Skip to main content
California Department of Education Logo

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 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 Procurement Resources Unit (PRU) Specialist.

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

Questions:   Procurement Resources Unit | 916-322-8323
Last Reviewed: Tuesday, February 04, 2020
Related Content
Recently Posted in Nutrition
  • COVID-19 Guidance in the Child Nutrition Programs (added 22-Oct-2020)
    Provides background information, policy waivers, guidance, claiming and reimbursements requirements, resources, FAQs, and state agency contacts for program sponsors operating the Child Nutrition Programs during the COVID-19 pandemic.
  • CNP COVID-19 Frequently Asked Questions (added 22-Oct-2020)
    Provides Frequently Asked Questions (FAQ) for program operators of the Child Nutrition Programs (CNP) during the COVID-19 pandemic.
  • CNP COVID-19 Policy Guidance (added 22-Oct-2020)
    Provides federal and state waivers and policy guidance for program operators of the Child Nutrition Programs (CNP) during the COVID-19 pandemic.
  • Feeding Adults, Children, and Infants in the CACFP (added 21-Oct-2020)
    The California Department of Education is pleased to share the following new Child and Adult Care Food Program (CACFP) resources from the U.S. Department of Agriculture (USDA) Team Nutrition (TN).
  • Federal Approval of Major Disaster Declaration (added 21-Oct-2020)
    On October 16, 2020, Governor Gavin Newsom announced that the President has approved California’s request for a Major Disaster Declaration to bolster the state’s emergency response to wildfires across the state and support impacted residents.

  • 2020–21 Seamless Summer Site Application Updates (added 19-Oct-2020)
    On Friday, October 9, 2020, the U.S. Department of Agriculture announced the extension of twelve Nationwide COVID-19 waivers. The CDE NSD recognizes that these extensions will require SFAs to once again update SNP site applications in CNIPS.
  • USDA Q&As Relating to the Nationwide Waiver (added 19-Oct-2020)
    On October 14, 2020, the USDA issued Policy Memorandum SP 01-2021, CACFP 01-2021, SFSP 01-2021: Q&As Relating to the Nationwide Waiver to Allow SFSP and SSO Operations through School Year 2020–2021 – EXTENSION – Q&As #2.
  • Legislative Update – Assembly Bill 827 (added 14-Oct-2020)
    Assembly Bill 827 updates mandatory commercial recycling (AB 341) and mandatory organics recycling (AB 1826) requirements regarding student and staff access to recycling bins and organics recycling bins.
  • Public Safety Power Shutoff Event October 14, 2020 (added 14-Oct-2020)
    On October 13, 2020 PG&E announced that public safety power shutoffs are under consideration due to extreme weather and fire danger. If these conditions persist, PG&E may need to turn off power to local customers for safety.
  • Extension of COVID-19 Meal Service Waivers (added 09-Oct-2020)
    The CDE NSD is pleased to announce that the USDA has extended twelve nationwide COVID-19 waivers. These waivers extend existing flexibilities through June 30, 2021.