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Bid Document Development

Federal regulations (2 CFR 200.319(a)) prohibit the awarding of contracts to any person or entity that develops or drafts specifications, requirements, statements of work, invitations for bids, requests for proposals, contract terms and conditions or other procurement documents. In failing to fulfill its responsibilities to draft its own specifications and procurement documents, a Sponsoring Organization which copies a list of features or evaluation and ranking criteria drafted by a potential vendor and then permits that potential vendor to submit a bid has violated federal regulation 2 CFR 200.319(a). This pertains to all child nutrition program procurements, including software acquisitions. 

Bid Procedures

Each Sponsoring Organization is required to have procurement procedures in place that reflect applicable state and local laws and regulations, provided that procurements made with Child Nutrition Programs funds adhere to the standards set forth in the federal regulations. Sponsoring Organization procedures must also include a written code of standards of conduct meeting the minimum standards of 2 CFR 200.318 and 2 CFR 200.326, as applicable.

Bid Protest

Any action that diminishes open and free competition seriously undermines the integrity of the procurement process and may subject a Sponsoring Organization to bid protests. Sponsoring Organizations are responsible for properly responding to protests and concerns raised by potential contractors. Pursuant to  2 CFR 200.318(a) and 2 CFR 200.318(k)​, SFAs must have protest procedures in place to handle and resolve disputes relating to their procurements and must in all instances disclose information regarding a protest to the Illinois State Board of Education Nutrition Department.

Competition

2 CFR 200.319 Competition (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. 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.
   

Third Party Contracting – Public Act 095-0241

Public Act 095–0241, effective Aug. 17, 2007, outlines additional requirements for school districts that choose to contract with a third party for non-instructional services. Regarding school meal services, the legislation impacts school districts with employees who perform services for the school meal program and are considering contracting with a third party to perform those school meal program services. For example, if the school district employs staff to perform various meal service-related tasks, the school district is required to implement new procedures as part of the contract solicitation and award process. Links to the Public Act and the summary of the requirements are provided below.

​For School Food Authorities (SFA) that contract with a Food Service Management Company (FSMC), Vendor, another SFA and/or any other type of contractor, the SFA must maintain responsibility for the overall operation of the Programs. The SFA cannot relinquish their control or responsibility for the administration of the meal programs to a contractor. It is important that the SFA understand that the agreement with the State Agency to administer the Child Nutrition Programs (CNP), is between the State Agency and the SFA, not the contractor. The contractor may work as an agent or perform certain portions of an SFAs tasks but there are some limitations and the SFA is ultimately responsible for adhering to all applicable federal and state rules and regulations. Per USDA Guidance​, the SFA must remain responsible for:

• Preparation of Solicitation and Contract Documents
  
  The SFA must prepare all solicitation documents, evaluation, and scoring criteria for contract award and obtain State Agency approval of the contract prior to contract execution, if applicable. Contractors that develop or draft specifications, requirements, statements of work, or invitation for bids or requests for proposals must be excluded from competing for such contracts, as per 2 CFR 200.319(a).
  
  
• State Agency Monitoring (Administrative, Resource Management & Procurement Reviews)
  SFAs must be the responsible party in resolving findings resulting from program reviews and audits. The SFA must be involved in the review process and are responsible for the submission of any required corrective actions. The SFA is held responsible for any areas of noncompliance and subsequent fiscal action found during an Administrative Review (AR). However, since State Agencies agreement is with the SFA, the SFA may recoup funds from the contractor for related program violations.
  
  
• Control the Quality, Extent and Nature of Food Service
  The SFA must retain control of the quality, extent, and general nature of the food service and the prices to be charged to the children for meals. This includes retaining control of the nonprofit school food service account and overall financial responsibility for the Programs operated; establishing all prices for all meals served under the nonprofit school food service account (e.g., pricing for reimbursable meals and non-program foods and meals, i.e., a la carte food services, adult meals, and other food service Programs operated, as applicable); developing the 21-day cycle menu in accordance with the meal pattern requirements for all Programs operated; conveying menu adjustment requirements to the FSMC; and monitoring implementation of those adjustments. Additionally, any refunds, rebates, discounts, and credits received from processors must be paid to the SFA for return to the nonprofit food service account.
  

  Nonprofit school food service account (7 CFR 210.2) means 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 §210.14(e)​, and proceeds from nonprogram foods as provided in §210.14(f).

• Signature Authority
  The SFA must retain signature authority on the agreement between the SFA and the State agency to participate in the Programs operated, including the SFA’s free and reduced-price policy statement and the Claim for Reimbursement.
  
  
• FSMC Performance Monitoring
  When the SFA contracts with a Food Service Management Company (FSMC), the SFA must conduct performance management of the FSMC contract through periodic on-site monitoring of the contracted requirements, as per 7 CFR 210.8(a)(1), 7 CFR 210.16(a)(3), and 7 CFR 250.54(c).
  
  • On-Site Review Form: Assessment Of School Meal Counting and Claiming Procedures
  • SFA-FSMC Contract Monitoring Form
    
    

  SFA performance monitoring of the FSMC should encompass determining whether the food service operation is in conformance with the SFA-FSMC agreement to operate the Program in accordance with Program regulations. Contract language should also confirm the SFA's responsibility to implement internal controls as required under 7 CFR 210.8(a) and to ensure resolution of Program review and audit findings. Monitoring also includes:

  • Ensuring all contract provisions are being fulfilled, such as local health and sanitation requirements.
  • Keeping records for menus, standardized recipes, production records, reimbursable meals served for all Programs operated, non-program revenues and expenses, and paid lunch equity calculations, if included.
  • Invoicing has all required supporting documentation submitted to the SFA.
  • Ensuring monthly invoice contains applicable USDA Food Credits.
  • Monthly monitoring of USDA Foods allocated and received to ensure USDA foods are being maximized in daily menus and on track for a utilized goal and credit to the district of 100% by the end of the contract year.
  • Monitoring functions may vary depending on the SFA-FSMC contract requirements.
    
    
• Professional Standards and SFA Required Staffing
  The SFA must have a SFA appointed Food Service Director, even if they contract their food service and/or operations, the SFA must have a staff member employed directly by the SFA that is deemed the SFA Food Service Director. This SFA Food Service Director must complete the USDA annual training requirements for a Director and must ensure that training requirements are completed and tracked for all other food service staff, including contracted staff. For more information on the required training hours and topics visit the USDA Professional Standards Guidance​.
  
  The SFA must have a sufficient number of knowledgeable staff to:
  • Develop, conduct and evaluate the competitive procurement process.
  • Negotiate with the contract representatives.
  • Conduct performance management of the contract through on-site monitoring of the contracted requirements.
  • Use and ensure crediting of USDA Foods to the nonprofit food service account.
  • Coordinate with the contractor on behalf of the SFA in all aspects of Program and local education agency (LEA) operations, review Claims for Reimbursement.
  • Control the food service operations.
  • Perform the responsibilities that must be retained by the SFA.
    
    
• Free and Reduced-Price Meal Process
  The SFA must maintain responsibility for the implementation of free and reduced-price policy in accordance with 7 CFR 245. Such responsibilities include conducting hearings related to such determinations and verification of applications for free and reduced-price meals. An employee of the contractor may act as an agent for the SFA/LEA and perform, on behalf of the SFA, various aspects of the application, certification, and verification process of eligibility for school meal programs, if a provision for this service is included in the scope of the original solicitation. The company’s employee must comply with all requirements for these processes, including limited disclosure of individual eligibility information. However, the SFA is ultimately responsible for ensuring that all requirements are met and that the household eligibility determinations are accurate. The information related to household eligibility remains the property of the SFA and cannot be used by the contractor for any reasons other than determination of eligibility.
  
  
• USDA Foods
  The SFA must retain title to all USDA Foods and ensure that all USDA Foods received by the SFA are made available to the contractor, including processed USDA Foods and that the value of the USDA Foods in processed end products accrue only to the benefit of the SFA's nonprofit school food service and are fully utilized therein. This provision also applies to any refunds, rebates, discounts, and credits received from processors. The SFA must ensure that the contractor has credited it for the value of all USDA Foods received for use in the meal service in the school year. The SFA must ensure compliance with 7 CFR 250.50 – 250.54.
  
  
• Health Certification
  The SFA must ensure the contractor maintains applicable health certification(s) and assures that all State and local regulations are being met by a contractor in preparing or serving meals at an SFA facility.
  
  
• Establishment of an Advisory Board
  The SFA must establish and maintain an advisory board composed of parents, teachers, and students to assist in menu planning.
  

Resources

• School Food Authority Responsibilities When Contracting for Meals and/or Services​​
  

​The prototype Invitation for Bid and Contract is for use by a school food authority (SFA) initiating a new contract with an FSMC to provide meal services for the Child Nutrition Programs. The document, provided by the Illinois State Board of Education Nutrition Department, will assist the SFA in obtaining competitive bids and awarding the contract to the responsible bidder whose bid is responsive and lowest in price.

There are two prototype contracts available below. The first prototype should be used if FSMC employees prepare and cook school meals that are not pre-packaged/pre-plated. The second prototype should be used if the contractor’s employees are responsible for the management of the program and/or the final preparation and/or serving of pre-packaged/pre-plated school meals. If you are not sure which type of contract you have or you are considering contracting for the first time, please contact the Nutrition Department's procurement team for additional information and clarification: (800) 545-7892. ​​

To ensure continued funding and compliance with federal and state regulations and statutes regarding procurement, it is extremely important for you to download and read the instructions thoroughly prior to downloading the contract prototype.

• School Food Authority Responsibilities When Contracting for Meals and/or Service
  
• ​Instructions for Food Service Management Company (FSMC) Contracts(Print and read first)
• Invitation for Bi​d Submission Form​
• Invitation for Bid and Contract Prototype for FSMC Contracts
• Invitation for Bid and Contract Prototype for FSMC Contracts — Vended Meals (Pre-packaged/Pre-plated)
• Prototype Contract Exhibits
  
• Exhibit A: School Data
• ​Exhibit A-1: School Data Form​ ​
  
• ​Exhibit A-2: Eligibility Data and Projected Enrollments​ 
  
• ​Exhibit A-3: Meal Service Information and Delivery Schedule​ 
  
• Exhibit B: 21-Day Cycle Menus
• ​Exhibit B-1: 21-Day Cycle Menu(s) 
  
• ​Exhibit B-2: Meal Choices and Additional Daily Offerings 
• ​​Exhibit G: Staffing Patterns​
• Additional Resources
  
• Pre-Bid Meeting Sign-In Sheet
• Bid Solicitation/Addenda Tracking Sheet​​
  

After the FSMC Contract Award

When the SFA contracts with a Food Service Management Company (FSMC), the SFA must conduct performance management of the FSMC contract through periodic on-site monitoring of the contracted requirements, as per 7 CFR 210.8(a)(1),  7 CFR 210.16(a)(3), and 7 CFR 250.54(c). 

The prototype Invitation for Bid and Contract is for use by a School Food Authority (SFA) initiating a new contract with a meal vendor to provide meal services for the Child Nutrition Programs. The document, provided by the Illinois State Board of Education Nutrition Department, will assist the SFA in obtaining competitive bids and awarding the contract to the responsible bidder whose bid is responsive and lowest in price.

The prototype provided below should be used for vended meal contracts only. In a vended meals contract, the contractor provides the meals only, which are generally pre-packaged/pre-plated meals, and does not manage any aspect of the school food service or employ any of the food service personnel. However, if the contractor’s employees are responsible for the management of the program and/or the final preparation and/or serving of the pre-packaged/pre-plated school meals, the contract becomes a food service management company contract and is no longer considered a vended meals contract. If that is the case, you need to use the Invitation for Bid and Contract Prototype for FSMC Contracts —Vended Meals (Pre-packaged/Pre-plated).

If you are not sure which type of contract you have or you are considering contracting for the first time, please contact the Nutrition Department’s procurement team for further information and clarification at (800) 545-7892.

To ensure continued funding and compliance with federal and state regulations and statutes regarding procurement, it is extremely important for you to download and read the instructions thoroughly prior to downloading the contract prototype.

• School Food Authority Responsibilities When Contracting for Meals and/or Service​
  
• Instructions for Vended Meals Contract(Print and read first)
• Invitation for Bid Submission Form
• Invitation for Bid and Contract Prototype for Vended Meals Contract
• Prototype Contract Exhibits
• Exhibit A: School Data
• ​Exhibit A-1: School Data Form​
  
• ​Exhibit A-2: Eligibility Data and Projected Enrollments​​
  
• ​Exhibit A-3: Meal Service Information and Delivery Schedule 
  
• Exhibit B: 21-Day Cycle Menus
• ​Exhibit B-1: 21-Day Cycle Menu(s)​ 
  
• ​Exhibit B-2: Meal Choices and Additional Daily Offerings​​
  
• Additional Resources
  
• Pre-Bid Meeting Sign-In Sheet
• Bid Solicitation/Addenda Tracking Sheet​​​​​​
  ​
  

​If your contract for vended meal services will not be in excess of $250,000 annually, you may use informal bidding procedures to procure the meal services contract.

The following steps must be part of the informal bidding procedures:

Informal Procurement Prototype Documents — Vended Meal Services Under $250,000 Annually

Solicitation for Quotes Prototype for Informal Procurement of Vended Meal Services Under $250,000 Annually​​​

The basis for renewing the contract, including price increase provisions, if any, must be stated in the contract and be based on a measurable index such as the Consumer Price Index for All Urban Consumers. School officials should ensure that price increases are within the terms of the contract. These documents are updated annually at the start of the new calendar year.

• Certification Regarding Debarment, Suspension, Ineligibility, and Voluntary Exclusion - Lower Tier Covered Transactions
  
• If the estimated contract cost is $25,000 or more, include this form. This form must be signed by the contractor and submitted with all bids and annual contract renewals.
• Certificate Regarding Lobbying - Contracts, Grants, Loans and Cooperative Agreement 
• ​Disclosure of Lobbying Activities (if applicable)​
  If the estimated contract cost is over $100,000, include these forms as well as the Certification Regarding Debarment form above. These forms must be signed by the contractor and submitted with all bids and annual contract renewals.
  

A copy of the executed renewal along with all applicable contract certification forms must be submitted prior to the approval of your program participation for each fiscal year. Renewals may be mailed, faxed, or emailed to:​

​Contract amendments are not allowable without prior approval from the ISBE Nutrition Department.

Prior to amending a contract, the SFA must first contact the Nutrition Department’s procurement team to determine if the contract revisions constitute a material or substantive change to the contract. To determine if the change is material or substantive, ask the question, “Would bidders have bid differently if the change had existed at the time of bidding?” If the answer is, “Yes,” a new procurement must be conducted. If the answer is, “No,” it is possible an amendment may be made to the contract.

The following changes would normally not constitute a substantive change in the contract:

If you have questions regarding a contract amendment, please contact the Nutrition Department procurement team at (217) 782-2491 or (800) 545-7892 (in Illinois), or nutritionprocurement@isbe.net​. 

School Food Authorities have the option to re-bid the food service management or vended meal contract at any time. Neither party may make or impose material changes to an existing contract during the contract year or as part of the annual contract renewal process. If it is determined that material or substantive changes are necessary, the SFA must conduct a new procurement and re-bid the contract or may choose to self-operate its food service.

Circumstances which require an SFA to re-bid the contract include:

In addition, examples of material or substantive changes which could require the SFA to re-bid the contract include:

Finally, the SFA should re-bid the contract if the existing contractor has not fulfilled the contract to the SFA's satisfaction.

School food authorities are required to meet state and local procurement regulations that conform to federal procurement and program regulations when developing the bid solicitation and awarding the contract. Regarding the procurement process, SFAs cannot include contract provisions that restrict competition or prevent companies from bidding on the meal services.