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School district?s new food service contractor not necessarily required to continue existing staff and to match existing benefits

School district?s new food service contractor not necessarily required to continue existing staff and to match existing benefits
Appeal of Whitsons School Nutrition Corporation from action of the Board of Education of the William Floyd Union Free School District, Aramark Corporation and Aramark Educational Services, LLC regarding the awarding of a food service contract, Decisions of the Commissioner of Education, Decision No. 15,977

Whitsons School Nutrition Corporation (Whitsons), appealed the decision of the William Floyd Union Free School District to award a contract to Aramark Educational Services, LLC (Aramark) for food service operations.

Whitsons contended that Aramark?s labor projections did not conform to the bid specifications; that Aramark?s labor projections improperly deviated downward from the parameters of an existing collective bargaining agreement; and that Aramark?s variance from bid specifications were material variations that could not be waived.

The school board argued that Whitsons failed to meet its burden of proof and was not entitled to the relief it requested. The Board also alleged that Aramark?s bid was the lowest responsible bid and that it complied with all specifications.

Although the Commissioner dismissed Whitsons' appeal as moot as the term of the contract has ended and the relief sought related solely to the award of the contract for that period, he noted that ?Even if the appeal were not moot, it would be dismissed on the merits as "Contracts subject to competitive bidding shall be awarded 'to the lowest possible bidder' (Education Law §305[14]; General Municipal Law §103[1])."

The decision notes that "There is presumption of regularity which attaches to a school district?s award of a competitively bid contract" and it was incumbent on Whitsons "to overcome that presumption and establish the action to have been without reasonable foundation? in order to prevail.

However, said the Commissioner, Whitsons failed to meet its burden of proof as ?the appearance of impropriety is not sufficient to invalidate a competitively bid contract.?

Significantly, the Commissioner said that ?While it may be common and practical for a new food management service company to continue existing staff and to match existing benefits, Whitsons has not established that it must, or could, assume the collective bargaining agreement of the incumbent, or that the cost of matching those benefits was required [by the] terms of the bid specifications.?

Accordingly, the Commissioner said that he could not conclude that Whitsons has met its burden of proving that Aramark?s bid was noncompliant with the bid specifications and thus would have dismissed the appeal on its merits had it not already been held moot.

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume49/d15977.htm

Full post as published by New York Public Personnel Law on September 09, 2009 (boomark / email).