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New Guidance Regarding EC Section 49554


Nutrition Services Division Management Bulletin
Purpose: Policy

To: Public School Districts, County Offices of Education, Business Officials

Number: NSD-SNP-02-2011

Attention: District Superintendents, Food Service Directors, School Business Officials

Date: April 2011

Subject: New Guidance Regarding California Education Code Section 49554 - Contracting for the Preparation, Delivery, and Service of School Meals

Reference: California Education Code 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 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
Instructions to Follow Changes
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. Sponsors can obtain procurement assistance by contacting their School Nutrition Programs Specialist.

If you have questions regarding this guidance, please contact your School Food Service Contracts Unit at 916-445-0850 or 800-952-5609. You may also contact your Child Nutrition Consultant, whose name is available at the bottom of your sponsor application in the CNIPS.

Attachment

California Education Code Section 49554 Certification of Compliance at http://staging.cde.ca.gov/ls/nu/sn/documents/mbnsdsnp022011att.doc

Questions:   Nutrition Services Division | 800-952-5609
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