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.
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.
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.
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:
- Placing unreasonable requirements on firms in order for them to qualify to do business;
- Requiring unnecessary experience and excessive bonding;
- Noncompetitive pricing practices between firms or between affiliated companies;
- Noncompetitive contracts to consultants that are on retainer contracts;
- Organizational conflicts of interest;
- 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.