West Virginia Code of State Rules Agency 164 - School Building Authority Of West Virginia
Overview: Agency 164 – School Building Authority of West Virginia
The School Building Authority (SBA) of West Virginia is a state agency tasked with facilitating, funding, and overseeing construction, renovation, and improvement of public school facilities in West Virginia. The rules under Agency 164 of the West Virginia Code of State Rules implement statutes (especially Chapter 18‑9D of the West Virginia Code) authorizing the SBA to do things such as issue bonds, distribute grant funds, set design standards, award contracts, etc.
The rules are arranged in several Series, each dealing with different aspects of the SBA’s function:
Series 164‑01 — Policy & Procedures Handbook
Series 164‑02 — Funding School Building Authority Projects
Series 164‑03 — School Planning and Design Criteria
Series 164‑04 — Project Administration and Review
Series 164‑05 — Contracts & Agreements; Post‑Project Evaluation; Suspension of Right to Bid
Series 164‑06 — Reporting Procedures (which has been repealed)
Series 164‑07 — School Access Safety Act Guidelines and Procedures Justia Regulations+4Legal Information Institute+4Justia Regulations+4
Key Provisions in the Rules
Here are some of the major rule provisions and how they work in practice:
Criteria for Funding Projects (Series 164‑02)
To receive SBA funds, a project must be part of an approved Comprehensive Educational Facilities Plan (CEFP), and all required pre‑qualification data must be submitted. Justia Regulations
Projects are categorized: Multi‑County/Statewide Grants, Emergency Funds, Planning Grants, School Construction Grant “Needs”, Major Improvement Program Grants, School Access Safety Fund Grants, etc. Each has eligibility, maxima/minima, and conditions. Justia Regulations+1
Matching funds: Generally, no local matching funds are required (except for some specific funds, like School Access Safety Funds). Justia Regulations
Utilization of Funds; Authorized Expenditures (164‑2‑5)
SBA funds can be used for bond retirement (both local bonds used under approved plans, and bonds issued by the SBA itself). Justia Regulations
Construction costs include new construction, additions, or renovations, subject to meeting SBA design/guideline standards and being approved. Justia Regulations
Major Improvement Program (MIP) grants must have a minimum threshold (e.g. projects of at least $50,000 but not exceeding designated caps) and are not intended to replace routine maintenance budgets. Justia Regulations
Awarding and Reimbursement Procedures (Series 164‑02 & others)
Funds are awarded through competitive grant or funding cycles; failing to meet deadlines or plan requirements can make a project ineligible. Justia Regulations+1
Reimbursement is based on invoices submitted by the Local Education Agency (LEA). Invoices must be grouped by project codes; there is a requisition summary; superintendent/LEA director must certify prior payments; SBA staff reviews; a retainage (e.g. 5%) is held until full contract completion as certified. Justia Regulations
Contracts and Agreements; Bidding & Contractor Qualifications (Series 164‑05)
A grant agreement between the educational agency (LEA) and the SBA is required for SBA funds to be used. Justia Regulations
Contractors bidding on SBA projects must submit a completed “Contractor Qualification Statement” by specific deadlines (e.g. within 3 business days after bid opening) and meeting criteria such as: prior experience, workforce skill, ability to meet deadlines, compliance with labor and safety laws, etc. Justia Regulations
Also, subcontractors and major equipment/material suppliers must be listed by lowest qualified bidder to the owner, architect, and SBA. Failure to comply can lead to rejection of bids. Justia Regulations
Design and Planning Standards (Series 164‑03)
Projects must meet certain design criteria laid out by the SBA: applicable codes adopted by State of WV; guidelines for planning, design, evaluation, etc. (These ensure safety, quality, cost control) Legal Information Institute+2Justia Regulations+2
School Access Safety Act (Series 164‑07)
Rules for safety funds: how funds are distributed based on net enrollment; eligibility (having an approved school access safety plan); grant award procedures; etc. Legal Information Institute+1
How the Rules Relate to Statute
The statutes (primarily W. Va. Code § 18‑9D) grant the School Building Authority its power: to issue revenue bonds, create funds, define the use of those funds, set appropriations, etc. The rules interpret, implement, and operationalize many of the statutory mandates. For example, the rules fill in details like timelines, submission requirements, bidding procedures, what qualifies, etc.
There are also constitutional limits: for example, the state constitution prohibits the state from incurring certain kinds of debt, or from pledging credit or taxing power in certain ways. The statutes and rules are shaped to respect those constitutional restrictions. We'll see this in case law (below).
Case Law Interpreting Agency 164 / Related SBA Statutes & Rules
Here are key court decisions involving the School Building Authority (or its statutes) that illustrate how the rules/statutes have been interpreted, including constitutional limits, and how agencies must apply these rules.
Winkler v. West Virginia School Building Authority, 434 S.E.2d 420 (1993)
Facts: The SBA proposed to issue a large amount of revenue bonds and pledge certain funds (the Building Capital Improvement Fund among them) for the repayment. The issue was whether some of these statutory provisions violated the State Constitution, especially Article X, Section 4, which prohibits the state from pledging its credit or taxing power. The plaintiffs argued that the proposed bond issue in effect would commit the state legislature to annual appropriations, thereby creating an impermissible state debt.
Holding: The West Virginia Supreme Court of Appeals held that certain provisions were valid, but struck down or limited others that would create obligations that violate the constitutional prohibition. Specifically, while SBA has broad authority to issue revenue bonds and pledge certain funds, the agency cannot bind the legislature to future appropriations in a way that amounts to an impermissible debt. The court emphasized that although bonds may be supported by pledges of specific funds or revenue streams, the state cannot constitutionally pledge its full faith, credit, or taxing power unless permitted by the constitution. Justia+1
Importance: This case sets a constitutional boundary: SBA rules/statutes must avoid creating obligations that amount to state debt in a way forbidden by the state constitution. It informs subsequent rulemaking to ensure that bond issues, appropriations, pledges, etc., are structured in a legally compliant fashion.
Pendleton Citizens for Community Schools v. Marockie, 1998
Facts: In Pendleton County, a new consolidated high school was proposed. The plaintiffs argued that the SBA’s requirement of a minimum “economies of scale” (i.e. minimum enrollment per grade level, e.g., 200 students per grade) for receiving school construction funding was being applied rigidly. In Pendleton, because of geography/population, the high school would not meet those scale metrics unless a waiver was granted. The lawsuit challenged whether those scale rules were legal and whether the SBA should waive them.
Holding: The court held that, though SBA rules provide for economies‑of‑scale requirements, they also allow for certain waivers (for example, when a school will serve all students of a grade level in a county). In Pendleton, the waiver applied and SBA was required to consider the proposed consolidated school even though it didn’t meet the economies‑of‑scale requirement under the standard metric. FindLaw Case Law
Importance: This case demonstrates how SBA rule requirements (such as scale benchmarks) are subject to statutory or rule‑provided exceptions. It also shows that rigid application without consideration of waiver provisions can violate fairness or statutory intent. Counties may seek waivers in recognized cases (e.g., consolidation) even if they do not meet standard thresholds.
Other Cases / Principles
Wiseman Construction Co. v. Maynard C. Smith Construction Co., 2015: While not exclusively about SBA rules, this is an important case on the Fairness in Competitive Bidding Act (W.Va. Code §§ 5‑22‑1, etc.) which SBA contracts must comply with. Key holdings include: substantive bidding requirements (deadlines, specifications) cannot be treated as informalities; agencies must adhere to the rules for determining lowest qualified responsible bidder; an unsuccessful bidder challenging an award bears burden of showing the agency acted arbitrarily, capriciously, or abused discretion. Justia
Also, in the Winkler case, the court’s interpretation of “state debt” under the constitution has limited how SBA issues bonds and what sort of appropriations or pledges are permissible. (As noted above.)
Interaction: Rules + Case Law in Practice
Putting it together, here’s how the rules and case law interact in practice when SBA projects or contracts are involved:
When an LEA applies for SBA funds, the process must follow the rules in Series 164‑02: being in an approved CEFP, submitting required documentation, complying with deadlines, etc.
The design of the project must meet the planning/design criteria (Series 164‑03) and use approved standards, which might include safety, code compliance, etc. These prevent arbitrary or substandard work.
Contracts must go through competitive bidding according to the rules (Series 164‑05 + applicable bidding statutes like the Fairness in Competitive Bidding Act). If there's a deviation, waiver, or rejection of a low bid, the rules plus case law demand that these actions be justified, documented, and not arbitrary or capricious.
Financial aspects (bond issue, fund pledges, reimbursement, retainage) must be structured so as not to violate constitutional prohibitions on state debt or pledging taxing power. The Winkler case is a touchstone here.
Economies of scale and eligibility thresholds (which might seem strict) may be waived under specific rule‑provided or statutory exceptions; failure to consider such waivers in appropriate cases has been struck down (as in Pendleton).
Limitations / Constitutional Constraints
Debt limitations: The SBA cannot create obligations that effectively bind future legislatures to make appropriations in a way that would constitute state debt beyond constitutional bounds. Winkler illustrates that.
Statutory Authority: All rule provisions must be traceable back to statutory authority. The SBA rules cannot override statute, and if a rule conflicts with the statute (or the constitution), the statute or constitutional provision takes precedence.
Procedural Fairness: Rules that affect rights or eligibility (for funding, bidding, etc.) must be applied fairly; deadlines, notice, criteria, waiver provisions must be followed, lest there be legal challenge.
Transparency and Oversight: Especially with bidding, contractor qualification, list of subcontractors, etc., the rules enforce transparency, which is enforced via statutes and case law requiring compliance with competitive bidding law, bidder disqualification only for valid reasons, etc.
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