School Nutrition Programs Compliance Handbook
Chapter 7 - Procurement
*All Referenced forms are available upon request.
State agencies and public local education authorities shall comply with the requirements of 7 CFR 210.21, 7 CFR 220.16, and 2 CFR 200 concerning the procurement of supplies, food, equipment and other services with Program funds. Private nonprofit entities must follow the requirements set forth in 7 CFR 210.21, 7 CFR 220.16, and 2 CFR 200. These requirements ensure that such materials and services are obtained for the Program efficiently and economically and comply with applicable laws and executive orders. The State agency or local education authority may use its own procurement procedures which reflect applicable State and local laws and regulations, provided that procurements made with Program funds adhere to the standards set forth in 7 CFR 210.21, 7 CFR 220.16, and 2 CFR 200, as it applies to each entity.
The primary purpose of procurement is to assure that open and free competition exists to the maximum extent possible. The procurement procedures practiced by a SFA must not restrict or eliminate competition. For example, descriptions of goods, equipment, or services considered for procurement should not contain features that unduly restrict competition. In the School Nutrition Programs, procuring products is obtained through competition. Competition allows schools to compare goods, equipment, and services in an effort to obtain products at the lowest possible cost. SFAs must take steps to ensure that open and free competition exists when purchases are made using the school food service account. The actual type of procurement method used is of secondary importance.
Purchases made for individuals through the school food service account are not allowable. Allowing individual purchases can place the tax-exempt status of the school district in jeopardy. In addition, food cannot be purchased for individuals through a vendor, even if the individual is paying the appropriate sales tax and the full price for the item. This would be receiving a favor from the vendor and would violate the code of conduct established by the school district.
The following information establishes and delineates the purchasing methods to be followed by schools participating in the OKDHS School Nutrition Programs.
PROCUREMENT PLAN
Each SFA must have a written procurement plan on file. The plan must specify procurements procedures used by the SFA. All procedures must adhere to the federal requirements for procurement. A school may adopt state and local procedures only if the procedures comply with federal requirements set forth in 7 CFR 210.21, 7 CFR 220.16, and 2 CFR 200, as it applies to each entity. The procurement plan identifies the school’s purchasing periods for the goods, equipment, and services related to the School Nutrition Programs and the various methods procurement being practiced.
The procurement plan provides an explanation for using certain procurement methods to obtain an items used in the school food service program. The school district can determine the extent of the plan. An SFA may implement a plan that applies to all schools under its jurisdiction, or allow each school to implement an individual plan. A new procurement plan does not need to be developed every year. However, a review of an approved plan will assist schools in maintaining compliance. A sample procurement plan is available email AFS.School.Nutrition.Programs@okdhs.org to request a copy.
The procurement plan should document how the SFA conducts their procurement. For example if the SFA is a small RCCI they may not be able to get vendors to reply to their request for price quotations. In this case the SFA would document in their procurement plan due to their small size no vendor will respond to the request for price quotations which necessitates the SFA procuring the needed goods and services from local retailers.
1. Allowable Procurement Practices
In the procurement process, schools must obtain product information and prices from various vendors. SFAs should develop production specifications that comply with federal regulations regarding debarment and suspension, lobbying and Buy American requirements and supply all vendors with the same product specifications. Products should be compared for price, quality, and Child Nutrition Labels or product analysis sheets prior to selecting a vendor.
2. Procurement Practices Requiring Prior State Approval
Equipment and Capital Expenditures Capital expenditures for special purpose equipment are allowable as direct costs, provided that items with a unit cost of $5000 or more have the prior approval of the State Agency. Capital expenditures for general purpose equipment, buildings, and land are unallowable as direct charges, except where approved in advance by the awarding agency. When purchasing kitchen equipment for the food service program, SFAs must follow the proper procurement method. Prior to purchasing the equipment, the SFA must contact the State Agency for approval. Once approved, the SFA may continue with the purchase of such equipment.
For Equipment and other Capital expenditures, the following definitions apply:
a. "Capital Expenditures" means expenditures for the acquisition cost of capital assets (equipment, buildings, land), or expenditures to make improvements to capital assets that materially increase their value or useful life. Acquisition cost means the cost of the asset including the cost to put it in place. Acquisition cost for equipment, for example, means the net invoice price of the equipment, including the non-profit organization's regular accounting practices. The cost of any modifications, attachments, accessories, or auxiliary apparatus necessary to make it usable for the purpose for which it is acquired. Ancillary charges, such as taxes, duty, protective in transit insurance, freight, and installation may be included in, or excluded from the acquisition cost in accordance with
b. "Equipment" means an article of nonexpendable, tangible personal property having a useful life of more than one year and an acquisition cost which equals or exceeds the lesser of the capitalization level established by the non-profit organization for financial statement purposes, or $5000.
c. “Special purpose equipment" means equipment which is used only for research, medical, scientific, or other technical activities. Examples of special purpose equipment include microscopes, x-ray machines, surgical instruments, and spectrometers.
d. "General purpose equipment" means equipment, which is not limited to research, medical, scientific or other technical activities. Examples include office equipment and furnishings, modular offices, telephone networks, information technology equipment and systems, air conditioning equipment, reproduction and printing equipment, and motor vehicles.
Unallowable Procurement Practices
According to federal regulations, SFAs cannot implement a procurement process that does not demonstrate an open and free competitive process. The following practices are not allowable: When approved as a direct charge pursuant to paragraph 15.b.(1), (2), and (3) above, capital expenditures will be charged in the period in which the expenditure is incurred, or as otherwise determined appropriate by and negotiated with the awarding agency.
a. Allowing a potential contractor to write the bid or proposal terms, product specifications, procurement procedures, or contract terms.
b. Allowing a potential contractor to evaluate bids or proposals submitted by competitors.
c. Delegating bid/proposal acceptance or recommendation for acceptance to a potential contractor competing on the procurement.
d. Allowing a potential contractor access to sealed bid information before the bids are publicly opened.
e. Disclosing the content of proposal offers submitted by others to a potential supplier prior to the supplier submitting an offer.
f. Negotiating under the formal advertising method (sealed bid) of procurement.
g. Accepting non-responsive bids or offers.
h. Accepting bids due to geographic preferences except for purchases allowed by federal regulations (see Geographical Preferences section of this chapter for more information).
i. Capital expenditures for general purpose equipment, buildings, and land are unallowable as direct charges, except where approved in advance by the awarding agency.
j. Capital expenditures for improvements to land, buildings, or equipment which materially increase their value or useful life are unallowable as a direct cost except with the prior approval of the awarding agency.
k. Equipment and other capital expenditures are unallowable as indirect costs. However, see Attachment B, paragraph 11., Depreciation and use allowance, for rules on the allowability of use allowances or depreciation on buildings, capital improvements, and equipment. Also, see Attachment B, paragraph 43., Rental costs of buildings and equipment, for rules on the allowability of rental costs for land, buildings, and equipment.
CODE OF CONDUCT
The school food authority must maintain a written code or standard of conduct that governs the performance of its officers, employees, or agents who are engaged in the award and administration of contracts supported by program funds. Federal regulations require schools to adhere to a written code of conduct to eliminate conflict of interests that may arise during the procurement process. Refer to the Forms and Instruction Manual for an example of the procurement plan and code of conduct agreement. The sample code of conduct is available, email AFS.School.Nutrition.Programs@okdhs.org to request a copy.
METHODS OF PROCUREMENT
As part of the procurement process, SFAs will adopt methods of procurement also known as a procurement plan. A decision to adopt one method over another is based on local agency requirements; the aggregate amount of product and equipment purchased; and needed types of services. The procurement methods that will be used by a school district to purchase the goods, equipment, and services required by the program are as follows:
1. Procurement by micro-purchase procedures.
Micro-purchase means a purchase of supplies or services using simplified acquisition procedures, the aggregate amount of which does not exceed the micro-purchase threshold. Micro-purchase procedures comprise a subset of a non-Federal entity's small purchase procedures. The non-Federal entity uses such procedures in order to expedite the completion of its lowest-dollar small purchase transactions and minimize the associated administrative burden and cost. The micro-purchase threshold is set by the Federal Regulation at 2 CFR 200.320 (a) (1) (iv). The regulation permits non-federal entities to establish a threshold up to $50,000. SFAs may set their micro-purchase threshold lower but not more than up to $50,000.
A. When micro purchase procedures are used, the following conditions, stipulations, and terms must be met:
1. Purchases may be made without soliciting competitive quotations [2 CFR 200.320 (a)].
2. Each SFA determines what a “reasonable” price is for a good or service being procured.
3. Purchases to the maximum extent practicable should be distributed equitably among qualified suppliers [2 CFR 200.320 (a)].
4. Procurement by small purchase procedures.
Small purchase procedures are informal procurement methods for securing services, supplies, goods, or equipment that do not cost more than the simplified acquisition threshold set at $250,000. If small purchase procedures are used, SFAs must obtain prices or rate quotations from an adequate number of qualified sources for each product or group of products. The aggregate amount for each product or group of products must not exceed $250,000 in a program year. USDA defines three vendors as an adequate number to contact for each group of products. If SFAs have procurement procedures with a lower threshold, SFAs should follow those requirements. See sample letter and sample of product request sheet to send to vendors is available email AFS.School.Nutrition.Programs@okdhs.org to request this resource.
A. When small purchase procedures are used, the following conditions, stipulation, and
terms must be met:
1. The goods, equipment, or services to be purchased must be adequately and consistently described for each prospective supplier so that each one can provide price quotes on the same merchandise or service.
a. Each prospective supplier must be provided the same specifications. Specifications must be generic so that vendors have an opportunity to provide quotes. Do not request brand names. Instead of requesting brands you may take the brand and type of product or equivalent. Example Tyson breaded chicken patty or equivalent.
b. Each prospective supplier must be given the same timeline for responding.
c. For processed food items, request CN labeled products or product formulation sheets or name of item as it is listed in food buying guide.
d. Include the Buy American Provision on you procurement list
e. Both written and verbal contacts must be documented. The Purchase Documentation Sheet may be used to document descriptions and price quotes. Vendor contacts are recorded on the Vendor Contact form. Email AFS.School.Nutrition.Programs@okdhs.org to request copy of these resources. Many schools will have a computerized version that can be updated frequently.
2. Specifications must be sent (i.e., fax or e-mail) or communicated to (i.e., telephone) or in person to at least three vendors. Specifications must be documented.
3. SFAs must purchase from vendors that quote the lowest aggregate price and conform to all the material terms and conditions listed in the specifications. If an SFA does not buy from the supplier with the lowest prices, justification must be documented for not going with the lowest price.
4. Responses from vendors can be written or verbal form. Verbal quotes must be documented.
B. All documentation gathered during the procurement process must be retained by the SFA with other program documentation and records for a period of three years after the end of the fiscal year to which they pertain or until the findings of audits are resolved.
a. Small purchase procedures may be used in the purchase of fresh produce regardless of the aggregate amount.
3. Procurement by sealed bids
Bids are formal procurement methods. Bids are publicly solicited and a firm-fixed price contract (lump sum or unit price) is awarded to the responsible bidder whose bid, conforming to all the material terms and conditions of the Intent to Bid (ITB), is the lowest in price. SFAs are required to conduct this method when aggregate purchases for a group of products exceed $250,000 for the program year, and competitive and noncompetitive negotiations are not applicable.
A. To conduct the sealed bid method, the following conditions should be present:
1. A complete, adequate, and realistic specification or purchase description is available.
2. Two or more responsible bidders are willing and able to compete effectively for the business.
3. The procurement lends itself to a firm-fixed-price contract, and the selection of the successful bidder can be made principally on the basis of price.
B. If sealed bids are used, the following requirements apply:
1. The ITB will be publicly advertised, and bids shall be solicited from an adequate number of known suppliers, providing them sufficient time prior to the date set for opening the bids.
2. The ITB, which will include any specifications and pertinent attachments, shall define the items or services in order for the bidder to properly respond.
3. All bids will be publicly opened at the time and place prescribed in the ITB.
4. A firm-fixed-price contract award will be made in writing to the lowest responsive and responsible bidder. Where specified in bidding documents, factors such as discounts, transportation costs, and life cycle costs shall be considered in determining which bid is lowest. Payment discounts will only be used to determine the low bid when prior experience indicates that such discounts are usually taken advantage of.
5. Any or all bids may be rejected if there is a sound, documented reason.
4. Procurement by competitive negotiation can be used when competitive sealed bids are inappropriate, infeasible, or impossible. This method is used when more than one vendor submits an offer, and a fixed-price or cost-reimbursement-type contract is awarded. Competitive negotiation may be used when a contract cannot be awarded to a successful bidder based on price alone or when the acquisition of professional services is necessary. The document used to solicit bids is commonly referred to as a request for proposal (RFP).
When conducting competitive negotiation, SFAs must use the following conditions, stipulations, and terms:
A. Proposals will be solicited from an adequate number of qualified sources to permit reasonable competition.
B. The RFP will identify all significant evaluation factors, including price or cost when required, and relative importance to the program. Any response to publicize RFPs shall be honored to the maximum extent practical.
C. The school district will provide a mechanism:
1. For technical evaluation of the proposals received. Criteria will include price or cost when required, and relative importance to RFP.
2. To determine which responsible bidders will be contacted for further written or verbal discussion.
3. For selection of contract award.
D. The contract must be awarded to the responsible bidder whose proposal is most advantageous to the school district when price or other factors are considered.
1. Cost-plus-a-percentage-of-cost method of contracting is prohibited.
2. All RFPs received must be documented, and such documentation shall be retained by the school district with other program records for three years after the end of the fiscal year to which they pertain.
5. Noncompetitive Negotiation is procurement through solicitation of a proposal from only one source and can only be used when the procurement is not permissible under small purchase procedures, competitive sealed bids (formal advertising), or competitive negotiation. The decision to use noncompetitive negotiation must be justified in writing and available for audit and review. As with the other methods of procurement, such documentation must be maintained with other program records for three years after the end of the fiscal year to which they pertain or until the findings of audits are resolved. Cost-plus-a-percentage-of-cost method of contracting is also prohibited. Circumstances under which procurement may be made by noncompetitive negotiations are limited to the following:
A. The merchandise or service is available only from a single source.
B. A public emergency exists, and the urgency for the requirements will not permit the delay involved with competitive sealed bids (formal advertising) or competitive negotiation.
C. After solicitation from a number of sources, competition is found to be lacking.
6. Cost Reimbursable Contracts
Cost Reimbursable contracts means a formal, legally enforceable contract that reimburses the contractor for costs incurred under the contract, but does not provide for any other payment to the contractor, with or without a fixed fee. In a cost reimbursable contract, allowable costs will be paid from the nonprofit school food service account to the contractor net of all discounts, rebates, and other applicable credits accruing to or received by the contractor. SFAs contracting services with a food service management company will have the option to procure services applying a fixed fee contract or a cost-reimbursable contract.
The school food authority must include the following provisions in all cost reimbursable contracts, including contracts with cost reimbursable provisions, and in solicitation documents prepared to obtain offers for such contracts:
A. Allowable costs will be paid from the nonprofit school food service account to the contractor net of all discounts, rebates and other applicable credits accruing to or received by the contractor or any assignee under the contract, to the extent those credits are allocable to the allowable portion of the costs billed to the school food authority;
B. The contractor must separately identify for each cost submitted for payment to the school food authority the amount of that cost that is allowable (can be paid from the nonprofit school food service account) and the amount that is unallowable (cannot be paid from the nonprofit school food service account); or
The contractor must exclude all unallowable costs from its billing documents and certify that only allowable costs are submitted for payment and records have been established that maintain the visibility of unallowable costs, including directly associated costs in a manner suitable for contract cost determination and verification;
C. The contractor’s determination of its allowable costs must be made in compliance with the applicable Departmental and Program regulations and Office of Management and Budget cost circulars;
D. The contractor must identify the amount of each discount, rebate and other applicable credit on bills and invoices presented to the school food authority for payment and individually identify the amount as a discount, rebate, or in the case of other applicable credits, the nature of the credit. If approved by the State Agency, the school food authority may permit the contractor to report this information on a less frequent basis than monthly, but no less frequently than annually;
E. The contractor must identify the method by which it will report discounts, rebates and other applicable credits allocable to the contract that are not reported prior to conclusion of the contract; and the contractor must maintain documentation of costs and discounts, rebates and other applicable credits, and must furnish such documentation upon request to the school food authority, the State agency, or the Department.
F. Prohibited expenditures. No expenditure may be made from the nonprofit school food service account for any cost resulting from a cost reimbursable contract that fails to include the requirements of this section, nor may any expenditure be made from the nonprofit school food service account that permits or results in the contractor receiving payments in excess of the contractor’s actual, net allowable costs.
For additional guidance refer to Contraction with Food Service Management Companies: Guidance for School Food Authorities or contract the School Nutrition Programs at AFS.School.Nutrition.Programs@okdhs.org, or refer to 7 CFR 210.21 (f)(i)(vi).
Forms Necessary for the Procurement Process
- Procurement Plan
- Chart of Procedures
- Code of Conduct
- Purchase Documentation Sheet with attached quotes
- Vendor Contact Sheet
- Nonkickback Affidavit (if applicable)
- Certificate Regarding Lobbying (if applicable)
- All other documentation as it applies to Federal and State rules and regulations.
BUY AMERICAN PROVISION
The Child Nutrition Reauthorization Act of 1998 requires SFAs participating in the NSLP and SBP in the contiguous United States to purchase for those programs, to the maximum extent practicable, domestic commodities or products for use in meals served under the NSLP and SBP. The legislation defines “domestic commodity or product” as one that is produced in the United States and is processed in the United States substantially using agricultural commodities that are produced in the United States. The report accompanying the legislation stipulated that “substantially” means that over 51 percent of the final processed products consists of agricultural commodities that were grown domestically.
It is essential that SFAs understand the need to ensure that all purchases of agricultural commodities and food products comply with this statutory provision. The provision should be included in bid specifications to ensure compliance. This provision applies to all funds maintained in the food service account and not just federal reimbursement.
There are limited exceptions to the Buy American provision which allow for the purchase of products not meeting the “domestic” standard as described above ( “non-domestic”) in circumstances when use of domestic products is truly not practicable. However, before utilizing an exception, alternatives to purchasing non-domestic food products should be considered. The following are the limited exemptions to the Buy American Provision:
· The product is not produced or manufactured in the U.S. in sufficient and reasonable available quantities of a satisfactory quality; or
· Competitive bids reveal the costs of a U.S. product are significantly higher than the non-domestic product.
If a SFA is using one of the above exceptions, the SFAs must, keep documentation justifying the exception(s). Email AFS.School.Nutrition.Programs@okdhs.org for a copy of the Buy American Provision limited exemption form that can be used as part of the documentation for one of the above exemptions
GEOGRAPHIC PREFERENCES
SFAs receiving funds through the Child Nutrition Programs may apply a geographic preference when procuring unprocessed locally grown or locally raised agricultural products. SFAs, however, are not required to purchase locally grown and locally raised agricultural products, or to apply a geographic preference in their procurements of these products.
SFAs or the procuring entity has the discretion to determine whether and how a geographic preference meets its needs. SFAs may define the area for any geographic preference (e.g., State, county, region, etc.). Geographic preference may only be applied to the procurement of unprocessed agricultural products which are locally grown and locally raised, and that have not been cooked, seasoned, frozen, canned, or combined with any other products.
The term “unprocessed” precludes the use of geographic preference for agricultural products that have significant value added components. This does not preclude handling and preparation such as might be necessary to present an agricultural product to a school food authority in a useable form, such as washing vegetables, bagging greens, butchering livestock and poultry, pasteurizing milk, and putting eggs in a carton.” Additionally, using a minimal amount of preservatives on locally grown produce may be needed for the purpose of preventing spoilage and would be acceptable. However, milk served in the Child Nutrition Programs must be pasteurized and meet State and local standards. Pasteurized milk is the only dairy product for which geographic preference may be applied.
For more information regarding geographic preferences, refer to USDA memos Procurement Geographic Preferences Q&As: SP18-2011 and SP 03-2013
Exceptions to Geographical Preference
While a geographic preference may be used to encourage the purchase of locally grown
and locally raised products by enabling an institution to grant an advantage to local growers, this provision does not eliminate the requirement for procurements to be conducted in a manner that allows for free and open competition, consistent with the purchasing institution’s responsibility to be responsible stewards of federal funds.
All other procurement must be conducted in a manner that maximizes open and free competition. SFAs are not allowed to limit the solicitation announcement to a particular geographic area to limit competition from potential vendors. SFAs using the small purchasing method cannot limit solicitation to local vendors. SFAs must purchase from vendors that quote the lowest aggregate price and conform to all the material terms and conditions listed in the specifications.
NONKICKBACK AFFIDAVIT
1. Oklahoma statute 74 O.S. § 3109 requires a signed and notarized Nonkickback Affidavit ( page 7-25) on every invoice submitted to any county or local subdivision of the state for payment to any architect, contractor, engineer, or supplier of material of $2,000 or more. The affidavit is to be signed by the person or persons authorized to accept payment on behalf of the architect, contractor, engineer, or supplier.
2. In lieu of the required affidavit above, the following procedures may be used:
a. A purchase order issued by a county or a local subdivision of the state shall require the signature of the vendor and include a notice to the vendor that the vendor’s submission of the signed invoice or acceptance of payment pursuant to the purchase constitutes a statement by the vendor that:
- The invoice or claim is true and correct.
- The work, services, or materials as shown by the invoice or claim have been completed or supplied in accordance with the plans, specifications, orders, or requests furnished the vendor.
- The vendor has made no payment, directly or indirectly, to any elected official, officer, or employee of this state or any county or local subdivision of the state, of money or any other thing of value to obtain payment.
b. Any vendor who submits the signed invoice or accepts payment pursuant to a purchase order containing the notice provided for above shall be deemed to adopt and affirm the statement contained in the notice unless the vendor states on the invoice that the statement is incorrect in whole or in part.
c. The county or local subdivision may recover from the vendor the full amount paid pursuant to the purchase order if the statement adopted and affirmed by the vendor is false.
DEBARMENT OR SUSPENSION
An SFA is prohibited from contracting with an individual or company that has been debarred or suspended in accordance with 2 CFR 180 as adopted and modified by USDA regulations at 2 CFR Part 417. This prohibition does not extend to contracts in existence at the time of the debarment or suspension or to most contracts under $250,000. Rather, it applies to new contracts and extensions or renewals of existing contracts of $250,000 or more and to contracts for audit services, regardless of amount. This prohibition does not apply to proposed debarments.
When an SFA enters into a covered transaction with another person at the next lower tier, you must verify that the person with whom you intend to do business is not excluded or disqualified.
The System for Award Management (SAM) contains the electronic roster of debarred companies excluded from Federal procurement and non‐procurement programs throughout the U.S. Government (unless otherwise noted) and from receiving Federal contracts or certain subcontracts and from certain types of Federal financial and nonfinancial assistance and benefits. The SAM system combines data from the Central Contractor Registration, Federal Register, Online Representations and Certification Applications, and the Excluded Parties List System.
Instructions:
Click the https://www.sam.gov/SAM/ link.
How to search for an entity or individual in SAM
Click "SEARCH RECORDS" tab
In the search bars type in the Entity name or using an exclusion search term, Duns & Bradstreet number (DUNs) and/or the Entity Commercial and Government Entity (CAGE) code. You can only use one search bar at a time to search for records. Individuals are not assigned a DUNs number or CAGE code. When checking for a debarred individual, conduct the search by typing the name in the top bar.
Click "SEARCH" to retrieve a list of results. Entities with "Exclusion" listed in purple are currently debarred, while those labeled "Entity" in green do not have exclusions. In the right upper corner of the webpage, click one of the three buttons (PDF, Export CSV, or Print) to export or print the search results.
Click "VIEW DETAILS" to view SAM’s information about the entities. 1. Entity Overview, 2. Entity Records, 3. Core Data on the Entity, 4. Assertions, 5. Representations and Certifications, 6. Point of Contact Person and 7. Whether the entity exclusions are active or inactive.
- How to obtain file records from SAM
At the top of the webpage click the "DATA ACCESS" tab. The SAM webpage provides instructions for accessing and obtaining data extracts for entities located in SAM. Click the "Exclusions Extract Data Package" section for a complete list of active debarred contracts.
LOBBYING CERTIFICATION (REFERENCE 7 CFR §3018)
SFAs must obtain a lobbying certification from vendors for procurement contracts of $250,000 or more. Any vendor whose contract award is for $250,000 or more must complete a Certification regarding Lobbying form. The SFA must keep this signed certification statement on file with a copy of the vendor’s contract. Certification Regarding Lobbying form. Email AFS.School.Nutrition.Programs@okdhs.org to request a copy of this form.
Any SFA or its vendors who participate in lobbying activities must complete a Disclosure of Lobbying Activities form. SFAs must submit the completed form to the Oklahoma Department of Human Services. A vendor would submit its completed form to the SFA. Refer to the OKDHS Forms and Instruction Manual for Disclosure of Lobbying Activities Form.
BEVERAGES AND SNACK AGREEMENTS
The following is a summary of existing regulatory requirements for beverage and snack agreements with SFAs participating in the School Nutrition Programs.
- In some cases, the exclusive contracts do not involve nonprofit school food service account funds, in which case there are no federal FNS procurement issues involved. However, if any nonprofit school food service products are purchased via the exclusive contract, then all federal procurement requirements must be met. If small purchase procedures are used for a procurement of $250,000 or less, price or rate quotations must be obtained from an adequate number of qualified sources.
- If nonprofit school food service products are included in the contract, any rebates, commissions, scholarship fund contributions, or any other payments back to the SFA or SFA-related organizations, must be reimbursed to the nonprofit school food service account on a prorated basis.
- There is no federal prohibition on multiyear contracts other than for Food Service Management Companies. It is suggested, however, that school procurement officials consider the impact of multiyear contracts, as opposed to one-year contracts, on beverages and snacks. Long-term contracts would appear to be more appropriate
for nonperishable products and services such as warehousing and equipment rental; however, as noted above, there is no federal prohibition on these longer-term contracts.
- Public Law 108-265 requires a SFA participating in the NSLP to not directly or indirectly restrict the sale or marketing of fluid milk products by the school at any time or any place on the school premises or at any school-sponsored event. SFAs must ensure that all contracts with outside vendors to furnish food or beverages do not limit the sale of milk on school grounds. Terms such as Exclusive Pouring Rights are terms used by vendors to limit the sale of milk.
ADDITIONAL CONTRACT PROVISIONS FOR PRIVATE NONPROFIT INSTITUTIONS
The recipient shall include, in addition to provisions to define a sound and complete agreement, the following provisions in all contracts. The following provisions shall also be applied to subcontracts
1. Contracts in excess of the small purchase threshold shall contain contractual provisions or conditions that allow for administrative, contractual, or legal remedies in instances in which a contractor violates or breaches the contract terms, and provide for such remedial actions as may be appropriate.
2. All contracts in excess of the small purchase threshold shall contain suitable provisions for termination by the recipient, including the manner by which termination shall be effected and the basis for settlement. In addition, such contracts shall describe conditions under which the contract may be terminated for default as well as conditions where the contract may be terminated because of circumstances beyond the control of the contractor.
3. Except as otherwise required by statute, an award that requires the contracting (or subcontracting) for construction or facility improvements shall provide for the recipient to follow its own requirements relating to bid guarantees, performance bonds, and payment bonds unless the construction contract or subcontract exceeds $250,000. For those contracts or subcontracts exceeding $250,000, the Federal awarding agency may accept the bonding policy and requirements of the recipient, provided the Federal awarding agency has made a determination that the Federal Government's interest is adequately protected. If such a determination has not been made, the minimum requirements shall be as follows.
A. A bid guarantee from each bidder equivalent to five percent of the bid price. The ``bid guarantee'' shall consist of a firm commitment such as a bid bond, certified check, or other negotiable instrument accompanying a bid as assurance that the bidder shall, upon acceptance of his bid, execute such contractual documents as may be required within the time specified.
B. A performance bond on the part of the contractor for 100 percent of the contract price. A “performance bond’’ is one executed in connection with a contract to secure fulfillment of all the contractor's obligations under such contract.
C. A payment bond on the part of the contractor for 100 percent of the contract price ``payment bond'' is one executed in connection with a contract to assure payment as required by statute of all persons supplying labor and material in the execution of the work provided for in the contract.
D. Where bonds are required in the situations described herein, the bonds shall be obtained from companies holding certificates of authority as acceptable sureties pursuant to 31 CFR part 223, ``Surety Companies Doing Business with the United States.''
4. All negotiated contracts (except those for less than the small purchase threshold) awarded by recipients shall include a provision to the effect that the recipient, the Federal awarding agency, the Comptroller General of the United States, or any of their duly authorized representatives, shall have access to any books, documents, papers and records of the contractor which are directly pertinent to a specific program for the purpose of making audits, examinations, excerpts and transcriptions.
5. All contracts, including small purchases, awarded by recipients and their contractors shall contain the procurement provisions of Appendix A to this part, as applicable.
Reports and Records Appendix A to Part 3019--Contract Provisions
All contracts, awarded by recipient including small purchases, shall contain the following provisions as applicable:
1. Equal Employment Opportunity--All contracts shall contain a provision requiring compliance with E.O. 11246, ``Equal Employment Opportunity,'' as amended by E.O. 11375, ``Amending Executive Order 11246 Relating to Equal Employment Opportunity,'' and as supplemented by regulations at 41 CFR part 60, ``Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor.''
2. Copeland ``Anti-Kickback'' Act (18 U.S.C. 874 and 40 U.S.C. 276c)--All contracts and subgrants in excess of $2000 for construction or repair awarded by recipients and subrecipients shall include a provision for compliance with the Copeland ``Anti-Kickback'' Act (18 U.S.C. 874), as supplemented by Department of Labor regulations (29 CFR part 3, ``Contractors and Subcontractors on Public Building or Public Work financed in Whole or in Part by Loans or Grants from the United States''). The Act provides that each contractor or subrecipient shall be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he is otherwise entitled. The recipient shall report all suspected or reported violations to the Federal awarding agency.
3. Davis-Bacon Act, as amended (40 U.S.C. 276a to a-7)--When required by Federal program legislation, all construction contracts awarded by the recipients and subrecipients of more than $2000 shall include a provision for compliance with the Davis-Bacon Act (40 U.S.C. 276a to a-7) and as supplemented by Department of Labor regulations (29 CFR part 5, ``Labor Standards Provisions Applicable to Contracts Governing Federally Financed and Assisted Construction'').
4. Contract Work Hours and Safety Standards Act (40 U.S.C. 327-333)--Where applicable, all contracts awarded by recipients in excess of $2000 for construction contracts and in excess of $2500 for other contracts that involve the employment of mechanics or laborers shall include a provision for compliance with Sections 102 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327-333), as supplemented by Department of Labor regulations (29 CFR part 5). These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence.
5. Rights to Inventions Made Under a Contract or Agreement--Contracts or agreements for the performance of experimental, developmental, or research work shall provide for the rights of the Federal Government and the recipient in any resulting invention in accordance with 37 CFR part 401, ``Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,'' and any implementing regulations issued by the awarding agency.
6. Clean Air Act (42 U.S.C. 7401 et. seq.) and the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), as amended--Contracts and subgrants of amounts in excess of $100,000 shall contain a provision that requires the recipient to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401 et seq.) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251 et seq.). Violations shall be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA).
6. Byrd Anti-Lobbying Amendment (31 U.S.C. 1352)--Contractors who apply or bid for an award of $100,000 or more shall file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier shall also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the recipient.
