Procurement in School Nutrition Programs

Definitions

• Food Service Management Company
• Meal Vendor
• Net Cash Resources
• Nonprofit School Food Service (or Cafeteria) Account and Revenues
• School Food Authority

Food Service Management Company  

National School Lunch Program regulations under Title 7, Code of Federal Regulations (7 CFR),  Section 210.2 define a food service management company (FSMC) as “a commercial enterprise or a nonprofit organization which is or may be contracted with by school food authority [SFA] to manage any aspect of the school food service.” A company is considered an FSMC if it performs all or a combination of the following services:

• Providing consulting services
• Developing menus and menu production records
• Preparing, delivering, and/or serving meals
• Organizing and maintaining program documents (such as daily meal counts, menus, and menu production records)
• Preparing claims for SFA approval and submission
• Purchasing food, supplies, and/or equipment
• Providing program guidance and training
• Maintaining bookkeeping records
• Implementing other activities that would normally be performed by the SFA
  

Meal Vendor

Companies preparing and delivering meals to SFAs are meal vendors. In this capacity, a meal vendor may also develop menus and menu production records. Should additional services be provided, such as the activities listed under the FSMC definition above (usually performed by the SFA when contracting with a meal vendor), such services may constitute food service management and would need to be solicited and procured as such.

Meal vendors may not access individual student meal eligibility information, collect meal payments, conduct point of service meal counts, provide program oversight, collect claim data, or act as an employee of or agent for the SFA.

Net Cash Resources

According to 7 CFR, Section 210.2, net cash resources means all monies (as determined by the California School Accounting Manual), that are available or have accrued to an SFA’s nonprofit school food service at any given time, less cash payable. Such monies may include, but are not limited to, cash on hand, cash receivables, earnings on investments, cash on deposit, and the value of stocks, bonds, or other negotiable securities.

Nonprofit School Food Service (or Cafeteria) Account and Revenues

Federal regulations in 7 CFR, Section 210.2, define the nonprofit school food service (or cafeteria) account and revenues as follows:

. . . the restricted account in which all of the revenue from all food service operations conducted by the school food authority principally for the benefit of school children is retained and used only for the operation or improvement of the nonprofit school food service. This account shall include, as appropriate, non-Federal funds used to support paid lunches as provided in [7 CFR, Section] 210.14(e), and proceeds from non-program foods as provided in [7 CFR, Section] 210.14(f). . . .

Revenue, when applied to nonprofit school food service, means all monies received by or accruing to the nonprofit school food service in accordance with the State agency's established accounting system including, but not limited to, children's payments, earnings on investments, other local revenues, State revenues, and Federal cash reimbursements.

New and accrued revenues may include, but are not limited to, federal and state meal reimbursements, meal payments from children and adults, money received from a la carte and vending machine food sales, and catering activities.

School Food Authority

The term SFA, as defined in 7 CFR, Section 210.2, means the governing body responsible for the administration of one or more schools that has the legal authority to operate the federal school meal programs or is otherwise approved by the U.S. Department of Agriculture to operate such programs.

Procurement

• Open and Free Competition Requirement
• Buy American Provision
• Request for Proposal or Invitation for Bid
• Procurement History and Records
• Bid Process for Food Service Management Company (FSMC) Contracts
• Bid Process for Vended Meal Contracts

Open and Free Competition Requirement  

Both federal regulations and California state laws require all procurements—without regard to dollar value—to be conducted in a manner that promotes maximum open and free competition. SFAs must conduct either a formal or an informal bidding process.

According to Title 2, Code of Federal Regulations (2 CFR), Part 200.319(a), situations limiting competition include, but are not limited to:

1. Placing unreasonable requirements on firms in order for them to qualify to do business
   
   
2. Requiring unnecessary experience and excessive bonding
   
   
3. Noncompetitive pricing practices between firms or between affiliated companies
   
   
4. Noncompetitive awards to consultants that are on retainer contracts
   
   
5. Organizational conflicts of interest
   
   
6. Specifying only a brand name product, instead of allowing an equal product to be offered and describing the performance or other relevant requirement of the procurement
   
   
7. Any arbitrary action in the procurement process
   
   

Any action that diminishes open and free competition undermines the integrity of the procurement process and may subject the SFA to bid protests. Pursuant to 2 CFR, Part 200.318(k), SFAs must be responsible in accordance with good administrative practices and sound business judgment for the settlement of all contractual and administrative issues, arising out of procurements.

SFAs may not enter into a contract prepared by a bidder. Federal regulations in 2 CFR, Part 200.319(a), prohibit sponsors from awarding a contract to any contractor that prepares or has a significant role in developing the contract and related bid documents; e.g., a price quote, RFP, Invitation for Bid (IFB), or bid specifications. After contract negotiations, the SFA (not the selected contractor) must incorporate all changes into the final contract.

SFAs receiving state funds also need to comply with California Public Contract Code, Section 20112.

Buy American Provision

Introduction

With the William F. Goodling Child Nutrition Reauthorization Act of 1998, Congress amended federal law to include in the meal programs a requirement known as the Buy American Provision requirement. The Buy American Provision supports the mission of child nutrition programs, which is to serve children nutritious meals in schools and support American agriculture. School food authorities (SFA) are reminded that when funds are used from the nonprofit school food service account (cafeteria fund), procurement transactions for food products on the commercial market must comply with the Buy American Provision (Title 7, Code of Federal Regulations, Section 210.21[d]), whether food products are purchased by SFAs or entities that are purchasing on their behalf. Some examples of entities purchasing on the behalf of SFAs include food service management companies, group purchasing organizations, purchases through cooperative agreements, agents, third-party services, and interagency or intergovernmental agreements.

To ensure food products meet the Buy American Provision requirements, the U.S. Department of Agriculture (USDA) Food and Nutrition Service (FNS) requires SFAs to include the Buy American Provision requirement in its documented procurement procedures and retain records documenting any exceptions.

Buy American Provision Requirements

In all School Nutrition Program (SNP) solicitations and contracts the USDA requires SFAs to include Buy American Provision language that states that only foods which are 100 percent domestically grown and processed will receive an approval for purchase. The SFA must also include the Buy American Provision requirement in its documented procurement procedures and retain records documenting any exceptions. All responsive and responsible bidders must acknowledge and agree to comply with the Buy American Provision.

Title 42, United States Code, Section 1760(n) (the National School Lunch Act) requires SFAs that receive any federal reimbursement through the SNP to adhere to the Buy American Provision. This includes SNPs that also operate a Child and Adult Care Food Program and/or a Summer Food Service Program. SFAs must purchase, to the maximum extent practicable, domestic commodity or product. The National School Lunch Act defines domestic commodity or product as an agricultural commodity that is produced in the United States and a food product that is processed in the United States using substantial agricultural commodities that are produced in the United States. Substantial means that over 51 percent of the final processed product consists of agricultural commodities that were grown domestically. Products from Guam, American Samoa, Virgin Islands, Puerto Rico, and the Northern Mariana Islands are allowed under this provision as territories of the United States.

For products procured by the SFA for use in the Child Nutrition Programs and purchased with funds from the nonprofit school food service account, the food component is considered the agricultural commodity. The USDA FNS defines food component as any of the food groups that comprise reimbursable meals. Food components are:

• Meats and meat alternates
• Grains
• Vegetables
• Fruits
• Fluid milk

Please note that the Buy American Provision does not apply to nonagricultural products, such as paper products. Likewise, water is not considered a domestically grown commodity for the purpose of the Buy American Provision.

For information on the Buy American Provision best practices and requirements please see USDA Policy Memo SP-38-2017, Compliance with and Enforcement of the Buy American Provision in the National School Lunch Program on the USDA School Meals Policy Web page.

Limited Exceptions to the Buy American Provision

There are limited exceptions to the Buy American Provision that allow for the purchase of products not meeting the domestic commodity or product standard. Before using one of the above exceptions, the SFA must document the reason(s) for using an exception and they should also consider and document the following questions:

• Are there other domestic sources for this product?
  
  
• Is there a domestic product that could easily be substituted for the nondomestic product on the menu (e.g. substitute domestic pears for nondomestic apples)?
  
  
• Am I soliciting bids for this product at the best time of year? If I contracted earlier or later in the season, would prices and/or availability change?
  
  
• Am I using third-party verification, such as through the USDA Agricultural Marketing Service Web page to determine the cost and availability of domestic and nondomestic foods? For more information, please visit the USDA Agricultural Marketing Service Weekly Market Report Web page.

There are two exceptions to the Buy American Provision requirement that an SFA can use as a last resort:

1. The product is not produced or manufactured in the United States in sufficient and reasonably available quantities of a satisfactory quality; or
   
   
2. Competitive bids reveal the costs of a United States product are significantly higher than the nondomestic product (it should be recognized that the FNS has given guidance in Policy Memo SP 38-2017 that it is the SFA’s responsibility to determine the threshold).

If an SFA is using one of the above exceptions, there is no requirement to request a waiver from the California Department of Education (CDE) in order to purchase a nondomestic product. SFAs must, however, keep documentation that justifies any exception(s).

Monitoring the Buy American Provision by School Food Authorities

Monitoring and enforcing the Buy American Provision by the SFA and oversight by the CDE are critical functions. SFAs must monitor contractor performance as required in Title 2, Code of Federal Regulations, Section 200.318(b), to ensure that contractors perform in accordance with the terms, conditions, and specifications of their contracts or purchase orders. The SFA can accomplish this by:

• Ensuring the solicitation and contract language includes the Buy American Provision (required)
  
  
• Including the Buy American Provision in its documented procurement procedures (required)
  
  
• Retaining records documenting any exceptions to the Buy American Provision (required)
  
  
• Requesting from the supplier specific information about the percentage of United States content in any processed end product
  
  
• Including in their procurement process a requirement that the vendor certify the domestic percentage of the agricultural food component of commodities and products
  
  
• Managing the contract (all actions are required):
  
  
  • Monitoring the vendor’s compliance with the terms of the contract or purchase order
    
    
  • Reviewing products and delivery invoices or receipts to ensure the domestic food that was solicited and awarded is the food that is received
    
    
  • Conducting periodic reviews of storage facilities, freezers, refrigerators, dry storage, and warehouses to ensure the products received comply with the Buy American Provision
    

Monitoring of the Buy American Provision by the California Department of Education

1. Onsite

As part of the SNP Administrative Review (AR), the CDE will evaluate compliance with the Buy American Provision by randomly selecting and reviewing food and beverage labels from each of the categories listed below:

1. Bakery, pasta, and miscellaneous (flour, cornmeal, sugar, pasta, rice, cooking oils, etc.)
2. Herbs and seasonings
3. Condiments (salad dressings, mustard, mayonnaise, ketchup, barbecue sauce, salsa, etc.)
4. Canned fruit and fruit juice
5. Canned vegetables and vegetable juice
6. Frozen fruit and fruit juice
7. Frozen vegetables and vegetable juice
8. Frozen meat and entrée items
9. Refrigerated foods (produce, butter/margarine, etc.)

The number of food labels reviewed depends on the location of the onsite and offsite food storage facilities. If the SFA stores a majority of commercial food products at the site(s) selected for review, then the CDE will review a minimum of two items in each of the food categories at the onsite food storage facility. If the SFA stores a majority of commercial food products at an offsite food storage facility at the site(s) selected for review, then the CDE will review a minimum of two items in each of the food categories at the offsite food storage facility. If the SFA uses a combination of onsite and offsite food storage options, the CDE will review at least one item in each of the food categories at the onsite food storage facility and at the offsite food storage facilities.

The SFA is compliant with the Buy American Provision if the review of food and beverage labels described above demonstrates the purchase of domestic products produced, manufactured, and processed in the U.S. or documentation exists to support an exception to the Buy American requirements as outlined in the USDA Policy Memo SP 38-2017.

If the SFA lacks documentation to support and justify the purchase of nondomestic food, the CDE must issue a finding and require corrective action.

Corrective action or technical assistance resulting from an onsite SNP AR may require the SFA to:

1. Require review of food deliveries for contractor compliance
   
   
2. Monitor to ensure the correct domestic food components contracted for are delivered
   
   
3. Prior to accepting foods, ensure that an alternative domestic food component, or an exception to purchase nondomestic foods, has been approved for delivery
   
   
4. Repay the nonprofit school food service account from an allowable nonfederal funding source for repeat or egregious findings; this will be determined by the CDE on a case-by-case basis and with approval by the appropriate FNS Regional Office

If the review of food labels is inconclusive (e.g., the label only notes that a product was processed in the United States but does not note the product origin) or if the CDE cannot otherwise determine from the label where the product was produced, manufactured, and processed, the CDE may assume the product is compliant with the Buy American Provision requirement only if the solicitation and contract documents contain the Buy American Provision or language on the requirement to provide domestic foods.

For additional questions and answers on the Buy American Provision compliance and CDE monitoring, please see USDA Policy Memo SP-38-2017.

2. Offsite

As part of the Local Agency Procurement Review, the CDE must ensure SFA compliance with the Buy American Provision. During a procurement review, the CDE will:

1. Determine if SFAs are purchasing domestic commodities as defined in Title 7, Code of Federal Regulations, Section 210.21(d)
   
   
2. Check that solicitations and contracts contain the Buy American certification language
   
   
3. Review a sample of supplier invoices or receipts to determine whether the solicited-for domestic foods were provided by the awarded contractor

If the SFA is noncompliant with the Buy American Provision, the CDE must issue a finding and require corrective action that may include:

1. Requiring contract amendments to include language to supply domestic foods, or a new solicitation if the contract amendment is determined, by the contracting parties or state agency, to be a material change
   
   
2. Attending a procurement training to increase compliance with procurement standards, including the Buy American provision
   
   
3. Fiscal action for repeat or egregious findings, on a case-by-case basis with approval by the appropriate FNS Regional Office

Request for Proposal or Invitation for Bid  

RFPs, also known as competitive proposals (2 CFR, Part 200.320(d)), is a method of procurement whereby SFAs publicly solicit a technical proposal that explains how the prospective contractor will meet the objectives of the solicitation, and includes a cost element that identifies the costs to accomplish the technical proposal. While price alone is not the sole basis for award, it remains the primary consideration when awarding a contract under the RFP method. SFAs seeking proposals from an food service management company (FSMC) should use the RFP method of procurement.

IFBs, also known as competitive sealed bids, is a formal method of procurement in which SFAs publicly solicit sealed bids from an adequate number of known suppliers, with the goal of obtaining three bids at a minimum. The SFA must award the fixed-price contract to the lowest priced, most responsible bidder, whose bid is responsive, and conforms with all the material terms and conditions of the IFB. SFAs must allow bidders sufficient time to respond prior to the date set for opening the bids. SFAs seeking proposals from meal vendors should use the IFB method of procurement.

Regardless of the type of bid method an SFA uses, SFAs must award the contract to the lowest bidder who best meets the SFA’s needs and stated objectives. The SFA must retain all bidding documents for three years after the final contract payment and, in the event of an audit, three years beyond the final audit resolution.

The RFP and IFB are important documents for setting parameters and conditions for the resulting contract. The SFA should adhere to their existing procurement plan or procedures to ensure a consistent procurement process; if there are no procedures or plan currently in place, the SFA should develop a procurement plan or procedure. Preparing and issuing an RFP or IFB includes the following steps:

1. Evaluating which types of services are needed and preparing a Scope of Work (SOW) that describes the services and tasks or products requested
   
   
2. Drafting the RFP/IFB, which must include the SOW and a sample contract
   
   
3. Submitting the RFP/IFB to the CDE for review and approval prior to publishing (SFAs should allow 90 days for the CDE to review and approve)
   
   
4. Providing the RFP/IFB to contractors known to offer the desired services or products
   
   
5. Publicly advertising the RFP/IFB
   
   
6. Establishing a date and time for opening proposals/bids
   
   
7. Evaluating the proposals/bids
   
   
8. Submitting the negotiated contract and all bidding documents to the CDE for review and approval (allow 30 days); this is not required for an IFB procurement
   
   
9. Awarding the contract and publicly posting the outcome of the RFP/IFB
   
   

Procurement History and Records

As required by 2 CFR, Part 200.318(i), SFAs and FSMCs must maintain records sufficient to detail the history of procurement. These records will include, but are not necessarily limited to the following:

• Rationale for the method of procurement
• Selection of contract type
• Contractor selection or rejection
• Basis for the contract price 

Bid Process for Food Service Management Company Contracts

FSMC contracts must be obtained through a competitive bidding process, using either formal or informal bidding procedures. SFAs must submit all bid documents to the CDE SFSCU for approval prior to issuance (7 CFR, sections 210.19[a][5] and 220.16[c][1]).

Bid documents can be sent to the SFSCU by e-mail at SFSCONTRACTS@cde.ca.gov, by fax at 916-445-5731, or by mail to:

School Food Service Contracts Unit
Nutrition Services Division
California Department of Education
1430 N Street, Suite 4503
Sacramento, CA 95814-5901

Pursuant to 7 CFR, Section 210.16(d), FSMC contracts shall be of a duration no longer than one year. The initial contract can include an option to renew for no more than four additional one-year terms.

SFAs can also contact an SFSCU Contract Specialist for guidance and assistance with the procurement process. The form Caseload SNP for your county-assigned SFSCU Contract Analyst list is available from the Child Nutrition Information and Payment System under Applications/Download Forms.

For more guidance on contracting with an FSMC, please review the Approval and Resources tabs for federal regulations and policies; the U.S. Department of Agriculture Contracting with Food Service Management Companies: Guidance for School Food Authorities manual; and relevant CDE management bulletins.

Bid Process for Vended Meal Contracts

SFAs contracting for vended meals, which are usually limited to preparation and delivery, must prepare a written IFB and provide it to as many potential bidders as possible. Vended meal procurements must follow a competitive procurement process. The goal of an IFB is to obtain a minimum of three price quotes. SFAs may not bypass the competitive bidding process by entering into a contract as a result of negotiations with only one contractor/vendor.

At this time, SFAs contracting for vended meals do not need to submit bid documents to the CDE for prior approval; however, SFAs must submit a signed copy of the contract and annual contract extensions to the CDE.

Meal vendors may not:

• Access individual student meal eligibility
• Act as an employee of, or agent for, the SFA
• Collect claim data
• Collect meal payments
• Conduct point of service meal counts
• Provide program oversight

Upon request, SFAs shall make all bid documents available for review to the CDE, the USDA, and the USDA Office of Inspector General. The CDE retains the right to request bid documents from any SFA for prior approval (7 CFR, sections 210.21[c][1], 215.14a[c][1], and 220.16[c][1]).

Bid Thresholds

In all competitive procurements, school food authorities (SFA) will use federal, state, or local bid thresholds to determine whether to use the Formal Procurement or Informal Procurement process.

Current Bid Thresholds

Effective August 30, 2012, the current federal small purchase threshold is $150,000, as published in U.S. Department of Agriculture Food and Nutrition Service Policy Memorandum SP 01-2013: Federal Small Purchase Threshold Adjustment (PDF).

The California state small purchase threshold, as established in California PCC, Section 20111(a), is adjusted annually (effective January 1) and published in the Bid Threshold Adjustment letter available on the California Department of Education Finance and Grants Correspondence Web page. The small purchase threshold for calendar year 2017 is $88,300.00.

SFAs must adhere to the applicable bid threshold established by their governing body:

Nonprofit agencies and charter schools must use the federal small purchase threshold.
Public schools and county offices of education must use the California state small purchase threshold.
Local governments, such as those administered by county government offices, must use the small purchase threshold established by their governing body or the federal threshold of $150,000, if no local threshold exists.

Formal Procurement

A formal procurement process is primarily used to purchase food and/or services when the one-year procurement cost exceeds the applicable small purchase threshold. This situation applies to most contracts between SFAs and food service management companies. As part of the competitive bidding process, SFAs must issue and publicly advertise a Request for Proposal (RFP) or Invitation for Bid (IFB) for any procurement equal to or over the applicable small purchase threshold. For more details on the RFP and IFB method of procurement, see the Procurement tab.

Informal Procurement

An informal procurement process may be used when the one-year cost for the purchase of food, services, and/or supplies from a wholesaler, retailer, or vendor is less than the applicable small purchase threshold. Although less rigorous than the formal procurement method, SFAs must still use a competitive bidding process. The SFA must contact at least three known suppliers and obtain competitive price quotations. SFAs are permitted to negotiate prices and terms with one or more of the suppliers contacted. SFAs must ensure that all suppliers receive the same information about the requested food, services, and/or supplies. To the extent possible, SFAs should compare equivalent food, services, and/or supplies, and inform all suppliers of any special need that may affect the price. An example of a special need would be the delivery of the product to a specific building or kitchen.

Bid quotes initially obtained by phone must be documented in writing, with the bidder providing written confirmation about items or services to be provided and prices discussed; such documentation must be retained as part of the procurement documents and is subject to examination and audit by applicable federal and state regulatory agencies. 

Using the informal procurement method, SFAs may directly contact potential competitive sources. The decision whether to formally advertise or simply contact three or more potentially qualified sources is left to the SFA.

Please note that SFAs must always adhere to procurement regulations when purchasing any amount of goods or services using cafeteria funds. Both the formal and informal procurement processes must comply with all applicable federal and state regulations and guidance, and use:

• A standard of conduct or guidelines for conducting compliant procurements; for example, any bidder who develops specifications, requirements, scope of work, RFPs or IFBs, contract terms and conditions, or other documents used in the resulting contract, is excluded from competing for the contract award
  
  
• Open and full competition (2 CFR, Part 200.319(c)]

Program Control

• Overview
• No Adverse Impact to District Personnel
• A La Carte Food Services
• Control of Cafeteria Account
• Confidentiality and Disclosure of Eligibility Status
• Volunteer Groups

Overview

A school food authority (SFA) may contract with a food service management company (FSMC) to perform one or more of the following activities for the SFA’s nonprofit food service operation, at one or more of its schools (Title 7, Code of Federal Regulations [7 CFR], Section 210.16[a]): 

• Providing consulting services
  
  
• Developing menus and menu production records
  
  
• Preparing, delivering, and/or serving meals
  
  
• Organizing and maintaining program documents (such as daily meal counts, menus, and menu production records)
  
  
• Preparing claims for reimbursement for SFA approval and submission per 7 CFR, Section 210.16(a)(5), FSMCs are not allowed to submit claims
  
  
• Purchasing food, supplies, and/or equipment
  
  
• Providing program guidance and training
  
  
• Maintaining bookkeeping records
  
  
• Implementing other activities normally performed by the SFA

SFAs must remain financially responsible for their school food service programs and retain control over the quality, extent, and general nature of their food service operations and the meal prices charged to children (7 CFR, Section 210.16[a][4]).

SFAs must also retain control of the SFA’s nonprofit school food service (cafeteria) account, development and adjustment of the 21-day cycle menu, signature authority on the SFA’s agreement with the California Department of Education (CDE), and the SFA’s Claims for Reimbursement (7 CFR, sections 210.3[d], 210.7, 210.8[a] and [b], 210.9[b][10], 210.10[a][3], 210.16[a], 220.7[d][1][iv] and [v], 220.10, and 220.11). 

In addition, SFAs shall:

• Adhere to the procurement standards specified in 7 CFR, sections 210.21 and 220.16, 2 CFR 200.318 and 200.318(b)-200.326, and 2 CFR Appendix II Part 200(A), when contracting with an FSMC
  
  
• Ensure that the food service operation conforms with the SFA’s Permanent Single Agreement with the CDE under the applicable school nutrition program
  
  
• Monitor the food service operation through periodic on-site visits of all participating sites

No Adverse Impact to District Personnel

According to California Education Code (EC), Section 45103.5, contracting with an FSMC shall not cause or result in the elimination of or adversely impact public school district personnel and positions. An FSMC consultant(s) may not supervise district personnel.

Contracts for Prepared Meals

According to EC, Section 49554, a school district may contract for the preparation, delivery, and service of meals, if the school district has had no food service employees since July 1, 1977, or has inadequate or no food preparation facilities as determined by the CDE, and is therefore unable to provide adequate meals. Prior to contracting for such services, the school district shall certify to the CDE that no school district in the county nor the county superintendent of schools has the facilities and is willing to furnish those services.

A La Carte Food Services

According to 7 CFR, Section 210.16(a), no SFA may contract with an FSMC to operate an a la carte food service, unless the FSMC agrees to offer free, reduced-price, and paid reimbursable lunches to all eligible children.

Control of Cafeteria Account

The cafeteria account is a restricted account in which the SFA retains and expends its revenues only for the operation and improvement of the nonprofit school food service. SFAs shall not use funds from the cafeteria account to purchase land or buildings, or to construct buildings, unless otherwise approved by the U.S. Department of Agriculture; (7 CFR, sections 210.2 and 210.14[a]). Revenues that shall accrue to the cafeteria account include, but are not limited to, child and adult meal payments, earnings on investments, other local revenues, state revenues, and federal cash reimbursements (7 CFR, Section 210.2).

SFAs shall not allow non-district staff access to the cafeteria account. Pursuant to EC Section 38094, a district’s governing board shall designate custody and control of the cafeteria account to one or more district employees who shall be responsible for recording revenues and expenditures. Effective July 1, 2011, profit sharing between the food service and other district-associated bodies (e.g., student or parent groups) is not permitted (Public Law 111-296, Healthy, Hunger-Free Kids Act of 2010, sections 206 and 208). Amendments to the Richard B. Russell National School Lunch Act and the Child Nutrition Act of 1966 further require that all revenues from the sale of non-program foods accrue to the cafeteria account solely for the operation or improvement of the food service program. Pursuant to 7 CFR, Section 210.19(a)(1) SFAs:

. . .shall meet the requirements for the allowability of nonprofit school food service expenditures in accordance with this part and, 2 CFR Part 200, as applicable. All costs resulting from contracts that do not meet the requirements of this part are unallowable nonprofit school food service account expenses… .

Confidentiality and Disclosure of Eligibility Status

According to EC Section 49558, all applications and records related to free or reduced-price meal eligibility must be kept confidential, and may not be disclosed for any purpose not directly connected with the administration of any free or reduced-price meal program. In accordance with 7 CFR, Section 210.8(a)(5), and the CDE Permanent Single Agreement for Child Nutrition Programs, SFAs shall provide such application information and records, on request, to the CDE and USDA for audits or reviews.

An SFA shall not disclose a child’s eligibility status during the process of providing free and reduced-price meals. This includes any overt identification in regard to the free and reduced-price benefit notification, provision of meals in the cafeteria, point of sale  (POS) meal count, or method of payment.

In addition, EC Section 49557 and 7 CFR, Section 245.8, require SFAs to take all actions necessary to ensure compliance with the following nondiscrimination practices for children eligible to receive free and reduced-price meals or free milk:

• The names of the children shall not be published, posted, or announced in any manner.
  
  
• There shall be no overt identification of any of the children by the use of special tokens or tickets or by any other means.
  
  
• The children shall not be required to work for their meals or milk.
  
  
• The children shall not be required to use a separate dining area, go through a separate serving line, enter the dining area through a separate entrance, or consume their meals or milk at a different time.
  
  
• When more than one lunch, breakfast, or type of milk is offered that meets the requirements in 7 CFR, sections 210.10 and 220.8, or the definition of milk in 7 CFR, Section 215.2, the children shall have the same choice of meals or milk available to children who pay the full price for meals or milk.

Volunteer Groups

Federal regulations (7 CFR Section 210.9) and EC Section 35161 require SFAs to retain control of the food service program and finances. Volunteer groups, such as parent–teacher associations, may assist the food service operation in limited capacities. Allowable activities include menu planning, enhancement of the eating environment, Program promotion, and related student-community support activities (7 CFR 210.12[a]). EC Section 49515 requires, to the extent feasible and practicable, public school districts with food service programs to include parents of needy pupils in the planning, preparation, and serving of meals at school.

California public schools are considered civic centers under EC Section 38131. As such, certain organizations may, with school board approval, use the school from time to time for specific activities. Pursuant to EC Section 38133(c), the use of school facilities shall not interfere with the regular conduct of school work.

Pursuant to EC Section 38094, the SFA shall designate an employee or employees of the district to have custody of the nonprofit food service (cafeteria) account(s), who shall be responsible for all moneys required to be paid into the account(s), and for all expenditures made from the account(s).

Approval Process

• Overview
• Timeline to Obtain Approval from the California Department of Education

Overview

Title 7, Code of Federal Regulations (7 CFR), sections 210.16(a)(9) and (10), require school food authorities (SFA) to obtain written approval from the California Department of Education (CDE) for all Requests for Proposal (RFP) and contract documents before issuance and execution. Should an SFA fail to obtain CDE approval prior to advertising the RFP or executing the contract, the CDE will consider the SFA noncompliant with federal procurement regulations. Consequently, the CDE may withhold program funds and the SFA will need to use other funds to pay the food service management company (FSMC) until approval has been granted (7 CFR, sections 210.21[f][2] and 210.24).

The CDE procurement approval process starts with the SFA completing the CDE procurement questionnaire, available on the Resources tab. The SFA’s answers provide a basis for CDE School Food Service Contracts Unit (SFSCU) Specialists to customize their technical assistance.

Timeline to Obtain Approval from the California Department of Education

Most FSMC contracts are effective July 1. Considering the length of time required to conduct a competitive proposal process and obtain CDE approval, SFAs should submit their bid solicitation documents to the CDE 120 days prior to the anticipated contract execution date. SFAs using the CDE sample RFP and contract are not exempt from obtaining CDE approval prior to RFP publication and subsequent contract execution.

To obtain approval and execute a contract with an effective date of July 1, the CDE suggests that SFAs adhere to the following steps and timeline:

1. SFA develops the RFP and model contract (July–September)
   
   
2. SFA submits initial RFP package to the CDE (by mid-October)
   
   
3. CDE reviews and approves RFP documents (average time 90 days*)
   
   
4. SFA advertises proposal (14 days)
   
   
5. SFA allows bidders to submit proposals (21 days)
   
   
6. SFA evaluates proposals and awards contract (7 days)
   
   
7. SFA and selected contractor negotiate contract terms (7 days)
   
   
8. SFA incorporates all negotiated terms into the contract (5 days)
   
   
9. SFA submits all solicitation documents and negotiated contract to the CDE
   
   
10. CDE reviews and approves the proposed contract (30 days*)
    
    
11. SFA executes contract (5 days)
    
    
12. SFA submits copy of executed contract to the CDE
    
    
13. CDE reviews and approves executed contract or requests changes if executed contract differs from approved proposed contract (7 days)

*Subject to change depending on factors including, but not limited to, the number of revisions needed.

To ensure the required contract review and approval follows the above timeline, SFAs must respond to any CDE requests for information or documents within three (3) business days of receipt. SFSCU Contract Analysts will provide assistance and support throughout the RFP and contract review and approval process.

Noncompliance

• Overview
• Affect on Net Cash Resources

Overview 

Federal regulations specify that school food authorities (SFA) may not use food service revenues (from the cafeteria fund) to pay for goods and services if the California Department of Education (CDE) determines that the SFA did not follow state and federal procurement procedures to obtain such services, or if the nature of the contract violates state or federal laws and regulations.

If the SFA or the contracted food service management company materially fails to comply with any term of the contract—stated in a state or federal statute or regulation, assurance, state plan or application, notice of award, or elsewhere—the CDE may take one or more of the following actions pursuant to Title 2, Code of Federal Regulations (2 CFR), Part 200.338:

1. Temporarily withhold cash payments pending correction of the deficiency by the non-Federal entity, or more severe enforcement action by the Federal awarding agency or pass-through entity (also refer to 7 CFR, Section 210.24)
   
   
2. Disallow (that is, deny both use of funds and any applicable matching credit for) all or part of the cost for the activity or action not in compliance
   
   
3. Wholly or partially suspend or terminate the Federal award
   
   
4. Initiate suspension or debarment proceedings as authorized under 2 CFR Part 180 and Federal awarding agency regulations (or in the case of a pass-through entity, recommend such a proceeding be initiated by a Federal awarding agency)
   
   
5. Withhold further Federal awards for the project or program
   
   
6. Take other remedies that may be legally available
   

When the CDE notifies the SFA of noncompliance, the SFA can either rebid the contract following California state and federal procurement procedures and applicable California state law, or pay for the services provided under the contract with other funds. If the CDE notifies an SFA of noncompliance, and the SFA continues to use the services provided under the contract without proper rebidding, the SFA may not charge the  cafeteria fund to pay for such services and the CDE may withhold program funds (7 CFR, Section 210.24).

Affect on Net Cash Resources

If an SFA continues to use services provided under an improperly procured contract and pays for these services with other funds, such as the general fund, the contract may continue. However, the lack of significant expenditures from the cafeteria fund may result in excess net cash resources (NCR).

Pursuant to 7 CFR, Section 210.14(b), SFAs are required to limit their cafeteria fund balance to an amount that does not exceed three-months’ average operating expenditures. Federal regulations under 7 CFR, Section 210.19(a)(1), authorize the CDE to require an SFA with NCR over the federal limit to reduce the price children are charged for lunches or improve food quality, or the CDE can adjust the level of the SFA’s federal reimbursements until the NCR is at or below the allowed limit.

SFAs should avoid retaining improperly procured contracts, as doing so could affect the cafeteria fund.

Resources and Tools

Forms

CDE Sample Request for Proposal and Model Contract (DOC)
Sample Request for Proposal and Fixed-Price contract for school food authorities procuring the services of a food service management company.

School Food Authority Procurement Questionnaire (DOC)
Procurement questionnaire to obtain specific SFA food service information and provide targeted technical assistance for soliciting the services of a food service management

EC Section 49554 Certification Form (DOC)
School districts and county offices of education choosing to contract with a FSMC or private meal vendor must submit this form to the CDE and receive approval.

Manuals

USDA Manual: Contracting with Food Service Management Companies: Guidance for School Food Authorities

The National Food Service Management Institute offers a variety of School Nutrition Program and other education and training resources for school districts.       

Resources

School Food Service Contracts Unit: Staff and County Assignments

2017-18 FSMC Rebids Due
This is a list of SFAs due to rebid their FSMCs this year for the 2017-18 school year. In August, CDE e-mails Expiration letter notifications to SFAs with expiring FSMCs, with follow-up reminders in October. FSMC Rebids follow the same approval timeline as new contracts. Please see Timeline to Obtain Approval from the CDE in the Approval tab. Vended Meal Contracts do not require CDE pre-approval at this time.

Training

The Procurement Guidance Webinar Training series is designed to provide valuable procurement information for school food authorities (SFA) and local educational agencies (LEA), food service management companies (FSMC), meal vendors, and industry partners. The CDE strongly recommends SFAs and LEAs considering or soliciting food service contracts watch this entire Webinar series.

Part 1 – Introduction to Procurement Overview (Under Review)
Introduces the Webinar series and provides an overview of the steps involved in procuring a food service contract.  

Part 2 - Procurement Basics (Under Review)
Details contracting requirements, including competitive procurement, formal versus informal procurement, and bid thresholds

Part 3 - Scope of Work (SOW) (Under Review)
Provides guidance on how to develop an SOW, the key component of the solicitation document and contract.

Part 4 - Request for Proposals (RFP) (Under Review)
Clarifies the components and importance of a well-written RFP.

Part 5 - Vended Meal Contracts: Meal Patterns (Video; 36:54)
Presents an overview of the USDA meal pattern requirements for the National School Lunch Program and School Breakfast Program, and what steps to take to ensure contractors comply with program requirements.

Part 6 - USDA Foods: Food Service Management Companies and Vended Meal Contracts (Video; 17:35)
Explains the basics of USDA Foods and Food Distribution Program participation, how to ensure that FSMCs and/or meal vendors properly use USDA Foods, and the development of bid and contract language for the inclusion of USDA Foods.

Regulations

Federal

Electronic Code of Federal Regulations (CFR), Title 7 (Agriculture)

• Part 210, National School Lunch Program
• Part 220, School Breakfast Program
• Section 226.21, Food Service Management Companies

U.S. Department of Agriculture (USDA) Food and Nutrition Service

SP 40-2016 Updated Guidance: Contracting with Food Service Management Companies
The updated guidance includes information on appropriate procurement methods, considerations when using prototype solicitations, the process of evaluating and scoring criteria for contract awards, and monitoring responsibilities.

State

California Education Code

• Applicable sections include: 38103, 45103, 45103.1, 45103.5, and 49554

Management Bulletins

The following Management Bulletins are available on the California Department of Education School Nutrition Programs Management Bulletins Web page:

• SNP-13-2015, January 2015, Procuring and Monitoring of FSMC Contracts

• SNP-10-2014, November 2014, Food Service Management Company Contract Preapproval

• SNP-11-2014, April 2014, State Procurement Threshold for Calendar Year 2014
  
  
• USDA-SNP-26-2013, December 2013: FSMC Sample Proposal and Contract

• NSD-SNP-15-2013, September 2013: New School Food Service Contracts Unit

• NSD-SNP-11-2013, August 2013: Distinguishing a Food Service Management Company From a Meal Vendor

• USDA-SNP-30-2012, October 2012: Reminder – Compliance with Procurement Requirements

Cafeteria Fund Guidance
Provides Local Educational Authorities (LEA) with information and instructions pertaining to federal and State statutes and regulations that govern school cafeteria funds.

USDA School Meals Policy Memos

Other School Meal Policy Memos issued by the USDA are available on the USDA School Meals Policy Web page:

• USDA Policy Memo SP 40-2016, CACFP 12-2016, SFSP 14-2016 , Updated Guidance: Contracting with Food Service Management Companies
  
  
• USDA Policy Memo SP 09-2015, CACFP 03-2015, SFSP 02-2015 , Written Codes of Conduct and Performance of Employees Engaged in Award and Administration of Contracts

• USDA Policy Memo SP 35-2013 , April 2013: State Agency Oversight and Monitoring of School Food Authority Contracts with Food Service Management Companies.
  
  
• USDA Policy Memo SP 23-2013 , February 2013: Guidance Reaffirming the Requirement that State Agencies and School Food Authorities Periodically Review Food Service Management Company Cost Reimbursable Contracts and Contracts Associated with USDA Foods