inability to locate a site within a priority funding area that is of a size, location, and configuration that can support the proposed educational program and serve an appropriate student body:

    (a) The new site or new school or replacement school that adds capacity is located as proximate to the priority funding area as possible;

    (b) The LEA proposes to mitigate potential negative effects of the site on educational delivery and the community; and

    (c) The local government tools for control of land use, including the comprehensive plan and zoning, restrict the growth of housing development outside of the priority funding area that may result from the new school or replacement school that adds capacity;

  (3) Evidence of efforts made by the LEA and local government to achieve the needed capacity through additions to existing schools inside the priority funding area;

  (4) The location of the student body that will be served by the new school or replacement school that adds capacity;

  (5) The potential of the new school or replacement school that adds capacity to be permanently connected to existing or proposed municipal or county water and sewer service that is in the 6-year local government capital improvement program;

  (6) The effect of the new school or replacement school that adds capacity in relieving an Adequate Public Facilities closure within an existing priority funding area or local growth area;

  (7) Opportunities for co-location or joint use that the new school or replacement school that adds capacity may make possible;

  (8) Opportunities for reuse of an existing facility;

  (9) The increase of capacity for a replacement school is modest;

  (10) Other factors.

#### Regulation .32 Emergency Management Shelters.

*COMAR 14.39.02.32*

A. Definitions.

  (1) “Emergency management shelter” means temporary operations that meet the base humanitarian needs of the whole community before, during, or after an emergency event.

  (2) “Fully power” means the capability to provide electrical power to the fixtures, services, appliances, and/or outlets within a specified facility or portion of a facility.

  (3) “Replacement of the electrical system” means a complete new electrical system is installed in an existing or new facility, including when major components of the pre-existing electrical system are either removed or abandoned in place.

  (4) “Upgrade of the electrical system” means an existing electrical system of a facility or a major portion of a facility is improved through either:

    (a) The replacement or upgrade of existing components; or

    (b) Other improvements that alter the performance characteristics of the electrical system.

B. Each county board shall determine which public schools within the jurisdiction of the county board should be designated as emergency management shelters.

C. The county board’s determination is based on consistency with local emergency management plans and criteria and the availability of funding.

D. For schools that will be used as emergency management shelters based upon the LEA determination, local officials shall consult with the Maryland Department of Emergency Management (MDEM) to determine those areas of the facility that are necessary for public safety when the circumstances require the use of the facility as a public shelter during or after a federal, State, or local declared emergency.

E. The LEA shall ensure that the areas determined to be emergency management shelters are designed and constructed to be fully powered in the event of an emergency through installation of:

  (1) A permanent, on-site emergency power source; or

  (2) Other means to accept temporary emergency power source.

#### Regulation .33 Built to Learn Program.

*COMAR 14.39.02.33*

A. There is a Built to Learn Program. The Built to Learn Program is separate from the State Capital Improvement Program. The Built to Learn Program is governed by the memorandum of understanding (MOU), as defined in Economic Development Article, §10-650, Annotated Code of Maryland, established between the IAC and the Maryland Stadium Authority.

B. Funding allocations for the Built to Learn program are mandated in Economic Development Article, §10–650, Annotated Code of Maryland, and shall be distributed accordingly.

C. IAC review will consist of planning review, priority funding area review, and available funding allocation review, Built to Learn projects must be brought to the IAC for approval. For each project approved by the IAC, the LEA shall establish an MOU with the Maryland Stadium Authority.

D. Built to Learn funding may be combined with Capital Improvement Program funding, or funding from other IAC programs. Projects that combine funding must meet the contract award requirements pursuant to COMAR 14.39.02 and 14.39.03.

### Chapter 03 — Construction Procurement Methods

**Authority:** Education Article, §§4-126, 5-112, and 5-303, Annotated Code of Maryland

**Administrative History:** Effective date: May 21, 2007 (34:10 Md. R. 891)

**Administrative History:** Regulation .04C amended effective November 14, 2011 (38:23 Md. R. 1423)

**Administrative History:** COMAR 23.03.03 recodified to be COMAR 14.39.03 under new subtitle, Interagency Commission on School Construction, effective November 4, 2019 (46:22 Md. R. 979)

**Administrative History:** Regulation .01A amended effective November 4, 2019 (46:22 Md. R. 979)

**Administrative History:** Regulation .05 amended effective November 4, 2019 (46:22 Md. R. 979)

**Administrative History:** Regulation .06B, C amended effective November 4, 2019 (46:22 Md. R. 979)

**Administrative History:** Regulation .06D amended effective May 11, 2026 (53:9 Md. R. 414)

**Administrative History:** Regulation .07 amended effective November 4, 2019 (46:22 Md. R. 979)

**Administrative History:** Regulation .09B amended effective November 4, 2019 (46:22 Md. R. 979)

#### Regulation .01 Scope.

*COMAR 14.39.03.01*

A. This chapter applies to a public school construction project for building, improvement, supplies, or equipment if it:

  (1) Exceeds $50,000 and has IAC planning or funding approval; or

  (2) Requires review by the State Superintendent of Schools under Education Article, §2-303, Annotated Code of Maryland.

B. This chapter does not apply to a project in a building that is not used primarily for the instruction of students, including an office building, warehouse, or vehicle maintenance or repair building.

C. In this chapter, “IAC or its designee” includes “State Superintendent or designee” when State Superintendent approval is required by Education Article, §2-303(f), Annotated Code of Maryland.

#### Regulation .02 Project Procurement Proposal Review Assistance.

*COMAR 14.39.03.02*

The State Superintendent or designee may request assistance from the IAC or its designee when reviewing project procurement proposals.

#### Regulation .03 Methods of Source Selection.

*COMAR 14.39.03.03*

Unless otherwise authorized, school construction procurement contracts shall be awarded by one of the following methods:

A. Competitive sealed bidding, including competitive multistep sealed bidding;

B. Quality-based selection;

C. Competitive negotiation;

D. Unsolicited proposals;

E. Intergovernmental cooperative purchasing;

F. Sole source; or

G. Negotiated award after unsatisfactory competitive sealed bidding.

#### Regulation .04 Choice of Method.

*COMAR 14.39.03.04*

A. Except as this regulation otherwise provides, an LEA shall use competitive sealed bidding.

B. Quality-Based Selection; Competitive Negotiation; Unsolicited Proposals.

  (1) An LEA may use quality-based selection or competitive negotiation or accept an unsolicited proposal in order to finance or to speed delivery of, transfer risks of, or otherwise enhance the delivery of public school construction.

  (2) An LEA intending to use quality-based selection or competitive negotiation or to pursue an unsolicited proposal shall:

    (a) Present a written determination that the circumstances listed in §B(1) of this regulation exist; and

    (b) Obtain authorization from the IAC or its designee.

C. An LEA may use intergovernmental cooperative purchasing when the circumstances set forth in Regulation .12B of this chapter exist.

D. Sole Source.

  (1) If the LEA determines that a competitive source selection method cannot be used because there is only one available source for the subject of the procurement, the LEA may award a contract without competition to the sole source.

  (2) An LEA intending to use sole source selection shall present a written determination that the circumstances listed in §B(1) of this regulation exist.

E. An LEA may use negotiated award after unsatisfactory competitive sealed bidding when the circumstances set forth in Regulation .14A of this chapter exist.

#### Regulation .05 Approvals.

*COMAR 14.39.03.05*

A. IAC or designee authorization to use quality based selection or competitive negotiation or to pursue an unsolicited proposal is distinct from IAC or designee approval of project planning and funding. If the IAC or designee approves the project for use of a competitive negotiation method but does not approve the project for planning, the project may proceed as a locally funded project.

B. The LEA shall obtain State approval of each construction contract.

#### Regulation .06 Other Requirements.

*COMAR 14.39.03.06*

A. All projects shall comply with State procedures and requirements for educational and design review.

B. A county board is encouraged, consistent with competitive bidding, to use bulk purchasing, bundling, and intergovernmental purchasing.

C. Project Delivery Methods. The requirements of COMAR 14.39.04 apply to procurements conducted in accordance with this chapter.

D. Minority Business Enterprise (MBE). The State’s minority business enterprise program applies to procurements conducted in accordance with this chapter that the State funds in whole or part. Any LEA utilizing State funding for school construction projects shall;

  (1) Adopt an MBE policy and procedures guiding document;

  (2) Provide the LEA’s board-adopted MBE policy and any related guiding documents to the IAC annually by a date specified by the IAC; and

  (3) Certify that all MBE policies are in compliance with the State’s MBE program.

E. Prevailing Wage. To the extent required by law, the State's prevailing wage requirements apply to procurements conducted in accordance with this chapter that the State funds in whole or part.

F. Debriefing and Protests.

  (1) The LEA shall establish procedures by which unsuccessful bidders and offerors may be debriefed upon written request within a reasonable time by a procurement official familiar with the rationale for the selection decision and contract award.

  (2) The LEA shall establish procedures by which an interested party may file a protest relating to the solicitation or award of a procurement contract.

G. If a single bid or offer is submitted following appropriate notification and solicitation procedures, the LEA may award the contract to the single bidder or offeror if the bid or offer is determined responsible and responsive.

#### Regulation .07 Competitive Sealed Bidding — One Step Sealed Bidding.

*COMAR 14.39.03.07*

A. Prequalification. The LEA may establish procedures to ensure that bidders are responsible. The LEA may require a bidder to be prequalified according to LEA procedures before submitting a bid.

B. Invitation for Bids.

  (1) The invitation for bids shall be used to initiate a competitive sealed bid procurement.

  (2) The invitation for bids shall include:

    (a) Instructions and information concerning bid submission requirements including the date, time, and place for receipt of bids;

    (b) Whether electronic bids will be accepted;

    (c) Specifications or drawings or both that clearly and accurately describe the functional characteristics of or the nature of the work to be procured;

    (d) The delivery or performance schedule;

    (e) MBE goals, if applicable;

    (f) Prevailing wage requirements, if applicable;

    (g) Requirement that bidders acknowledge receipt of each amendment and addendum issued;

    (h) Requirement for submission of bid bond;

    (i) Information with respect to prebid conference if a conference is to be held;

    (j) Requirement for submission of bid affidavit; and

    (k) Any other information the LEA requires.

C. Public Notice. The LEA shall publish notice of an invitation for bid at least 14 calendar days before the bid due date in:

  (1) eMaryland Marketplace;

  (2) An electronic posting or a physical posting on the LEA's bid board; or

  (3) A newspaper of general circulation in the LEA's region.

D. Bid Receipt, Opening, Disclosure.

  (1) Upon its receipt, each bid shall be stored in a secure place until the time set for bid opening.

  (2) Bids shall be opened publicly in the presence of at least one LEA employee and read aloud at the time, date, and place designated in the invitation for bids, or are to be made available to the public through a method in accordance with local policy and procurement practice. The name of each bidder, the bid price, and other appropriate information shall be read aloud or otherwise made available. This information shall be recorded at the time of bid opening. The bids shall be tabulated or a bid abstract made.

  (3) Opened bids shall be available for public inspection at a reasonable time after bid opening and before contract award. Bidders may designate trade secrets, financial data, or other proprietary data as confidential; material so designated shall be readily separable from the bid in order to facilitate public inspection of the nonconfidential portion of the bid. The LEA shall examine the bids to determine the validity of any requests for nondisclosure of trade secrets and other proprietary data identified in writing. All information submitted by bidders is subject to State and local public disclosure laws.

E. IFB Cancellation; Bid Rejection; Irregularities.

  (1) Before opening of bids, the LEA may cancel the invitation for bids in whole or in part if the LEA determines that the cancellation is fiscally advantageous or otherwise in its best interest.

  (2) After opening of bids but before award, the LEA may reject all bids in whole or in part if the LEA determines that the rejection is fiscally advantageous or otherwise in its best interest.

  (3) The LEA may reject any bid in whole or in part if it is in the LEA's best interest to do so. Reasons for rejecting a bid may include that the bidder is not responsible, that the bid is not responsive, that the price is unreasonable, or that the bidder is debarred or otherwise ineligible.

  (4) Irregularities.

    (a) Minor; Material; Correction.

      (i) The LEA may permit a bidder to correct a minor irregularity or may waive a minor irregularity. A minor irregularity is one that is merely a matter of form and not of substance or pertains to an immaterial or inconsequential defect or variation in a bid, the correction or waiver of which would not be prejudicial to other bidders.

      (ii) The LEA may not waive or permit a bidder to correct a defect or variation in a bid that is material as to price, quantity, quality, or delivery.

    (b) Up to and including the time for bid opening, a bidder may correct a defect or variation with respect to:

      (i) Bid bond;

      (ii) Acknowledgment of addenda; or

      (iii) MBE submission materials.

    (c) After bid opening, the LEA may not waive or permit a bidder to correct a defect or variation with respect to these requirements unless the defect or variation is determined to be minor and does not affect the competitiveness of the bid.

F. Bid Evaluation and Award.

  (1) The LEA shall award the contract to the responsible bidder who provides the best value and conforms to specifications with consideration given to:

    (a) The quantities involved;

    (b) The time required for delivery;

    (c) The purpose for which required;

    (d) The competency and responsibility of the bidder;

    (e) The ability of the bidder to perform satisfactory service;

    (f) The plan for utilization of minority contractors; and

    (g) The price offered by the bidder.

  (2) The LEA may not evaluate a bid for any criterion that is not disclosed in the invitation for bids.

G. Single Bidder. If after proper publication of invitation for bid and proper bid opening, the LEA receives one responsive bid, the LEA may:

  (1) Award the contract to the single responsible bidder; or

  (2) Reissue the invitation for bid.

#### Regulation .08 Competitive Sealed Bidding — Multistep Sealed Bidding.

*COMAR 14.39.03.08*

A. General.

  (1) Competitive sealed bidding may be conducted through multistep sealed bidding.

  (2) Multistep sealed bidding is a multiphase process in which bidders submit a technical offer (statement of qualifications) and a second phase in which those bidders who are determined qualified during the first phase may have price bids considered.

B. Request for Qualifications.

  (1) The request for qualifications is used to initiate a competitive two-step sealed bid procurement.

  (2) The request for qualifications shall set forth the factors by which the bidder's qualifications will be evaluated.

  (3) Evaluation factors shall include:

    (a) Bidder's understanding of the scope and schedule of the work;

    (b) Bidder's prior experience with projects of similar size and scope, and if bidder is a joint venture, experience of at least one of the members of the joint venture entity;

    (c) Bidder's plan for management of the project, and the organizational structure proposed for the project;

    (d) Experience of bidder's individual staff members with projects of similar size and scope;

    (e) MBE plan, if applicable; and

    (f) Other factors that the LEA sets forth.

  (4) The request for qualifications shall set forth the minimum standards that a bidder shall meet to be found qualified.

  (5) The request for qualifications may include information concerning the project scope, schedule, MBE, and prevailing wage as the LEA considers appropriate.

C. Public Notice. The LEA shall publish notice of a request for qualification at least 14 calendar days before the technical-offer due date in:

  (1) eMaryland Marketplace;

  (2) An electronic posting or a physical posting on the LEA's bid board; or

  (3) A newspaper of general circulation in the LEA's region.

D. Qualifications Evaluation.

  (1) The LEA shall evaluate the bidder's qualifications to determine whether the bidder meets the minimum qualification standards.

  (2) The LEA shall compile a list of bidders that are determined to meet the minimum qualification standards. Only the bidders on that list shall be permitted to submit bids.

  (3) Interviews may be conducted as a component of the qualifications process.

E. Invitation For Bids.

  (1) After preparing the list of qualified bidders, the LEA may issue an invitation for bids to all bidders on that list.

  (2) The invitation for bids shall include:

    (a) Instructions and information concerning bid submission requirements including the date, time, and place for receipt of bids;

    (b) Whether electronic bids will be accepted;

    (c) Specifications, drawings, or both, that clearly and accurately describe the functional characteristics of or the nature of an item to be procured;

    (d) The delivery or performance schedule;

    (e) MBE goals, if applicable;

    (f) Prevailing wage requirements, if applicable;

    (g) Requirement that bidders acknowledge receipt of each amendment and addendum issued;

    (h) Requirement for submission of bid bond;

    (i) Information with respect to pre-bid conference if a conference is to be held;

    (j) Requirement for submission of bid affidavit; and

    (k) Any other information the LEA requires.

  (3) The LEA shall obtain approval from the IAC or its designee before issuing the invitation for bids.

F. Bid Receipt and Opening; Disclosure.

  (1) Upon receipt, each bid shall be stored in a secure place until the time set for bid opening.

  (2) Bids shall be opened publicly in the presence of at least one LEA employee and read aloud at the time, date, and place designated in the invitation for bids. The name of each bidder, the bid price, and other appropriate information shall be read aloud or otherwise made available. This information shall be recorded at the time of bid opening. The bids shall be tabulated or a bid abstract made.

  (3) Opened bids shall be available for public inspection at a reasonable time after bid opening and before contract award. Bidders may designate trade secrets or other proprietary data as confidential; material so designated shall be readily separable from the bid in order to facilitate public inspection of the nonconfidential portion of the bid. The LEA shall examine the bids to determine the validity of any requests for nondisclosure of trade secrets and other proprietary data identified in writing. All information submitted by bidders is subject to State and local public disclosure laws.

G. IFB Cancellation; Bid Rejection; Irregularities.

  (1) Before opening bids, the LEA may cancel the invitation for bids in whole or in part if the LEA determines that the cancellation is fiscally advantageous or otherwise in its best interest.

  (2) After opening of bids but before award, the LEA may reject all bids in whole or in part if the LEA determines that the rejection is fiscally advantageous or otherwise in its best interest.

  (3) The LEA may reject any bid in whole or in part if it is in the LEA's best interest to do so. Reasons for rejecting a bid include that the bidder is not responsible, that the bid is not responsive, that the price is unreasonable, or that the bidder is debarred or otherwise ineligible.

  (4) Irregularities.

    (a) Minor; Material; Correction.

      (i) The LEA may permit a bidder to correct a minor irregularity or may waive a minor irregularity. A minor irregularity is one that is merely a matter of form and not of substance or pertains to an immaterial or inconsequential defect or variation in a bid, the correction or waiver of which would not be prejudicial to other bidders.

      (ii) The LEA may not waive or permit a bidder to correct a defect or variation in a bid that is material as to price, quantity, quality, or delivery.

    (b) Up to and including the time for bid opening, a bidder may correct a defect or variation with respect to:

      (i) Bid bond;

      (ii) Acknowledgment of addenda; or

      (iii) MBE submission materials.

    (c) After bid opening, the LEA may not waive or permit a bidder to correct a defect or variation with respect to these requirements unless the defect or variation is determined to be minor and does not affect the competitiveness of the bid.

H. Bid Evaluation and Award.

  (1) The LEA shall award the contract to the lowest responsible and responsive bidder whose bid meets the requirements and evaluation criteria set forth in the invitation for bids and is the most favorable bid.

  (2) The LEA may not evaluate a bid for any criterion that is not disclosed in the invitation for bids.

I. Single Bidder. If after proper publication of invitation for bid and proper bid opening, the LEA receives one responsive bid, the LEA may:

  (1) Award the contract to the single responsible bidder; or

  (2) Reissue the invitation for bid.

#### Regulation .09 Quality-Based Selection.

*COMAR 14.39.03.09*

A. General. Quality-based selection means a method of source selection based on a combination of qualification and cost factors.

B. Request for Proposals.

  (1) The request for proposals is used to initiate a quality-based selection procurement.

  (2) The request for proposals shall include:

    (a) Instructions and information concerning proposal submission requirements including the date, time, and place for receipt of proposals;

    (b) Whether electronic proposals will be accepted;

    (c) Specifications, drawings, or both, that clearly and accurately describe the functional characteristics of or the nature of the work to be procured, delivery or performance schedule, and any special instructions;

    (d) The evaluation factors and an indication of the relative importance of each evaluation factor including price;

    (e) MBE goals, if applicable;

    (f) Prevailing wage requirements, if applicable;

    (g) Information with respect to preproposal conference if a conference is to be held;

    (h) Requirement for submission of proposal affidavit;

    (i) Requirement that offerors acknowledge receipt of each amendment and addendum issued;

    (j) Requirement for submission of bid bond; and

    (k) Any other information the LEA requires.

  (3) LEAs may request that qualification factors in the proposal be submitted separately from price information.

C. Public Notice. The LEA shall publish notice of a request for proposals at least 14 calendar days before the proposal due date in:

  (1) eMaryland Marketplace;

  (2) An electronic posting or a physical posting on the LEA's bid board; or

  (3) A newspaper of general circulation in the LEA's region.

D. Proposal Receipt. The LEA shall keep submitted proposals in a secure place until the due date. Proposals may not be opened publicly but shall be opened in the presence of at least two LEA employees.

E. Proposal Disclosure. Offerors shall indicate clearly the portions of their proposals that they consider confidential information. All information submitted by offerors is subject to State and local public disclosure laws.

F. Proposal Evaluation.

  (1) The LEA shall evaluate the proposal based on the evaluation factors set forth in the request for proposals.

  (2) Evaluation factors shall include:

    (a) Offeror's understanding of scope of the work;

    (b) Offeror's prior experience with projects of similar size and scope, and if offeror is a joint venture, experience for at least one of the members of the joint venture entity;

    (c) Offeror's plan for management of the project and organizational structure proposed for the project;

    (d) Experience of offeror's individual staff members with projects of similar size and complexity;

    (e) MBE plan, if applicable;

    (f) Other qualification factors that the LEA sets forth; and

    (g) Price.

  (3) Interviews may be conducted as a component of the qualification process.

G. IFB Cancellation; Proposal Rejection; Irregularities.

  (1) Before opening of proposals, the LEA may cancel the request for proposals in whole or in part if the LEA determines that the cancellation is fiscally advantageous or otherwise in its best interest.

  (2) After opening of proposals but before award, the LEA may reject all proposals in whole or in part if the LEA determines that the rejection is fiscally advantageous or otherwise in its best interest.

  (3) The LEA may reject any proposal in whole or in part if it is in the LEA's best interest to do so. Reasons for rejecting a proposal include that the offeror is not responsible, that the proposal is not susceptible of award, that the price is unreasonable, or that the offeror is debarred or otherwise ineligible.

  (4) Irregularities.

    (a) Minor; Material; Correction.

      (i) The LEA may permit an offeror to correct a minor irregularity or may waive a minor irregularity. A minor irregularity is one that is merely a matter of form and not of substance or pertains to an immaterial or inconsequential defect or variation in a proposal, the correction or waiver of which would not be prejudicial to other bidders.

      (ii) The LEA may not waive or permit an offeror to correct a defect or variation in a proposal that is material as to price, quantity, quality, or delivery.

    (b) Up to and including the time for proposal opening, an offeror may correct a defect or variation with respect to:

      (i) Bid bond;

      (ii) Acknowledgment of addenda; or

      (iii) MBE submission materials.

    (c) After proposal opening, the LEA may not waive or permit an offeror to correct a defect or variation with respect to these requirements unless the defect or variation is determined to be minor and does not affect the competitiveness of the bid.

H. Evaluation and Award.

  (1) The LEA may not evaluate a proposal for any criterion that is not disclosed in the request for proposals.

  (2) The LEA shall award the contract to the offeror whose proposal is, in the LEA's determination, the highest ranked proposal based on the factors contained in the request for proposals including price.

I. Single Offeror. If after proper publication of request for proposal and proper proposal opening, the LEA receives one responsive offer, the LEA may:

  (1) Award the contract to the single responsible offeror; or

  (2) Reissue the request for proposal.

#### Regulation .10 Competitive Negotiation.

*COMAR 14.39.03.10*

A. Definition.

  (1) In this regulation, the following term has the meaning indicated.

  (2) Term Defined. Competitive negotiation means a method of source selection that:

    (a) Permits offerors to demonstrate creativity, experience, and knowledge;

    (b) Allows offerors to submit proposals that vary widely in scope, cost, and other factors; and

    (c) Allows negotiating between the LEA and the qualified offerors with the objective that the final proposal be the most advantageous to the LEA.

B. Request for Proposals.

  (1) The request for proposals is used to initiate a competitive negotiation procurement.

  (2) The request for proposals shall include:

    (a) Instructions and information concerning proposal submission requirements including the date, time and place for receipt of proposals;

    (b) A statement as to whether electronic proposals will be accepted;

    (c) At a minimum, a general description of the final product or services the LEA seeks;

    (d) The evaluation factors and an indication of the relative importance of each evaluation factor, including price;

    (e) A statement that discussions may be conducted with those responsible offerors that submit proposals judged to be in the competitive range, as previously determined by the LEA;

    (f) MBE goals, if applicable;

    (g) Prevailing wage requirements, if applicable;

    (h) Information with respect to preproposal conference if a conference is to be held;

    (i) Requirement for submission of a proposal affidavit;

    (j) Requirement that offerors acknowledge receipt of each amendment and addendum issued;

    (k) Requirement for bid bond, if applicable; and

    (l) Any other information the LEA requires.

  (3) The LEA shall obtain authorization from the IAC or its designee before issuing the request for proposals.

C. Public Notice. The LEA shall publish notice of a request for proposals at least 14 calendar days before the proposal due date in:

  (1) eMaryland Marketplace;

  (2) An electronic posting or a physical posting on the LEA's bid board; or

  (3) A newspaper of general circulation in the LEA's region.

D. Proposal Receipt. The LEA shall keep submitted proposals in a secure place until the due date. Proposals are not required to be opened publicly but shall be opened in the presence of at least two LEA employees.

E. Proposal Disclosure. Offerors shall indicate clearly the portions of their proposals that they consider confidential information. All information submitted by offerors is subject to State and local public disclosure laws.

F. Proposal Evaluation.

  (1) LEAs may interview offerors as part of the evaluation process.

  (2) The LEA shall evaluate the proposals based on the evaluation factors set forth in the request for proposals.

  (3) The LEA shall evaluate the technical proposals and price proposals independently of each other.

  (4) Evaluation factors shall include:

    (a) Offeror's understanding of scope of the work;

    (b) Advantages of the offeror's proposal to the LEA and to the public in general;

    (c) Offeror's prior experience with projects of similar size and scope, and if offeror is a joint venture, experience for at least one of the members of the joint venture entity;

    (d) Offeror's plan for management of the project, and the organizational structure proposed for the project;

    (e) Experience of offeror's individual staff members with projects of similar size and scope;

    (f) Financial resources of team and team members;

    (g) MBE plan, if applicable;

    (h) Price;

    (i) If applicable, process by which operation and maintenance of the facility will be transferred to the LEA; and

    (j) Other factors that the LEA sets forth.

  (5) The LEA shall establish a competitive range based on the ratings of each proposal.

  (6) Price may be a component in the first evaluation phase of the request for proposals, but is not required. The LEA may exclude price as a factor in the first phase of the request for proposals in order to assess the range of conceptual options that are available for a particular project.

G. Negotiations.

  (1) The primary objective of negotiations is to obtain the most advantageous contract for the LEA.

  (2) The LEA shall undertake negotiations with each offeror in the competitive range. During negotiations, an offeror may revise its proposal.

  (3) During negotiations, the LEA may establish a final competitive range. The LEA may limit the number of offerors that are included in the final competitive range.

  (4) After negotiation, the LEA shall give each offeror in the final competitive range the opportunity for a final proposal revision.

H. Award.

  (1) The LEA shall select the offeror whose proposal is, in the LEA's determination, the most advantageous to the LEA.

  (2) Before seeking approval of the award from the local board of education, the LEA shall:

    (a) Discuss the project in an open meeting; and

    (b) Notify the public as to when the proposed contract will be brought before the board of education for approval.

  (3) Following approval of the award by the local board of education, the LEA shall prepare and submit to the IAC or its designee a statement that explains why the proposal is the most advantageous. The explanation shall:

    (a) Describe the proposed scope of work, including alternative financing arrangements, if applicable;

    (b) Include a cost schedule, indicating the costs associated with various services to be provided by the vendor or phases of the work, and whether those costs are eligible for State reimbursement;

    (c) Summarize the evaluation system used to select the offeror;

    (d) Summarize the apparent successful offeror's proposal; and

    (e) Describe the MBE plan.

#### Regulation .11 Unsolicited Proposals.

*COMAR 14.39.03.11*

A. Receipt of Unsolicited Proposals; Competing Proposals.

  (1) If an LEA receives a proposal other than one submitted in response to a solicitation and it determines that it is interested in pursuing the unsolicited proposal, the LEA shall:

    (a) Publish notice that it has received an unsolicited proposal;

    (b) Briefly describe the nature of the proposal;

    (c) Give any other interested offeror at least 28 days to submit a competing proposal after the public notice is issued; and

    (d) Inform the IAC or its designee of its intention and provide a description of the proposed method to procure the project.

  (2) The unsolicited proposal and any competing proposals shall be in writing and sufficiently detailed to permit the LEA to determine if it is advantageous and should be the basis for a contract award.

B. Notice. Notices required under this regulation shall be placed in:

  (1) eMaryland Marketplace;

  (2) An electronic posting or a physical posting on the LEA's bid board; or

  (3) A newspaper of general circulation in the LEA's region.

C. If the LEA receives one or more competing proposals, the LEA shall evaluate and negotiate the proposals consistent with Regulations .09F and G of this regulation.

D. Award.

  (1) The LEA may award a contract that it determines to be advantageous based on an unsolicited proposal or a competing proposal.

  (2) The LEA shall prepare and submit to the IAC or its designee a statement that explains why the proposal is the most advantageous. The explanation shall:

    (a) Describe the proposed scope of work or services, including alternative financing if applicable;

    (b) Include a cost schedule, indicating the costs associated with various services to be provided by the vendor or phases of the work, and whether those costs are eligible for State reimbursement;

    (c) Summarize the evaluation system used to select the offeror;

    (d) Summarize the apparent successful offeror's proposal; and

    (e) Describe the MBE plan, if applicable.

  (3) Before seeking approval from the Board of Education, the LEA shall:

    (a) Discuss the project in an open meeting; and

    (b) Notify the public as to when the proposed contract will be brought before the Board of Education for approval.

#### Regulation .12 Intergovernmental Cooperative Purchasing.

*COMAR 14.39.03.12*

A. General. Intergovernmental cooperative purchasing means a method of source selection that permits an LEA to aggregate with other government entities their common requirements for purposes of maximizing economies of scale when soliciting bids or proposals for goods and commodities or to purchase its requirements from another governmental entity's contract if that contract is an intergovernmental cooperative purchasing agreement.

B. An LEA may use the intergovernmental cooperative purchasing method if it determines that the method:

  (1) Will provide cost benefits, promote administrative efficiencies, or promote governmental cooperation; and

  (2) Is not intended to avoid competition.

C. Types. An LEA may use the following types of intergovernmental cooperative purchasing method:

  (1) Pooling, a method that includes the following steps:

    (a) Each participating governmental entity agrees to procure its respective requirements from the successful bidder or offeror;

    (b) A lead jurisdiction conducts the procurement on behalf of all participants; and

    (c) Either a master contract award or awards is made by the lead jurisdiction on behalf of all participants or each participant awards its own contract; and

  (2) Piggybacking, a method wherein an LEA purchases its requirements from another governmental entity's contract if that contract contains an intergovernmental cooperative purchasing clause.

#### Regulation .13 Sole Source.

*COMAR 14.39.03.13*

A. Sole source procurement is permissible if a requirement is available from only a single vendor.

B. Examples of circumstances that might necessitate a sole source procurement are as follows:

  (1) Only one source exists which meets the requirements;

  (2) The compatibility of equipment, accessories, or replacement parts is the paramount consideration;

  (3) A sole vendor's item is needed for trial use or testing; or

  (4) Public or regulated utility services are to be procured and only one source exists.

C. The LEA shall submit a written sole source justification to the IAC or its designee.

#### Regulation .14 Negotiated Award After Unsatisfactory Competitive Sealed Bidding.

*COMAR 14.39.03.14*

A. General. An LEA may make a negotiated award after unsatisfactory competitive sealed bidding if, after bids have been opened, the LEA:

  (1) Rejects all bids pursuant to Regulation .07F(2) or .08G(2) of this chapter; and

  (2) Determines that:

    (a) Funding does not permit an award to the lowest responsible and responsive bidder;

    (b) Any delay resulting from a resolicitation with revised specifications under competitive sealed bidding would be fiscally disadvantageous or would not otherwise be in the best interest of the LEA or the State; or

    (c) Both.

B. Invitation for Revised Bids. The LEA shall:

  (1) Issue an invitation for revised bids based on revised specifications to the original bidders as promptly as possible; and

  (2) Require a prompt response.

C. Discussion. Discussion may not be conducted with bidders after revised bids have been submitted unless the LEA determines that there is compelling need for further negotiation. Any discussion concerning revised specifications shall be conducted with all responsible bidders in a fair and equal manner.

D. Award. The LEA shall award the contract to the lowest responsive and responsible bidder whose bid meets the invitation for revised bids.

### Chapter 04 — Project Delivery Methods

**Authority:** Education Article, §§4-126, 5-112, and 5-303, Annotated Code of Maryland

**Administrative History:** Effective date: May 21, 2007 (34:10 Md. R. 891)

**Administrative History:** COMAR 23.03.04 recodified to be COMAR 14.39.04 under new subtitle, Interagency Commission on School Construction, effective November 4, 2019 (46:22 Md. R. 979)

**Administrative History:** Regulation .01A amended effective November 4, 2019 (46:22 Md. R. 979)

**Administrative History:** Regulation .03 amended effective June 28, 2021 (48:13 Md. R. 509)

**Administrative History:** Regulation .04A amended effective November 4, 2019 (46:22 Md. R. 979)

**Administrative History:** Regulation .05 amended effective August 18, 2025 (52:16 Md. R. 848)

**Administrative History:** Regulation .05D, E amended effective November 4, 2019 (46:22 Md. R. 979)

**Administrative History:** Regulation .06B, D amended effective November 4, 2019 (46:22 Md. R. 979)

**Administrative History:** Regulation .08E, F amended effective August 18, 2025 (52:16 Md. R. 848)

**Administrative History:** Regulation .09 repealed effective June 28, 2021 (48:13 Md. R. 509)

#### Regulation .01 Scope.

*COMAR 14.39.04.01*

A. This chapter applies to a public school construction project for building, improvement, supplies, or equipment if it:

  (1) Exceeds $50,000 and has IAC planning or funding approval; or

  (2) Requires review by the State Superintendent of Schools under Education Article, §2-303, Annotated Code of Maryland.

B. This chapter does not apply to a project in a building that is not used primarily for the instruction of students, including an office building, warehouse, or vehicle maintenance or repair building.

C. In this chapter, “IAC or its designee” includes “State Superintendent or designee” if State Superintendent approval is required by Education Article, §2-303(f), Annotated Code of Maryland.

#### Regulation .02 Project Delivery Proposal Review Assistance.

*COMAR 14.39.04.02*

The State Superintendent or designee may request assistance from the IAC or its designee when reviewing project delivery proposals.

#### Regulation .03 Methods of Project Delivery.

*COMAR 14.39.04.03*

For a public school construction project, an LEA may use one of the following methods:

A. General contracting; or

B. Alternative project delivery including:

  (1) Construction management agency;

  (2) Construction management at risk;

  (3) Design build; and

  (4) Job order contracting.

#### Regulation .04 Other Requirements.

*COMAR 14.39.04.04*

A. The requirements of COMAR 14.39.03 apply to all projects conducted under this chapter.

B. All projects regardless of delivery method shall comply with State procedures for project design review.

C. Regardless of project delivery method, the LEA may not begin construction until the IAC or its designee has authorized the LEA to proceed.

D. The IAC may specifically designate an individual or group to act on requests, provide the State approvals on behalf of the IAC, or both, as required in this chapter.

#### Regulation .05 Construction Management Agency.

*COMAR 14.39.04.05*

A. General. Construction management agency (CMA) means a project delivery method in which the LEA:

  (1) Directly contracts with trade contractors; and

  (2) Either:

    (a) Engages a construction manager as its agent to manage the project; or

    (b) Acts as the construction manager.

B. The LEA shall disclose in the solicitation documents if the project may be converted to the construction management at risk method or other project delivery method.

C. State Reimbursement.

  (1) The IAC or its designee shall maintain a list of CMA services that are eligible for State reimbursement.

  (2) If the LEA intends to seek reimbursement of CMA costs with State funds, the LEA shall:

    (a) Submit the solicitation documents to the IAC or its designee for review not later than 1 month before the documents are released to offerors; and

    (b) Identify in the solicitation documents the construction management services that are eligible for State reimbursement.

  (3) An LEA intending to seek State reimbursement for construction manager services shall procure a construction manager in accordance with COMAR 14.39.03.

D. Trade Contracts.

  (1) Trade contracts may be procured concurrently or over the life of the project.

  (2) The LEA shall submit the bidding schedule for the trade packages with proposed bid dates to the IAC or its designee and provide notice of any changes.

  (3) The LEA shall procure each trade contract in accordance with COMAR 14.39.03.

  (4) The LEA shall submit each trade contract to the IAC for approval.

  (5) If the project is subject to prevailing wage rate requirements, each trade contract within the project is subject to prevailing wage rate requirements.

  (6) MBE goals shall be based on the total project price, but MBE goals may vary in individual trade contracts if the overall MBE project goal is acknowledged.

#### Regulation .06 Construction Management at Risk.

*COMAR 14.39.04.06*

A. General.

  (1) Construction management at risk means a project delivery method in which the LEA engages a construction manager at risk (CMR) to:

    (a) Contract directly with trade contractors; and

    (b) Provide a guaranteed maximum price for project procurement and construction.

  (2) The CMR warrants that the work will be completed at or below the guaranteed maximum price with provisions for change order adjustments for work that is outside the agreed-upon work scope.

  (3) Cost savings resulting from projects completed below the guaranteed maximum price may be shared between the LEA and the CMR.

B. Guaranteed Maximum Price.

  (1) Guaranteed maximum price (GMP) means an arrangement between the LEA and the CMR in which the total amount payable to the CMR for the project is restricted to a pre-agreed maximum and includes the cost of construction and construction management services that is generally determined before the design is complete.

  (2) The LEA and CMR may determine the guaranteed maximum price as follows:

    (a) In competitive sealed bidding or quality based selection, the guaranteed maximum price is based on construction documents that are sufficiently developed to allow bidders to reasonably estimate and include costs for unspecified items, and includes:

      (i) Cost of the work;

      (ii) Construction management fee; and

      (iii) General conditions; and

    (b) In competitive negotiation, including projects in which a construction manager has provided pre-GMP services, the LEA may begin negotiations to establish a guaranteed maximum price with the construction manager only after:

      (i) The LEA has provided public notice of its intent and a request for competing proposals; and

      (ii) At least 28 days have elapsed for receipt of competing proposals.

  (3) If the LEA receives competing proposals, the proposals shall be evaluated in accordance with COMAR 14.39.03.

C. Notice to IAC.

  (1) Not later than 2 months before the release of solicitation documents to offerors, the LEA shall provide written notice to the IAC or its designee that the CMR method will be used.

  (2) The LEA shall acknowledge in the notice that the State is not responsible for any project cost overruns.

  (3) Not later than 1 month before release to offerors, the LEA shall submit the solicitation documents to the IAC or its designee for approval.

D. State Reimbursement.

  (1) State funds may be used to reimburse:

    (a) Allowable pre-GMP costs only if related to the solicitation of trade packages; and

    (b) Allowable post-GMP costs.

  (2) Allowable post-GMP construction management services, as determined by the IAC, shall be included in total construction cost as if the CMR were a general contractor for purposes of determining the maximum State construction allocation, payment of requisitions, and project close out.

  (3) Total State reimbursement of eligible costs may not exceed the lesser of:

    (a) The State's share of the guaranteed maximum price based on the cost-share formula; or

    (b) The maximum State construction allocation.

  (4) If an LEA intends to seek State reimbursement of any of the construction management services, the services shall be procured through one of the procurement methods provided in COMAR 14.39.03.

E. Trade Contracts.

  (1) The CMR assumes all risk for cost, schedule, and performance of the trade contracts except for a trade contract that the LEA separately procures.

  (2) Trade contracts may be procured concurrently or over the life of the project.

  (3) After the guaranteed maximum price is finalized, any trade contract previously awarded by the LEA may be assigned to the CMR who then assumes all risk for coordination and completion of the trade contracts.

  (4) Subcontracts solicited by the CMR as components of the final guaranteed maximum price do not require IAC approval.

  (5) If the LEA intends to award a separate trade contract, the LEA shall submit the trade contract to the IAC for approval notwithstanding the subsequent inclusion of the trade contract in the guaranteed maximum price.

#### Regulation .07 Design-Build.

*COMAR 14.39.04.07*

A. General.

  (1) Design-build means a project delivery method in which a single entity is contractually responsible for both design and construction of a project.

  (2) The LEA provides sufficient information to the design-build entity to guide it in the design of the project and specifies the reviews and approvals that will be required of the project.

  (3) The design-build entity is responsible for the following:

    (a) Quality of the design;

    (b) Project costs;

    (c) Construction quality;

    (d) Adherence to the LEA's schedule for project completion and occupancy; and

    (e) Other factors the LEA requires.

  (4) Design-build may extend beyond the design and construction phases of a project to include:

    (a) Financing, in which case the method is called finance-design-build; or

    (b) Provision of furniture and equipment, occupant move-in, or other post-construction tasks, except as limited by §A(5) of this regulation.

  (5) The design-build entity may not perform the routine maintenance and operation of a school building after occupancy.

B. IAC Approval.

  (1) If the LEA decides to use the design-build method, the LEA:

    (a) Shall request approval from the IAC or its designee 2 months prior to the release of the solicitation; and

    (b) May not proceed with the design-build method until approval is obtained from the IAC or its designee.

  (2) The request for approval shall at a minimum include the proposed:

    (a) Brief description of the scope of work;

    (b) Project phasing;

    (c) Schedule for the submission of plans and specifications for review by the IAC or its designee;

    (d) Solicitation schedule;

    (e) Procurement method;

    (f) Financing arrangement, if applicable; and

    (g) Performance expectations.

  (3) The LEA shall acknowledge in the request for approval that the State is not responsible for any project cost overruns.

  (4) The LEA shall send the draft design-build solicitation to the IAC or its designee for approval not later than 1 month before it is released to bidders.

  (5) Authorization by the IAC or its designee to proceed with the design-build method is independent of approvals of project planning and funding. If the IAC or its designee authorizes the use of the design-build method but project planning is not approved, the project may proceed as a locally funded project.

C. Design-Build Procurement.

  (1) The LEA may develop a design-build solicitation based on:

    (a) Performance specification;

    (b) Performance specification combined with concept or schematic design; or

    (c) Performance specification combined with the LEA's prototype design.

  (2) The performance specification shall include at a minimum:

    (a) Educational specifications;

    (b) Performance characteristics of the school facility;

    (c) A schedule for completion and occupancy; and

    (d) General conditions that clearly describe the respective responsibilities of the LEA and the design-build entity.

D. State Reimbursement.

  (1) If the LEA intends to seek State reimbursement, the LEA shall distinguish between preconstruction and construction scopes of work to allow the IAC or its designee to determine the costs that are eligible for State reimbursement.

  (2) The State's maximum participation in the project is calculated when:

    (a) The construction documents are complete; and

    (b) The full scope of the project is known including ineligible items.

  (3) Allowable preconstruction services, as determined by the IAC, shall be included in total construction cost.

  (4) Final adjustment of the State's participation shall be made at project closeout.

  (5) Total State reimbursement of eligible costs may not exceed the lesser of:

    (a) The State's share of the guaranteed maximum price based on the cost-share formula; or

    (b) The maximum State construction allocation.

#### Regulation .08 Job Order Contracting.

*COMAR 14.39.04.08*

A. In this regulation, the following term has the meaning indicated.

B. Term Defined. “Job order contracting (JOC)” means a project delivery method in which the LEA selects a contractor through a competitive procurement process based on a multiplier or coefficient that:

  (1) Reflects the bidder's determination of the actual cost to perform the work plus overhead and profit; and

  (2) Is applied to a fixed-price list of construction items and activities.

C. The fixed prices of the construction items and activities are defined by the LEA or through a standard project cost source.

D. The schedule of fixed prices may include a construction escalation factor for multiyear contracts.

E. Procurement and Award.

  (1) An LEA shall obtain a JOC through a competitive procurement process, whether or not the LEA intends to execute State-funded projects through the JOC.

  (2) The JOC may include extension clauses, but the State may not participate in a project executed under a JOC that:

    (a) Has more than three annual extensions; or

    (b) Has been increased by change order above the maximum combined price indicated in the solicitation, including all potential extensions, except for changes of scope to individual projects already begun before completion of the final annual extension.

  (3) When submitting a contract approval to the IAC, the LEA must acknowledge that the State is not responsible for any project cost overruns.

F. Approvals. If an LEA intends to execute a State-funded project through a JOC, it:

  (1) Shall provide the IAC or its designee with a brief description of the anticipated scope of work, the duration of the JOC contract, the number of annual extensions, and the maximum combined cost of the projects to be performed under the JOC;

  (2) Shall submit the project for design review prior to the start of construction [shall be required] if it would be required for similar project funded through the same State funding program;

  (3) May reference an earlier approval and the JOC solicitation if approval is requested for a project to be executed through a JOC under which a State-funded project was previously approved, but is not required to resubmit all relevant information;

  (4) Shall obtain approval of contract award, reimbursement, or both, in the manner and timeframe required for all projects funded under the relevant program;

  (5) Shall, for design-build JOC projects, clearly indicate on the request for approval of contract award or for reimbursement those portions of the project cost that are associated with preconstruction activities in order to allow the IAC or its designee to determine which costs are eligible for State reimbursement;

  (6) Shall include in the total construction cost allowable preconstruction services, as determined by the IAC; and

  (7) Shall acknowledge that final adjustment of the State’s participation will be made at project closeout.

### Chapter 05 — Alternative Financing

**Authority:** Education Article, §§4-126, 5-112, and 5-303, Annotated Code of Maryland

**Administrative History:** Effective date: May 21, 2007 (34:10 Md. R. 891)

**Administrative History:** Regulation .02 amended effective September 28, 2015 (42:19 Md. R. 1229)

**Administrative History:** COMAR 23.03.05 recodified to be COMAR 14.39.05 under new subtitle, Interagency Commission on School Construction, effective November 4, 2019 (46:22 Md. R. 979)

**Administrative History:** Regulation .01A amended effective November 4, 2019 (46:22 Md. R. 979)

**Administrative History:** Regulation .04C adopted effective November 4, 2019 (46:22 Md. R. 979)

#### Regulation .01 Scope.

*COMAR 14.39.05.01*

A. This chapter applies to a public school construction project for building, improvement, supplies, or equipment if it:

  (1) Exceeds $50,000 and has IAC planning or funding approval; or

  (2) Requires review by the State Superintendent of Schools under Education Article, §2-303, Annotated Code of Maryland.

B. This chapter does not apply to a project in a building that is not used primarily for the instruction of students, including an office building, warehouse, or vehicle maintenance or repair building.

C. In this chapter, “IAC or its designee” includes “State Superintendent or designee” if State Superintendent approval is required by Education Article, §2-303(f), Annotated Code of Maryland.

#### Regulation .02 Alternative Project Proposal Review Assistance.

*COMAR 14.39.05.02*

The State Superintendent or designee may request assistance from the IAC or its designee when reviewing alternative project financing proposals.

#### Regulation .03 Educational and Design Standards Apply.

*COMAR 14.39.05.03*

All projects financed through alternative methods shall comply with State procedures for project design review.

#### Regulation .04 Use of Alternative Financing Methods.

*COMAR 14.39.05.04*

A. A county or an LEA may use alternative financing methods for public school construction.

B. An LEA shall obtain the approval of the county governing body to use an alternative financing method.

C. Alternative financing shall be conducted consistent with Education Article, §4-126, Annotated Code of Maryland.

### Chapter 06 — Relocatable Classroom Indoor Environmental Quality Standards

**Authority:** Education Article, §5-303(b), Annotated Code of Maryland

**Administrative History:** Effective date: September 28, 2015 (42:19 Md. R. 1229)

**Administrative History:** COMAR 23.03.06 recodified to be COMAR 14.39.06 under new subtitle, Interagency Commission on School Construction, effective November 4, 2019 (46:22 Md. R. 979)

#### Regulation .01 Definitions.

*COMAR 14.39.06.01*

A. In this regulation, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Locally-constructed relocatable classroom” means a relocatable classroom that is constructed at the school site.

  (2) “Model Performance Code” means the construction standards stated in COMAR 09.12.50.03:

  (3) “Pre-manufactured unit” means a relocatable classroom that is constructed off-site and transported to the school site.

  (4) “Relocatable classroom” means a classroom unit that is capable of being disconnected and transported from one school site and reinstalled at another school site.

#### Regulation .02 Relocatable Classrooms Indoor Environmental Quality Standards.

*COMAR 14.39.06.02*

A. All relocatable classrooms used for student instruction at public schools must conform to Indoor Environmental Quality Standards that meet the Maryland Green Building Council International Green Construction Code (IgCC) Supplement, Chapter 8, Section 801 through 806, which is incorporated by reference; and

B. One of the following:

  (1) The Model Performance Code for pre-manufactured units; or

  (2) Local building codes for locally-constructed relocatable classrooms.

#### Regulation .03 Exceptions.

*COMAR 14.39.06.03*

This chapter does not apply to relocatable classrooms constructed before July 1, 2015.

### Chapter 07 — Public School Facilities Educational Sufficiency Standards

**Authority:** Education Article, §5-310, Annotated Code of Maryland; Ch. 14, Acts of 2018

**Administrative History:** Effective date: November 4, 2019 (46:22 Md. R. 979)

**Administrative History:** Regulation .02D adopted effective October 5, 2020 (47:20 Md. R. 876)

**Administrative History:** Chapter revised effective December 12, 2022 (49:25 Md. R. 1050)

#### Regulation .01 Purpose.

*COMAR 14.39.07.01*

The purpose of Maryland Public School Facilities Educational Sufficiency Standards is to establish acceptable minimum levels for the physical attributes, capacity, and educational suitability of existing public PreK—12 school facilities in order to assess existing facilities against a defined standard to identify deficiencies.

#### Regulation .02 Scope.

*COMAR 14.39.07.02*

A. As required by Education Article, §5-310, Annotated Code of Maryland, the Facilities Educational Sufficiency Standards established in this chapter shall be used to complete assessments of existing school facilities Statewide.

B. The chapter is to be used for assessment purposes only and are not requirements for school facility design or construction.

C. This chapter may not supersede or obviate compliance with applicable building and fire codes or any other code, regulation, law, or standard that has been adopted by State agencies.

#### Regulation .03 General Requirements.

*COMAR 14.39.07.03*

A. Building Condition.

  (1) A school facility shall be safe and capable of being maintained.

  (2) A school facility shall be structurally sound. A school facility shall be considered structurally sound if the building presents:

    (a) No imminent danger;

    (b) No major visible signs of decay or distress; or

    (c) Structural systems support the loads imposed on them.

  (3) An exterior envelope is safe and capable of being maintained if:

    (a) Walls and roof are weather-tight under normal conditions with routine upkeep; and

    (b) Doors and windows are weather-tight under normal conditions with routine upkeep.

  (4) An interior surface is safe and capable of being maintained if it is:

    (a) Structurally sound;

    (b) Capable of supporting a finish; and

    (c) Capable of continuing in its intended use with normal maintenance and repair.

  (5) An interior finish is safe and capable of being maintained if it is:

    (a) Free of exposed lead paint;

    (b) Free of exposed friable asbestos; and

    (c) Capable of continuing in its intended use with normal maintenance and repair.

B. Building Systems.

  (1) Building systems in a school facility shall be in working order and capable of being properly maintained.

  (2) Building systems include but are not limited to the following:

    (a) Roof;

    (b) Plumbing;

    (c) Telephone;

    (d) Electrical;

    (e) Heating and cooling systems;

    (f) Fire alarm;

    (g) Two-way internal communication;

    (h) Technological infrastructure; and

    (i) Security systems.

  (3) A building system shall be considered to be in working order and capable of being maintained if the following apply:

    (a) The system is capable of being operated as intended and maintained;

    (b) Newly manufactured or cost-effective refurbished replacement parts are available;

    (c) The system is capable of supporting the standards established in this rule; and

    (d) Components of the system present no imminent danger of personal injury.

  (4) Sanitary Facilities.

    (a) Fixtures shall include but are not limited to the following:

      (i) Water closets;

      (ii) Urinals;

      (iii) Lavatories; and

      (iv) Drinking fountains.

    (b) Wherever possible within reasonable cost constraints, restrooms shall be accessible to general classrooms for grades 3 and below and for special-needs classrooms without having to exit the building.

#### Regulation .04 Classifications of Public Schools.

*COMAR 14.39.07.04*

The classifications for public schools under these standards are as follows:

A. Elementary School, which houses pre-kindergarten through grade 5 or any subset thereof;

B. Middle School, which houses grade 6 through grade 8;

C. High School, which houses grade 9 through grade 12;

D. Combination School, which houses a combination of any grade levels; and

E. Other School, which includes but is not limited to the following:

  (1) Early-childhood-education centers;

  (2) Special-education centers;

  (3) Career-technology centers; and

  (4) Alternative-education schools.

#### Regulation .05 School Site.

*COMAR 14.39.07.05*

A. A school site shall be of sufficient size to accommodate safe access, parking, drainage, and security and shall have an adequate source of water and appropriate means of effluent disposal.

B. Safe Access.

  (1) A school site shall be configured for safe and controlled access that separates pedestrian traffic from vehicular traffic.

  (2) If buses are used to transport students, then bus loading and unloading areas shall be separated from vehicular-traffic areas wherever possible.

  (3) Dedicated student drop-off and pickup areas shall be provided for safe use by student passengers arriving or departing by automobile.

C. Parking. A school site shall include a surfaced area that is capable of being maintained, stable, firm, slip resistant, and large enough to accommodate 1.5 parking spaces per full-time-equivalent employee and one student space per ten high school students. Alternative parking may be approved after the sufficiency of parking at the site is reviewed by the IAC based on the following criteria:

  (1) Availability of street parking around the school;

  (2) Availability of any nearby parking lots;

  (3) Availability of public transit;

  (4) Number of staff who drive to work on a daily basis; and

  (5) Average number of visitors on a daily basis.

D. Drainage. A school site shall be configured such that runoff does not undermine the structural integrity of the school buildings located on-site or create flooding, ponding, or erosion resulting in a threat to health, safety, or welfare.

E. Security. All schools shall have safe and secure site fencing or other barriers with accommodations for safe passage through openings to protect students from the hazards of traffic, railroad tracks, animal nuisance, and steep slopes.

#### Regulation .06 Site Recreation and Outdoor Physical Education.

*COMAR 14.39.07.06*

A. A school facility shall have area, space, and fixtures, in accordance with the standard equipment necessary to meet the educational requirements of the public education department, for physical-education activity.

B. An elementary school shall provide:

  (1) At least one safe play area (and playground, including a hard surfaced court and unpaved recreation area, which shall be conveniently accessible to the students;

  (2) At least one play area and appropriate equipment for physical education and school recreational purposes, based on the planned school program capacity;

  (3) For schools that serve students in grade 5 and below, a protected play area; and

  (4) Play-equipment areas with surfacing materials that meet or exceed safety specifications for shock-absorbing qualities as outlined by the U.S. Consumer Product Safety Commission.

C. A middle school shall provide at least one hard surfaced court and playing field for physical-education activities; and the number of playing fields and quantity and type of equipment shall be based on the planned school program capacity.

D. A high school shall provide a playing field for physical-education activities, and the number of laying fields and quantity and type of equipment shall be based on the planned school program capacity.

E. A combination school shall provide the elements of the grades served by §§B—D of this regulation without duplication, but shall meet the highest standard.

F. Other schools shall provide the elements above necessary to meet the educational requirements of the specific programs and capacity of the schools.

#### Regulation .07 Academic Classroom Space.

*COMAR 14.39.07.07*

A. Classroom spaces, including those for physical education, shall be sufficient for educational programs that are appropriate for the class-level needs.

B. Classroom Fixtures and Equipment.

  (1) With the exception of physical-education spaces, each general and specialty classroom shall contain a work surface and seat for each student in the classroom. The work surface and seat shall be appropriate for the normal activity of the class conducted in the room.

  (2) Each general and specialty classroom shall have an erasable surface and a surface suitable for projection purposes, appropriate for group classroom instruction, and a display surface. A single surface may meet one or more of these purposes.

  (3) Each general and specialty classroom shall have storage for classroom materials or access to conveniently located storage.

  (4) With the exception of physical-education spaces and music-education spaces, each general and specialty classroom shall have a work surface and seat for the teacher and for any aide assigned to the classroom. The classroom shall have secure storage for student records that is located in the classroom or is conveniently accessible to the classroom.

C. Classroom Lighting.

  (1) Each general and specialty classroom shall have a light system capable of maintaining at least 50 foot-candles of well-distributed light. A school shall provide appropriate task lighting in specialty classrooms where enhanced visibility is required.

  (2) The light level shall be measured at a work surface located in the approximate center of the classroom, between clean light fixtures.

D. Classroom Temperature and Relative Humidity.

  (1) Each general and specialty classroom shall have a heating, ventilation, and air conditioning (HVAC) system capable of maintaining a temperature between 68°F and 75°F and a relative humidity between 30 and 60 percent at full occupancy.

  (2) The temperature and humidity shall be measured at a work surface in the approximate center of the classroom.

E. Classroom Acoustics.

  (1) With the exception of physical-education spaces, each general and specialty classroom shall be maintainable at a sustained background sound level of less than 55 decibels.

  (2) The sound level shall be measured at a work surface in the approximate center of the classroom.

F. Classroom Air Quality.

  (1) Each general, science, and fine-arts classroom shall have an HVAC system that continuously moves air and is capable of maintaining a carbon dioxide level of not more than 1,200 parts per million.

  (2) The air quality shall be measured at a work surface in the approximate center of the classroom.

#### Regulation .08 General Use Classrooms.

*COMAR 14.39.07.08*

A. Cumulative classroom net square foot requirements, excluding in-classroom storage space and any in-classroom toilet rooms, shall be at least:

  (1) For prekindergarten, 50 net square feet per student;

  (2) For kindergarten, 50 net square feet per student;

  (3) For grades 1—8, 32 net square feet per student; and

  (4) For grades 9—12, 25 net square feet per student;

B. At least 2 net square feet per student shall be available for dedicated, in-classroom storage and may be provided vertically to avoid the need for additional floor area.

C. Sufficient number of classrooms shall be provided to meet State and local board mandated student-to-staff ratio requirements Administrative History.

#### Regulation .09 Specialty Classrooms.

*COMAR 14.39.07.09*

A. Special Education.

  (1) To the maximum extent appropriate, students with disabilities shall be educated in the least restrictive environment with students who are not disabled. A continuum of alternative placements shall be provided.

  (2) If a special-education space for pull-out purposes other than calming is provided and the space is required to support educational programs, services, and curricula, the space may not be smaller than 450 net square feet.

  (3) When the need is demonstrated by a local education agency, additional space in the classroom shall be provided with, or students shall have an accessible route to an accessible unisex restroom with one toilet, sink, washer/dryer, and shower stall/tub, as needed, and at least 15 net square feet of storage.

  (4) When the need is demonstrated by a local education agency, in 6th grade classrooms and above, a kitchenette of least 30 net square feet shall be provided.

B. Science Classrooms.

  (1) For grades PreK through 5, no additional space is required beyond the classroom requirement.

  (2) For grades 6 through 12, 4 net square feet per student of the specialty program capacity for science is required. The space may not be smaller than the average classroom at the facility. This space is included in the academic classroom requirement and may be used for other instruction. The space shall have science fixtures and equipment, in accordance with the standard equipment necessary to meet the educational requirements of the Maryland Science Content Standards.

  (3) For grades 9 through 12 only, at least 40 net square feet of space is provided for securable, well-ventilated storage or prep space for each science room having science fixtures and equipment. Storage/prep rooms may be combined and shared between more than one classroom.

C. Fine-Arts Education.

  (1) A school facility shall have classroom space to deliver fine-arts education programs which include the following:

    (a) Art;

    (b) Music;

    (c) Dance; and

    (d) Theater.

  (2) Elementary school fine-arts education programs:

    (a) May be accommodated within a general-use or dedicated arts classroom;

    (b) Shall provide one dedicated classroom for each fine-arts subject area staffed with greater than 0.5 full-time fine-arts teacher; and

    (c) Shall provide additional dedicated fine-arts program storage of at least 60 net square feet for each subject area per facility.

  (3) A middle school shall provide classroom space for fine-arts education programs that:

    (a) Contains no less than 4 net square feet per student of the specialty program capacity for fine-arts subjects;

    (b) Provides one dedicated classroom for each fine-arts subject area staffed with greater than 0.5 full-time fine-arts teacher; and

    (c) Provides additional 60 net square feet of storage for each fine-arts program subject.

  (4) A high school shall provide classroom spaces for fine-arts education programs that contain no less than 5 net square feet of the specialty program capacity for fine-arts subjects.

  (5) A combination school shall provide the elements of the grades served by §C(1)—(4) of this regulation without duplication but meeting the highest square footage standards.

  (6) Other schools shall provide the elements included in §C(1)—(4) of this regulation that are necessary to meet the educational requirements of the specific programs and capacity of the schools.

D. Technology Education and Computer Science.

  (1) For grades K through 5, no additional space is required beyond the classroom requirement.

  (2) For grades 6 through 8, 3 net square feet, and 4 net square feet for grades 9 through 12, of the specialty program capacity for technology education and family and consumer science is required. The space shall be no smaller than the average classroom at the facility. This space is included in the academic classroom requirement and may be used for other instruction.

  (3) The space shall have technology fixtures and equipment, in accordance with the standard equipment necessary to meet the educational requirements of the Maryland Technology Education Content Standards, and, in high school, the requirements of Maryland Advanced Technology Education electives where such electives are offered.

  (4) Provide at least 80 net square feet for securable, well-ventilated storage/prep space for each technology education room having technology fixtures and equipment. Storage/prep rooms may be combined and shared between more than one classroom.

E. Career and Technology Education.

  (1) Elementary schools have no requirement.

  (2) Middle schools shall include space for career-development and career-exploration activities. Each program lab or classroom space shall be no smaller than 650 net square feet.

  (3) High School Career and Technology Education.

    (a) Program space shall be provided with no less than 4 net square feet of the specialty program capacity of the school for career education.

    (b) Each program lab or classroom space shall be no smaller than 650 net square feet.

    (c) Spaces for programs requiring licensing, certification, or accreditation by a State board or agency shall meet all applicable health and safety standards. Cosmetology and barber programs shall comply with the sanitation requirements of the State Board of Cosmetologists and the State Board of Barbers, respectively.

  (4) A combination school shall provide the elements of the grades served by §E(1)—(3) of this regulation without duplication, but meeting the higher standards.

  (5) Other schools shall provide the elements above necessary to meet the educational requirements of the specific programs and capacity of the schools.

#### Regulation .10 School Library/Media Center.

*COMAR 14.39.07.10*

A. A school facility shall have a unified school library/media program for the use of all students which shall include an organized and centrally managed collection of instructional materials and technologies and direct instruction.

B. Elementary schools shall include an area for stacks and seating space which shall be at least 3 net square feet of the planned school program capacity. The instructional space may not be smaller than the average classroom at the facility. In addition, office/workroom space and secure storage shall be provided.

C. Middle and high schools shall include an area for stacks and seating space which shall be at least 3 net square feet of the planned school program capacity. The space may not be smaller than the average classroom at the facility. In addition, office/workroom space and secure storage shall be provided.

D. Combination schools shall include the elements of the grades set out in §§B and C of this regulation without duplication, but meeting the higher standards.

E. Other schools shall include the elements in §§A—D of this regulation necessary to meet the educational requirements of the specific programs and capacity of the schools.

#### Regulation .11 Physical Education.

*COMAR 14.39.07.11*

A. General Requirements.

  (1) Each school shall provide an instructional program in physical education each year for all students in grades PreK-8. Each school shall offer a physical-education program in grades 9—12 which shall enable students to meet graduation requirements and to select physical-education electives. The following minimum spaces are required:

    (a) A gymnasium;

    (b) A teacher office or planning area;

    (c) Equipment storage; and

    (d) An outdoor instructional playing field.

  (2) Elementary schools shall include a gymnasium with at least 2,200 net square feet. This space may have multi-purpose use in accommodating other educational program activities such as art program performances.

  (3) Middle schools shall include a gymnasium with a minimum of 5,200 net square feet plus an additional 4 net square feet times 40 percent of the enrollment of the school devoted to bleacher seating.

  (4) High schools shall include a gymnasium with at least 6,500 net square feet plus an additional 4 net square feet times 40 percent of the enrollment of the school devoted to bleacher seating.

  (5) Combination schools shall include the elements of the grades served by §A(2)—(4) of this regulation without duplication, but meeting the higher net square feet standards.

  (6) Other schools shall include the elements above necessary to meet the educational requirements of the specific programs and capacity of the schools.

B. Physical-Education Requirements in Addition to Space Requirements in §A of This Regulation.

  (1) Elementary schools shall include one office. Separate physical-education equipment storage shall be provided.

  (2) Middle schools shall include one office. Separate physical-education equipment storage space shall be provided.

  (3) High schools shall include two dressing rooms with lockers, showers, and restroom fixtures. Two offices shall be provided. Separate physical-education equipment storage space shall be provided.

  (4) Combination schools shall include the elements of the grades served by §B(1)—(3) of this regulation without duplication, but meeting the higher standards.

  (5) Other schools shall provide the elements above necessary to meet the educational requirements of the specific programs and capacity of the schools.

#### Regulation .12 Food Services.

*COMAR 14.39.07.12*

A. Dining Area. A school facility shall have a space to permit students to eat within the school outside of general classrooms. This space may have more than one function and may fulfill more than one sufficiency standards requirement. The dining area shall be sized to accommodate no less than one third of the planned school program capacity of the school. The dining area shall have no less than 15 net square feet per seated student.

B. Serving Area. A serving area shall be provided in addition to a dining area.

C. Kitchen Area. A kitchen shall have a telephone, plumbing providing potable water, a sink suitable for use both in preparing food and washing utensils, and a separate hand-washing sink. Kitchen and equipment shall comply with either the food preparation kitchen or the serving kitchen standards defined as follows:

  (1) Food preparation kitchen: Provide at least the greater of:

    (a) A minimum of 2 net square feet per meal served during the single largest serving period; or

    (b) No fewer than 2 square feet per enrolled student eligible for free or reduced-price meals.

  (2) Serving kitchen: Where food is not prepared, there shall be a minimum of 200 net square feet.

#### Regulation .13 Other Facility Areas.

*COMAR 14.39.07.13*

A. Administrative Space. A school facility shall have space to be used for the administration of the school. The space shall consist of a minimum of 150 net square feet, plus 1 net square foot per student of the planned school program capacity.

B. Faculty Workroom/Lounge. A school facility shall have a workspace/lounge available to the faculty. This space is in addition to any workspace/lounge available to a teacher in or near a classroom. The space shall consist of 1 net square foot per student of the planned school program capacity with no less than 150 net square feet. The space may consist of more than one room and may have more than one function. This space shall include a break area with a sink.

C. Health Services. A school facility shall have a dedicated health services space with a minimum of 500 net square feet that includes:

  (1) Areas for waiting, examination and treatment, resting, storage;

  (2) An accessible toilet room;

  (3) A separate room for private consultations and for use as a health service professional’s office;

  (4) Lockable cabinets for medical records and medications; and

  (5) At least one sink that provides both hot and cold water in addition to the sink in the toilet room.

D. Pupil Services. A school shall provide a coordinated program of pupil services for all students, which shall include, but not be limited to, school counseling, pupil personnel, school psychology, and health services. The school facility shall provide a minimum of 120 net square feet for each discipline, except school health services, and be staffed with greater than a 0.5 full-time professional.

#### Regulation .14 General Storage.

*COMAR 14.39.07.14*

For general storage, which excludes lockers, janitorial, kitchen, general classroom, specialty classrooms, and administrative storage, at least 1 net square foot of the planned school program capacity may be distributed in or throughout any type of room or space, but may not count toward required room square footages. General storage shall be securable and include textbook storage.

#### Regulation .15 Maintenance and Janitorial Space.

*COMAR 14.39.07.15*

Each school shall designate 0.5 net square feet per student of the planned school program capacity for maintenance and janitorial space. Janitorial space shall include a janitorial sink.

#### Regulation .16 Standards Variance.

*COMAR 14.39.07.16*

The IAC may grant a variance from any of the Sufficiency Standards if it determines that the intent of the standard can be met by the school system in an alternate manner or if a variance is required for appropriate programmatic needs as demonstrated by the school system. If the IAC grants the variance, the school system shall be deemed to have met the standard.

#### Regulation .17 Facility Assessment.

*COMAR 14.39.07.17*

Each school facility shall be assessed at least once every 4 years.