SCHOOL SERVICES Attn: Child Nutrition Dept. XXX-YYY-ZZZ REQUEST FOR PROPOSAL PROCESSING OF USDA FOODS INTO PROCESSED END PRODUCTS

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1 REQUEST FOR PROPOSAL PROCESSING OF USDA FOODS INTO PROCESSED END PRODUCTS ACCEPTANCE TIME/DATE: [TIME, DAY, MONTH XX, YEAR] 1

2 School Services Cooperative (CO-OP) is receiving Request for Proposals (RFP) of Commodity Processing for Beef, Pork, Chicken, Turkey, Tomato, Mozzarella Cheese, Cheddar Cheese, Whole Eggs, Bulk Potato, Peanut Butter, Flour, Fruit and Fish as per the attached specifications. Proposals will be accepted at the Child Nutrition Department, [ADDRESS, CITY, STATE, XXXXX] until [DAY, MONTH, XX, YEAR], at which time they will be opened and tabulated for School Services Board approval. It is the policy of CO-OP to purchase on the basis of proposals most advantageous to the Programs with price as the primary factor and other factors considered in the evaluation and scores provided herein. This proposal form must be used and signed below. Failure to follow these instructions could be cause for the proposal not to be accepted: PROPOSALS MUST BE SUBMITTED ON A CD OR USB FLASH DRIVE AND PLACED IN A SEALED ENVELOPE CLEARLY MARKED PROCESSING OF USDA COMMODITY FOODS, DUE [TIME, DAY, MONTH XX, YEAR]. ATTN: CHILD NUTRITION DEPARTMENT. Only one quote per item will be accepted on original proposal. Alternate items must be submitted on form for Additional Products that may be considered. Only sealed proposals will be accepted; faxed or proposals will NOT be considered. Original signatures are required on the proposal document. Signature pages must be hard copy enclosed with CD or USB flash drive. Unsigned proposals will not be accepted. Company name should be noted at the top of each page and on the CD. Please include the current nutrition fact labels for each item proposed and the current EPDS sheets on the CD or USB flash drive. Proposals may be withdrawn at any time prior to the official opening. Alterations made before opening time must be initialed by vendors guaranteeing authenticity. Proposals and modifications received after the time set for the opening will be declared late and not eligible for opening and consideration. Late deliveries will be held unopened. Vendors will be advised that his proposal was late and not accepted and will be allowed to pick up his proposal package. The CO-OP is not responsible for mail, courier or other delivery methods intransit time or non-delivery. Proposals will remain open and valid for acceptance for a period of 90 days following proposal opening. The undersigned affirms that they are duly authorized to execute this contract, that this company, corporation, firm partnership, or individual has not prepared this proposal in collusion with any other proposal, and that the contents of this proposal as to prices, terms, or conditions of said proposal have not been communicated by the undersigned nor by any employee or agent to any other person engaged in this type of business prior to the official opening of this proposal. Questions regarding specifications or proposal process, please call: [NAME; XXX-XXX-XXXX]. 2

3 REFERENCES SCHOOL SERVICES PLEASE LIST THREE (3) CO-OP OF COMPARABLE SIZE OF SCHOOL SERVICES THAT YOU HAVE SERVED IN THE PAST THREE YEARS CORPORATE CONTACT FOR THIS PROPOSAL Address: City, State, Zip: Phone: Fax: LOCAL CONTACT FOR THIS PROPOSAL Address: City, State, Zip: Phone: Fax: Number of year s company has been in business: COMPANY: ADDRESS: TELEPHONE: FAX: AUTHORIZED REPRESENTATIVE: AUTHORIZED REPRESENTATIVE: (PRINTED NAME AND TITLE) (SIGNATURE) DATE DATE 3

4 GENERAL INFORMATION: School Services CO-OP request proposal prices for the processing and return of diverted truckloads of USDA Commodities. Commodity product will be diverted to the approved processor if and when USDA purchases and allocates products to school districts. Proposal offering price shall be firm for a period of [MONTH XX, YEAR] through [MONTH XX, YEAR], and no proposals may be withdrawn without written approval. Quantity requirements are a close approximation and the districts in the CO-OP reserve the right to make variations should budgetary considerations become a factor. They also reserve the right to reject any and/or all proposals; to award by individual item as may appear advantageous, and waive all formalities in bidding. USDA Commodities shall be processed in accordance with the agreement between the vendor and the State agency of the State of [NAME]. The vendor must be approved and registered with the [STATE AGENCY NAME], Food and Nutrition Services (FNS), Commodity Distribution Program. Vendor shall guarantee a yield of finished product. It is understood that the actual yield of finished product may be greater than the guaranteed yield. Vendor will invoice the individual school districts for the finished weight. If the actual yield is less than guaranteed yield, vendor will reimburse the individual school districts for the excess USDA product used, using the USDA established price. The CO-OP reserves the right to increase or decrease the number of truckloads of each commodity on the basis of unit price proposed. Preference is given to manufacturers who can offer cost savings associated with approved USDA Full Substitution and/or Standard Yields Programs as well as distribution through main line distributor for Just in Time deliveries. If product is available under commercial distribution, the proposer will show net-off distributors invoice for discount of commodity dollar value per case. Pricing used for Indirect Sales shall come from USDA November File Date. Manufacturers, which have products that qualify for the Indirect Sales Option through a distributor warehouse, shall have the correct number of pounds as found on the CO-OP P506 forms from the state for each school district to the specified distributor by [DATE]. Failure to have specified pounds input into the distributor system by [DATE] may incur a fine of [AMOUNT] a day unless manufacturer receives written permission for a delayed date. [APPROVAL CONTACT: NAME, XXX-XXX-XXXX]. VALUE PASS-THROUGH APPROVED [DESIGNATED THE VALUE PASS-THROUGH METHOD APPROVED FOR USE BY PRODUCT] PRODUCT SPECIFICATION INFORMATION/SUBSTITUTION: Specifications for each commodity product category are listed herein. [SEE PRODUCT SPECIFICATIONS, PACKAGING AND ESTIMATED QUANTITIES PAGE] No substitutions will be accepted. Award: This proposal will be awarded by commodity product category on an all or none basis or in the best interest of the CO-OP by item. Vendors may bid only one commodity product category or several categories. The term As Specified or A/S will not be accepted. If bidding on a make or product other than specified, bidder is to list make and product of item being bid and must state any deviations from the item specified. The burden of proof of compliance with this specification will be the responsibility of the vendor. Samples of items that are not as specified must be available to the CO-OP within 5 business days 4

5 after our request. BRAND NUMBER AWARDED MUST BE THE BRAND NUMBER DELIVERED. NO UNAUTHORIZED SUBSTITUTIONS will be accepted. No substitutions shall be made in lieu of items offered and/or awarded in the proposals unless the contractor(s) have obtained written permission from the CO-OP. The CO-OP reserves the right to accept or reject substitutes, and in the case of rejections the CO- OP may cancel the item or items in question. Or equal: interpretation clause: any time a particular manufacturer s name brand may be specified, it shall mean any product of equal quality. Proposals shall be considered on all other brands submitted and on equal quality product of other manufacturers. On all such proposals, the bidder shall indicate clearly the product on which he is bidding, and shall supply sufficient data on his/her own letterhead to enable an intelligent comparison to be made with the particular brand or manufacturer specified. If after analyzing the proposal, it is found that the bidder did not propose on the brand and product specified and a statement to the contrary is not submitted, the item will not be considered. If an alternate is proposal and descriptive literature is not included, proposal will be considered invalid. The CO-OP Board will be the final decision if the product is an equal or not. If any CO-OP member uncovers any quality or production problems with any product and vendor inspects and agrees that there are problems with the product, vendor will pick-up product at the campus level (or warehouse) and replace the product or directly credit the CO-OP member district the replacement cost of the product. SAMPLES: 1. If the item is currently being processed by the CO-OP, then the supplier will not need to submit samples. However, a limited quantity of samples may be requested for product evaluation before the award of the proposal. 2. The amount of a sample to submit will depend on the type of product being evaluated accompanied by the manufacturer s label containing the product name, brand and the item code imprinted by the factory. 3. Samples will be submitted at no cost to the CO-OP. PRICE AND QUALITY: It is not the policy of the CO-OP to award a contract based on price only. Qualities, availability, suitability to purpose and vendor s services are controlling factors. CO-OP members and Board reserve the right to accept or reject any proposals and to be the sole judges of quality and equality. CO-OP is not only concerned with the best and lowest price for the user, but also the most responsive and responsible vendor. It is understood that the districts, through their Boards and/or the CO-OP will evaluate all proposals using the evaluation criteria and scores identified below: Evaluation Criteria Score(%) price 25 taste 20 product availability 5 quality 10 previous performance 5 experience/reference/reputation 5 business financial capacity 10 promptness of delivery/completion 5 packaging/size (not to exceed 20#/case) 5 responsiveness/special needs of each entity 5 vendor s follow-up of problems once notified 5 100% 5

6 In addition to other rights and remedies, the CO-OP reserves the right to cancel the entire contract with any contractor who fails to perform in any manner, or in accordance with the proposal as offered to and accepted by the CO-OP. All goods are subject to inspection and return, at the expense of the vendor, if found to be non-conforming to the proposal award. If items are non-conforming in any respect (quantity, quality or packaging) the participants have the right to reject shipment without liability. When contractor cannot abide by terms and conditions in fulfilling the contract, contractor must supply approved service or supplies from other sources at the contract price. If contractor delays in the above, the CO-OP reserves the right to purchase on the open market and charge contractor the difference between contracts price the purchase price. Prospective vendors must prove beyond any doubt to the CO-OP that they are duly qualified, capable, bondable, etc. to fulfill and abide by the specifications herein listed. The CO-OP is not responsible for items purchased by vendor(s) in anticipation of award. PRODUCT: CO-OP is open to additional products which are available now, approved for processing by the State of [NAME], and may be processed with USDA commodity items. Please note Additional Food Products Available at this Time on the provided proposal sheet. CO-OP is open to future products, which may be developed and become available for processing during the period of the bid contract; must be approved by the State of [NAME]. Any new items which become available for processing during the proposal term may be considered with proper documentation, complete product description, CN label and End Product Data Schedule. However, the processing fee for all new products must be competitive solicited for the processing fee. Please attach to proposal End Product Data Schedule. Notice of Processed Shipment (NPS) must be submitted to CO-OP [ADDRESS] prior to delivery. If products are deemed unacceptable after delivery the vendor is responsible for picking up goods within 15 working days after written notification. Product not picked up within appropriate time frame will be billed storage fees at the marked rate. Proposal prices are to be firm and guaranteed from date of proposal award through [MONTH, XX, YEAR], in case additional truckloads become available for processing. If, any time, the vendor fails to fulfill or abide by the terms, conditions, or specifications of the contract, the participating district reserves the right to cancel the contract within (30) days written notification. This agreement shall be governed by the Uniform Commercial Code. Wherever the Uniform Commercial Code is used, it shall be construed as meaning the Uniform Commercial Code as adopted in the State of [NAME] effective and in force on the date of this agreement. Firms that manufacture and /or distribute food for sale to schools must acquire the appropriate licenses with the [STATE NAME] Department of Health, [Division of Food and Drug Safety], USDA, Manufactured Foods Division and Wholesaler s license. Copies of appropriated licenses should be attached with this bid. Civil rights statement: The U.S. Department of Agriculture prohibits discrimination against its customers, employees, and applicants for employment on the bases of race, color, national origin, age, disability, sex, gender identity, religion, reprisal, and where applicable, political beliefs, marital status, familial or parental status, sexual orientation, or all or part of an individual s income is derived from any public assistance program, or protected genetic information in employment or in any program or activity conducted or funded by the Department. (Not all prohibited bases will apply to all programs and/or employment activities.) If you wish to file a Civil Rights program complaint of discrimination, complete the USDA Program Discrimination Complaint Form, found online at _filing_cust.html, or 6

7 at any USDA office, or call (866) to request the form. You may also write a letter containing all of the information requested in the form. Send your completed complaint form or letter to us by mail at U.S. Department of Agriculture, Director, Office of Adjudication, 1400 Independence Avenue, S.W., Washington, D.C , by fax (202) or at program.intake@usda.gov. Individuals who are deaf, hard of hearing or have speech disabilities may contact USDA through the Federal Relay Service at (800) ; or (800) (Spanish). USDA is an equal opportunity provider and employer. [TERMS AND CONDITIONS] INVOICE REQUIREMENTS PAYMENT TERMS DELIVERY REQUIREMENTS OTHER: DESIGNATE HEREIN Bond requirements: For bids/proposals exceeding the Simplified Acquisition Threshold (Federal is $150,000), a bid guarantee must be included in all bids/responses to be considered a responsible and responsive bid/offer. A bid guarantee five percent (5%) of the total bid price. The bid guarantee must consist of a firm commitment such as a bid bond, certified check, or other negotiable instrument accompanying a bid as assurance that the bidder will, upon acceptance of the bid, execute such contractual documents as may be required within the time specified. For the successful bidder/offer: A performance bond on the part of the contractor for 100 percent of the contract price, or [other percentage] as designated by the [STATE]. A performance bond is one executed in connection with a contract to secure fulfillment of all the contractor's obligations under such contract. A payment bond on the part of the contractor for 100 percent of the contract price or [other percentage] as designated by the [STATE]. A payment bond is one executed in connection with a contract to assure payment as required by law of all persons supplying labor and material in the execution of the work provided for in the contract. All bidders/proposers, by submitting a response, agree to comply with all required contract provisions identified in Program regulations for Programs operated (7 CFR Parts 210, 215, 220, 225, 226, as applicable ), USDA Foods (7 CFR Part 250), and Uniform Administrative and Appendix II of 2 CFR Part 200, respectively. See attachment A below. Bidder hereby affirmatively states that it has not participated in any act of collusion, favoritism, gratuity, or inside dealings with any member of the staff of any member districts of the CO-OP or its Board of Trustees. Manufacturer Production Codes Please provide written documentation to explain how to read the production code dates stamped on each case. Is the date the production or expiration date. 7

8 FULL SUBSTITUTION AND STANDARD YIELDS: 1. DO YOU HAVE, OR HAVE YOU APPLIED FOR, USDA S FULL SUBSTITUTION PROGRAM? IF YOU HAVE APPLIED, WHEN DO YOU EXPECT APPROVAL? 2. DO YOU HAVE, OR HAVE YOU APPLIED FOR, USDA S STANDARD YIELDS PROGRAM? IF YOU HAVE APPLIED, WHEN DO YOU EXPECT APPROVAL? 3. IF YOU HAVE THESE PROGRAMS, DO YOU HAVE THE ABILITY TO HAVE THIS PRODUCT AVAILABLE THROUGH A DISTRIBUTOR: YES NO 8

9 LOBBYING CERTIFICATION Submission of this certification is a prerequisite for making or entering into this transaction and is imposed by section 1352, Title 31, U.S. Code. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Any person who fails to file the required certification shall be subject to civil penalty of not less than $10,000 and not more than $100,000 for each such failure. The undersigned certifies, to the best of his/her knowledge and belief, that: 1. No Federal appropriated funds have been paid or will be paid or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of congress, or an employee of a Member of Congress in connection with the awarding of a Federal contract, the making of a Federal grant, the making of a Federal loan, the entering into a cooperative agreement, and the extension, continuation, renewal, amendment, or modification of a Federal contract, grant, loan, or cooperative agreement. 2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of congress, or an employee of a Member of Congress in connection with this Federal grant or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, disclosure Form to Report Lobbying, in accordance with its instructions. 3. The undersigned shall require that the language of this certification be included in the award documents for all covered sub-awards exceeding $100,000 in Federal funds at all appropriate tiers and that all sub-recipients shall certify and disclose accordingly. COMPANY: ADDRESS: TELEPHONE: FAX NUMBER: AUTHORIZED REPRESENTATIVE: AUTHORIZED REPRESENTATIVE: (PRINTED NAME AND TITLE) (SIGNATURE OF COMPANY) DATE DATE 9

10 SIGNATURE PAGE: SCHOOL SERVICES Having carefully examined the RFP terms and conditions, specifications and the proposal forms, the undersigned hereby proposes and agrees to furnish goods and/or services in strict compliance with the specifications and conditions contained in this proposal document. I CERTIFY THAT THE ABOVE PRODUCTS ARE GUARANTEED TO MEET OR EXCEED SPECIFICATIONS CONTAINED IN THIS PROPOSAL, AND ARE GUARANTEED TO WORK AS INDICATED BY THE MANUFACTURER. "The undersigned affirms that they are duly authorized to execute this contract, that this company, corporation, firm, partnership or individual has not prepared this proposal in collusion with any other Proposal Respondent, and that the contents of this bid as to prices, terms or conditions of said proposal have not been communicated by the undersigned nor by any employee or agent to any other person engaged in this type of business prior to the official opening of this proposal." COMPANY: ADDRESS: TELEPHONE: FAX NUMBER: AUTHORIZED REPRESENTATIVE: AUTHORIZED REPRESENTATIVE: (PRINTED NAME AND TITLE) (SIGNATURE OF COMPANY) DATE DATE 10

11 Felony Conviction Notification (IF APPLICABLE) State [NAME] Legislative Senate Bill No. XX, Section XX.XXX, Notification of Criminal History, subsection (a), states a person or business entity that enters into a contract with a school district must give advance notice to the district if the person or an owner or operator of the business entity has been convicted of a felony. The notice must include a general description of the conduct resulting in the conviction of a felony. Subsection (b) states a school district may terminate a contract with a person or business entity if the district determines that the person or business entity failed to give notice as required by Subsection (a) or misrepresented the conduct resulting in the conviction. The district must compensate the person or business for services performed before the termination of the contract. THIS NOTICE IS NOT REQUIRED OF A PUBLICLY HELD CORPORATION. 11

12 Suspension or Debarment Certificate SCHOOL SERVICES Non-Federal entities are prohibited from contracting with or making subawards under covered transactions to parties that are suspended or debarred or whose principals are suspended or debarred. Covered transactions include procurement for goods or services equal to or in excess of $100, Contractors receiving individual awards for $100, or more and all subrecipients must certify that the organization and its principals are not suspended or debarred. By submitting this offer and signing this certificate, this bidder: Certifies that the owner/operator has not been convicted of a felony, except as indicated on a separate attachment to this offer, in accordance with Sec , Texas Education Code, and Certifies that no suspension or disbarment is in place, which would preclude receiving a federally funded contract under the Federal OMB, A-102, Common Rule ( _.36) Vendor Name: Vendor Address: Vendor Vendor Telephone: Vendor Fax: Authorized Company Official s Name: Signature of Company Official: (Printed) Date: 12

13 RESIDENT CERTIFICATION: SCHOOL SERVICES This Certification Section must be completed and submitted before a proposal can be awarded to your company. This information may be placed in an envelope labeled Proprietary and is not subject to public view. In order for a proposal to be considered, the following information must be provided. Failure to complete may result in rejection of the proposal: As defined by [STATE] House Bill XXX, a nonresident bidder means a vendor whose principal place of business is not in [STATE], but excludes a contractor whose ultimate parent company or majority owner has its principal place of business in [STATE]. [STATE] Resident Bidder or Non-[STATE] Resident Bidder I certify that my company is a resident bidder. I certify that my company qualifies as a non-resident bidder. If you qualify as a non-resident bidder, you must furnish the following information: What is your resident State? (Complete below the State in which your principal place of business is located.) COMPANY: ADDRESS: CITY/STATE/ZIP: Does your residence State require vendors whose principal place of business is in [STATE] to underbid bidders whose residence State is the same by a prescribed amount or percentage to receive a comparable contract? Residence State means the State in which the principal place of business is located. YES NO What is the amount or percentage: % I CERTIFY THAT THE ABOVE INFORMATION IS CORRECT AUTHORIZED COMPANY SIGNATURE DATE SIGNED 13

14 MEMBERS OF CO-OP: SCHOOL SERVICES [INCLUDE ALL COOP MEMBER DISTRICTS BY NAME, ADDRESS, CONTRACT INFORMATION AND TELEPHONE NUMBER HERE] 14

15 [INSERT PRODUCT SPECIFICATIONS, PACK SIZE AND ESTIMATED QUANTITITES HERE] 15

16 ATTACHMENT SCHOOL SERVICES Federal Regulations referenced for compliance 7 CFR Parts and (d) (d) Buy American (1) Definition of domestic commodity or product. In this paragraph (d), the term domestic commodity or product means (i) An agricultural commodity that is produced in the United States; and (ii) A food product that is processed in the United States substantially using agricultural commodities that are produced in the United States. (2) Requirement. (i) In general. Subject to paragraph (d)(2)(ii) of this section, the Department shall require that a school food authority purchase, to the maximum extent practicable, domestic commodities or products. (ii) Limitations. Paragraph (d)(2)(i) of this section shall apply only to (A) A school food authority located in the contiguous United States; and (B) A purchase of domestic commodity or product for the school lunch program under this part. 7 CFR Parts , a(d), (e) (f) Cost reimbursable contracts (1) Required provisions. 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: (i) 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; (ii)(a) 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 (B) 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; (iii) 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; (iv) 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; (v) 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 (vi) 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. (2) 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. 16

17 (g) Geographic preference. (1) A school food authority participating in the Program, as well as State agencies making purchases on behalf of such school food authorities, may apply a geographic preference when procuring unprocessed locally grown or locally raised agricultural products. When utilizing the geographic preference to procure such products, the school food authority making the purchase or the State agency making purchases on behalf of such school food authorities have the discretion to determine the local area to which the geographic preference option will be applied; (2) For the purpose of applying the optional geographic procurement preference in paragraph (g)(1) of this section, unprocessed locally grown or locally raised agricultural products means only those agricultural products that retain their inherent character. The effects of the following food handling and preservation techniques shall not be considered as changing an agricultural product into a product of a different kind or character: Cooling; refrigerating; freezing; size adjustment made by peeling, slicing, dicing, cutting, chopping, shucking, and grinding; forming ground products into patties without any additives or fillers; drying/dehydration; washing; packaging (such as placing eggs in cartons), vacuum packing and bagging (such as placing vegetables in bags or combining two or more types of vegetables or fruits in a single package); the addition of ascorbic acid or other preservatives to prevent oxidation of produce; butchering livestock and poultry; cleaning fish; and the pasteurization of milk. 7 CFR Part (a) Required contract provisions in fixed-price contracts. The following provisions relating to the use of donated foods must be included, as applicable, in a recipient agency's fixed-price contract with a food service management company. Such provisions must also be included in procurement documents. The required provisions are: (1) A statement that the food service management company must credit the recipient agency for the value of all donated foods received for use in the recipient agency's meal service in the school year or fiscal year (including both entitlement and bonus foods), and including the value of donated foods contained in processed end products, in accordance with the contingencies in (a); (2) The method and frequency by which crediting will occur, and the means of documentation to be utilized to verify that the value of all donated foods has been credited; (3) The method of determining the donated food values to be used in crediting, in accordance with (c), or the actual donated food values; (4) Any activities relating to donated foods that the food service management company will be responsible for, in accordance with (d), and assurance that such activities will be performed in accordance with the applicable requirements in 7 CFR part 250; (5) A statement that the food service management company will use all donated ground beef and ground pork products, and all processed end products, in the recipient agency's food service; (6) A statement that the food service management company will use all other donated foods, or will use commercially purchased foods of the same generic identity, of U.S. origin, and of equal of better quality than the donated foods, in the recipient agency's food service; (7) Assurance that the procurement of processed end products on behalf of the recipient agency, as applicable, will ensure compliance with the requirements in subpart C of 7 CFR part 250 and with the provisions of distributing or recipient agency processing agreements, and will ensure crediting of the recipient agency for the value of donated foods contained in such end products at the processing agreement value; (8) Assurance that the food service management company will not itself enter into the processing agreement with the processor required in subpart C of 7 CFR part 250; (9) Assurance that the food service management company will comply with the storage and inventory requirements for donated foods; (10) A statement that the distributing agency, subdistributing agency, or recipient agency, the Comptroller General, the Department of Agriculture, or their duly authorized representatives, may perform onsite reviews of the food service management company's food service operation, including the review of records, to ensure compliance with requirements for the management and use of donated foods; 17

18 (11) A statement that the food service management company will maintain records to document its compliance with requirements relating to donated foods, in accordance with (b); and (12) A statement that extensions or renewals of the contract, if applicable, are contingent upon the fulfillment of all contract provisions relating to donated foods. (b) Required contract provisions in cost-reimbursable contracts. A cost-reimbursable contract must include the same provisions as those required for a fixed-price contract in paragraph (a) of this section. Such provisions must also be included in procurement documents. However, a cost-reimbursable contract must also contain a statement that the food service management company will ensure that its system of inventory management will not result in the recipient agency being charged for donated foods. 2 CFR Part Recommended language: 2 CFR Part (c)(1) A provisions to reference standards of conduct that prohibit real or apparent conflict of interest and disciplinary actions to be applied for violations of such standards. 2 CFR Part (a) 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. Prohibited restrictions to competition: (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; and (7) Any arbitrary action in the procurement process. Prohibited language of State requirements on geographic preference: (b) conduct procurements in a manner that prohibits the use of statutorily or administratively imposed state, local, or tribal geographical preferences in the evaluation of bids or proposals, Required Contract Provisions: 2 CFR Part (c)(2)(iv) A firm fixed-price contract award will be in writing to the lowest responsive and responsible bidder. 2 CFR Part (d)(4) Contracts must be awarded to the responsible firm whose proposal is most advantageous to the program, with price and other factors considered; 2 CFR Part (d) The cost plus a percentage of cost and percentage of construction cost methods of contracting must not be used. 2 CFR Part (b) The non-federal entity must make available upon request, for the Federal awarding agency or pass-through entity pre-procurement review, procurement documents, such as requests for proposals or invitations for bids, or independent cost estimates, when: (1) The non-federal entity's procurement procedures or operation fails to comply with the procurement standards in this part; 18

19 (2) The procurement is expected to exceed the Simplified Acquisition Threshold and is to be awarded without competition or only one bid or offer is received in response to a solicitation; (3) The procurement, which is expected to exceed the Simplified Acquisition Threshold, specifies a brand name product; (4) The proposed contract is more than the Simplified Acquisition Threshold and is to be awarded to other than the apparent low bidder under a sealed bid procurement; or (5) A proposed contract modification changes the scope of a contract or increases the contract amount by more than the Simplified Acquisition Threshold. 2 CFR Part Bonding requirements. For construction or facility improvement contracts or subcontracts exceeding the Simplified Acquisition Threshold, the Federal awarding agency or pass-through entity may accept the bonding policy and requirements of the non-federal entity provided that the Federal awarding agency or pass-through entity has made a determination that the Federal interest is adequately protected. If such a determination has not been made, the minimum requirements must be as follows: (States may use the bonding requirements contained in their State Procurement Codes and regulations. However, in the absence of a State or local requirement, the Federal requirement applies.) (a) A bid guarantee from each bidder equivalent to five percent of the bid price. The bid guarantee must consist of a firm commitment such as a bid bond, certified check, or other negotiable instrument accompanying a bid as assurance that the bidder will, upon acceptance of the 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. A payment bond is one executed in connection with a contract to assure payment as required by law of all persons supplying labor and material in the execution of the work provided for in the contract. Appendix II to Part 200 Contract Provisions for Non-Federal Entity Contracts Under Federal Awards In addition to other provisions required by the Federal agency or non-federal entity, all contracts made by the non-federal entity under the Federal award must contain provisions covering the following, as applicable. (A) Contracts for more than the simplified acquisition threshold currently set at $150,000, which is the inflation adjusted amount determined by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) as authorized by 41 U.S.C. 1908, must address administrative, contractual, or legal remedies in instances where contractors violate or breach contract terms, and provide for such sanctions and penalties as appropriate. (B) All contracts in excess of $10,000 must address termination for cause and for convenience by the non-federal entity including the manner by which it will be effected and the basis for settlement. (C) Equal Employment Opportunity. Except as otherwise provided under 41 CFR Part 60, all contracts that meet the definition of federally assisted construction contract in 41 CFR Part must include the equal opportunity clause provided under 41 CFR (b), in accordance with Executive Order 11246, Equal Employment Opportunity (30 FR 12319, 12935, 3 CFR Part, Comp., p. 339), as amended by Executive Order 11375, Amending Executive Order Relating to Equal Employment 19

20 Opportunity, and implementing regulations at 41 CFR part 60, Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor. (D) Davis-Bacon Act, as amended (40 U.S.C ). When required by Federal program legislation, all prime construction contracts in excess of $2,000 awarded by non-federal entities must include a provision for compliance with the Davis-Bacon Act (40 U.S.C , and ) as supplemented by Department of Labor regulations (29 CFR Part 5, Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction ). In accordance with the statute, contractors must be required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a week. The non-federal entity must place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. The non-federal entity must report all suspected or reported violations to the Federal awarding agency. The contracts must also include a provision for compliance with the Copeland Anti-Kickback Act (40 U.S.C. 3145), 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 must 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 or she is otherwise entitled. The non-federal entity must report all suspected or reported violations to the Federal awarding agency. (E) Contract Work Hours and Safety Standards Act (40 U.S.C ). Where applicable, all contracts awarded by the non-federal entity in excess of $100,000 that involve the employment of mechanics or laborers must include a provision for compliance with 40 U.S.C and 3704, as supplemented by Department of Labor regulations (29 CFR Part 5). Under 40 U.S.C of the Act, each contractor must be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The requirements of 40 U.S.C are applicable to construction work and provide that no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. 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. (F) Rights to Inventions Made Under a Contract or Agreement. If the Federal award meets the definition of funding agreement under 37 CFR (a) and the recipient or subrecipient wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that funding agreement, the recipient or subrecipient must comply with the requirements of 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. (G) Clean Air Act (42 U.S.C q.) and the Federal Water Pollution Control Act (33 U.S.C ), as amended Contracts and subgrants of amounts in excess of $150,000 must contain a provision that requires the non-federal award to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C q) and the Federal Water Pollution Control Act as amended (33 U.S.C ). Violations must be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA). (H) Debarment and Suspension (Executive Orders and 12689) A contract award (see 2 CFR ) must not be made to parties listed on the government-wide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 CFR 180 that implement Executive Orders (3 CFR part 1986 Comp., p. 189) and (3 CFR part 1989 Comp., p. 235), Debarment and Suspension. SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order (I) Byrd Anti-Lobbying Amendment (31 U.S.C. 1352) Contractors that apply or bid for an award exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it 20

21 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 Each tier must 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 non-federal award. 21