New Guidance Regarding EC Section 49554

This Management Bulletin (MB) announces a change in California Department of Education (CDE) policy and transmits new guidance for school districts and county offices of education (COE) that contract with a Food Service Management Company (FSMC) or a private meal vendor. This new policy and guidance pertaining to California Education Code (EC) Section 49554 applies to public school districts and COEs but does not apply to charter schools, private schools, juvenile detention facilities, or residential child care institutions. However, the section of this MB pertaining to contracting applies to all districts and agencies participating in the CDE’s School Nutrition Programs.

EC Section 49554 and New Guidance

EC Section 49554 states:

Any school district or county superintendent of schools which has had no food service employees since July 1, 1977, or has inadequate or no food preparation facilities as determined by the State Department of Education, and is, therefore, unable to provide a nutritionally adequate breakfast or lunch, or both, may contract for the preparation, delivery, and service of those meals. Any contract for the preparation, delivery, and service of meals shall not be deemed to establish food service positions for the purposes of Section 39902.

Prior to contracting for preparation, delivery, and service of such meals, a school district shall certify to the California Department of Education (CDE) that no school district in the county nor the county superintendent of schools has the facilities and is willing to furnish those services.

The CDE’s new guidance is as follows:

1. If a district wants to contract for the preparation, delivery, and service of school meals (i.e., all three), it must certify its compliance with EC Section 49554.
2. If a district wants to contract for the preparation, delivery, or service of school meals (i.e., one or two of them), a certification of compliance of EC Section 49554 is not required.
3. Any district seeking to contract for any aspect of food service operations must also comply with EC Section 45103, et seq.

Background

Previously, the Nutrition Services Division (NSD) required all school districts that wanted to contract with a private meal vendor for the preparation, delivery, or service of meals to demonstrate their eligibility to do so pursuant to NSD’s interpretation of EC Section 49554. In the past year, some school districts and FSMCs expressed concern to the NSD regarding its interpretation of EC Section 49554. After extensive review and consultation with the CDE’s Legal Counsel, the California Department of Education believes that EC Section 49554 is limited to school districts choosing to contract for the preparation, delivery, “and” service of meals.

New Guidance Implementation

• Current sponsors that are contracting for meal services:
  Determine if all three services (preparation, delivery, and service of meals) are being provided.
  • If yes, submit certification of compliance with EC Section 49554 to the NSD.
  • If no, take no action, but ensure continued compliance with EC Section 45103, et seq.
• New sponsors: Districts and COEs applying for participation in the CDE’s meal programs that plan to contract for meal services involving the preparation, delivery, and service of meals will not be approved until they comply with State requirements as outlined above.

Instructions to Follow Changes

• Self Certification: Sponsors contracting for all three services—preparation, service, and delivery of meals—must submit information to the CDE that demonstrates their compliance with EC 49554. The information must include:
  • A statement that the sponsor either:
    1. Has had no food service employees since July 1, 1977
    2. Has inadequate or no food preparation facilities
  • Supporting documentation such as an organization chart, Board-approved job descriptions for staff who provide meals to students, or a copy of a current inspection from the local county health department confirming that a school does not have facilities suitable for preparing and/or serving meals.
  • Certification that no other district in the county nor the COE is willing to provide meals.
    1. Sponsors must submit written requests to every district in the county and the COE. The written request may be submitted via letter or email.
    2. Sponsors must receive and retain responses from every district in the county and the COE.
    3. Sponsors do not need to submit these responses to the CDE, but they must be retained and made available upon request.
• Prototype Form: To assist districts with certifying to the CDE their compliance with EC Section 49554, the NSD has created a prototype form. The EC Section 49554 Compliance Certification form is available in the Child Nutrition Information and Payment System (CNIPS) “Download Forms” section, Form PRU-06.
• Recertification: Sponsors must annually certify compliance to the CDE and every time they enter into a new contract.
• Penalties for Noncompliance: EC Section 49556 charges the State Superintendent of Public Instruction with the responsibility for supervising implementation of EC Section 49554 and for investigating alleged noncompliance. The CDE is required to report non-compliance with EC Section 49554 to the State’s Attorney General, who in turn “…shall seek injunctive relief to secure compliance….”

Contracting Information

All districts choosing to contract for services (regardless of whether the CDE has approved a district’s compliance with EC Section 49554), must follow EC sections 45103.1(a)(1)(C)(3) and 45103.5(a) and (b). These provisions require that contracts for services typically performed by school employees may not cause the elimination or displacement of school district employees. These laws also prohibit the contract to cause or result in any adverse effect upon any food service classified personnel or positions with respect to wages, benefits, or other terms and conditions of employment.

Please note that a company that provides the preparation, delivery, and service of meals is considered to be a Food Service Management Company (FSMC). A company that only prepares and delivers meals is a vendor. Regardless of the type of service being provided, all sponsors must conduct a competitive bidding process for all purchases funded from revenues generated by the food service program.

The State and federal procurement laws and regulations are the California Public Contract Code sections 20110 – 20118.4 and Title 7, Code of Federal Regulations sections 210.21, 220.16, and 3016 [Note, Subtitle A, Chapter II, Part 200 of 2 CFR replaces existing rules in Title 7, Code of Federal Regulations, part 3016]. Sponsors can obtain procurement assistance by contacting their School Food Service Contract Units (SFSCU) Specialist.

If you have any questions regarding this MB, please email SFSContracts@cde.ca.gov.