Procurement in the CNPs Frequently Asked QuestionsQuestions and answers to common questions regarding procurement in child nutrition programs.
Questions and Answers (Q&A) to aid child nutrition program (CNP) operators with understanding the procurement standards in Title 2, Code of Federal Regulations (2 CFR), Part 200, and other federal and California state procurement laws, regulations, and policies. The California Department of Education (CDE) does not intend these Q&As to be inclusive of all terms, provisions, and program requirements applicable to procurements and contracts. Each agency is responsible for ensuring that their procurement documents comply with all applicable laws, program instructions, and guidance materials. Each agency should consult with their own legal counsel regarding any proposed procurement methods or contract language.
For additional information, please visit the U.S. Department of Agriculture (USDA) Q&As on the Transition to and Implementation of 2 CFR, Part 200 Web page.
If you are unable to find the answer to your questions, please contact the following program support staff for assistance:
- Child and Adult Care Food Program Unit
Nancy Charpentier, Office Technician (OT), by phone at 916-327-2991 or by e-mail at email@example.com or Leslie Schar, OT, Community Nutrition Programs Administration by phone at 916-324-6153 or by e-mail at firstname.lastname@example.org.
- School Food Service Contracts Unit
Debbie Reeves, OT, by phone at 916-319-0636 or by e-mail at email@example.com.
- Summer Meals Unit
Larry Frakes, OT, by phone at 916-322-8323 or by e-mail at firstname.lastname@example.org.
General Terms with Abbreviations, Acronyms, and Definitions
- Administrative Review (AR)
- Bidder/Potential Vendor/Respondent is a commercial enterprise, public or nonprofit private organization, or individual that can enter into a contract with a CNP operator.
- California Department of Education (CDE)
- California Department of Food and Agriculture (CDFA)
- California Education Code (EC)
- California Government Code (GC)
- California Public Contract Code (PCC)
- California Retail Food Code (CalCode)
- Child and Adult Care Food Program (CACFP)
- Child Nutrition Information and Payment System (CNIPS)
- Child Nutrition Program (CNP)
- CNP Operator is an agency that operates a CNP including, but not limited to, the NSLP, SBP, CACFP, and SFSP.
- Code of Federal Regulations (CFR)
- Community Food Producers (CFP)
- Consumer Price Index (CPI)
- Contractor/Vendor is a commercial enterprise, public or nonprofit private organization, or individual that has entered into a contract with a CNP operator.
- County Office of Education (COE)
- Food and Nutrition Service (FNS)
- Food Service Management Company (FSMC)
- Good Agricultural Practices (GAP)
- Good Handling Practices (GHP)
- Institute of Child Nutrition (ICN)
- Invitation for Bid (IFB)
- Management Bulletin (MB)
- National School Lunch Act (NSLA)
- National School Lunch Program (NSLP)
- Nutrition Services Division (NSD)
- Office of Management and Budget (OMB)
- Policy Memorandum (Policy Memo)
- Question and Answer (Q&A)
- Request for Proposal (RFP)
- Residential Child Care Institution (RCCI)
- School Breakfast Program (SBP)
- School Food Authority/SNP Operator (SFA)
- School Nutrition Programs (SNP)
- Summer Food Service Program (SFSP)
- U.S. Department of Agriculture (USDA)
Frequently Asked Questions
Is apparel (e.g., aprons, uniforms) an allowable cost?
Does the CDE need to approve equipment (including software) over $5,000?
Yes, if the SFA is purchasing equipment equal to or greater than $5,000 per unit (or the SFA’s local capital expenditure threshold if less than $5,000), and the equipment is not on the USDA-approved CDE Capital Expenditure List, then the SFA must receive prior approval from the CDE. For more information, refer to USDA Policy Memo SP 39-2016; SFSP 13-2016; CACFP 11-2016, State Agency Prior Approval Process for SFA Equipment Purchases Web page.
Per USDA Policy Memo SP 31-2014, State Agency Prior Approval Process for SFA Equipment Purchases—equipment is defined as any item of nonexpendable personal property with a useful life of a year or longer and an acquisition cost that equals or exceeds the federal per unit capitalization threshold of $5,000 or a lower threshold set by state or local level regulations.
Agencies other than SFAs should contact their program analyst in the Download Form section of the CNIPS to determine whether pre-approval is required on equipment purchases over $5,000.
Can an agency include a specific brand or product in their written specification?
Yes, an agency may include a brand name in the specification but they must also include the language “or equivalent” and describe what constitutes an equivalent product in the specification to ensure they are not limiting competition.
2 CFR, Section 200.319(a) states:
All procurement transactions must be conducted in a manner providing full and open competition consistent with the standards of this section. In order to ensure objective contractor performance and eliminate unfair competitive advantage, contractors that develop or draft specifications, requirements, statements of work, or invitations for bids or requests for proposals must be excluded from competing for such procurements. Some of the situations considered to be restrictive of 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 contracts 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 requirements of the procurement [emphasis added]; and
(7) Any arbitrary action in the procurement process.
If an agency conducts a taste test and the tasters like a specific brand of burrito, can the agency release a solicitation for that burrito only?
No, an agency must include the brand name or equivalent language in the solicitation. The federal regulations in 2 CFR, Section 200.319(a)(6), do not allow brand name-only solicitations (refer to question 1 above).
At what point in the procurement process does an agency determine the list of preapproved equivalents for brand name food?
The federal regulations do not define at what point an agency would determine a list of preapproved equivalents. For more information, the CDE suggests agencies refer to pages 49‒53 on the ICN Procurement in the 21st Century Resource Manual Web page.
Buy American Provision
What agencies must adhere to the Buy American Provision?
Title 42, U.S. Code (USC), Section 1760(n), requires SFAs that receive any federal reimbursement through the SNP to adhere to the Buy American Provision. This includes SNPs that also operate a CACFP and/or a SFSP.
What is the Buy American Provision?
SFAs must purchase, to the maximum extent practicable, domestic commodity or product. Title 42 USC, Section 1760(n), of the NSLA 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. For more information, refer to the USDA Policy Memo SP-38-2017, Compliance with and Enforcement of the Buy American Provision on the USDA FNS School Meals Policy Web page.
How should an SFA ensure adherence to the Buy American Provision?
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 the vendor to 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
Are there any 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 standard. These exceptions include:
- The product is not produced or manufactured in the United States in sufficient and reasonable available quantities of a satisfactory quality.
- Competitive bids reveal the cost of a United States product are significantly higher than the nondomestic product (it should be recognized that the FNS has given guidance in SP 38-2017 that it is the SFA’s responsibility to determine the threshold for “significantly higher”).
Before utilizing 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
- 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.
If the information on the label is incomplete (e.g., the label only notes that a product was processed in the United States but does not note the product origin) or the reviewer cannot otherwise determine from the label where the product was produced and processed, the reviewer may assume the product is compliant with the Buy American requirements only if the solicitation and contract documents contain the Buy American Provision or language on the requirement to provide domestic foods.For more information, refer to the USDA Policy Memo SP-38-2017, Compliance with and Enforcement of the Buy American Provision on the USDA FNS School Meals Policy Web page.
Code of Conduct
Are employees who are designated to adhere to the written code of conduct allowed to accept contractor-sponsored meals?
2 CFR, Section 200.318(c)(1), requires non-Federal entities to maintain written standards of conduct covering conflicts of interest and governing the actions of its employees engaged in the selection, award, and administration of contracts. In California, the Political Reform Act (California GC, sections 87000 et. seq.), and California GC, sections 1090 et. seq., govern conflicts of interest. Additionally, local conflict of interest rules may also apply. Please consult with legal counsel to determine if your agency’s conflict of interest code allows employees to accept vendor/contractor-sponsored meals, and what limits apply to these meals.
Can an agency ask vendors to donate to a fundraiser or other event?
An agency cannot ask vendors to participate or donate to fundraisers and other events. Per 2 CFR, Section 200.318(c)(1) “ . . . the officers, employees, and agents of the agency may not solicit gratuities, favors, or anything of monetary value from contractors or parties to subcontracts . . . ”.
Does the code of conduct need board approval?
2 CFR, Part 200.318, only requires nonfederal entities who participate in the selection, award, or administration of a contract supported by a federal award to maintain a written code of conduct. Any board with oversight or decision-making authority regarding federal funds must adhere to an agency’s written code of conduct. Agencies should consult with their legal counsel to determine if the code of conduct must be approved by the governing board.
Is an employee who is designated to adhere to the written code of conduct allowed to keep a raffle prize with a ticket that was purchased with public funds?
Agencies should consult with their legal counsel to determine whether the agency’s code of conduct allows the employee to keep the raffle prize. State and local rules pertaining to gift limits may also apply.
If an instance of unethical conduct occurs during a solicitation, does it void that solicitaiton and require restarting the solicitation process?
Agencies should consult with their legal counsel when they think an instance of unethical conduct occurs during a solicitation.
2 CFR, Section 200.318(k), states in part that:
The non-federal entity alone must be responsible in accordance with good administrative practice and sound business judgement for the settlement of all contractual and administrative issues arising out of procurements. [Procurements should always comply with 2 CFR, Section 200.319—Competition] … Violations of law will be referred to the local, State, or Federal authority having proper jurisdiction.
Court decisions have found contracts made in violation of California GC, Section 1090 were void.
Which employees must adhere to the code of conduct?
Any employee, officer, or agent that is engaged in the solicitation, selection, award, or monitoring of contracts must adhere to the code of conduct per 2 CFR, Section 200.318(c)(1).
The Political Reform Act, (California GC, sections 87100 et. seq.), and California GC, sections 1090 et. seq., provides information for public officers and employees on prohibitions applicable to specified officers and employees.
Ultimately, it is the responsibility of the agency to determine who must adhere to the code of conduct. Agencies should consult with legal counsel to determine who must adhere to their code of conduct.
Cooperative Purchasing Groups
What is cooperative purchasing?
Cooperative purchasing occurs when entities join to accomplish all or part of the steps in the purchasing process. Cooperative purchasing is a system aimed at using group purchasing in an effort to increase buying power, reduce costs, and improve the quality of products and services available to members, and ultimately the children in the meal programs these agencies operate. The purpose of cooperative purchasing is to use the collective buying power and expertise to obtain the highest quality products at the best price.
For more information on this subject, including a list of frequently asked questions, see pages 119‒149 on the ICN Procurement in the 21st Century Resource Manual Web page and the USDA Policy Memo SP 05-2017, CACFP 03-2017, SFSP 02-2017, Q&A: Purchasing Goods and Services Using Cooperative Agreements, Agents, and Third-party Services Web page.
Does a cooperative need to follow the same rules when procuring goods and services as an agency acting on its own behalf?
Yes, as addressed in the USDA Policy Memo SP 05-2017, CACFP 03-2017, SFSP 02-2017, Q&A: Purchasing Goods and Services Using Cooperative Agreements, Agents, and Third-party Services Web page. This policy memo states in part:
A cooperative that is comprised solely of Program operators and/or the CNP State agency may procure as a group and must do so in compliance with the procurement standards that apply to the individual Program operator (7 CFR 210.21 and 2 CFR 200.318-.326). This includes complying with all State and local procurement standards, if more restrictive, and publishing solicitations and contracts with all terms, conditions, required contract provisions, as applicable, and clearly identifies all product descriptions, specifications, and estimated quantities required. For SFAs, the Buy American and cost-reimbursable provisions in 7 CFR 210.21(d) and (f) are required. Further, each program operator is responsible for monitoring vendor performance to ensure compliance with all contract provisions. Written agreements delineating roles and responsibilities are encouraged.
Discounts, Rebates, Points, and Other Incentives
Can an agency use points earned from vendors to purchase goods, services, or redeem the points for travel to CNP-related conferences?
Vendor credits accrued from purchases made with federal monies must be reallocated to the nonprofit food service account. An agency must use the credits or rebates to purchase items that are allowable uses of cafeteria funds.
These situations are often determined on a case-by-case basis. If an agency is unclear whether they are using their points on an allowable cost, they should contact CDE staff at SNPCafeFundQuestions@cde.ca.gov.
Can a vendor issue a rebate check to an agency instead of providing a direct rebate on an invoice? For example, an agency receives a rebate check from a distributor rather than a rebate on the invoice.
A check or a rebate is allowable as long as the nonprofit school food service account is the sole recipient of this credit. Per 2 CFR, Section 200.406, credits accruing to or received by an agency that relate to allowable costs must be credited as either a cost reduction or cash refund, as appropriate.
FSMCs and Vended Meals
How do schools extend, amend, or rebid an FSMC contract?
FSMC contract extensions, amendments, and rebids are done on a yearly basis. Per 7 CFR, Section 210.16(d), the contract between a school and the FSMC shall be of a duration of no longer than one year; and options for the yearly renewal of a contract signed after February 16, 1988, may not exceed four additional years. Schools need to obtain preapproval from the CDE in order to extend, amend, or rebid the term(s) of an FSMC contract. Visit the CDE Procurement in SNPs Web page (Approval tab) for more information on timelines for the rebidding process.
Is it allowable for a vended meal contractor to receive funds directly from students ordering school lunch and then the vended meal contractor disburses funds back to the school?
Yes; however, the SFA is responsible for all revenues and costs associated with running the CNP. Therefore, the SFA would need to ensure they have adequate documentation from the vendor to ensure proper accounting. EC, sections 38093 and 38094, state that all funds derived from the sales of food shall be deposited into the cafeteria fund, and that the board shall designate a district employee to have custody of those funds.
Formal Procurement Method
Can an agency use an RFP instead of an IFB for supplies (e.g., food), or is an RFP only allowable for services?
It is allowable under both state and federal laws and regulations for agencies to procure supplies using the RFP method. An agency should use the IFB method in situations when there is no substantial difference among the products or services that meet specifications and the key difference among responsive bids is price.
School districts, COE, and agencies governed by a school board or COE must comply with California PCC, Section 20111(a), which requires that contracts for equipment, materials, supplies, and services exceeding the California small purchase threshold (currently set at $88,300 on January 1, 2017) be let to the lowest responsible bidder.
For agencies other than those listed above, per 2 CFR, Section 200.320 (d)(4), contracts must be awarded to the responsible firm whose proposal is most advantageous to the program, with price and other factors considered.
What are the minimum content requirements of a public advertisement?
At a minimum, the CNP Operators must direct bidders to the location of the solicitation. An agency does not need to publicly post the evaluation criteria in the advertisement, but they do need to direct prospective respondents to the location of the solicitation, which would include information on how bids or proposals will be evaluated.
School districts, COE, and agencies governed by a school board or COE must comply with California PCC, Section 20112, which states:
For the purpose of securing bids the governing board of a school district shall publish at least once a week for two weeks in some newspaper of general circulation published in the district, or if there is no such paper, then in some newspaper of general circulation, circulated in the county, and may post on the district’s Web site or through an electronic portal, a notice calling for bids, stating the work to be done or materials or supplies to be furnished and the time when and the place and the Web site where bids will be opened.
Can an agency choose to only advertise on the agency's Web site?
No. School districts, COE, and agencies governed by a school board or COE must comply with California PCC, Section 20112, which states that bids shall be advertised once a week for at least two weeks in a newspaper of general circulation. The district may also post the notice on their Web site or other electronic portal; however, school districts may not advertise only on their Web site because posting on the district’s Web site is not considered a newspaper of general circulation.
Yes. Agencies other than those listed above can choose to only advertise on the agency’s Web site if it complies with 2 CFR, Section 200.320(c) and (d)(1). This regulation requires agencies to publicly advertise the IFB or RFP and provide sufficient response time prior to the date set for opening bids. Agencies should also ensure that their public advertising complies with 2 CFR, Section 200.320(c)(2)(i), which requires bids be solicited from an adequate number of known suppliers.
Can a school district or other agency use past performance as an evaluation criterion?
Yes. Past performance can be used as long as the agency informs vendors that past performance is one of the evaluation criteria. For more information, see page 75 on the ICN Procurement in the 21st Century Resource Manual Web page. An evaluation of a vendor’s past performance can help an agency determine whether a bidder is responsible.