Food Service Management Company

Page 1 of 123 OAK RIDGE SCHOOLS REQUEST FOR PROPOSALS (RFP) AND SUBSEQUENT CONTRACT FOR CHILD NUTRITION PROGRAM “FOOD SERVICE MANAGEMENT COMPANY SERVICES” COST REIMBURSABLE Invitation to Submit Proposal for Food Service Management Company (FSMC) RFP Release Date: February 20, 2023 Completed, sealed proposals must be submitted no later than April 10, 2023 by 2:00 PM EST RFP Issued By: Oak Ridge Schools 304 New York Ave Oak Ridge Schools, TN 37830 Jenifer Van Dyke Finance Director Page 2 of 123 Contents Index of Applicable Regulatory Citations and Policy Guidance ................................................................................................ 5 SECTION ONE – Definitions .................................................................................................................................................... 7 SECTION TWO – General Information

.................................................................................................................................. 12 A. Intent ........................................................................................................................................................................... 12 B. Procurement Method ................................................................................................................................................... 12 C. Pre-Proposal Conference and Site Visit ...................................................................................................................... 12 D. Optional Presentation by FSMC.................................................................................................................................. 13 E. Proposal Submission and Award ................................................................................................................................. 13 F. Amendments ............................................................................................................................................................... 14 G. Late Proposals ............................................................................................................................................................. 14 H. Final Discussions and Negotiations ............................................................................................................................ 14 I. Final Contract .............................................................................................................................................................. 15 J. Procurement Code of Conduct .................................................................................................................................... 15 K. Approval of Publicity Releases ................................................................................................................................... 15 SECTION THREE – Specific Requirements ........................................................................................................................... 16 A. Contract ....................................................................................................................................................................... 16 B. Expenses ...................................................................................................................................................................... 16 C. Services ....................................................................................................................................................................... 17 D. Menu System for Reimbursable School Breakfast ...................................................................................................... 18 E. Meal Pattern Requirements ......................................................................................................................................... 18 F. Other Meal Pattern Requirements ................................................................................................................................... 23 SECTION FOUR – Terms and Conditions .............................................................................................................................. 27 A. Scope and Purpose .......................................................................................................................................................... 27 B. Signature and Approval Authority .................................................................................................................................. 28 C. Free and Reduced-Price Meals ....................................................................................................................................... 28 D. USDA Foods .................................................................................................................................................................. 28 E. Child Nutrition Program Operations ............................................................................................................................... 31 F. Facilities, Equipment and Inventory ............................................................................................................................... 32 G. Regulatory Compliance .................................................................................................................................................. 34 H. Allowable Cost ............................................................................................................................................................... 37 I. Records and Record-keeping ........................................................................................................................................... 38 J. Personnel ........................................................................................................................................................................ 38 K. Procurement ................................................................................................................................................................... 40 L. Accounting Practices, Revenues, and Receipts ............................................................................................................... 41 M. Guarantees ..................................................................................................................................................................... 41 N. Licenses, Fees and Taxes................................................................................................................................................ 42 O. Insurance ........................................................................................................................................................................ 42 P. Proprietary Information ................................................................................................................................................... 43 https://ortn.sharepoint.com/sites/BusinessOffice-Test/Shared%20Documents/Purchasing/Food%20Service%20RFP/FY23/Food%20Service%20RFP%20Template%20new%20FY23.docx#_Toc127883654 https://ortn.sharepoint.com/sites/BusinessOffice-Test/Shared%20Documents/Purchasing/Food%20Service%20RFP/FY23/Food%20Service%20RFP%20Template%20new%20FY23.docx#_Toc127883655 https://ortn.sharepoint.com/sites/BusinessOffice-Test/Shared%20Documents/Purchasing/Food%20Service%20RFP/FY23/Food%20Service%20RFP%20Template%20new%20FY23.docx#_Toc127883667 https://ortn.sharepoint.com/sites/BusinessOffice-Test/Shared%20Documents/Purchasing/Food%20Service%20RFP/FY23/Food%20Service%20RFP%20Template%20new%20FY23.docx#_Toc127883674 Page 3 of 123 Q. Term and Termination .................................................................................................................................................... 43 R. Additional Conditions ..................................................................................................................................................... 45 S. Bid Protest Procedures .................................................................................................................................................... 46 SECTION FIVE – School Food Authority (SFA) Appendices ................................................................................................ 47 Appendix A .......................................................................................................................................................................... 48 Appendix A-1 ....................................................................................................................................................................... 49 Appendix B .......................................................................................................................................................................... 50 Appendix C .......................................................................................................................................................................... 52 Appendix D .......................................................................................................................................................................... 53 Appendix F ........................................................................................................................................................................... 77 Appendix G .......................................................................................................................................................................... 78 Appendix H .......................................................................................................................................................................... 79 Appendix I ............................................................................................................................................................................ 80 Appendix J............................................................................................................................................................................ 81 Appendix K .......................................................................................................................................................................... 84 Appendix L ........................................................................................................................................................................... 85 SECTION SIX – Required FSMC Proposal Format and Attachments .................................................................................... 86 SECTION SEVEN – Checklist for FSMC Attachments .......................................................................................................... 88 Attachment A ....................................................................................................................................................................... 89 Attachment B ........................................................................................................................................................................ 90 Attachment B-1 .................................................................................................................................................................... 91 Attachment C ........................................................................................................................................................................ 92 Attachment D ....................................................................................................................................................................... 93 Attachment E ........................................................................................................................................................................ 94 Attachment F ........................................................................................................................................................................ 95 Attachment G ....................................................................................................................................................................... 96 Attachment H ....................................................................................................................................................................... 97 Attachment I ......................................................................................................................................................................... 98 Attachment J ......................................................................................................................................................................... 99 Attachment K ..................................................................................................................................................................... 100 Attachment L ...................................................................................................................................................................... 101 Attachment M ..................................................................................................................................................................... 102 Attachment N ..................................................................................................................................................................... 103 Attachment O ..................................................................................................................................................................... 105 Attachment P ...................................................................................................................................................................... 106 Attachment Q ..................................................................................................................................................................... 107 Attachment R ...................................................................................................................................................................... 108 Attachment S ...................................................................................................................................................................... 109 Attachment T ...................................................................................................................................................................... 110 https://ortn.sharepoint.com/sites/BusinessOffice-Test/Shared%20Documents/Purchasing/Food%20Service%20RFP/FY23/Food%20Service%20RFP%20Template%20new%20FY23.docx#_Toc127883694 https://ortn.sharepoint.com/sites/BusinessOffice-Test/Shared%20Documents/Purchasing/Food%20Service%20RFP/FY23/Food%20Service%20RFP%20Template%20new%20FY23.docx#_Toc127883707 https://ortn.sharepoint.com/sites/BusinessOffice-Test/Shared%20Documents/Purchasing/Food%20Service%20RFP/FY23/Food%20Service%20RFP%20Template%20new%20FY23.docx#_Toc127883708 Page 4 of 123 Attachment U ..................................................................................................................................................................... 112 Attachment V ..................................................................................................................................................................... 116 SECTION EIGHT – Contract Authorization* ....................................................................................................................... 117 SECTION NINE – RFP Evaluation ....................................................................................................................................... 118 List Names and Titles of Evaluation Committee Members ................................................................................................ 118 Evaluation Committee Guidance ........................................................................................................................................ 118 RFP Evaluation Scoring Sheet ........................................................................................................................................... 120 Cost Proposal Evaluation Format ....................................................................................................................................... 121 Evaluation of Requirements Checklist ............................................................................................................................... 122 SECTION TEN – Unallowable Contract Provisions.............................................................................................................. 123 Schedule of Events (All events listed in EST time) Event Event Date Event Time RFP Release Date February 20, 2023 N/A Pre-proposal Conference and Site Visit March 8, 2023 1:30pm Final Question Deadline (no questions accepted after this date) March 13, 2023 4:30pm Question Answers Provided by Date March 20, 2023 4:30pm Sealed Proposal Submission Deadline April 10, 2023 2:00pm Proposal Opening April 10, 2023 2:00pm Optional FSMC Presentation April 11, 2023 1:30pm Proposal Evaluation Completion Deadline April 13, 2023 Board Approval April 24, 2023 5:00pm Written Evaluation Notice to Proposers & RFP Files Open for Public Inspection April 25, 2023 4:30pm Bid Protest Deadline May 7, 2023 Contract Signature Date May 8, 2023 Anticipated Contract Start date for Selected FSMC July 1, 2023 Federal regulation citations concerning food service management company contracts can be found in 7 CFR Part 210 National School Lunch Program. https://ortn.sharepoint.com/sites/BusinessOffice-Test/Shared%20Documents/Purchasing/Food%20Service%20RFP/FY23/Food%20Service%20RFP%20Template%20new%20FY23.docx#_Toc127883732 https://ortn.sharepoint.com/sites/BusinessOffice-Test/Shared%20Documents/Purchasing/Food%20Service%20RFP/FY23/Food%20Service%20RFP%20Template%20new%20FY23.docx#_Toc127883733 https://ortn.sharepoint.com/sites/BusinessOffice-Test/Shared%20Documents/Purchasing/Food%20Service%20RFP/FY23/Food%20Service%20RFP%20Template%20new%20FY23.docx#_Toc127883739 Page 5 of 123 Index of Applicable Regulatory Citations and Policy Guidance 2 CFR Part 200----Uniform Administration Requirements, Cost Principles, and Audit Requirements for Federal Awards 7 CFR Part 210—National School Lunch Program 210.8(a) SFA monitoring responsibilities 210.9(b) Annual Program Agreement 210.9(b)(7) Determination of free and reduced eligibility by SFAs 210.9(b)(17) & (19) Record retention requirements 210.11 Competitive food services and “Smart Snacks” guidelines 210.13 Facilities management 210.16(a) SFA contract parameters and conditions: 210.16(a)(1) Adhere to procurement standards 210.16(a)(2) Operation is in conformance with contract 210.16(a)(3) Periodic on-site visits 210.16(a)(4) SFA control of meals/food service quality and prices 210.16(a)(5) Signature authority (SFA retains control) 210.16(a)(6) Appropriate use of USDA foods 210.16(a)(7) Health certification 210.16(a)(8) Advisory board 210.16(a)(9) SFA must adopt all TDOE changes to solicitation prior to issuance 210.16(a)(10) TDOE has reviewed and approved contract terms and conditions, as well as all changes to the contract prior to execution 210.16(b) Invitation to bid 210.16(b)(1) Twenty-one day cycle menu 210.16(b)(2) Nonperformance 210.16(c) Contract provisions allowing "cost-plus-a-percentage-of-cost" and "cost- plus-a-percentage-of-income" prohibited. 210.16(c)(1) FSMC shall maintain records to support SFA's claim for reimbursement 210.16(c)(2) FSMC health certification for any facility used outside of schools 210.16(c)(3) Nonpayment conditions (spoiled or unwholesome foods, etc.) 210.16(d) Duration of contract 210.21 Procurement 7 CFR Part 215—School Milk Program 7 CFR Part 220—School Breakfast Program 7 CFR Part 225 – Summer Food Service Program 7 CFR Part 245—Determining Free and Reduced Eligibility 245.5 Public announcement 245.6 Free and Reduced Eligibility Applications 245.6(a) Verification 245.7 Hearings 245.10 Free and Reduced Policy Statement 7 CFR Part 250—USDA Foods 250.12(b)(4) Restitution for USDA Foods in connection with claims Page 6 of 123 250.12(c) FSMC responsibility for use of USDA Foods 250.13(e) Improper distribution, loss of or damage to USDA Foods 250.23 Buy American Provisions 250.50(a) Use of Donated Foods 250.51(a),(b), & (c) Crediting and Value of Donated Foods 250.52(a) & (b) Storage and Inventory of Donated Foods 250.53(c) Substitution of Ground Beef and Pork SFA and FSMC agree to all the regulations listed above. Page 7 of 123 Accounting Periods—each month throughout the fiscal year from July 1 to June 30. Amendments—written documents issued by the SFA prior to the opening of proposals which modifies the RFP documents by addition, deletions, clarifications, or corrections. Appendices—documents to be provided by the SFA to the FSMC as part of the RFP. Attachments—documents to be provided by the FSMC in response to the RFP/contract. ADM/ADP—Average Daily Membership/Participation Bid—an offer to perform, in accordance with the specifications and conditions, for a stipulated price. Board—the Board of Education of the SFA. Unless otherwise authorized by the SFA, the SFA’s Board of Education shall provide final approval of the Evaluation Committee’s RFP recommendation to the chief procurement officer. Code of Federal Regulations (CFR)—the code of federal regulations. Means the codification of the general and permanent rules published in the Federal Register by the executive departments and agencies of the federal government. 2 CFR 200 and 400 Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards regarding the administration of grants. CN (Child Nutrition) Label—indicates that the product conforms to the nutritional requirements of the USDA Food and Nutrition Service (FNS). The label shows the contribution made by a given amount of product toward meal pattern requirements. Child Nutrition Program (CNP)—is the preparation and service of food to the SFA’s students, staff, employees, and authorized visitors. The CNP may include, but is not limited to the National School Lunch Program, SBP, After School Snack program, FFVP, Summer Food Service Program, and the SSO, as well as catering services and à la carte food service. Competition—the process by which two or more companies attempt to secure business by offering the most favorable terms on price, quality, and service. Competitive Foods—any foods and beverages sold during the school day on the school campus that compete with the school breakfast and lunch programs. Violation of federal or state competitive food guidelines may result in reclaims of federal funds to support the SFA’s school breakfast or lunch programs. Contract—a formal, legally enforceable agreement duly executed by the authorized representative of the SFA and the FSMC. The SFA’s RFP and the contractor proposal to the RFP will become the final contract. Contract Award—the awarding of a contract to a successful offeror signifying the acceptance of the proposal. Contract Documents—any letters, forms, attachments, or other documents that the offeror submits with the proposal and any documents provided by the SFA in the context of this RFP, unless the terms in any such SECTION ONE – Definitions Page 8 of 123 documents conflict with any term in the RFP. Cost Reimbursable Contract—under this type of contract, the FSMC is required to perform the work described in the contract for the payment of a fixed administrative/management fee in addition to allowable direct costs of food, supplies, and labor to manage the food service program. Current Year—the period beginning July 1 and ending June 30. Decimals—meal charges are to be listed out to four (4) decimal places, if applicable. Direct Cost—a cost that is incurred specifically for one activity and can be identified specifically with that cost. Domestic Commodity or Product – an agricultural commodity that is produced in the United States; and /or a food product that is processed in the United States substantially using agricultural commodities that are produced in the United States. Duration—the contract duration must be limited to one year, with the effective beginning and ending dates stated in the contract. The beginning date shall not be prior to the date the contract is signed. Additionally, if renewals will be permitted, the contract must also state the date by which the renewal must be executed by both the SFA and FSMC. Although four (4) additional one-year renewals are permitted, contracts cannot contain automatic renewal provisions. The renewal date must occur on or prior to the expiration date of the current contract. Any provisions, including adjustments to payments that will be used for renewing contracts, must be stated in the RFP/contract, as applicable. These alterations cannot result in material changes to the original contract. If the SFA determines that significant changes are necessary, the SFA must re-solicit the contract. Examples of substantive changes which could require the SFA to re-solicit the contract include, but are not limited to: major changes to the formula for determining meal equivalency; major shift in responsibilities for SFA/FSMC staff; and/or significant changes in the basis for determining guaranteed returns. Expendable Equipment—items utilized in the preparation of food, including such things as pots, pans, and kitchen utensils. Expendable equipment also includes any item used in the nonprofit food service program as any item with a useful life of more than one meal service and with a purchase value per unit of $4,999.99 or less. FNS—Food and Nutrition Service of the United States Department of Agriculture. Food Service Facilities—are the areas, improvements, personal property, and facilities made available by the SFA to the FSMC for the provision of the food services. Food Service Management Company (FSMC)—a commercial enterprise or a nonprofit organization that is or may be contracted with by a SFA to manage any aspect of the school food service. FSMC's Responsibility—requires each FSMC to fully acquaint himself with conditions relating to the scope and restrictions of this RFP. The failure or omission of a FSMC to acquaint himself with existing conditions shall in no way relieve him of any obligation with respect to an offer and/or contract. Gross Receipts—the total of all cash receipts, reimbursements received by the SFA, and other revenue under the SFA’s nonprofit food service program. Indirect Cost—a cost of a general nature which is not readily identifiable with the activities of the grant and incurred for a common or joint purpose benefiting more than one activity or cost objective. Indirect Cost Rate—a device for determining the proportion of indirect costs the child nutrition program should bear. It is the ratio (expressed as a percentage) of the indirect costs to a direct cost base. Rates are published Page 9 of 123 annually by TDOE. In-Kind Meals—meals provided to adults who are directly involved in meal preparation and service. Teachers, aides, maintenance workers, secretaries, principals, and/or visitors, etc., should not eat free of charge unless the SFA accounts for and reimburses the school food service account for such adult meals. Students who assist in the cafeteria should not be considered “in-kind” nor reported as adult in-kind meals. Material Change – defined as a change that, had other offerors known of the change at the time they submitted their responses to the RFP, would have caused them to respond differently to the solicitation. Federal regulations under 2 CFR 200.324(b)(5) specify that when a proposed contract modification changes the scope of the contract or increases the contract amount by more than the federal Simplified Acquisition Threshold (currently set at $250,000 per 2 CFR 200.88), the SFA must submit the proposed changes to the TDOE for review and approval. State or local acquisition thresholds may be more restrictive and the most restrictive threshold applies. Meal Equivalents—defined as the common denominator for calculation of the per meal guarantee. The meal equivalent formula shall be determined by dividing the total of cash receipts, other than from sales of National School Lunch and Breakfast Program meals of Cash Equivalents, by the Equivalency Factor. À la carte meal equivalents shall be computed by dividing à la carte revenue (made to students and adults only through the child nutrition program) by the sum of the highest student charge for a reimbursable school lunch, plus federal paid reimbursement, and federally donated food entitlement value per meal for the fiscal year in which the meals are served. This factor will fluctuate with the prices of student lunch, federal paid reimbursement, and federally donated food entitlement per meal each year. Non-expendable Equipment—defined as any item with a per unit purchase of $4,999.99 or more. All non- expendable equipment will be purchased by the SFA. Nonprofit School Food Service Program—all food service operations conducted by the SFA are principally for the benefit of school children; all of the revenue from which is used solely for the operation or improvements of such food services. Non-Federal Entity – means a state, local government, Indian tribe, Institution of Higher Education (IHE), or nonprofit organization that carries out a federal award as a recipient or sub-recipient. Nutrition Analyses—provides detailed nutrition information on planned program menus. All menus must be planned to meet the Dietary Guidelines for Americans, as well as applicable USDA and state requirements. The FSMC proposal will include a nutrition analysis for each menu planned for all programs operated. Nutrition analyses must be available for all program meals planned and served daily during the contract period(s). The nutrition analysis software program used must be approved by USDA. Offeror—a vendor who responds to a solicitation; for this purpose, the offeror is the FSMC responding to the RFP. On-site—defined as the physical location of the food preparation facilities of the SFA as presented in RFP. Pre-proposal Conference—helps ensure that each FSMC understands the RFP. Product Identification (ID)—the product identifications or descriptions are not specifications. Product identifications are limited to requirements that can be verified on delivery or information essential for communication between contractor and SFA. Product identifications must be supplied with RFP for all items without CN label to insure quantity and quality. Processor – means any commercial facility which processes or repackages USDA Foods. However, commercial enterprises which handle, prepare, and/or serve products or meals containing USDA Foods on-site solely for the Page 10 of 123 individual SFA under contract are exempt under this definition. Proposal—a complete and properly signed response to the RFP. The proposal is presented as described in the response to RFP section of the school district RFP. The entire RFP will become the legal contract when approved, awarded, and signed. Proposal Opening—the process of opening and reading the content of proposals for the first time, at the date, time, and location specified in the Request for Proposals. Public Access to Procurement Information—no documents relating to this procurement will be presented or made otherwise available to any other person, agency, or organization until after the contract is awarded. Once awarded, non-proprietary information contained in the FSMC’s response to the RFP becomes public record. Commercial or financial information obtained in response to this RFP may be considered privileged and confidential. Such privileged and confidential information includes information that, if disclosed, might cause harm to the competitive position of the offeror supplying the information. All offerors, therefore, must visibly mark as "Confidential" each part of their proposal they consider to contain proprietary information. Qualified Offeror—an offeror who is qualified by experience, equipped to perform the work required or furnish the necessary material indicated in the specifications, and who has the necessary financial backing and ability to complete the contract. Request for Proposal (RFP)—the document that communicates to potential FSMCs the requirements of the SFA. The RFP must be submitted in its entirety and will become the final contract. No substitute contract will be accepted. Right of Non-Commitment or Rejection—this solicitation does not commit the SFA to award a contract, to pay any costs incurred in the preparation of a proposal, or to procure or contract for the articles of goods or services. The SFA reserves the right to accept or reject any or all proposals received as a result of this request, or to cancel in part or in its entirety this proposal if it is in the best interest of the district or SFA to do so. SBP—School Breakfast Program Servicewares—items utilized in the service of food, including but not limited to such things as chinaware, glassware, and silverware. SFA - the political subdivision or non-profit legal entity that operates the non-profit child nutrition program, as specified in the Program Agreement with the Tennessee Department of Education (TDOE) and complies with federal and state laws, regulations, and policies contained in the National School Lunch program (NSLP), the School Breakfast Program (SBP), the After School Snack Program (ASSP), the Seamless Summer Option (SSO), the Summer Food Service Program (SFSP), and the Fresh Fruit and Vegetable Program (FFVP). Signature Authority—the SFA shall retain signature authority on the child nutrition Program Agreement, Free and Reduced-Price Policy Statement and any and all claims made for reimbursement. Simplified Acquisition Threshold – means the dollar amount below which a non-federal entity may purchase property or services using small purchase methods. Non-federal entities adopt small purchase procedures in order to expedite the purchase of items costing less than the Simplified Acquisition Threshold. The Simplified Acquisition Threshold is set by the Federal Acquisition Regulation at 48 CFR subpart 2.1 (Definitions) and in accordance with 41 U.S.C. 1908. Currently, the Simplified Acquisition Threshold is $250,000, but this threshold is periodically adjusted for inflation. Specifications—are written descriptions of what the purchaser requires and, consequently what a respondent must offer to be considered eligible for an award. Page 11 of 123 Special Food Service Functions—requested by the SFA shall be provided at a firm price mutually agreeable to the FSMC and SFA. The FSMC and the SFA shall agree as to what portion of this cost is to be reimbursed to the FSMC and what portion will be paid directly by the SFA. All cost related to special food service functions shall be clearly identifiable on the monthly billing and shall not be considered when determining the number of meal equivalents for which the FSMC will be paid a management fee or the performance of the FSMC as it relates to compliance with the meal equivalent cost guarantee. No USDA foods can be used for such functions. In addition, no food, labor, and supplies appropriated for the child nutrition program can be used for these functions. State Agency (SA)—the Tennessee Department of Education (TDOE). TDOE is the state-level administrator for the National School Lunch Program (NSLP) and its related initiatives. Term—one year with four one-year renewal options. A partial school year will be considered one of the four one-year renewal options. Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards—2 CFR 200, the official federal regulations governing the procurement activities of state and local grantees of federal funds. Includes local food service operators receiving federal funds issued by the USDA. USDA—the United States Department of Agriculture. USDA Foods (Commodities) – means foods purchased by the United States Department of Agriculture and donated to schools for use in child nutrition programs. USDA Rebates—refers to items produced on "Processing Contracts" from USDA donated foods. All rebates generated from the processing of the SFA’s USDA foods are required to accrue to the SFA’s non-profit school food service account. Vendor—a merchandiser of complete meals, meal components, or raw materials. Page 12 of 123 A. Intent This Request for Proposal (RFP) is for the purpose of obtaining proposals and ultimately entering into a contract to provide FSMC services for the Oak Ridge Schools nonprofit school food service program, hereinafter referred to as the SFA. Schools are listed in Appendix A. The food service employee listed in Appendix C is the only employee of the SFA. All other food service employees will be employees of the FSMC. The offeror or Food Service Management Company (FSMC) will be referred to as the FSMC, and the Contract will be between the FSMC and the SFA. The FSMC shall offer assurances that all operations addressed in the RFP will be conducted in a manner that is consistent with the goal of the SFA’s child nutrition program, which is to provide nutritionally balanced meals of high quality to students at an economical price in an attractive, appealing, and friendly environment. Each offeror must submit a completed response to this solicitation using the forms provided. No other documents submitted with the Request for Proposal will affect the contract provisions. B. Procurement Method A competitive proposals process will be utilized to procure FSMC services. All procurement transactions shall be conducted in a manner that provides maximum, open, and free competition consistent with federal regulations as defined in 2 CFR 200 and 400. The SFA acknowledges its responsibility to ensure that all terms and conditions of the RFP conform to its local procurement code Any changes to the RFP template shall be documented as a separate addendum or amendment. These changes shall be reviewed and approved by the Tennessee Department of Education (TDOE) prior to the issuance of any RFP. C. Pre-Proposal Conference and Site Visit 1. A mandatory meeting and site visits with interested FSMC will be held on: Wednesday, March 8, 2023 @ 1:30 PM: Oak Ridge Schools Business Services Office 304 New York Ave, Oak Ridge, TN 37830 The purpose for the meeting will be to review the specifications and for a walk-through of designated facilities with school officials. Questions will not be answered during the pre-proposal conference, but rather by the SFA in writing. Any questions must be submitted in writing to the SFA by the deadline specified here-in. SECTION TWO – General Information Page 13 of 123 Written Inquiries All communications and inquires shall be directed to: Contact Person’s Name: Dana Paolucci Contact Person’s Title: Business Services Coordinator Address: 304 New York Ave City: Oak Ridge State: TN Zip Code: 37830 Email Address: drpaolucci@ortn.edu Phone Number: 865-425-9141 Written responses to questions received will be distributed by e-mail to all FSMCs that attend the pre-proposal meeting and will be referred to as Appendix K. D. Optional Presentation by FSMC An optional formal presentation by FSMCs who submit bids will be held on: Tuesday, April 11, 2023 @ 1:30 PM: Oak Ridge Schools Board Room 304 New York Ave, Oak Ridge, TN 37830 No food should be prepared for the presentation. Proposers are not allowed to alter or amend their proposals through the presentation process. E. Proposal Submission and Award 1. Proposal submission deadline: 2:00 PM (EST) on Monday, April 10, 2023 2. Proposals to be submitted to this address: Oak Ridge Schools – RFP 23-005 304 New York Ave, Oak Ridge, TN 37830 Attn: Dana Paolucci 3. One (1) copy of the proposal is to be delivered in a sealed container; as well as 5 copies in pdf format on thumb drives marked “Food Service Management Company Proposal.” Faxed and/or e-mailed copies will not be accepted. Each proposal must include all required responses and documents at the time of public acceptance stated here-in. To be considered, each offeror must submit a complete response to this solicitation using the required format and forms provided. All proposals must convey all of the information requested in order to be considered responsive. Any time prior to the proposal opening, the FSMC may withdraw a submitted proposal by submitting a request in writing. The SFA reserves the right to reject any or all proposals and to cancel this solicitation if deemed to be in the best interest of the SFA. The SFA reserves the right to reissue the RFP. mailto:drpaolucci@ortn.edu Page 14 of 123 4. The award shall be made to the highest-ranked, qualified, and responsible offeror whose proposal is most responsive to this solicitation. A responsible offeror is an FSMC whose financial, technical, and other resources indicate an ability to perform the services required by this solicitation and whose responses best meet the criteria contained throughout the RFP. Price will be the highest weighted factor. An Evaluation Committee, appointed by the SFA, will review and evaluate all written proposals based on pre-established criteria. Qualified offerors will be invited to give a formal presentation to the Evaluation Committee. The Evaluation Committee will make a written, objective evaluation and recommendation to the SFA’s School Board. 5. Offerors or their authorized representatives are expected to fully inform themselves as to the conditions, requirements, and specifications before submitting proposals and to seek clarification on any items contained in the RFP; failure to do so will be at the offeror’s own risk, and he or she cannot secure relief on the plea of error. The offeror has responsibility for all cost incurred prior to the signing of a contract by all parties. Paying the FSMC from Child Nutrition funds is prohibited until the contract is signed and approved by TDOE. F. Amendments If necessary, an amendment(s) will be issued prior to the proposal submittal date and in time for the purposes of modifying or interpreting the proposal instruction and/or specifications through additions, deletions, clarifications, or corrections. Any amendment(s) issued by the SFA shall become a formal part of this RFP. Any amendment(s) will be forwarded to all potential offerors who are known by the SFA to have received a completed copy of the RFP. No amendment(s) will be issued later than five (5) calendar days prior to the proposal submittal date except to (a) withdraw the RFP, or (b) postpone the proposal submittal date and time. The SFA will not be legally bound by any amendment or interpretations that are not in writing and approved by all parties. Offerors shall acknowledge receipt of any amendment to this solicitation by signing and returning the amendment(s) with their proposal. If this solicitation is amended, then all terms and conditions which are not modified remain unchanged. G. Late Proposals Any proposal received after the date and time specified herein will not be considered. H. Final Discussions and Negotiations The SFA reserves the right to conduct final discussions and/or negotiations with the FSMC recommended by the Evaluation Committee prior to awarding the contract. The purpose of these discussions shall be to clarify and assure full understanding of any issue contained in the proposal. The SFA shall conduct an evaluation of all Offers for accuracy, completeness, and conformity to the specifications contained in the Solicitation. The SFA shall certify the results of the proposal evaluation process prior to the issuance of any award. By submission of a proposal, the offeror agrees that during the period following issuance of an Offer and prior to notification of intent and/or award of contract, offeror shall not discuss this procurement with any party except the SFA or other parties designated in this Solicitation. The SFA reserves the right, at any time after the proposal opening and prior to an award, to request from Page 15 of 123 any offeror clarification of processes or procedures, address technical questions, or to seek other information regarding the offer. Discussions are possible only if the Offer is apparently responsive. This process may also be used to assure mutual understanding and/or aid in determinations of responsiveness or responsibility of the offeror. Any discussions shall be documented in writing and shall be included with the Offer. In conducting these discussions, there shall be no disclosure of any information derived from proposals by competing FSMCs. I. Final Contract The submitted RFP, including all attachments and all documents submitted by the offeror, will become the official contract when approved, awarded, and signed. J. Procurement Code of Conduct The SFA acknowledges their responsibility under USDA guidelines to establish and enforce an SFA written policy to address the conduct of SFA employees with regard to SFA procurement transactions. This code of conduct, at a minimum, must prohibit SFA employees from soliciting gifts, travel packages, and other incentives from prospective offerors and/or contractors. In addition, the code of conduct must prohibit an SFA employee from participating in the selection, award, and administration of any contract to which an entity or certain persons connected to them have financial interest. The code of conduct must also provide for the SFA to set standards when financial interest is defined as not substantial or a gift is an unsolicited item of nominal value and may be acceptable. Additionally, the SFA code of conduct must provide for disciplinary actions to be applied in the event the code of conduct standards are violated. Any employee or official of the SFA, elective or appointive, who shall take, receive, or offer to take or receive either directly or indirectly, any rebate, percentage of contract, money, or other things of value, as an inducement or intended inducement, in the procurement of business, or the giving of business, for, to, or from any person, partnership, firm or corporation, offering, proposing, or in open market seeking to make sales to the SFA shall be subject to punishment or a fine in accord with state and/or federal laws. The FSMC’s employees must adhere to the SFA’s Code of Conduct. Failure to follow the SFA’s Code of Conduct may result in disqualification of offeror’s proposal and/or legal action. K. Approval of Publicity Releases The FSMC shall not have the right to include the SFA’s name in its published list of customers, without prior approval of the SFA. Such restriction shall not prohibit either party from disclosing the existence of the relationship. The FSMC agrees not to publish or cite in any form any comments or quotes from SFA staff. FSMC further agrees not to refer to award of this contract in commercial advertising in such a manner as to state or imply that the products or services provided are endorsed or preferred by the SFA. Page 16 of 123 A. Contract: The contract awarded as a result of this RFP shall be effective for one year for the school year beginning July 1, 2023 and ending June 30, 2024. Upon mutual agreement of the SFA and the FSMC, the contract may be renewed annually for up to four additional one-year periods. Any amendment, addendum, and/or renewal to the contract shall become effective at the time specified and must be approved by TN Department of Education, Office of School Nutrition. If the amendment, addendum, an/or renewal to the contract institutes a material change, the SFA must rebid the contract. B. Expenses: The FSMC will be paid on the basis of the direct cost incurred plus a fixed fee. The value of USDA foods received must be itemized and credited in the monthly billing to the SFA to document savings resulting from USDA food usage. (No value or benefit of USDA foods shall accrue in any manner to the FSMC). All program expenses not otherwise defined in the contract will be covered by the administrative fee and may not be charged in any other expenses. All indirect and overhead costs are to be included in the administrative fee. The following must be included in the administrative fee and may not be charged to any other expenses. 1. Personnel and Labor Relations and Services Visitation; 2. Legal Department Services; 3. Purchasing and Quality Control; 4. Technical Research; 5. Cost incurred in Hiring and Relocating FSMC Management personnel; 6. Dietetic Services (Administrative and Nutritional); 7. Recipe Development, Modification and the Use of Test Kitchens; 8. Accounting and Accounting Procedures; 9. Tax Administration; 10. Technical Supervision; 11. Regional/Supervisory Personnel and Inspections or Audit Personnel; 12. Teaching and Training Programs; 13. General Regional Support; 14. General National Headquarters Support; 15. Design Services; 16. Menu Development; 17. Information Technology and Support; 18. Payroll Documentation and Administrative Cost; 19. FSMC Employee Background and Maltreatment Checks; 20. Payroll Documentation; 21. Meal Modifications The FSMC shall submit to the SFA a monthly invoice by the 15th of the following month, broken down by individual school, to include the actual number of reimbursable meals (breakfast, lunch, and snack) and non- program foods for each service provided. Daily records must be available to support the invoice charges. Breakfast, lunch, and snacks will be listed separately on the invoice. If an itemized invoice is requested by the SFA, but not provided within forty-five days, the SFA has the right to delay payment for non- compliance. SECTION THREE – Specific Requirements Page 17 of 123 The SFA’s failure to pay an invoice may constitute a breach of the contract. In the event any invoice is unpaid for more than forty-five days, the FSMC may have the right to terminated performance under this contract. The SFA further agrees to pay all costs of collection of amounts due including a reasonable attorney’s fee. Waiver by FSMC of the right to terminate for one or more late payments shall not constitute waiver of FSMC’s rights for future payments. Cost-reimbursable contracts are awarded with management and administrative fees applied on a per meal basis and revenues from non-program food sales converted into meal equivalents. The FSMC will annually provide information on food costs and revenues. The information must include food cost for reimbursable meals, food cost for non-program foods, revenue from non-program food, and total revenue. Non-program foods include: adult meals, a la carte, catering, vending, student stores operated, coffee shops, or any other sales generated through the nonprofit school food service account not already described. This information is used in determining compliance with revenue from non-program foods. 7 C.F.R. § 210.14(f). Any guaranteed return promised by the FSMC must remain in the nonprofit school food service account. C. Services: The FSMC shall provide the following services: l. The preparation and service of food to students, SFA employees, and guests of the SFA in accordance with the menu and meal pattern specifications described in this RFP. 2. The collection of daily cash sales shall be in accord with the cash collection procedures of the SFA as described in the TDOE-approved Free/Reduced-Price Meal Policy. 3. The daily collecting and counting of all meals served by category in accord with the TDOE-approved Free/Reduced-Price Meal Policy. 4. The deposit of daily cash collections in a SFA bank account restricted for use by the SFA’s nonprofit food service account. 5. The maintenance of the daily meal count report and documents to support the SFA's claim for reimbursement. 6. Assistance to the SFA for filing paperwork as needed. 7. The monthly consolidation of school meal counts shall be prepared and certified to the SFA not later than the 10th day of the month following the last service day of each month. 8. Replacement of all food lost due to refrigeration malfunction at no cost to the SFA, to the extent such loss was a result of FSMC’s negligence. Daily temperature records must be maintained in all schools on all refrigerated equipment, including holidays. 9. Provision of a monthly listing by schools of the ending inventory for purchased food, supplies, and USDA foods. Also, a listing by schools of the total value received of USDA foods. 10. Maintenance of high standards of sanitation and shall be responsible for routine cleaning and housekeeping in the food preparation and service areas (including food service equipment and kitchen floors) and for the washing of dishes, trays, flatware, pots, pans, utensils, the cleaning and sanitation of food equipment, counters, serving lines, cafeteria tables, routine cleaning, light fixtures, window coverings, in the kitchen and storage areas used by the FSMC, including the cleaning of floors and walls in these areas. FSMC must comply with all state and federal regulations involving food safety and sanitations. Page 18 of 123 11. Placement of all garbage and trash in appropriate containers in the area designated by the SFA for later removal. 12. Training and implementation of the TDOE-required Food Safety Plan–Hazard Analysis & Critical Control Points (HACCP). 13. Implementation of the TDOE-required production record form for documenting meal preparation. D. Menu System for Reimbursable School Breakfast: The FSMC and SFA will make all reasonable efforts to encourage participation in the School Breakfast Program (SBP) as defined in this RFP. If mutually agreed to, the SFA reserves the right to include additional breakfast delivery methods if such changes enhance participation and do not represent a material change to this contract. E. Meal Pattern Requirements: Each school day, the FSMC shall make readily available to all students throughout the serving periods, designated by the SFA, the following which conforms to current regulatory requirements stated in 7 CFR Parts 210 and 220 and also required in the Richard B. Russell National School Lunch Act (NSLA) in Section 9(a)(4), 42 USC 1758(a)(4) and Section 201 of the Healthy, Hunger-Free Kids Act of 2010 amended Section 4(b) of the NSLA, 42 USC 1753(b): http://www.fda.gov/Food/GuidanceRegulation/HACCP/ http://www.fda.gov/Food/GuidanceRegulation/HACCP/ Page 19 of 123 Page 20 of 123 Page 21 of 123 Snack Meal Pattern Select two of the four components for a reimbursable meal Meal Components1 Children Ages 3 - 5 Children Ages 6 - 121 Milk Fluid Milk 4 fl oz. (1/2 cup) 8 fl oz. (1/2 cup) Vegetables or Fruit2,9 Juice2,9, fruit, and/or vegetable 1⁄2 cup 3⁄4 cup Grains (select one) Bread 1⁄2 slice 1 slice Cornbread/biscuit/roll/muffin 1⁄2 serving 1⁄2 serving Cold dry cereal4 1/3 cup or 1⁄2 oz. 3⁄4 cup or 1 oz. Cooked cereal grains 1⁄4 cup 1⁄2 cup Pasta/noodles 1⁄4 cup 1⁄2 cup Meats/Meat Alternatives5,6,7 (select one) Meat/poultry/fish5 1⁄2 oz. 1 oz. Alternate protein products6 1⁄2 oz. 1 oz. Cheese 1⁄2 oz. 1 oz. Egg (large) 1⁄2 large egg 1⁄2 large egg Cooked dry beans/peas 1/8 cup 1⁄4 cup Peanut/other nut/seed butters 1 Tbsp. 2 Tbsp. Nuts and/or seeds7 1⁄2 oz7 1 oz. Yogurt8 2 oz. (1/4 cup) 4 oz. (1/2 cup) Page 22 of 123 Page 23 of 123 F. Other Meal Pattern Requirements. 1. The quantities of food served shall be in accord with the federal meal pattern requirements for the specific age groups as found in 7 CFR Parts 210 and 220. 2. Detailed product identifications and the most current USDA Food Buying Guide shall be the basis for determining the quality and adequacy of yield. 3. All breaded meat/meat alternate products served shall meet meal pattern requirements as served and have a CN Label in order to protect the SFA against audits or over claims. 4. Written product identifications will be provided for all food purchased without CN Label to insure quantity and quality. Page 24 of 123 5. The FSMC shall supply special diets to any students as required for medical reasons when prescribed and approved in writing by a medical doctor for disabled students or by a recognized medical authority for non-disabled students. FSMC shall make substitutions in the food components of the meal pattern for disabled students whose handicap restricts their diet and those non-handicapped students who are unable to consume reimbursable meals under normal circumstances. A record of special diets planned and served because of medical or other special dietary needs must be maintained on a daily basis. FSMC substitutions shall be made on a case-by-case basis only when supported by a statement of need that includes recommended alternate foods, unless otherwise exempted. 6. Should reimbursement for a meal be denied, or a claim for loss of USDA foods is established against the SFA as a result of an audit, review, or for any other reason due to FSMC’s negligence or non-compliance with federal or state requirements, the amount of the denied reimbursement (food loss, over-claim, or questioned cost) shall be subtracted from the funds due the FSMC. In the event the reimbursement is denied after the termination of the contract, the FSMC shall refund the amount of the denied reimbursement to the SFA. The FSMC will not be responsible for an over-claim due to the SFA’s incorrect determination and/or classification of free and reduced-price meal eligibility. 7. The SFA should describe in written detail all arrangements related to à la carte or any extra food sales. The SFA will determine the items to be sold and the pricing of such items during the school day, if any, as special sales prior to the beginning of the contract. A written list of items will be provided by the SFA once the Contract has been awarded. 8. Should the SFA require food service for special functions (see definition), such as banquets, etc., a firm price per meal shall be negotiated and confirmed in writing with the SFA official requesting the service. 9. The planned 21-day menu cycle provided by the FSMC shall meet the requirements as shown in Appendix E. Any and all changes after the first 21 days shall be submitted in writing, along with a nutritional analysis documenting that the menus meet state and federal requirements, for approval from the SFA. All alternate menus or menu items must be approved in writing two weeks prior to serving. FSMC must plan and provide written documentation to SFA for review that all menus are reimbursable, including all promotional specialty menus planned. FSMC must document those recommendations made by individual school advisory councils are used in menu planning. 10. The FSMC shall cooperate with the SFA in promoting nutrition education as a component of the SFA’s child nutrition program. 11. The FSMC shall serve free and reduced-price meals to those children approved by the SFA and shall protect the anonymity of such children. 12. The FSMC may petition the SFA for an increase in the per meal charge annually at the time of contract renewal. The amount of increase granted shall not exceed the “Food Away From Home” South Region series of the Consumer Price Index (CPI). The percentage of increase or decrease for each contract period is determined from the CPI from March to March. Before price increases can be implemented, the FSMC must document, through cost or price analysis, the need for such price increase. The SFA must forward all documentation to TDOE for review and approval. No price increase may be implemented under this provision without prior approval of TDOE. The SFA will be allowed to propose a price decrease when the Contract is considered for renewal. The SFA will utilize the Food Away From Home series of the Consumer Price Index (CPI). 13. All contract revisions will be presented to the TDOE by the SFA. Once approved by the TDOE, the SFA and FSMC will then sign in agreement to the changes. Additions or changes that change or negate the mandatory portions of the contract as written will automatically invalidate the contract. Reference Termination Section Four P. Term and Termination of this document for remedy provisions. Page 25 of 123 14. Pursuant to USDA regulations, the following responsibilities shall be retained (and cannot be delegated) by the SFA: a. Signature authority on the Program Agreement and related renewal documentation, including the SFA's free and reduced-price policy statement, as contained in 7 CFR 210.16(a)(2). b. Signature authority on the monthly Claim for Reimbursement, as contained in 7 CFR 210.16(a)(5). c. Development, distribution, and collection of the parent letter and application for free and reduced-price meal benefits. d. Determination of eligibility for free and reduced-price meals and the conduct of any hearings related to such determinations, as contained in 7 CFR 245. e. Verification of applications for free and reduced-price meals. f. Control of the nonprofit school food service account and overall financial responsibility for the child nutrition program as set forth in 7 CFR 210.14 and the limitations on any competitive school food service as set forth in 7CFR 210.11 and 7 CFR 210.9(b)(1). g. Determination of all program and non-program meal prices. h. Title to USDA Foods. i. Development of the 21-day cycle menu requirements for the RFP, as well as approval of changes to the 21-day cycle menu after the first 21 days of meal service. j. Implement internal controls for monitoring student meal counting and claiming processes, as required under 7 CFR 210.8(a). k. Establishment and maintenance of an advisory board composed of parents, teachers, and students to assist in menu planning. l. Assurance that the maximum amount of USDA foods are received and utilized by the FSMC and accrue only to the benefit of the SFA's nonprofit school food service program, as required in 7 CFR 250.5(a) & (b). m. Control of the quality of food and the general nature of the child nutrition program, as required by 7 CFR 210.16(a)(4). n. Responsibility for all child nutrition program contractual agreements, excluding USDA food processing agreement(s). o. Ensuring resolution of program reviews and audit findings. p. Conduct required annual on-site and SFA-level reviews of FSMC operations. q. Inputting claims and financial information into the Tennessee Meals, Accounting and Claiming (TMAC) or other electronic reporting process, as designated by TDOE. Page 26 of 123 r. Responsibility for cleaning of all ducts and hoods above the filter line as needed. Detachable filters will be cleaned weekly or as needed. s. Pest control services in the cafeteria and kitchen areas, as specified in the SFA Food Safety/HACCP Plan. t. Office facilities to include the location of office, equipment, furniture, and any miscellaneous supplies. u. Fees for Retail Food Service Establishment Permits issued by the Tennessee Department of Health and Environmental Control. v. Responsible for cleaning grease traps. 15. Any silence, absence, inconsistency, or omission from contract specifications concerning any point shall be regarded as meaning that only the best commercial practices are to prevail, and that only materials (food, supplies, etc.) and workmanship of quality that would normally be specified by the SFA are to be used. 16. Revenue can be used only for the SFA's nonprofit child nutrition program and cannot accrue to the FSMC. All revenue and expenses which are charged to an SFA must flow through the SFA's chart of accounts. FSMC expenses which are not billed to the SFA cannot be recorded as expenses to the food service account. 17. In the event of a conflict between or among any of the terms of the RFP/contract documents, such conflicts shall be resolved by referring to the documents in the following order of priority: (1) the RFP issued by the SFA and (2) the response submitted by the offeror. 18. The FSMC shall demonstrate to the satisfaction of the SFA that appropriate labor cost segmentation is being practiced to prevent duplicate billing of labor that may be used in special events outside of the scope of services covered by agreement. Page 27 of 123 A. Scope and Purpose 1. The duration of the contract shall be for a period of up to one year, beginning on July 1, 2023, and ending on June 30, 2024, with a maximum of four (4) one-year renewals contingent upon mutual agreement between the SFA and FSMC. 2. The FSMC shall manage the SFA’s food service program for the benefit of the SFA’s students, faculty, staff, and guests. The FSMC shall provide food service in accordance with: all federal regulations found in 2 CFR Parts 200 and 400 and 7 CFR Parts 210, 220, 245, and 250; guidance, instructions, and policy memorandum issued by the United States Department of Agriculture, Food and Nutrition Service; United States Office of Management and Budget Circulars for Federal Grants; State Board of Education Regulations R.43-168 and R.43-169; and policies of the TDOE. The SFA, TDOE, and USDA shall have unlimited access, with or without notice to the FSMC, to all premises used by the FSMC. 3. The FSMC shall provide breakfast, lunch, and after-school snacks as specified in Appendix A for approximately 180 serving days. The FSMC may also be asked to provide lunch, breakfast and/or snacks if the SFA participates in the SFSP or the SSO and certain catering services. 4. The SFA may add or remove sites and/or meal periods for existing programs from Appendix A at any time during the period of the contract unless the addition or removal of sites and/or meal periods creates a material change to the contract. The distinction between a minor change and a material change cannot be quantified for every action undertaken in the Child Nutrition Program(s). However, at a minimum, a change is deemed material when had the term changes been included in the solicitation and original Contract, the district determines Offeror may have responded differently to the RFP and if it exceeds the allowed Simplified Acquisition Threshold applicable to the Districts operations or changes the scope of the original Contract. 5. The SFA reserves the right to maintain present food and beverage vending machines in its facilities. 6. The SFA shall be legally responsible for the SFA’s nonprofit school food service program and shall supervise the food service operations in such manner as will ensure compliance with the rules and regulations described in Paragraph A (2). The SFA shall conduct regular performance, accountability, and other reviews as required by state and federal regulations and guidelines, as well as periodic on-site visits to include inspection of meals, food preparation, storage and service areas, and sanitation and safety practices. Such reviews shall be documented by the SFA and maintained on file for inspection by TDOE. 7. The FSMC, as an independent contractor, shall have exclusive right to provide food services for the schools designated by the SFA in this RFP (Appendix A) for the following programs: National School Lunch Program, SBP, After School Snack Program, CACFP, Commodities, SFSP, Adult Meals, SSO, A la Carte and Catering as applicable and as determined each year by the SFA & FSMC. 8. The FSMC shall be an independent contractor and not an employee of the SFA. Employees of the FSMC are not employees of the SFA. The SFA employs one individual, listed in Appendix C, in performance of food service operations. 9. All income accruing as a result of payments by children and adults, federal and state reimbursements, SECTION FOUR – Terms and Conditions Page 28 of 123 and all other income from sources such as donations, special functions, à la carte sales, contract meals, proceeds from the sale of food service equipment, interest payments, and other sources related to the child nutrition program shall be deposited in the SFA’s nonprofit school food service account. Any profit or guaranteed return shall remain in the SFA’s nonprofit school food service account. 10. The SFA shall retain control of the SFA’s nonprofit school food service account and shall assume overall financial responsibility for the program. 11. Authorized representatives of the SFA, the SA, and USDA shall have the right to conduct unannounced, on-site reviews of the child nutrition program operation, including the inspection of all records and supporting documentation associated with the food service program. 12. The SFA and FSMC agree that this contract is neither a cost plus percentage of income nor a cost plus a percentage of cost contract as required under the USDA Regulations 7 CFR 210.16(c) and 7 CFR 3016. B. Signature and Approval Authority 1. The SFA shall retain signature authority for the Program Agreement, free and reduced-price policy statement, and monthly claim for reimbursement. 2. The preparation of the annual application for federal/state funds and the agreement with the TDOE, for operation of the National School Lunch, Breakfast, After School Snack Programs, SSO, Summer Food Service Program, and FFVP shall be the responsibility of the SFA. The application and agreement for federal/state funds, as approved by the TDOE, shall become part of the contract. 3. The preparation of the application to receive USDA Foods shall be the responsibility of the SFA. The agreement signed between the USDA and the SFA to receive USDA Foods shall become part of the contract. C. Free and Reduced-Price Meals 1. Approval of Free/Reduced-Price Meal Applications shall be the responsibility of the SFA. The SFA shall be responsible for the establishment and maintenance of the free and reduced-price meals eligibility roster. The SFA shall be responsible for verifying applications for free and reduced-price meals as required by USDA. 2. The FSMC shall implement an accurate point-of-service count using the counting system submitted by the SFA in its Program Agreement. Such a counting system must eliminate the potential for the overt identification of free and reduced-price eligible students. 3. The SFA shall monitor the FSMC through periodic on-site visits to ensure that the program is in conformance with all federal, state, and local regulations, laws, and procedures. In addition, the SFA will conduct an on-site review of the counting and claiming system no later than February 1 of each year, as required by 7 CFR 210.8. D. USDA Foods 1. The record of purchased and USDA foods used shall be maintained in the format prescribed by the TDOE. 2. The FSMC must utilize the maximum amount of USDA foods to the benefit of the SFA’s nonprofit food Page 29 of 123 service program. The value of USDA foods will be deducted from the FSMC's monthly bill (or otherwise passed through to the SFAs nonprofit school food service account monthly). The FSMC must coordinate with the SFA to respond to USDA food orders on a timely basis, to take full advantage of the USDA foods offered including Trade Mitigation and Bonus Food offerings if any. 3. The FSMC shall be responsible for all delivery, freight/handling, storage, and warehousing cost associated with USDA foods. The FSMC will comply with the storage and inventory requirements for donated foods. 4. SFA shall retain title to USDA Foods. 5. The FSMC shall claim and give the SFA’s nonprofit school food service account credit for any rebates, bonuses, promotions, and all other purchasing incentives received in the processing of USDA Foods if applicable. 6. The SFA must ensure that, in crediting it for the value of USDA Foods, the FSMC uses the USDA Food values determined by Commodity Distribution Office of the Tennessee Department of Agriculture, in accordance with 7 CFR 250.58(e). 7. The FSMC shall use the USDA Food values listed in the annual price list issued by the Tennessee Department of Agriculture, including the value of USDA Bonus Foods 7 CFR 250.51(c). 8. Any USDA foods received by the SFA and made available to the FSMC shall be utilized solely for the purpose of providing benefits for the SFA’s nonprofit child nutrition program and will not be used for any special functions (i.e. catering, etc.) conducted outside of the nonprofit school foods service activities. USDA foods are considered “received” when the foods arrive at the school kitchen in either raw form or in processed end products. The title to USDA foods must remain with the SFA. The SFA shall assure the maximum amount of USDA foods are received and utilized by the FSMC. The FSMC shall use USDA foods in the preparation of meals and other food served to students. The FSMC will use all donated beef and pork products, and all processed end products, in the recipient agency’s food service. 9. The FSMC shall manage the donated food to ensure they are used only for the SFA’s child nutrition program. Funds are expended to purchase food to be used in the food service program, or those commercial substitutes of the same generic identity, of U.S. origin, and of equal or better quality are used in their place (with the exception that donated ground beef, ground pork, and all processed end products must be used without substitution). When commercial substitutes are used in place of donated foods, the FSMC may then use the donated foods without restriction. 10. The FSMC must credit the SFA for the value of all donated foods funds received for use in the child nutrition program in the school year, whether the donated foods are used in that year or not as required in 250.51(a). The value of the USDA foods is based on the value of the product at the point the SFA receives the USDA foods at each site and on USDA prices pertinent to that time period. USDA food received by the FSMC must be credited to the SFA no later than the month following the use of said foods. FSMC will provide a detailed description of how the FSMC will document and credit the SFA monthly and annually (at the end of the fiscal/school year) for the value of all USDA Foods received for use in the SFA’s Child Nutrition Program. The value of the Food will be determined by the Commodity Distribution Office of the Tennessee Department of Agriculture. The SFA must also ensure that the method and timing of crediting does not cause its cash resources to exceed the limits established in 7 CFR 210.9(b)(2). Page 30 of 123 11. The liability for the proper use of the USDA foods shall be the responsibility of the FSMC. The FSMC must meet the requirements that ensure safe storage of donated foods in 250.14(a). In accordance with 210.13(a), the SFA must ensure that food storage, preparation, and service comply with the sanitation and health standards established under state laws and regulations. The FSMC may maintain separate storage, inventory, and control of USDA foods. Or, the FSMC may commingle donated foods with other foods purchased for the child nutrition program, in a single inventory management system in accordance with 250.52(b) and 250.59 (c). Since it is difficult to distinguish donated foods from other foods in a commingled inventory, the SFA must ensure the FSMC has properly credited it for the value of all donated foods, irrespective of the actual use of the foods (250.51(a)). Additionally, under cost-reimbursable contracts, food service management company must ensure that its system of inventory management does not result in the recipient agency being charged for donated foods. 12. In consultation with the FSMC, the SFA shall reserve the right to divert USDA-donated foods for processing to only those processors that have approved USDA processing agreements for authorized end products that are included on a current Summary End Product Data Schedule (SEPDS). If an end product is normally available for purchase by the FSMC under the FSMC’s regular competitive procurement process, no further procurement action is required. If an end product is not available for purchase by the FSMC under the FSMC’s regular competitive procurement process, the end product shall be acquired by the FSMC through the use of a competitive procurement process. The SFA shall ultimately be responsible for compliance with all state and federal requirements. Although the FSMC may procure processed end products on behalf of the recipient agency, it may not itself enter into the processing agreement with the processor. The FSMC shall not enter into subcontracts for further processing of USDA foods. 13. The FSMC is not required to credit the SFA for the value of donated foods in end products that the SFA procures from the processor and provides to the FSMC for use in the child nutrition program. The processor must credit the SFA for the donated food value in end products procured by the SFA, in accordance with processing requirements in Subpart C of Part 250. The SFA must ensure that the FSMC uses such end products in the child nutrition program in accordance with 250.51(d). 14. The FSMC shall give the SFA, USDA, and TDOE access to the USDA foods storage areas for inspection. The FSMC shall have records available to substantiate that the full value of all USDA foods is used solely for the benefit of the SFA. The SFA, USDA, and TDOE may conduct reviews of FSMC operations, as necessary, to ensure compliance with the requirements of this part with respect to the use and management of donated foods. 15. The SFA may not refund any credit to the FSMC for the value of any donated foods that remain unused when a contract terminates and is not extended or renewed. The FSMC must credit the SFA for the value of donated foods carried over from a previous contract if the value of such foods has not already accrued to the child nutrition program (i.e. if the value was not credited to the SFA by the previous FSMC). The “successor” FSMC must ensure use of such donated foods in the SFA’s child nutrition program but will not have to credit the SFA for the value of such donated foods, as that value would have already accrued to the child nutrition program. 16. The recipient agency must ensure that the food service management company has credited it for the value of all donated foods received for use in the recipient agency's meal service in a school year or fiscal year, as applicable per 7 CFR 250.52(c.). In addition, there must be an annual inventory reconciliation to include the last year of the agreement if it has been extended. https://www.law.cornell.edu/cfr/text/7/250.52 https://www.law.cornell.edu/cfr/text/7/250.52 https://www.law.cornell.edu/cfr/text/7/250.52 https://www.law.cornell.edu/cfr/text/7/250.52 https://www.law.cornell.edu/cfr/text/7/250.52 https://www.law.cornell.edu/cfr/text/7/250.52 https://www.law.cornell.edu/cfr/text/7/250.52 Page 31 of 123 17. The value used to credit the SFA for such donated foods must be the value determined in accordance with 7 CFR 250.51(c.). However, the FSMC is not required to credit the SFA for the value of such donated foods that are determined to be out-of-condition, and the SFA must ensure that such out-of- condition foods are not used in the child nutrition program. 18. When the contract terminates, and is not extended or renewed, the FSMC must return unused donated ground beef, ground pork, and processed end products and must return other unused donated foods to the SFA at the discretion of the SFA. The SFA must ensure that the FSMC has credited it for the value of all donated foods received for use in the recipient agency’s meal service in a school year or fiscal year, as applicable. 19. The recipient agency must maintain records of donated foods and processed end products received and provided to the FSMC for use in the recipient agency’s food service. The recipient agency must also maintain record of actual donated food values used in crediting. The FSMC will maintain records to document its compliance with requirements relating to donated foods in accordance with 250.54(b). 20. The recipient agency must ensure that the food FSMC is in compliance with the requirements of this part through its monitoring of the food service operation, as required in 7 CFR parts 210, 225, or 226, as applicable. The recipient agency must also conduct a reconciliation at least annually (and upon termination of the contract) to ensure that the FSMC has credited it for the value of all donated foods received for use in the recipient agency’s food service in the school or fiscal year, including, in accordance with the requirements in 250.51 (a), the value of donated foods contained in processed end products. 21. Extensions or renewals of the contract, if applicable, are contingent upon the fulfillment of all contract provisions relating to donated foods. 22. The FSMC must maintain the following records relating to the use of donated foods in its contract with the recipient agency. The donated foods and process end products received from, or on behalf of, the recipient agency, for use in the recipient agency's food service. Documentation that it has credited the recipient agency for the value of all donated foods received for use in the recipient agency's food service in the school or fiscal year, including, in accordance with the requirements in 250.51(a), the value of donated foods contained in processed end products. Documentation of its procurement of processed end products on behalf of the recipient agency, as applicable. E. Child Nutrition Program Operations 1. The FSMC, as agent for the SFA, shall serve, on such days and at such times as requested by the SFA: (a) Meals, priced as a unit, which meet the meal pattern requirements prescribed by federal and state guidelines. The SFA and FSMC will actively promote maximum participation in the National School Lunch and Breakfast Programs. (b) Such other food as may be agreed upon by FSMC and SFA. In order to offer à la carte food service, all eligible children must be offered free, reduced-price, and full-price reimbursable meals. À la carte offerings will comply with applicable federal and state regulations. 2. For the first 21 days of meal service, FSMC shall adhere to the 21-day cycle menu provided in the RFP and developed in accordance with the provisions of 210.10 or 210.10 (a). Thereafter, changes in the menu may be made with the approval of the SFA. 3. The FSMC shall make recommendations to the SFA regarding the child nutrition program and the prices to be charged for meals and other food; however, the SFA will retain control over the quality, extent, and Page 32 of 123 general nature of its child nutrition program and shall have the right and responsibility to make the final decisions regarding such matters. 4. The FSMC shall cooperate with the SFA in promoting nutrition education in the school cafeteria and in the SFA’s efforts to link nutrition education in the classroom with healthful foods, including fresh fruits and vegetables, offered in the school cafeteria. The FSMC shall promote nutrition education aspects of the SFAs child nutrition program and cooperate in the efforts of the SFA to coordinate these aspects with classroom instruction and federal, state, and local programs. The FSMC shall further promote the nutritional aspects of the child nutrition program by the types of foods they serve as part of the program meals as well as à la carte sales. 5. The FSMC shall supply foods required for students for when special diets have been prescribed by a medical doctor or other recognized medical authority. The FSMC shall seek assistance from a registered dietitian to translate the diet prescription into actual foods to be available. 6. The FSMC shall cooperate with the SFA in the utilization of an advisory board composed of students, parents, teachers, other school personnel, and a FSMC representative to assist in planning meals and promoting participation. The FSMC shall meet with the advisory board at least quarterly and will document the proceedings and outcomes of the meetings. 7. The SFA may request the FSMC to provide additional food service; however, the SFA reserves the right, at its sole discretion, to sell or dispense any food or beverage in conjunction with other school events. For any services provided by the FSMC outside of the normal scope of this agreement, the FSMC will follow all applicable rules and regulations and maintain adequate records to meet the requirements of said program(s). 8. Upon the SFA’s request, the FSMC shall provide catered food service events at times and prices mutually agreed upon by the SFA and FSMC. Catered events will include any meal function that is not associated with the SFA’s nonprofit child nutrition program such as banquets, luncheons, breakfasts, or other special meal functions. At the time the catered event is requested, a firm price per meal shall be confirmed in writing. 9. The FSMC shall not be reimbursed for any meals which are spoiled or unwholesome at the time of service, that do not meet the specifications developed by the SFA, or that do not otherwise meet the requirements of this contract provided, however, that no deduction shall be made unless the SFA shall give the FSMC written notification within 48 hours of the meal service for which the deduction is to be made, specifying the number of meals for which the SFA intends to deduct payment, and setting forth the reasons for the deductions. In addition, meals dropped by the students shall be replaced at no cost to the students. 10. The SFA must make potable water available to children in schools at no charge in all schools or places where reimbursable lunch meals are served during the meal service. In addition, water must be available in the afterschool snack program, and an effort should be made to provide drinking water during field trips with reimbursable bag lunches. However, availability of drinking water is not required at breakfast. 11. The SFA will maintain applicable health certification and assure that all State and local regulations are being met by FSMC preparing or serving meals at a school food authority facility. F. Facilities, Equipment and Inventory 1. The SFA shall make available to the FSMC suitable food service facilities, completely equipped and Page 33 of 123 ready to operate, together with such utilities as heat, fuel, refrigeration, and other utilities as may be reasonably required for the FSMC for the efficient performance of this contract. The FSMC agrees to utilize the SFA-owned equipment and facilities in good and proper manner and shall keep the same in a state of cleanliness to assure strict compliance with health regulations and food safety/HACCP plans. 2. All non-expendable equipment shall be purchased by the SFA. The SFA shall have full access to the food service facilities at all times. Principals or other SFA officials will inform the FSMC prior to use of the facilities during any serving periods. The FSMC shall not use SFA facilities or equipment for preparation of food to be served at any other function unless approved by the SFA. 3. The SFA shall furnish building maintenance services for the food service facilities and shall promptly make all equipment repairs and replacements and shall be responsible for compliance with all federal, state, and local safety and health laws and regulations with respect to the food service facilities. Repairs to expendable and non-expendable equipment or physical facilities due to the negligence of the FSMC, its employees, or its agents shall be the sole responsibility and expense of the FSMC. 4. The preparation of food off the SFA premises for service to students in the SFA shall be prohibited without prior approval in writing by the SFA. Should such approval be acquired, the FSMC shall have state and local environmental health inspection and certification for any facility outside the district in which it shall prepare meals for use in the SFA and shall maintain such health certification for the duration of this contract. 5. The SFA shall provide and maintain an adequate inventory of service wares, small expendable equipment, and cash registers. All service wares and small expendable equipment and cash registers shall remain the property of the SFA. 6. All fixtures added by the FSMC during the term of the contract will become the property of the SFA. Fixtures for the purpose of this contract include goods that have become so related to the real estate that an interest in them arises under real estate law (examples include but are not limited to counters, islands, stove, ovens, sinks, or service stations which cannot be removed without damaging the floor). 7. The SFA shall retain the right to rent any SFA-owned food service facility to outside groups during non- school hours or weekends, provided that such rental does not interfere with the normal food service operation. When such activities are agreed upon by the FSMC and SFA, the SFA may require that a member(s) of the food service staff, designated by the on-site manager, be on the premises. The SFA budget will be reimbursed for related personnel costs associated with the rental. The FSMC shall not be liable for any injury and/or damage caused by an outside group during such use. 8. At the time of contract signing, the SFA and FSMC shall jointly inventory all equipment, USDA foods, food, and non-food related supplies to be utilized in the SFA’s nonprofit child nutrition program (Appendix K). A summary of such inventory shall become part of the contract. The SFA represents and warrants that all SFA food and supplies inventories, including USDA foods, existing at the commencement of operations hereunder are usable and shall meet the FSMC’s menu requirements. In addition, at the commencement of operations, the FSMC and SFA shall mutually agree on the usability of such existing inventory and shall make an appropriate adjustment, if necessary, to the value of such existing inventory with the exception of the USDA foods. It is understood that all usable food, supplies and USDA Foods on the SFA’s premises are the property of the SFA and not on loan from the selected FSMC. The selected FSMC shall never remove any usable food, supplies, or USDA Foods from SFA premises, regardless of ownership, without prior authorization from SFA. Supplies include, but are not limited to the following: manuals of any kind, menus, small wares, equipment, office supplies of any kind, furniture, and records of any kind. Page 34 of 123 9. The following provisions will apply to Selected FSMC acquisition of equipment, marketing materials, or other supplies for the food service program: a. The Selected FSMC will purchase equipment, marketing materials, or other supplies for the food service program in an amount not to exceed $100,000. The selected FSMC shall be subject to the same procurement requirements to which the SFA is subject in any procurement action. The Selected FSMC may not serve as a vendor or supplier when procuring on behalf of the SFA’s food service. The SFA shall reimburse the Selected FSMC its actual costs, net of all discounts, rebates, and other applicable credits accruing to or received by the Selected FSMC or any assignee under the contract when the equipment, marketing materials, or other supplies were purchased, which shall be charged to the SFA as an operating expense of the food service program. Any such purchases shall be free of Selected FSMC logos; only manufacture logos are acceptable. Ownership of the equipment, marketing materials, or other supplies will vest in the SFA upon full and final payment to the Selected FSMC. Upon such payment, the Selected FSMC shall deliver a bill of sale evidencing transfer of title of the equipment to SFA. SFA and State Agency shall have final, prior approval authority for the purchase of Equipment that is used in storage, preparation, and delivery of school meals. b. If the Awarded Contract expires or is terminated prior to the complete repayment of the equipment, the SFA shall, on the expiration date, or within five days after receipt by either party of any notice of terminations under the awarded contract (select one)  Reimburse the Selected FSMC the unpaid portion of the equipment OR  Deliver and return ownership of the equipment or other items to the Selected FSMC. OR  Lease purchase the equipment of other items funded by the Selected FSMC and continue to pay the Selected FSMC a monthly payment in the amount invoiced when the equipment was purchased until the balance is repaid. In this event, the SFA’s obligation under the Lease Purchase Agreement with the Selected FSMC shall be subject to the SFA’s ratification of the rental agreement for each ensuing fiscal year. G. Regulatory Compliance 1. The FSMC and SFA mutually agree to comply with all applicable standards, orders, or requirements issued pursuant to the Clean Air Act (42 USC 7401-7671q), the Federal Water Pollution Control Act, as amended (33 USC 1251-1387), Executive Order 117389, Section 6002 of the Solid Waste Disposal Act (42 USC 82) as further specified by 2 CFR 200.322, and Environmental Protection Agency regulations (40 CFR Part 15). Any violations thereof shall be reported to the Administrator for Enforcement or other appropriate authority. Each party shall not be responsible to the other for acts beyond its control or acts caused by the negligence of the other party. 2. In accordance with the requirements contained in 2 CFR 200.213 and 7 CFR 3017.300, the FSMC certifies, by submission of this Proposal and subsequent Contract, that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation by any federal department or agency. The FSMC shall notify SFA during the term of the contract and any subsequent renewal periods if the status changes for the FSMC. Pursuant to Executive Orders 12549 and 12689, a Contract Award (see 2 CFR 180.220) must not be made to parties listed on the Government Excluded Parties List System for Award Management (SAM), in accordance with the OMB guidelines at 2 CFR 180 that implement Executive Orders 12549 (3 CFR Part 1986 Comp., p. 189) Page 35 of 123 and 12689 (3 CFR Part 1989 Comp., p. 235), “Debarment and Suspension.” The Excluded Parties List System in SAM 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 12549. 3. The FSMC agrees to comply with all mandatory standards and policies relating to energy efficiency as cited in the State Energy Conservation Plan issued in compliance with the Energy Policy and Conservation Act (42 USC 6201). 4. If funds from the non-profit School Food Service account are used to develop programs or materials, those programs and materials cannot be proprietary. To be clear, items developed with these funds cannot become part of the FSMC’s property. Rights to Invention Made Under a contract or Agreement. If the Federal award meets the definition of “funding agreement” under 37 CFR 401.2(a) and the recipient or sub-recipient wishes to enter in to a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment of performance of experimental, developmental or research work under that “funding agreement”, the recipient or sub-recipient must comply with the requirements of 37 CFR 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Governmental Grants, contracts and Cooperative Agreement,” and any implementing regulations issued by the awarding agency. 5. The FSMC shall comply with Sections 103 and 107 of the Contract Work Hours and Safety Standards Act, 40. U.S.C. 327-330, as supplemented by Department of Labor regulations, 29 CFR Part 5. Under Section 103 of the Act, the FSMC shall be required to compute the wages of every laborer on the basis of a standard workday of eight hours and a standard workweek of 40 hours. Work in excess of the standard workday or standard workweek is permissible provided that the worker is compensated at a rate not less than 11⁄2 times the base rate of pay for