Attachment 6 to Bulletin No. 016-14 CNS
Outline of Procedural and Subject Matter Considerations: Contracting Out
Services Provided by Certain Classified Employees Under RCW 28A.400.285
The following outlines the procedural and subject matter considerations that OSPI will
focus upon in reviewing an application for approval of a preliminary decision to contract
out for services. The outline is divided into three major sections: development of
feasibility study factors, feasibility studies—procedural and subject matter
considerations, and preliminary decisions to contract for services.
I.
Development of Feasibility Study Factors
A. Statutory Reference and Comments—RCW 28A.400.285(2) requires that a
school district/educational service district (district) conduct a feasibility study
prior to making either a preliminary or final decision to contract out for services
and that:
“The factors to be considered in the feasibility study shall be developed in
consultation with representatives of the affected employees and may include
both long-term and short-term effects of the proposal to contract for services.”
The requirement that the feasibility study factors be developed “in consultation”
with representative(s) of affected employees means that a district must seek
the advice of, and exchange views with, the representative(s) of affected
employees respecting the feasibility study factors to be addressed by the study.
“Representative” of the employee means a collective bargaining representative
if the employees are organized for collective bargaining purposes.
The feasibility study factors should be established prior to the commencement
of a study.
The final decision respecting the selection of feasibility study factors falls within
the discretion of the district.
B. Documentation of Consultation
The following documentation should be submitted to OSPI:
1. The provision of written notice to the representative(s) of potentially affected
employees: (1) of the district’s intent to conduct a feasibility study respecting
contracting out for services and (2) of proposed feasibility study factors.
2. The invitation of representative(s) to commence consultation on a mutually
convenient date respecting the feasibility study factors to be addressed by
the feasibility study.
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3. The agreement by employee representative(s) to commence consultation
on a mutually convenient date no more than 60 calendar days after receipt
of the district’s invitation.
4. The exchange of views by district and employee representative(s), orally
and/or in writing, respecting the feasibility study factors to be addressed.
Documentation should be in the form of (1) a narrative description of actions
taken by district and employee representative(s) to seek and exchange the
views of each other, (2) copies of the minutes of any meetings, and (3) copies
of written exchanges between the representative(s) of the district and the
employees.
II.
Feasibility Studies—Procedural and Subject Matter Considerations
A. Statutory Reference and Comments—RCW 28A.400.285(2) provides, in part,
that: “Decisions to enter into contracts for services by a school district or
educational service district may only be made: (a) After the affected district has
conducted a feasibility study determining the potential costs and benefits,
including the impact on district employees who would otherwise perform the
work, that would result from contracting for the services … ”
As a matter of statutory law, a feasibility study must address potential costs,
benefits, and impacts upon employees as well as feasibility study factors
developed by a district in consultation with the representative(s) of potentially
affected employees.
In addition, the final feasibility study report should (1) include comments of the
representative(s) of the employees respecting a preliminary draft of the final
study report, (2) include the district’s response to the comments, (3) address
perceived disadvantages as well as benefits, and (4) be organized and set forth
in a manner that facilitates understanding and informed decisions.
B. Procedural Steps
1. A district should submit a preliminary final draft of its feasibility study report
to the representative(s) of potentially affected employees for review and
comment.
2. The employee representative(s) should reply within 60 calendar days after
receipt by (1) specifying any perceived errors and omissions in the
preliminary final draft, (2) specifying corrections of the perceived errors or
omissions, and (3) specifying any other supplemental data and information
which the employee representative(s) believes should be considered by the
governing board of the district.
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3. The district should respond to the comments of the employee
representative(s) by (1) specifying any revisions of the feasibility study
report it intends to make and (2) explaining why any other revisions
suggested by the employee representative(s) will not be made.
4. The final feasibility study report shall incorporate (1) the comments of the
employee representative(s), (2) any supplemental data and information
provided by the employee representative(s) for consideration, and (3) the
response of the district to the comments of the employee representative(s)
inclusive of any revisions made in the preliminary final report.
5. The final feasibility study report shall be submitted to the governing board of
the district for review prior to the board making a preliminary decision to
contract out for services.
C. Subject Matter Contents—The final feasibility study report should contain at
minimum, analyses, summaries, and side-by-side comparisons of the following:
1. Costs—
a. Current direct and indirect costs to the district of performing the services
itself.
b. Potential direct and indirect costs to the district of contracting out
services.
2. Benefits—
a. Perceived tangible and intangible benefits to the district of performing the
services itself.
b. Perceived tangible and intangible benefits of contracting out services.
3. Disadvantages—
a. Perceived tangible and intangible disadvantages to the district of
performing the services itself.
b. Perceived tangible and intangible disadvantages of contracting out
services.
4. Impact on Employees—Analyses, summaries, and (if applicable) side-byside comparisons of the perceived potential impacts upon employees who
would otherwise perform the work which include at least:
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a. Identification of the current classified employee positions potentially
impacted.
b. Specification by position of the current salaries and benefits earned.
c. A comparison of current salaries and benefits to salaries and benefits
paid by potential outside service providers if there is a possibility that
employees may transfer employment to an outside service provider.
5. Comments—Comments of the representative(s) of the potentially affected
employees respecting the preliminary final draft of the feasibility study
report.
6. Response to Comments—The district’s response to comments of the
representative(s) of potentially affected employees, including an explanation
of any revisions of the feasibility study.
7. Source Identification—Identification of the sources of all information and
data referred to.
Note: A district should also include an explanation respecting any omission
of the subject matter contents outlined above.
III.
Preliminary Decision to Contract for Services
A. Statutory Reference and Comments—RCW 28A.400.285 states, in part, that:
“Decisions to enter into contracts for services by a school district or educational
service district may only be made: … (b) after the decision to contract for the
services has been reviewed and approved by the superintendent of public
instruction … ”
The statute contemplates a two-part decision making process: first, a
preliminary decision to contract for services which must be reviewed and
approved by OSPI as a condition to deciding to enter into a contract and,
secondly, a final decision to enter into a contract with a particular outside
service provider after OSPI approval.
The substance of a preliminary decision submitted to OSPI should be clear,
and closely related to the final decision to the extent practicable. Accordingly,
the submissions to OSPI should include the specifications, terms, and
conditions that a district either has or will use in soliciting bids or proposals.
B. Resolution of Governing Board—Documentation of the preliminary decision
of a district’s governing board should be submitted to OSPI in the form of a
resolution (and attachment) adopted by the board. The resolution should:
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1. Recite that the board has reviewed the feasibility study, including comments
respecting a preliminary final draft of the feasibility study submitted by the
representative(s) of employees, any bids or proposals submitted by
potential outside providers, and other specified information as the board has
elected to consider.
2. Recite that the board has made a preliminary decision to contract out for
specified services.
3. Recite that the district has or will solicit bids or proposals from potential
outside providers using specifications, terms, and conditions that are
attached to the resolution.
Note: The specifications, terms, and conditions should include, but not be
limited to a quantifiable description of the nature and extent of the specific
services that may be contracted out which is sufficient for an outside
provider to cost out a bid or proposal to provide the services.
4. Include a condition that any “contract shall contain a specific clause
requiring the contractor to provide for persons performing such services
under the contract, health benefits that are similar to those provided for
school employees who would otherwise perform the work…” as required by
RCW 28A.400.285(1).
IV.
Other Requirements of Law Respecting Contracting Out
RCW 28A.400.285 is not the only law that has a bearing on contracting out for
services. For example, other statutes and federal rules govern contracting out for
transportation services and food services.
Transportation Services:
See, for example, RCW 28A.160.140 (open competitive process required every
five years) and RCW 28A.335.170 (five-year contracts authorized and conditioned
upon notification to OSPI that costs will not exceed district operational costs).
Note: The notice of a district’s cost determination required by RCW 28A.335.170
may be included in the resolution of the governing board under Section III.B.
above.
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Food Services:
Under agreements with OSPI, school food authorities (SFAs) are responsible for
operating the school nutrition programs in schools under their jurisdiction. These
programs include the National School Lunch Program (NSLP), the School
Breakfast Program (SBP), and the Special Milk Program for Children (SMP). To
assist in carrying out this responsibility, a SFA may contract with a food service
management company (FSMC) to manage the food service operation involving
these programs in one or more of its schools.
SFAs must comply with existing federal, state, and local procurement requirements
when obtaining the services of a FSMC. The NSLP regulations appear at 7 CFR
Part 210, the SBP regulations appear at 7 CFR Part 220, and the SMP regulations
appear at 7 CFR Part 215. Additional requirements are at 7 CFR 3017 for
debarment and suspension; 7 CFR 3018 for lobbying; and 7 CFR 3015 Subparts S
and T and OMB Circular No. A-102, Attachment O for procurement.
The FSMC contract is a legal document that not only binds the FSMC to various
provisions with the SFA but is also the SFA’s protection and guarantee that certain
actions will be taken. Each SFA should prepare the document with great care. All
SFAs planning to contract with a FSMC should contact OSPI for the following
guidance:

Written procedures that ensure the SFA uses the appropriate methods to obtain
a FSMC as well as to ensure the contract contains all of the components
required by federal regulations.

Contract language that addresses specific federal requirements.

Contract checklist based on the requirements contained in 7 CFR Parts 210,
3015, 3017, 3018, and OMB Circular No. A-102, Attachment O.
Questions regarding food service management company contracts should be
directed to Jeff Booth, Financial Analyst, Child Nutrition Services, at 360-725-6217.
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