On July 7, California’s Office of Public School Construction (OPSC) sent an email blast to school districts and county offices of education regarding the use of “piggyback contracting” in school construction projects. The email reportedly caused confusion, but members should be aware that there has not been a change in law or policy affecting school districts or county offices of education on this issue.
As described in CSBA’s model Board Policy and Administrative Regulation 3311, pursuant to Public Contract Code 20118, school districts may “piggyback” onto the contract of another public agency to lease or purchase any “personal property.” When another public agency has an existing contract with a vendor for the lease or purchase of personal property that has gone through the competitive bidding process, piggyback contracting allows a board to lease or purchase personal property directly from the vendor and make payments under the same terms that are available to the public agency under that contract, without going through a competitive bidding process. AR 3311 has a list of the items that may be leased or purchased using this procedure, and many districts have used the piggyback procedure to purchase portable and relocatable buildings.
OPSC’s email blast and what LEAs should know
OPSC’s email blast was intended to remind local educational agencies of a 2006 California Attorney General Opinion that held that a school district may not, without advertising for bid, enter into a piggyback contract with another public agency to acquire factory-built modular building components for installation on a permanent foundation. The email blast stated that “[i]n February 2006, school districts were notiﬁed that OPSC requested and received an opinion from the Attorney General’s (AG) oﬃce regarding the legality of the use of PCC section 20118 to acquire and install factory built modular building components that result in the assembly of permanent schools without further competitive bid. The AG’s opinion references modular buildings and does not address portable buildings, deﬁned in Education Code Section 17070.15(j) as being designed and constructed to be relocatable and transportable over public streets, designed and constructed for relocation without the separation of the roof or ﬂoor from the building and has a ﬂoor area not in excess of 2,000 square feet. It is important to note that although portable buildings may be acquired through a piggyback contract, often times the site and installation work associated with the portable exceeds the $15,000 threshold speciﬁed in PCC sections 20111 and 20112, thereby requiring a school district to follow the competitive bidding process.”
This reminder has not altered existing practice for districts or county offices.
CSBA’s AR 3311 references and explains the same Attorney General Opinion, noting that according to the Opinion a district may not rely on the piggyback exception to contract for the acquisition and installation of factory-built modular building components (i.e., roofs and walls) for installation on a permanent foundation. The restrictions under this Opinion do not apply to typical portable or relocatable single-classroom buildings, though, because they lack a permanent foundation and building mobility. Portable or relocatable buildings may be purchased through a piggyback contract that has gone through the competitive bidding process, but site and installation work must still comply with the competitive bidding requirements.
Please note that the information provided here by CSBA is for informational purposes and is not legal advice. Please contact your district or county office of education’s legal counsel for legal questions related to this information.