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Each and every contract entered into must be justified under Government Code Section 19130(a) or (b) and must provide, in writing, documentation identifying all efforts made to use civil servants to provide services. Only after all efforts have been exhausted can the above provisions be used to justify contracting out for services. Contract requesters and managers must provide written justifications documenting the efforts made to use state staff and the justification for contracting out when state staff cannot provide or are unable to provide the necessary services.
1. Government Code 19130 (a) Cost Savings Personal Services contracting is permissible to achieve cost savings when all the following conditions are met. NOTE: The justification must meet all the requirements of GC Section 19130(a) including by the State Personnel Board (SPB). The SPB approval process is in addition to the normal process time.
2. Government Code 19130 (b) - (1-10) Personal Services contracting also shall be permissible when any of the following can be met:
Language
(b)(1) The function contracted are exempted by civil service by Section 4 of Article VII of the California Constitution, which describes exempt appointments
(b)(2) The contract is for a new state function and the Legislature has specifically mandated or authorized the performance of-work by independent contractors
(b)(3) The services contracted are not available within civil service, cannot be performed satisfactorily by civil service employees, or are of such a highly specialized or technical nature that the necessary expert knowledge, experience and ability are not available through the civil service system
(b)(4) The services are incidental to a contract for the purchase or lease of real or personal property. Contracts under this criterion, known as "service agreements" shall include but not be limited to, agreements to service or maintain office equipment or computers that are leased or rented
(b)(5) The legislative, administrative, or legal goals and purposes cannot be accomplished through the utilization of persons selected pursuant to the regular civil service system. Contracts are permissible under this criterion to protect against a conflict of interest or to ensure independent unbiased findings in cases where there is a clear need for a different outside perspective. These contracts shall include, but not be limited to, obtaining expert witnesses in litigation.
(b)(6) The nature of the work is such that the Government Code standards or emergency appointments apply. These contracts shall conform with Article 8 (commencing with Section 19888) of Chapter 2.5 of part 2.6.
(b)(7) State Agencies need private counsel because a conflict of interest on the part of the Attorney General's Office prevents it from representing the agency without compromising its position. These contracts shall require the written consent of the Attorney General, pursuant to Section 11040.
(b)(8) The contractor will provide equipment, materials, facilities, or support services that could not feasibly be provided by the state in the location where the services are performed.
(b)(9) The Contractor will conduct training courses for which appropriately qualified civil service instructors are not available, provided that permanent instructor position's in academics or similar settings shall be filled through civil service appointment.
(b)(10) The services are of such an urgent, temporary, or occasional nature that the delay incumbent in their implementation under civil service would frustrate their very purpose.
Discussion
If the services to be contracted are exempted from civil service by the Constitution, the question of their being appropriately contracted is outside the jurisdiction of the SPB. Section 4 Article VII of the State Constitution gives a complete listing of exempt positions. Note: Agreements entered into by civil service agencies in which an exempt agency is the contractor are not exempt from DGS review. The issue here pertains to the need to provide a contractor to fill a position that is currently exempt from the state civil service system. Such need for services should be fully researched before the contracting out procedure is followed and must be verified and approved by the Personnel Officer.
Such contracting is permissible if (1) the activities to be contracted are a new state function, and (2) there is specific legislative authorization to contract for it. Contracting is allowed because it involves work being performed outside the State Government structure and does not duplicate or displace functions being performed within civil service. These provisions are not to be applied to expansions of existing programs since they are already within the existing structure of State Government and are therefore subject to civil service. The issue here is "displacement of civil service employees". Mandates by the Legislature are found in specified laws. A copy of the statute authorizing contracting out must be supplied as part of the justification.
Contracts that are let under this criterion are typically one time or occasional in nature and it should be clear that they would not develop into an ongoing function of the agency. The issue here pertains to the skills, knowledge, experience, or expertise of the services contracted. Lack of staffing, or positions within the department are insufficient to meet the requirements of this section. The person signing the Std 15 or Std 65 is verifying, in writing that the specialized skill, knowledge and/or experience sought after in the contract or amendment are not available within civil service. Note: Be prepared to look beyond your own department.
Such agreements normally come with the original purchase or lease of the property or equipment. It is expected that these agreements be researched to determine if needed repair and/or maintenance services are covered under warranty in the original procurement, lease or rental documents. The contract manager or requester will document any such research or evaluation before requesting contract services.
When preparing a request for approval under Government code 19130(b) (5), the request must identify in a narrative fashion the issues which make a service contract necessary. This criteria is intended to protect against a conflict of interest and to ensure independent and unbiased findings in cases where there is a clear need for a different outside perspective. Contract requests for services will be evaluated on the merit of the issues identified in the narrative. While contracts with consulting firms are generally appropriate to conduct independent studies, such contracts shall not be approved for ongoing workload.
Emergency appointments are defined as appointments made for a period not to exceed 60 working days either during an actual emergency to prevent the stoppage of public business or because of the limited duration of the work. References to G.C. 19888 should be made and the department Personnel Officer should verify and approve that the services requested are legitimately allowed under law.
The department must communicate with the Attorney General's Office providing the circumstances necessitating a contract for legal services. Consent, in writing, must be obtained from the A.G.'s office prior to contracting for the needed services. Both the request for consent and the A.G's written consent shall be provided to General Services along with the contract for approval.
Contracts justified under this section must identify the specific issue, which makes the provisions of the services not feasible in the location where services are needed.
Individual trainers may be retained under this section when they act as independent contractors' that is they are paid based on the products, e.g. instruction provided rather than time worked and are not supervised as an employee by the State. Training must be the primary service provided. A contract that includes training as an incidental item or as the conclusion of a project or study may not in and of itself be approved under this section.
Contracts justified under Government Code Section 19130(b) (10) must demonstrate and identify the specific issue, which makes the provision of the contract services urgent, temporary, or occasional. Limited to 9 months (1548 hours) per consultant within a 12 consecutive month period. |
