A district contemplating contracting for the services of an outside person or firm should assure that it is acting pursuant to statutory authority. Some older cases have implied from the statutory authority to carry out a function or project the authority to contract for necessary services as in Miller v. Boyle (1919) 43 Cal. App. 39, where contracting with an architect to prepare plans for a schoolhouse was approved. However, more recent cases have emphasized the limited powers of school boards and the necessity for particular statutory authority. Grasko v. Los Angeles City Board of Education (1973) 31 Cal. App. 3d 290 (1973). There are several statutes which authorize contracts for services, the most often used of which are Education Code section 17596/81644 relating to "continuing contracts" and Government Code section 53060 relating to contracts for "special services and advice."
1.
Continuing Contracts Under Education Code Section 17596/81644.
This Education Code provision authorizes a broad range of services to be performed under a "continuing contract" for a term not to exceed five years, as follows:
Continuing contracts for work to be done, services to be performed, or for apparatus or equipment to be furnished, sold, built, installed, or repaired for the district, or for materials or supplies to be furnished or sold to the district may be made with an accepted vendor as follows: for work or
services, or for apparatus or equipment, not to exceed five years; for materials or supplies, not to exceed three years.
With respect to the duration of the term, districts should consult with their attorneys to determine whether a contractual provision for the automatic, as to opposed to an optional, renewal of the term of a service contract which could cause it to exceed five years violates section 17596/81644.
A contract for services under section 17596/81644 is subject to the several limitations and requirements discussed at paragraph F-2 below.
2.
Special Services and Advice Under Government Code section 53060.
The Legislature has broadly authorized contracting for specified "special" services at Government Code section 53060, which provides,
The legislative body of any public or municipal corporation or district may contract with and employ persons for the furnishing to the corporation or district special services and advice in financial, economic, accounting, engineering, legal, or administrative matters if such persons are specially trained and experienced and competent to perform the special services required.
The authority herein given to contract shall include the right of the legislative body of the corporation or district to contract for the issuance and preparation of payroll checks.
The legislative body of the corporation or district may pay from any available funds such compensation to such persons as it deems proper for the services rendered.
To be authorized under this section, the proposed services must be done in one or more of the specified categories, must be provided by specially trained, experienced and competent persons, and, must be "special" in nature. The Court of Appeal in Jaynes v. Stockton (1961) 193 Cal. App. 2d 47, discussed the meaning of the term "special" in a challenge to contracting out for certain legal services, stating it is necessary to consider,
[v]arious factors; at once apparent are those which relate the nature of the services required to the subject matter thereof, . . . to the qualifications of the person capable of furnishing them, . . . to their availability from public sources, and to the temporary basis of the employment through which they are obtained. . . . [T]he services desired may be special services as far as the school district is concerned because they are in addition to those usually, ordinarily and regularly obtainable through public sources, even though they are the usual, ordinary and regular services rendered by a person in the particular field of endeavor of which the desired services are a part. . .
.
[T]he service of a particular individual may be special in that, because of his outstanding skill, they may not be duplicated. Ibid. at p. 52; (citations omitted.)
Various types of services have been authorized under section 53060, including for example, community college district bookstore management services. SEIU, Local 715 v. Board of Trustees of the W. Valley/Mission Community College Dist. (1996) 47 Cal. App. 4th 1661. A contract authorized by section 53060 need not be put out to competitive bidding. Cobb v. Pasadena City Bd. of Education (1955) 134 Cal. App. 2d 93.
3.
Miscellaneous Statutory Services Contracts.
Several statutes other than the sections discussed above exist which authorize contracting for particular kinds of services. Examples include legal services, Educ. Code §§ 35041.5, 35204, and 35205, emergency security services, Educ. Code § 38005, energy services, Educ. Code § 81660; Gov’t Code § 4217.12, repair of football equipment, Educ. Code § 17580, pupil transportation, Educ. Code § 39800, one year contracts for management consulting services relating to food service, Educ. Code § 45103.5, and others. In each case, the statutory authority must be reviewed and any special requirements imposed by the statutory authority must be followed.
Contracts for architects, landscape architecture, engineering, environmental, land surveying and construction project management services are addressed in Government Code sections 4525 through 4529.5. While school districts are not required to follow the formal procedures set forth in these sections for obtaining the services of such professionals, these sections nevertheless require, particularly for State funded projects, that such persons or firms be hired "on the basis of demonstrated competence and on the professional qualifications necessary for the satisfactory performance of the services required." Gov’t Code § 4526. The procedures for choosing such professionals which are discussed in detail in these sections are mandatory for state agencies and not for school districts, but these statutes may offer helpful guidance to school districts as to procedures which districts may choose to use before contracting with such professionals.
Government Code sections 4529.10 through 4529.20 were added effective November 8, 2000, in connection with the adoption of initiative Proposition 35. Government Code section 4529.10 states that "architectural and engineering services" covered by these statutes include "architectural, landscape architectural, environmental, engineering, land surveying, and construction project management services." Government Code section 4529.12 provides that "[a]ll architectural and engineering services shall be procured pursuant to a fair, competitive selection process which prohibits governmental agency employees from participating in the selection process when they have a financial or business relationship with any private entity seeking the contract, and the procedure shall require compliance with all laws regarding political contributions, conflicts of interest or unlawful activities." Because there is no statutory definition of the term "competitive selection process," when hiring an architect, engineer, construction project manager or environmental consultant, districts should create a request for proposals, advertise for responses, request known qualified companies to respond, and analyze all responses based on objective and fair standards that are reduced to writing. The standards for analyzing responses should be identified before the responses are analyzed.