2017-2018 Contract and Extension Information
- Conversion Rate
The conversion factor must NOT be less than the cost of the free lunch reimbursement plus the value of USDA foods (commodity rate). The minimum conversion rate for a la carte sales in the Type II contracts will be $3.62 for contracts going out to bid for the 2017-2018 school year. As in the past, this conversion rate is to be used for new bids using the Type II contract. This rate is now updated on an annual basis when executing a contract extension. The conversion rate has been established to ensure a fair level of payment to the FSMC, while simultaneously guaranteeing that child nutrition revenues are not subsidizing adult and a la carte items. The conversion rate is also in place to avoid making the sale of a la carte items more profitable than the marketing of reimbursable meals. A lower conversion rate generates more equivalent meals and therefore more money to the FSMC. NYSED strongly affirms the mission of Child Nutrition Programs to provide students with nutritious breakfasts and lunches. SFAs have the flexibility to set a higher conversion rate, however, please be advised that changing the conversion rate in the prototype contract is considered an amendment and must be approved prior to going out to bid. If the SFA opts to change the conversion rate for the first year of the contact then they must indicate what the conversion rate will be set for each of the four subsequent years. SFAs should keep in mind that federal reimbursement rates change on an annual basis.
- Financial Accounting, Books and Records – Refer to the Table of Contents for each type of NYSED contract prototype for related information
The FSMC must maintain all source documents at the SFA level and make them immediately available upon request for review by the SFA, NYSED and USDA.
The retention period for books and records of the Child Nutrition Programs states that all records regarding the FSMC, contract and bid specifications, as well as other records listed, must be kept on file for a three year period after the last payment to the FSMC has been recorded. The three year period regarding record retention may be increased if there are bid protests, litigation and audits and may continue until the litigation or bid protests are resolved or the three year period ends, whichever occurs later. Please visit our website for further information regarding types of records – see memo entitled “Recordkeeping for Procurement Transactions.”
In addition, as applicable, SFAs are encouraged to satisfy their responsibilities regarding the provision of education to students in pre-kindergarten through grade twelve, “educational agencies” (as defined below) in the State of New York collect and maintain certain personally identifiable information from the education record of their students. As part of the Common Core Implementation Reform Act, Education Law §2-d requires that each educational agency in the State of New York must develop a Parents’ Bill of Rights for Data Privacy and Security (Parents’ Bill of Rights). The Parents’ Bill of Rights must be published on the website of each educational agency, and must be included with every contract the educational agency enters into with a “third party contractor” (as defined below) where the third party contractor receives student data, or certain protected teacher/principal data related to Annual Professional Performance Reviews that is designated as confidential pursuant to Education Law §3012-c (“APPR data”).
The purpose of the Parents’ Bill of Rights is to inform parents (which also include legal guardians or persons in parental relation to a student, but generally not the parents of a student who is age eighteen or over) of the legal requirements regarding privacy, security and use of student data. In addition to the federal Family Educational Rights and Privacy Act (FERPA), Education Law §2-d provides important new protections for student data, and new remedies for breaches of the responsibility to maintain the security and confidentiality of such data.
- Nutrition Standards in the National School Lunch and Breakfast Programs and 21-day Cycle Menu
The final rule titled Nutrition Standards in the National School Lunch and School Breakfast Programs was established in January of 2012 from Public Law 111-296, the Healthy, Hunger-Free Kids Act of 2010. The Nutrition Standards in the National School Lunch and School Breakfast Programs outlines the required food based menu pattern, standards and timeline to be followed and adhered to by every SFA participating in the National School Lunch Program and School Breakfast Program.
The bid proposal must include a 21-day cycle menu developed in accordance with the provisions in 7 CFR 210.10, 220.8, and/or 225.16. The Child Nutrition Program office has developed menu templates and guidance documents to assist the SFA in developing their 21-day cycle menu. The Child Nutrition Staff is available to offer guidance and technical assistance on menu development. If you need assistance please contact your Child Nutrition Program Representative at 518-473-8781.
If a SFA has no capability to prepare a 21-day cycle menu, the SFA may request approval from NYSED Child Nutrition Program Office, through the pre-bid process, to allow the FSMC to include a 21-day cycle menu, developed in accordance with the provisions of 7 CFR 210.10, 220.8, and/or 225.16, with its bid proposal. If the SFA would like to request this option, it must attach a plan to the pre-bid detailing how the menu will be evaluated to ensure compliance with the meal pattern for components and quantity, dietary specifications, affordability, nutrition requirements and appeal to students. If an FSMC bidding on a contract submits menus that are not in full compliance with 7 CFR 210.10, 220.8, and/or 225.16, then that bid would be considered non-responsive.
- A La Carte Sales
The FSMC, as a result of the contract, agrees to provide breakfast, lunch and a la carte sales services to the SFA. However, the extent of the a la carte service provided to children and adults in the SFA is determined by the SFA. A la carte sales can take place on a food service line where students receive meals, at a separate service line or at vending machines. A la carte sales must meet all federal and State regulations and requirements, including the Smart Snacks rule. Vending machines are merely a distribution mechanism used to merchandize a la carte sales in the SFA. All revenues derived from a la carte sales must accrue to the SFA. Any vending operation should provide for a verifiable audit of items sold and revenues received. Sales must be deposited into the SFA school lunch account as a la carte sales and are subject to the agreed upon conversion factor. The conversion factor is used to convert a la carte sales into equivalent meals and equivalent meals are billed by the SFA at the current bid price. It is not allowable for the FSMC to subcontract for any vending machines and/or related services without the express prior approval, written authorization and consent of the SFA and governing board of the SFA. Be sure your contract reflects this policy.
- Certification Regarding Debarment
Although we have included a list of the FSMCs that have not been debarred (with an asterisk) as a part of our annual FSMC web posting, this list was compiled based upon information available on the Excluded Parties List System (EPLS) website as of January 2016. By the time SFAs go out to bid or seek a contract extension, circumstances regarding the FSMC’s debarment status may have changed. Therefore, the SFA must look on the EPLS website and complete the Debarment Option A form or the FSMC must complete the Debarment Option B form; both of which are in your packet. Please note: only the Debarment Option A or the Debarment Option B form needs to be submitted with your contract or extension submission; please do not submit both forms.
- Certification Regarding Lobbying Forms
The Certification Regarding Lobbying Form is required to be completed by the FSMC. FSMCs not participating in lobbying activities involving Child Nutrition Programs do not need to complete the Disclosure of Lobbying Form. If there are material changes after the initial filing, updated reports must be submitted on a quarterly basis. It should be noted that this is only required if money is spent on lobbying activities. A copy of the disclosure form is provided. (Refer to the Table of Contents for each type of the NYSED contract prototype for related information.)
- Summer Food Service Program (SFSP)
SFAs contracting with an FSMC are not permitted to add SFSP participation to the existing contract because the addition constitutes a substantive change to the contract. There are important program differences between the NSLP and/or SBP and the SFSP. If you plan to administer the SFSP, contact the SFSP Unit at (518) 486-1086 for assistance.
SFSP and additional provisions, general terms and conditions, as required in federal regulations 7CFR Part 225, are included in Type II and Type III. Please refer to the Table of Contents for each type of the NYSED contract prototype for related information.
A SFSP menu should be included in the bid specification with a listing of sites where the SFSP will operate along with other pertinent data in the appropriate appendices. If meals are pre-packaged and delivered to areas without refrigeration, a quality control plan must be in place as indicated in the SFSP section. SFAs letting bids for the 2017-2018 school year are required to use the SFSP forms or go out to bid separately for the SFSP.
The signatures of both parties are required on applicable SFSP forms to signify acceptance of the terms governing the SFSP operation and the SFA’s participation in the program. These terms and conditions, which provide for the operation of the SFSP in compliance with 7 CFR Part 225, are applicable to both the SFA and the FSMC.
- USDA Foods
USDA Foods in the Type II NYSED prototype contracts conform to USDA’s policy regarding the use of USDA Foods. Please refer to the Table of Contents in the NYSED contract prototype for related information.
The FSMC must pre-credit the SFA for the value of USDA foods listed in Schedule H (Direct Diversion Receipt and, if applicable, WBSCM Requisition Status Report). A deduction for the value of USDA foods must be reflected in the established bid price. The FSMC must provide an additional credit for any donated foods not reflected in the bid price. For example, if an SFA received bonus USDA foods throughout the school year the FSMC must credit the SFA for the amount of Bonus USDA foods received.
- Food Safety
Schools are required to meet the obligations of 7 CFR 210.13 and 7 CFR 210.15 b(5). Schools participating in the NSLP or the SBP are required to obtain two food safety inspections conducted by a State or local governmental agency responsible for such inspections. The SFA is responsible for informing their state or local health department that they are due for an inspection if the annual inspections do not occur routinely. In addition, schools must post, in a visible location, a report on the most recent food safety inspection, and provide a copy of the food safety inspection report to a member of the public upon request. If an SFA participates in the SFSP, the SFA must notify the Department of Health (DOH) of approved SFSP sites each year. The FSMC providing meals to SFSP sites must periodically submit meals to the local health department or an independent agency to determine bacteria levels in the meals being served. Such levels shall conform to the standards, which are applied by the local health authority with respect to the level of bacteria, which may be present in meals served by other establishments in the locality. The results of the inspections must be submitted promptly to the sponsor and State agency.
- Criminal Penalties
7 CFR 210.26 provides that, whoever embezzles, willfully misapplies, steals, or obtains by fraud any funds, assets, or property provided under this part whether received directly or indirectly from the Department, shall if such funds, assets, or property are of a value of $100 or more, be fined no more than $25,000 or imprisoned not more than 5 years or both; or if such funds, assets, or property are of a value of less than $100, be fined not more than $1,000 or imprisoned not more than 1 year or both. Whoever receives, conceals, or retains for personal use or gain, funds, assets, or property provided under this part, whether received directly or indirectly from the Department, knowing such funds, assets, or property have been embezzled, willfully misapplied, stolen, or obtained by fraud, shall be subject to the same penalties.
- Breakfast Program
All public schools with a severe need designation are required to have or start a reimbursable breakfast program. A severe need school is one that served 40 percent or more of its lunches to free and reduced price eligible students in the second preceding year. All other public elementary schools that participated in the lunch program on or after January 1, 1993 are required to have or start a breakfast program. Your SFA may have received an exemption from starting a breakfast program in certain buildings, which is granted on a yearly basis. If your SFA will begin a breakfast program in 2017-2018 or later, you must include menus for the breakfast program in the bid and indicate which schools will be starting a breakfast program. This is a one year contract that may be extended for up to an additional four years. The contract and specifications should be prepared in reference to the intended duration of this agreement.
- Reimbursement for Snacks in After School Care Programs through the National School Lunch Program
Public Law 105-336, the William F. Goodling Child Nutrition Reauthorization Act of 1998, expanded the United States Department of Agriculture’s NSLP. SFAs can enhance the nutrition benefits for children by providing reimbursement for snacks served to children in after school care programs through age 18. The intent is to assist schools to operate organized programs of care that include educational or enrichment activities. These programs are known to help reduce or prevent children’s involvement in juvenile crime or other high-risk behavior.
If the SFA administers the after school programs or retains the authority for the program; the snacks may be claimed by the SFA under the NSLP. SFAs participating only in the Special Milk Program are not eligible. If a public or nonprofit organization other than the SFA administers the afterschool program, that sponsor may be eligible to claim the snacks under the Child and Adult Care Food Program (CACFP) through the Department of Health. SFAs that claim supper do so through the CACFP. Other SFAs may find that serving and claiming the snacks in the NSLP eliminates the need to be in the CACFP. See the memorandum dated June 2007 concerning reimbursement for snacks served to children in after school care programs through the lunch program that addresses NSLP issues, as administered by this office. For information on the CACFP, call DOH at 1-800-942-3858.
Only SFAs participating in the NSLP and interested in receiving reimbursement for snacks served to children in after school care programs through the NSLP if letting bids for 2017-2018 for Type II contracts must include the names of the sites and times where snacks will be served on the appropriate appendix. (Refer to the Table of Contents for each type of the NYSED contract prototype for related information)
SFAs using the Type II contract must use Bid Option 2 to receive separate bid prices for breakfast and lunch meals and snacks served to children in after school care programs through the NSLP. For SFAs with the Type II contract, using Bid Option 2 will enable you to require bidders to provide separate bid prices for breakfast and lunch meals and snacks with a solid means for determining the lowest responsible bidder. Remember to check the current reimbursement rate for free snacks to ensure a fair bid price.
RCCI’s and Jails using will not need to use a different bid option or form because the cost of providing snacks will be included in the annual financial budget projection prepared by the FSMC. However, SFAs using these contracts must complete the appropriate appendix indicating which schools are receiving reimbursement for snacks. SFAs using the Type III contract do not participate in the NSLP and are not eligible to receive reimbursement for snacks.
Existing contracts can be modified to include the receipt of reimbursement for snacks served to children in after school care. Neither USDA nor NYSED consider reimbursement for snacks served in an afterschool program to be a new or separate program. The estimated cost to an SFA for providing snacks to children in after school care would be a small percentage of the total cost of the existing lunch program and therefore is not considered a material change to the contract. Existing contracts should be modified to include an estimate of the number of snacks to be served for the current school year and a bid price should be negotiated between the SFA and the FSMC to provide the required items. Check with your school attorney on the proper language for the amendment.
- Local Wellness Policy
Each local educational agency (LEA) participating in the National School Lunch Program, School Breakfast Program, Special Milk Program and Summer Food Service Program are required to establish a local wellness policy for schools under the LEA in accordance with federal law. The following link contains information regarding local wellness policies: http://www.fns.usda.gov/tn/local-school-wellness-policy.
- HACCP Based Food Safety Plan
Section 111 of the Child Nutrition and WIC Reauthorization Act of 2004 (Public law 108-265) amended section 9(h) of the Richard B. Russell National School Lunch Act requires SFAs to implement a food safety program. The Reauthorization Act requires that, during the preparation and service of meals, the SFA comply with a HACCP system established by the Secretary of Agriculture. Please note:
- It is the SFA’s responsibility to develop in writing a “HACCP Based Food Safety Plan” for each building (area that food is received, stored, prepared and held, served, etc.).
- The written plan must be on site and implemented in each building
- FSMC are responsible to adhere to the SFA School Food Safety Plan and affirm all food service employees understand and implement the plan.
- Fresh Fruit and Vegetable Program (FFVP)
The FFVP is limited to elementary schools that participate in the National School Lunch Program and where at least 50 percent of students qualify for free or reduced price meals. Elementary schools with the highest number of free and reduced priced students that submit a complete and viable application will be given first consideration. Approved schools are funded through an allocation grant to purchase and distribute domestic products only, with the exception of bananas. The SFA may delegate the operation of the FFVP program to the FSMC, however the SFA must ensure that students in schools selected for the grant have access to the program every day and that menus, food, labor and miscellaneous costs be submitted for the calendar month 10 days after the month ends in order to submit claims for program reimbursement to NYSED.
Food, labor and miscellaneous costs incurred will be reimbursed from the pre-approved allocation of money from a discretionary grant from the federal government. Additional fees, if any, must be negotiated and agreed upon, prior to implementation of the Fresh Fruit and Vegetable Program. If the FSMC administers the FFVP for the SFA, administrative expenses paid to the FSMC cannot exceed $100 total per month for the total of up to 50 schools participating in the program. The administrative expense may increase incrementally by $100 per month for an additional total of up to 50 schools participating in the FFVP.
USDA allows no more than ten percent (10%) of the total grant awarded the SFA for administrative expense (which includes equipment purchases.) Refer to the USDA FFVP guidance material at the following link: https://www.fns.usda.gov/ffvp/fresh-fruit-and-vegetable-program-resource-center. NYSED limits the total administrative expenses paid to the FSMC to one half percent (1/2%) of the respective percent for SFAs with more than 150 schools participating in FFVP. See chart below:
|Number of Schools||Allowable Per Month Total|
|151 plus schools||½% (cannot exceed ½% of up to 10% administrative expenses)|
The SFA must review employee records to ensure that proper procedures have been followed by the FSMC, with respect to the fingerprinting requirement for all persons that come into contact with children while working in schools and completion of the Employment Eligibility Verification Form I-9 required for all persons hired by the company. These documents must be maintained on SFA premises for verification by SFA and other interested State and federal agencies. In addition, FSMC must adhere to applicable federal and State Professional Standards requirements.
- Re-negotiating of Contract Terms
Re-negotiation of existing contract terms once the executed contract/extension has been approved by SED requires rebidding. If related addendums were made, they must be submitted to our office for review/approval.
- Fire and Theft Insurance
The FSMC shall provide fire and theft insurance at its own expense to cover any risk created by fire and/or theft to its property located on the premises of the SFA. The FSMC further agrees to provide all necessary fire and/or theft insurance to cover clothes, garments and other articles owned by their employees.
- Staff Schedules
In the event the SFA retains the services of the food service staff, the SFA must list all food service staff in Schedule G specifying the title and salary of each employee.
Any vending operation should provide a verifiable audit of items sold and revenues received. Sales must be deposited into the SFA school lunch account as a la carte sales, subject to the agreed upon conversion factor. The conversion factor is used to convert a la carte sales into equivalent meals, and equivalent meals are then billed by the FSMC at the current bid price. The FSMC is prohibited from installing and/or operating additional vending machines on the premises of the SFA without prior approval, written authorization and consent to the SFA.
The FSMC cannot subcontract out vending machine services on behalf of the SFA without the express prior approval, written authorization and consent of the SFA and governing board of the SFA, and has no authority to run a separate business within or from the SFA. Some FSMC have inappropriately subcontracted out vending in some of their SFAs. This is not an allowable option. The FSMC must report all vending sales to the SFA as stated above. They cannot independently run a business in the school.