|DATE:||July 9, 2004|
|SUBJECT:||Providing Information versus Writing Bid Specifications and Contract Terms|
Child Nutrition Programs
Recently, we have been asked 1) whether an equipment manufacturer would violate Department regulation 7 CFR Part 3016.60(b) if the equipment manufacturer writes the bid specifications for a school food authority (SFA) when that manufacturer does not directly sell its products to the SFA, but uses dealers or distributors instead and 2), would a food service management company (FSMC) violate §3016.60(b), if the FSMC drafted a provision to amend an existing SFA-FSMC contract.
Pursuant to Section 12(o) of the Richard B. Russell National School Lunch Act, 42 USC 1760(0), a SFA may “enter into a contract with a person that has provided specification information to the ….[SFA] for use in developing contract specifications for acquiring such good or service.”
It is important to remember that the SFA, not the potential contractor, is responsible for complying with statutory and regulatory provisions. If an SFA awards a contract to a potential contractor that has written the specifications used in the SFA’s solicitation, the SFA, not the potential contractor, has violated §3016.60(b). The same holds true when an SFA incorporates into its contract, terms and conditions written by the contractor. Attached to this memorandum are questions and answers that address the application of §3016.60(b) in a number of different situations. Please provide this information to your state agencies (SAs) and request that it is shared with all SFAs.
STANLEY C. GARNETT
Child Nutrition Division