December 3, 2010
FOOD SERVICE IN PRISONS
By: Christopher Reinhart, Chief Attorney
You asked a number of questions about food service in prisons: (1) the number of calories served an inmate each day, (2) the number of medical and religious diets served in prisons, (3) the Department of Correction's (DOC) budget for food and labor and the cost per meal, (4) whether DOC operates a farm, (5) the current prison menu, and (6) whether the state could outsource prison food services.
According to DOC, the number of calories served to an inmate each day varies according to the inmate's age and sex. Table one displays the number of calories per day for male and female inmates in different age groups. Inmates older than the maximum age in the table receive a similar number of calories per day but older inmates are more likely to require a medical diet.
Table 1: Calories per Day Served to Inmates
Calories per day
Calories per day
In FY 10, DOC served 92,024 medical diets and about 2,500 religious diets for varying denominations and various religious celebrations.
DOC's FY 10 food budget was $15,975,442. The FY 10 budget for food and labor was $27,694,780 with an average daily meal cost per inmate of $2.37 and an average food service labor cost of $1.74 per day.
DOC does not operate a farm but does operate vegetable garden programs at various facilities. According to DOC, facilities used about 14,384 pounds of vegetables from these gardens during the summer of 2010.
A copy of the 2010 prison menu is attached. The menu provides three meals a day for each day of the week. The menu varies based on four cycles. All facilities serve food based on the same menu. But the Manson Youth Institution, which houses inmates under age 21, and York Correctional Institution, which houses female inmates, may vary from this menu to address the special needs of their populations. For example, inmates at Manson may receive an extra sandwich at a meal and an afternoon snack because of their need for more calories. Women inmates at York may have different foods substituted to provide more calcium and protein and pregnant inmates receive a higher protein diet and a nighttime snack.
The law requires agencies to follow certain procedures before privatizing services. The agency must develop a cost-benefit analysis and a business case. Any affected party may petition the State Contracting Standards Board (SCSB) to review the contract. The requirement does not apply (1) to a privatization contract for a service currently provided at least in part by a non-state entity or (2) if the state contracting agency determines the contract is required because of an imminent peril to public health, safety, or welfare and (a) the agency states, in writing, its reasons for such finding and (b) the governor approves the finding in writing. This also does not apply to procurements that involve the expenditure of federal assistance or contract funds if federal law provides procurement procedures are inconsistent with state procurement statutes or regulations.
A state contracting agency may publish notice soliciting bids for a privatization contract only after the SCSB approves the business case and, in some cases, the legislature pre-approves the contract. Details about the privatization process are described below.
PRIVATIZATION PROCESS (CGS § 4E-16)
The cost-benefit analysis must document the direct and indirect costs, savings, and qualitative and quantitative benefits of the privatization contract. The analysis must (1) specify the minimum schedule required to achieve any estimated savings and (2) clearly identify any cost factor. Cost factors must be supported by all applicable records and reports. The state contracting agency's head must certify that, based on the data and information, all projected costs, savings, and benefits are valid and achievable.
“Costs” means all reasonable, relevant, and verifiable expenses, including salary, materials, supplies, services, equipment, capital depreciation, rent, maintenance, repairs, utilities, insurance, travel, overhead, interim and final payments, and the normal cost of fringe benefits, as calculated by the comptroller. “Savings” means the difference between the current annual direct and indirect costs of providing the service and the projected, annual direct and indirect costs of contracting to provide them in any succeeding state fiscal year during the term of the proposed privatization contract.
If the cost-benefit analysis finds a cost savings of less than 10%, that the contract will not diminish the quality of services, and a significant public policy reason to privatize, the state contracting agency may develop a business case to evaluate the feasibility of entering the contract and to identify its potential results, effectiveness, and efficiency. If the cost savings is at least 10% and the contract will not diminish the quality of services, the agency must develop a business case.
If the contract would result in at least 100 layoffs, transfers, or reassignments, after consulting with unions, the contracting agency must notify the affected employees after the cost-benefit analysis is completed, give them the opportunity to reduce the costs of providing the services to be privatized, and give them resources to encourage and help them organize and bid on the contract. (It is not clear the effect this provision has on laws that make certain subjects, such as wages and hours, mandatory subjects of collective bargaining.)
Any business case must include:
1. the cost-benefit analysis;
2. a detailed description of the service or activity that is the subject of the business case;
3. a description and analysis of the state contracting agency's current performance of the service or activity;
4. the goals to be achieved through the proposed privatization contract and the rationale for them;
5. a description of available options for achieving these goals;
6. an analysis of the advantages and disadvantages of each option, including potential performance improvements and the risks of terminating or rescinding the contract;
7. a description of the current market for the services or activities that are the subject of the business case;
8. an analysis of the quality of services as determined by standardized measures and key performance requirements, including compensation, turnover, and staffing ratios;
9. a description of the specific results-based performance standards that must be met to ensure adequate performance by any party performing the service or activity;
10. the projected time frame for key events from the beginning of the procurement process through the contract's expiration, if applicable;
11. a specific and feasible contingency plan that addresses contractor nonperformance and a description of the tasks involved in and costs required for implementing the plan; and
12. a transition plan, if appropriate, for addressing changes in the number of agency personnel, affected business processes, employee transition issues, and communications with affected stakeholders, such as agency clients and members of the public, if applicable.
The transition plan must contain a reemployment and retraining assistance plan for employees who are not retained by the state or employed by the contractor.
If the primary purpose of the proposed privatization contract is to provide a core governmental function, the business case must also include information sufficient to rebut the presumption that the core governmental function should not be privatized. The presumption cannot be construed to prohibit a state contracting agency from contracting for specialized technical expertise not available within the agency; however, the agency must retain responsibility for the core governmental function. A “core governmental function” is one whose primary purpose is (1) to inspect for adherence to health and safety standards because public health or safety may be jeopardized if the inspection is not done or is not done in a timely or proper manner; (2) to establish statutory, regulatory, or contractual standards for a regulated person, entity, or state contractor; (3) to enforce public health or safety statutory, regulatory, or contractual requirements; or (4) criminal or civil law enforcement. If any part of the business case is based on evidence that the state contracting agency is not sufficiently staffed to provide the core governmental function required by the privatization contract, the state contracting agency must also include within the business case a plan to remediate the understaffing to allow the agency to provide the services directly in the future.
Review by SCSB
Once the business case is completed, the state contracting agency must submit it to the SCSB. The SCSB cannot engage in any ex parte communications with a lobbyist, contractor, or union representative during the review. Each state contracting agency that submits a business case for review must give the board all information, documents, or other material the privatization contract committee requires to complete its review and evaluation of the business case. If the privatization contract is projected to cost more than $150 million annually or $600 million over its term, the state contracting agency must also submit the business case to the governor, the Senate president pro tempore, the House speaker, and any collective bargaining unit affected by the proposed contract.
SCSB Privatization Contract Committee
When the SCSB receives a business case from a state contracting agency, it must immediately refer it to a privatization contract committee that consists of five SCSB members appointed by the board's chairperson. The members must represent both gubernatorial and legislative appointments and no more than three members may represent any one political party. At least one member must be an expert in the area that is the subject of the proposed contract. The SCSB chairperson or his or her designee must head the committee.
The committee must employ a standard process for reviewing, evaluating, and approving business cases. The process must include due consideration of: (1) the state contracting agency's cost-benefit analysis; (2) the agency's business case, including any facts, documents, or other materials that are relevant to it; (3) any adverse effect that the privatization contract may have on minority, small, and women-owned businesses that do, or are attempting to do business with the state; and (4) the value of having services performed in the state and within the United States.
The privatization committee must evaluate the business case and submit its evaluation to the SCSB for review and approval. During the review or consideration, no board member can engage in any ex parte communication with any lobbyist, contractor, or union representative.
SCSB Approval of Business Case
Within 60 days after receiving a business case, the SCSB must transmit a report detailing its review, evaluation, and disposition to the state contracting agency that submitted it. In the case of a privatization contract with a projected cost of at least $150 million annually or $600 million over its life time, SCSB must also send the report to the governor, the Senate president pro tempore, the House speaker, and any collective bargaining unit affected by the proposed contract. The 60 days may be extended for an additional 30 days upon a majority vote of the board or the privatization contract committee and for good cause shown. A business case is deemed approved if the SCSB does not act on it within the 60 days, except that no business case may be approved because the board fails to meet.
The board's report must include the business case, the privatization contract committee's evaluation, its reasons for approval or disapproval, any recommendations of the board, and sufficient information to help the state contracting agency determine if additional steps are necessary to proceed with a privatization contract.
Generally, a majority vote of the board is required to approve a business case. However, a two-thirds vote, including the vote of at least one board member appointed by a legislative leader, is required to approve a business case to privatize a core governmental function. Before approval, the state contracting agency must provide sufficient evidence to rebut the presumption that the core governmental function should not be privatized and there is a significant policy reason to approve the business case. In no case can a state contracting agency's staffing level constitute a significant policy reason to approve a business case for privatizing a core governmental function.
Any state contracting agency may request an expedited review if there is a compelling public interest for doing so. If the board approves the agency's request, the review must be completed not later than 30 days after receipt. If the board fails to complete an expedited review within the 30 days, the business case is deemed approved.
The state contracting agency retains sole discretion in determining whether to proceed with the privatization contract if the SCSB approves the business case.
Amendments to SCSB-Approved Business Cases
Each state contracting agency must submit to SCSB, in writing, any proposed amendment to a board-approved business case so that the board may review and approve it. The board may approve or disapprove the proposed amendment within 30 days after receipt by the same vote that was required to approve the original business case. If the board fails to complete its review within 30 days, the amendment is deemed approved.
Solicitations for Privatization Contracts
A state contracting agency may publish notice soliciting bids for a privatization contract only after the board approves the business case. A contract that is estimated to cost over $150 million annually or $600 million or more over its life must also be pre-approved by the legislature. The legislature, by a majority vote in either chamber, must either reject or approve the contract in its entirety. If the legislature is in session, it must approve or reject the contract within 30 days after it is filed. If the legislature is not in session when the contract is filed, the contract must be submitted not later than 10 days after the first day of the next regular session or special session called for that purpose.
A contract is deemed approved if the legislature fails to vote to approve or reject it within the 30 days, which period cannot begin or expire unless the legislature is in regular session. Any contract filed with the clerks within 30 days before the start of a regular session is deemed to be filed on the first day of such session.
Recourse by Adversely Affected Employees
Not later than 30 days after the board decides to approve a business case, the collective bargaining agent of any employee adversely affected by the proposed privatization contract may file a motion for an order to show cause in Hartford Superior Court on the grounds that the contract fails to comply with the act's substantive or procedural requirements regarding privatization. The court may: (1) deny the motion, (2) grant the motion if it finds that the proposed contract would substantively violate the act's privatization provisions, or (3) stay the effective date of the contract until any substantive or procedural defect has been corrected.