Contracting Out - Article 5 - Regents Policy 5402

Need Clarification About Contracting Out (Article 5)?

ELR and Procurement are here to help!

In light of recent changes to state law, ELR and Procurement are offering updated training on the ins and outs of contracting out specific to Article 5, Regents Policy 5402, Senate Bill (SB) 820, SB 72, and more! To better understand when contracting out is permissible, we encourage you to sign up for this critical training. Spaces are limited so don’t delay, sign up today!

NEW - Training Dates:

June 12, 2024

2:30 - 3:30 p.m.

Register in advance for this meeting: After registering, you will receive a confirmation email containing information about joining the meeting.

June 17, 2024

3 - 4 p.m.

Register in advance for this training: After registering, you will receive a confirmation email containing information about joining the meeting.

Requirements

Regents Policy 5402 and AFSCME collective bargaining agreements (Service - SX & Patient Care Technical - EX) impose significant limitations on the use of third-party suppliers for “covered services." Covered services are those traditionally performed by AFSCME unit members (see Covered Services section below).

Under these requirements, contracting out can only be used as a last resort. Departments must explore all UCB staffing options before contracting out unless the circumstances meet one of the rigid exceptions outlined in the collective bargaining agreements.

In addition, Departments must secure Procurement and Labor Relations approval to contract out for Covered Services (SX & EX) work PRIOR TO issuing or executing an RFP, purchase order, change order, or master services agreement.

Exceptions (NOT Applicable to SB 820 Buildings)

Contracting out for work normally performed by SX or EX-covered employees is only allowed if the circumstances meet one of the rigid exceptions contained in Article 5 of the collective bargaining agreements.

The services are needed to address an actual emergency.
The employees capable of providing the required services are not available at the University location.
The services are incidental to a contract for the purchase or lease of real or personal property.
The services are of such an urgent, temporary, or occasional nature that the delay resulting from their performance by University employees hired under the University's regular or ordinary hiring process, or the inefficiencies or difficulties in utilizing University employees, would frustrate the University's goals giving rise to the need for the services. This provision shall be interpreted narrowly and shall not be relied upon to justify the ongoing use of temporary workers.
The contractor will provide equipment, materials, facilities, or support services that could not be provided feasibly in the location where the services are to be performed.
The services are performed by registry personnel in its clinical operations to address short-term staffing needs.

A Department may only proceed with contracting out for SX or EX covered services work after all staffing options have been determined to not be feasible and approval has been granted by the local Labor Relations Office. The Contracting Out Request Form (coming soon) should be submitted prior to requesting a requisition. This form is used to collect specific information from the department regarding their service needs. This includes:

A detailed explanation of all staffing options (e.g. overtime, stipend, recruitment) considered and why they are not feasible,
Contract duration,
Supplier’s Scope of work,
Work location, if known,
Dollar value of contract,
If the contract will likely exceed $100,000 it will be reviewed by AFSCME and must be approved by AVC and UCB Labor Relations
Specific exception(s) used to justify the request and a narrative justification explaining why the exception(s) applies.
The PO or Req number. PO# if it is a change or extension
Wage, Benefit and Parity

Covered Services

Covered services include work customarily performed by bargaining unit employees, whether in whole or in part, including but not necessarily limited to the following services:

Cleaning
Custodial
Janitorial, or housekeeping services
Food services (includes preparing/cooking food and active serving of food)
Laundry services
Groundskeeping
Building maintenance (excluding skilled crafts)
Transportation and parking services
Security services
Billing and coding services
Sterile processing
Hospital or nursing assistant services
Medical imaging or other medical technician services

Wage & Benefits Parity

Service contracted workers must be provided wages and benefits of equivalent value to those provided to SX and EX bargaining unit employees performing the same or similar work at the location where the work is being performed or the nearest University location if there are not bargaining unit employees performing the same or similar work at UC Berkeley. This is an hourly composite rate of labor and benefits.

UC Office of the President provides the wage and benefits parity rates for all SX and EX job titles annually. The relevant wage and benefit parity rate are determined during the contracting out approval process. During the procurement process, the supplier is required to sign a Wage & Benefits Parity Appendix which contains the minimum hourly rate they must pay their employee.

Insourcing & Employment Conversion

Workers who have worked for the contractor performing work at a University location for 1,000 hours over a rolling twelve (12) month period or 35% time over a rolling thirty-six (36) month period, shall be deemed a “qualified individual” (QI) for conversion to UC employment. QI’s must be offered UC career employment at the same location or at a location within ten miles of the campus where they performed the work under the contractor.

Non-Compliance

Failure to comply with Article 5 and Regent Policy 5402 may cause the University to be subjected to unnecessary grievances, arbitrations, and Requests for Information.

Employees who fail to follow these guidelines may be subject to disciplinary action.

Resources

Regents Policy 5402 – Generally Prohibiting Contracting Out for Services

Guidance on Contracting for Services

Service (SX), Article 5 - Contracting Out

Patient Care Technical (EX), Article 5 - Contracting Out

Questions

ELR: art5_elr@bekeley.edu

Procurement: SupplyChain@Berkeley.edu

Links to Schedule Covered Services (not all-inclusive)

Departments should consult with these campus departments prior to requesting contracting out for covered services for food services, moving services, janitorial, transportation, and security services.