Loading
The Oregon Administrative Rules contain OARs filed through July 15, 2014
 
QUESTIONS ABOUT THE CONTENT OR MEANING OF THIS AGENCY'S RULES?
CLICK HERE TO ACCESS RULES COORDINATOR CONTACT INFORMATION

OREGON DEPARTMENT OF EDUCATION

 

DIVISION 51

SCHOOL FOOD AND NUTRITION SERVICES

 

581-051-0100

School Nutrition Programs

(1) Authority and direction for the operation of school nutrition programs in Oregon shall be derived from the United States Department of Agriculture, the Oregon Revised Statutes, Oregon Administrative Rules and rules of district school boards.

(2) Claims for reimbursement by schools participating in the USDA School Nutrition Programs:

(a) Shall be submitted in a form designated by the Oregon Department of Education; and

(b) Must be received in the Oregon Department of Education by the fifteenth day of the month following the month for which claim is made.

(3) Food sold in competition with the School Breakfast Program or National School Lunch program shall not be allowed during the breakfast and/or lunch periods unless the funds accrue to the nonprofit food service program, the school or student organizations as may be defined by the district school board.

(a) The sale of items from the USDA Categories of Foods of Minimal Nutritional Value 7 CFR 210. Appendix B during the breakfast and/or lunch periods in the food service area is prohibited. However, if approved by the school district board, foods of minimal nutritional value may be sold outside the food service area during the breakfast and/or lunch periods.

(A) "Foodservice Area" means any area on school premises where NSLP and SBP meals are both served and eaten. Areas where students eat NSLP and SBP meals that are completely separate from the serving area are also part of the foodservice area.

(B) Financial penalties to the school food service program resulting from FMNV being served during meal time in the food service area by school policy or practice will be repaid to the program from the general fund.

(b) A copy of the Board action of approval must be filed with the School Nutrition Programs Section, Oregon Department of Education.

Stat. Auth.: ORS 326 & 327, 7 CFR 210
Stats. Implemented: ORS 327.137
Hist.: 1EB 2-1986, f. 1-7-86, ef. 1-8-86; ODE 17-2004, f. & cert. ef. 8-10-04

Inspection Procedures

581-051-0305

Food Safety Inspection Definitions

(1) "Central Kitchen" means a foodservice site where food is prepared at a facility and then some or all of the food is delivered to a meal serving site(s) at a place(s) other than the preparation site.

(2) "CNP" means Child Nutrition Programs.

(3) "Competitive Food Sales" means any foods sold in competition with the NSLP and SBP in foodservice areas during the breakfast and lunch meal periods.

(4) "Competitive Food Sales vendor" means any person or organization selling competitive foods in the Sponsor's foodservice areas during the lunch and breakfast meal periods.

(5) "Critical Violation" means a Food Safety Inspection violation that is more likely than other Food Safety Inspection violations to cause food contamination, illness or an environmental health hazard. Priority and Priority Foundation item violations are critical violations.

(6) "Finishing Kitchen" means a foodservice site that receives prepared foods for reheating, assembling, portioning, and serving.

(7) "Food Safety Inspection Annual Report" means the report of completed Sponsor site(s) Food Safety Inspections. The Annual Report is prepared by the Sponsor and submitted to ODE CNP by June 30 each school year.

(8) "Food Safety Inspection document of findings" means any form used by the state or local public health authority to document a Food Safety Inspection.

(9) "Food Safety Inspection: National School Lunch Program and School Breakfast Program Requirements" means schools shall at least twice each school year obtain a Food Safety Inspection conducted by a state or local governmental agency responsible for food safety inspections. (7 CFR 210.13 and 7 CFR 220.7)

(10) "Foodservice Area" means any area on school premises where NSLP and SBP meals are both served and eaten as well as any other areas where programs meals are served and eaten. Areas where students eat NSLP and SBP meals that are completely separate from the serving area are also part of the foodservice area.

(11) "Notice of Non-Compliance" means documentation that a Critical violation(s) has not been corrected nor has the Sponsor or Competitive Food Sales vendor implemented an alternative plan, approved by the state or local public health authority.

(12) "NSLP" means the National School Lunch Program.

(13) "ODE" means the Oregon Department of Education.

(14) “On-site Preparation Kitchen" means a foodservice site where food is prepared and served at one location.

(15) "Person in Charge" means the person responsible for food safety and sanitation, and who is present at the food establishment during the NSLP, SBP, and Competitive Food Sales hours of operation. The Person in Charge is designated by Public and Private schools and RCCI Sponsors and Competitive Food Sales vendors for each meal site and each Competitive Food Sales site.

(16) “Priority Item” means a provision in the Food Code whose application contributes directly to the elimination, prevention or reduction to an acceptable level, hazards associated with foodborne illness or injury and there is no other provision that more directly controls the hazard. Priority items includes items with a quantifiable measure to show control of hazards such as cooking, reheating, cooling and hand washing

(17) “Priority Foundation Item” means a provision in the Food Code whose application supports, facilitates or enables one or more priority items. Priority foundation items include an item that requires the purposeful incorporation of specific actions, equipment or procedures by industry management to attain control of risk factor that contribute to foodborne illness or injury such as personnel training, infrastructure or necessary equipment, Hazard Analysis Critical Control Point plans, documentation or record keeping and labeling

(18) "Private School" means any entity, except as provided in ORS 339.030(1)(d) and (e), that:

(a) Is not supported with state funds;

(b) Is operated by a non-governmental, religious or non-religious group or organization;

(c) Provides educational services to students at any level, pre-K through grade 12;

(d) Has a teacher or teachers who provide instruction;

(e) Has an administrator or head teacher; and

(f) Occupies one or more buildings.

(19) "Program meals," means the National School Lunch Program meals and School Breakfast Program meals.

(20) "Public School" means any entity that has been recognized as a school by the district school board through a resolution adopted by the board or by the State Board of Education for a public charter school sponsored by the board and:

(a) Is supported with public funds;

(b) Is operated by a local education agency, education service district or state education agency;

(c) Provides educational services to students at any level, pre-K through grade 12;

(d) Has a teacher or teachers to provide instruction;

(e) Has an administrator or head teacher;

(f) Provides Oregon statewide assessment to its students; and

(g) Occupies one or more buildings.

(21) "Residential Child Care Institution (RCCI)" means any Public or Nonprofit Private Residential Child Care Institution, or distinct part of such institution, which operates principally for the care of children. An RCCI is considered a school. Private RCCIs must be licensed to provide Residential Child Care services under the appropriate licensing code by the state or a subordinate level of government.

(22) "Satellite Kitchen" means a foodservice site where food is received fully prepared from another location and is ready to serve.

(23) "SBP" means the School Breakfast Program.

(24) "School Year" means a period of 12 calendar months beginning July 1 of any year and ending June 30 of the following year.

(25) "Sponsor" means Public and Private Schools and RCCIs who participate in the NSLP and SBP.

(26) "State or local public health authority" means the state or local governmental authority responsible for conducting Sponsor and Competitive Food Sales vendor Food Safety Inspections.

(27) "USDA" means the United States Department of Agriculture.

(28) "Vended Meals" means meals prepared by a facility other than the Sponsor and sold for service at a Sponsor's meal site(s); or meals prepared by the Sponsor and sold to another food service operation.

Stat. Auth.: ORS 326.051
Stats. Implemented: 7 CFR210 & 7 CFR220.7
Hist.: EB 15-1987, f. & ef. 7-30-87; EB 2-1996, f. & cert. ef. 1-29-96; ODE 5-2002(Temp), f. & cert. ef. 2-1-02 thru 6-30-02; ODE 15-2002, f. & cert. ef. 6-10-02; ODE 3-2011, f. 1-31-11, cert. ef. 2-1-11; ODE 20-2013, f. & cert. ef. 8-28-13

581-051-0306

Food Safety Inspection Requirements

(1) Sponsors must have at least two Food Safety Inspections for every kitchen and meal-serving site in their foodservice operation each school year.

(2) Vended Meal Sponsors must have at least two Food Safety Inspections for the receiving and sending food preparation and serving meal sites each school year.

(3) Competitive Food Sales vendors may be subject to a Food Safety Inspection every school year as determined by the state or local public health authority.

(4) The Food Safety Inspection standards are set forth in the School Food Safety Inspection Requirements, which shall be known as the Food Code for Public School Sponsors, Private School Sponsors and Residential Child Care Institution Sponsors of the USDA, NSLP and SBP are adopted by reference. The complete Food Code is available through Oregon Department of Education, Child Nutrition Program.

(5) The Sponsor "Person in Charge" requirements for Responsibility, Knowledge and Duties as stated in the School Food Safety Inspection Requirements will be effective July 1, 2003.

(6) The Competitive Food Sales vendor "Person in Charge" requirements for Responsibility, Knowledge and Duties as stated in the School Food Safety Inspection Requirements will be effective July 1, 2003.

(7) New Sponsors must have a Food Safety Inspection conducted by the state or local public health authority and must meet school food safety inspection requirements before starting the NSLP and SBP.

Stat. Auth.: ORS 326.051
Stats. Implemented: 7 CFR210 & 7 CFR220.7
Hist.: ODE 5-2002(Temp), f. & cert. ef. 2-1-02 thru 6-30-02; ODE 15-2002, f. & cert. ef. 6-10-02; ODE 3-2011, f. 1-31-11, cert. ef. 2-1-11; ODE 20-2013, f. & cert. ef. 8-28-13

581-051-0310

Food Safety Inspection Procedures

(1) Sponsors are required to contact their state or local public health authority for Food Safety Inspections every school year.

(2) Competitive Food Sales vendors are required to contact their state or local public health authority to determine if they need a Food Safety Inspection every school year.

(3) Sponsors are responsible for the cost of the Food Safety Inspection and re-inspection(s), if applicable, for every kitchen and meal-serving site under their jurisdiction.

(4) Competitive Food Sales vendors are responsible for the cost of the Food Safety Inspection, if required by the state or local public health authority, and re-inspection(s), if applicable, for every Competitive Food Sales site under their jurisdiction.

(5) Sponsor Food Safety Inspections must be conducted during meal service operations.

(6) Competitive Food Sales vendor Food Safety Inspections must be conducted during business operations.

(7) The Sponsor Food Safety Inspection document of findings will be provided to the foodservice representative, site administrator, and Superintendent or Director, at the completion of each Food Safety Inspection by the state or local public health authority.

(8) The Competitive Food Sales vendor Food Safety Inspection document of findings will be provided to the vendor representative, Sponsor foodservice representative, Sponsor site administrator, and Sponsor Superintendent or Director, at the completion of each Competitive Food Sales Safety Inspection by the state or local public health authority.

(9) If the Sponsor Food Safety Inspection Critical Violation(s) are not corrected, or an alternative plan approved by the state or local public health authority is not implemented by the Sponsor, a Notice of Non-Compliance will be issued to the foodservice representative, site administrator, Superintendent or Director, and ODE CNP by the state or local public health authority. Effective July 1, 2003, Sponsor meal reimbursements may be withheld if the Sponsor receives the Notice of Non-Compliance. When the Notice of Non-Compliance is corrected, Sponsor reimbursement payments will be released.

(10) If Competitive Food Sales vendor Food Safety Inspection Critical Violation(s) are not corrected or an alternative plan approved by the state or local public health authority is not implemented by the Competitive Food Sales vendor, a Notice of Non-Compliance will be issued to the vendor representative, Sponsor foodservice representative, Sponsor site administrator, and Sponsor Superintendent or Director.

(11) The Food Safety Inspection Annual Report will be provided to ODE CNP by June 30 of each year.

Stat. Auth.: ORS 326
Stats. Implemented: 7 CFR210 & 7 CFR220.7
Hist.: EB 15-1987, f. & ef. 7-30-87; EB 2-1996, f. & cert. ef. 1-29-96; ODE 5-2002(Temp), f. & cert. ef. 2-1-02 thru 6-30-02; ODE 15-2002, f. & cert. ef. 6-10-02

581-051-0400

Breakfast Programs

This rule outlines the criteria for a waiver from the breakfast program:

(1) As used in this rule:

(a) "Site" means the school where the children participating in the United States Department of Agriculture (USDA) lunch program are enrolled;

(b) "Lunch" means USDA reimbursable lunch;

(c) "Breakfast" means USDA reimbursable breakfast.

(2) A school district may apply to the State Board of Education for a waiver from providing a breakfast program for all or for individual sites if it is financially unable to implement or maintain a breakfast program.

(3) A request to the State Board of Education for a waiver shall be made by the local school superintendent or designee and contain at least the following:

(a) A projected revenue and expense statement for one year for the breakfast program including descriptions of each line item;

(b) Copy of one month's menus;

(c) Copy of the staffing pattern for the breakfast program;

(d) Projected breakfast participation levels and the percentage of those qualifying for free, reduced-price and paid meals;

(e) Number of students currently approved for free and reduced price for the National School Lunch Program;

(f) Anticipated breakfast charges for paid and reduced-price meals;

(g) A statement explaining why the school district is financially unable to provide the breakfast program.

(h) Copy of class schedule for each site included in the waiver request.

(4) For each request received, the State Superintendent shall make a recommendation to the State Board of Education based on the data submitted by the requesting district.

(5) Waiver requests are evaluated by Oregon Department of Education Child Nutrition staff to assist the State Superintendent in making a recommendation. Evaluation may include an on-site visit.

(6) The State Board of Education, upon review of the Superintendent's recommendations and data submitted by requesting districts, may grant a waiver for a period not to exceed two years, after which the district may submit a request for an extension of the waiver for an additional year.

Stat. Auth.: OL 1991, Ch. 500
Stats. Implemented: ORS 327.535
Hist.: EB 13-1992, f. & cert. ef. 4-7-92; ODE 18-2004, f. & cert. ef. 8-10-04

581-051-0500

Purpose of Rules

These rules are adopted to assist Oregon School Districts in the development of contracts for food service management services.

Stat. Auth.: ORS 326.051, 7 CFR 210.21 & 7 CFR part 3015, 3016, 3019
Stats. Implemented:
Hist.: ODE 6-1999, f.& cert. ef. 1-12-99; ODE 19-2004, f. & cert. ef. 8-10-04

581-051-0510

Definitions

The following definitions apply to the Rules 581-051-0500 to 581-051-0590.

(1) "Competitive Negotiation" means a method of procurement whereby proposals are solicited from a number of sources, proposals are evaluated according to published criteria, and negotiations are conducted with one or more of the proposers.

(2) "Contract" means an agreement in writing, including the Sponsor's solicitation document and the accepted portions of the proposal, between a Sponsor and a Food Service Management Company, describing the work to be done and the obligations of the parties.

(3) "Department" means the Department of Education.

(4) "Sponsor" means any Oregon school district and any school, of high school grade or under, recognized as part of the educational system of this state and operating under private nonprofit or public ownership, in a single building or campus; and public or licensed private nonprofit residential child care facility; or any other entity meeting the definition of "school food authority" under 7 CFR Section 210 et seq., Section 220 et seq., Section 225 et seq., and Section 226 et seq.

(5) "Food Service Management Company" means a commercial enterprise or nonprofit association that contracts or proposes to contract with a Sponsor to manage any aspect of school food service. FSMC may contract or propose to contract with Sponsors participating in the Child and Adult Care for meals only.

(6) "Food Service Management Services" means management of any aspect of food service.

(7) "Federal Policy" means any directive adopted and published by the United States Department of Agriculture which regulates or interprets regulations, or which recommends procedures or standards for implementation, of Child Nutrition Programs. Federal policy specifically includes, but is not limited to, the publications "Contracting with Food Service Management Companies: Guidance for School Food Authorities," June 1995, and "Contracting with Food Service Management Companies: Guidance for State Agencies," June 1995, and any amendments and revisions to said publications.

(8) "Meal Equivalency Ratio" means the number of dollars in non-reimbursable food sales per equivalent pattern meal. It is a component of payment structure in many FSMC contracts. Where contracts provide for payment of a fee based on the number of meals and allow service of foods other than reimbursable pattern meals (such as a la carte food sales, catered food sales, and other similar food sales), the contract shall provide that sales of food other than reimbursable pattern meals be converted into an equivalent number of reimbursable meals.

(a) The ratio is based on National School Lunch Program meals.

(b) The value of a reimbursable meal is the current free reimbursement rate plus the per meal commodity rate.

(9) "National School Lunch Program" means the program under which participating schools operate a nonprofit lunch program in accordance with Part 210, Title 7, Code of Federal Regulations. Cash assistance and donated food assistance are made available to schools pursuant to this program.

(10) "Proposal" means a competitive offer, binding on the offer or and submitted in response to a Request for Proposals, where proposal evaluation and contract award is based on criteria such as proposer qualifications and experience, service features and characteristics, quality and efficiency, and conformance with the specifications and requirements of the solicitation. Price must be an evaluation criterion for proposals, but will not necessarily be the predominant basis for contract award.

(11) "Requests for Proposals" means an instrument of competitive negotiation used to solicit proposals from a number of sources.

(12) "Responsible Offeror" means an individual, firm or corporation who has the experience and capacity in all respects to perform fully the contract requirements, the integrity and reliability which will assure good faith performance, and who has not been disqualified by regulation.

(13) "School Year" means the period from July 1 of each calendar year to June 30 of the following calendar year.

(14) "Twenty-One Day Cycle Menu" means the menu with food item specifications developed in accordance with 7 CFR Section 210.10 or 210.10a, as applicable.

(15) "Vendor" means a commercial enterprise or nonprofit association that contracts or proposes to contract with a Sponsor to provide only food without management. These organizations are not Food Service Management Companies (FSMC).

Stat. Auth.: ORS 326.051, 7 CFR 210.21 & 7 CFR part 3015, 3016, 3019
Stats. Implemented:
Hist.: ODE 6-1999, f.& cert. ef. 1-12-99; ODE 20-2004, f. & cert. ef. 8-10-04

581-051-0520

Scope of Rules

These rules apply to the solicitation, award, renewal, and execution of contracts between Sponsors and FSMCs within this State. Agreements that provide only for the provision of food, without management, are not subject to these rules.

Stat. Auth.: ORS 326.051, 7 CFR 210.21 16, 220.16, 225.17, 226.22 & 7 CFR part 3015,
Stats. Implemented:
Hist.: ODE 6-1999, f.& cert. ef. 1-12-99; ODE 21-2004, f. & cert. ef. 8-10-04

581-051-0530

Responsibilities of the Oregon Department of Education

(1) The Oregon Department of Education shall receive and disburse federal funds made available by acts of Congress for the assistance of public and private nonprofit organizations, including Districts, as defined herein, in providing food services to children and adults according to the provisions of the National School Lunch Program, School Breakfast Program, Special Milk Program, Child and Adult Care Food Program and Summer Food Service Program.

(2) The Department shall not disburse funds to any Sponsor if it finds that such Sponsor is substantially in violation of any provision of these rules or of the Richard B. Russell National School Lunch Act, 42 U.S.C. Sec. 1751 as amended or Child Nutrition Act of 1966, 42 U.S.C. Sec. 1771 as amended. Upon determining that a Sponsor is substantially in violation, the Department shall promptly notify the Sponsors and its retained FSMC, if any, in writing of the determination to withhold funds. The sponsor shall recover funds withheld only after the defect is corrected. The Sponsor shall also have the right to appeal the determination in accordance with the Contested Case Procedures promulgated by the Oregon State Attorney General.

(3) The Department shall annually review all contract documents between Sponsors and FSMCs for conformity to these rules. The Department shall publish a Request for Proposal (RFP) and contract outlining the required general form and language of contract between Sponsors and FSMCs. The use of the department developed RFP and contract, which is attached here to and by this reference incorporated in these rules, by the Sponsor to secure services from an FSMC is mandatory.

(4) The Department shall conduct administrative and nutrition reviews of contracting Sponsors at least once every five years. Such reviews will include an assessment of the Sponsor's compliance with 7 CFR 210.16.

(5) Upon request, the Department may provide technical assistance to Sponsors related to the National School Lunch Program, School Breakfast Program, Child and Adult Care Food Program, or Summer Food Service Program. Such assistance may include, but is not limited to:

(a) Development of a 21-day cycle menu with food item specifications;

(b) Nutrition monitoring and advising;

(c) Audit of fiscal and other records;

(d) Training of Sponsor Staff;

(e) Coordination with FSMCs; and

(f) Arbitration of disputes over interpretation of a Contract.

(6) Whenever review and approval of an action or document by the Department is required by these rules, the Department shall review and either approve or disapprove promptly. In the event that the Department has neither approved nor disapproved such document or action within 30 days, the document or action shall be deemed to have been approved.

Stat. Auth.: ORS 326.051, 7 CFR 210. 220, 225, 226 & 7 CFR part 3015, 3016, 3019
Stats. Implemented:
Hist.: ODE 6-1999, f.& cert. ef. 1-12-99; ODE 22-2004, f. & cert. ef. 8-10-04

581-051-0550

Contracts Authorized

No Sponsor shall execute a contract or otherwise agree, formally or informally, to purchase food service management services except when all of the following conditions are fulfilled:

(1) The contract is in compliance with all applicable laws, rules and regulations, including but not limited to guidelines promulgated and published by the United States Department of Agriculture pursuant to the National School Lunch Program, School Breakfast Program, Child and Adult Care Food Program, or Summer Food Service Program;

(a) The agreement for Food Service Management Services is made in writing, contains all terms required by OAR 581-051-0580 herein;

(b) The FSMC has been selected after a procurement process that conforms to the requirements of OAR 581-015-0570 herein;

(2) The contract is approved by the Sponsor's board or governing body; and

(3) The contract has been reviewed and approved by the Department.

Stat. Auth.: ORS 326.051, 7 CFR 210.21 & 7 CFR part 3015, 3016, 3019
Stats. Implemented:
Hist.: ODE 6-1999, f.& cert. ef. 1-12-99; ODE 23-2004, f. & cert. ef. 8-10-04

581-051-0555

Contract Renewal

The sponsor shall renew its contract with FSMC only if all of the following conditions are satisfied:

(1) The original contract allows for annual renewal and the total contract term does not exceed five years, original contract year plus four renewals;

(2) The Sponsor consents to the renewal by action of the board;

(3) There is no change in financial terms, unless so designated in the original agreement. Contracts may not allow for an unlimited or discretionary change to the meal fee at renewal. Contracts may allow for an annual change to the meal fee not to exceed 20 percent.

Stat. Auth.: ORS 326.051, 7 CFR 210.21 & 7 CFR part 3015, 3016, 3019
Stats. Implemented:
Hist.: ODE 6-1999, f.& cert. ef. 1-12-99; ODE 24-2004, f. & cert. ef. 8-10-04

581-051-0560

Responsibilities of Sponsors

Every Sponsor shall:

(1) Hire or retain a FSMC only in accordance with these rules and with federal policy.

(2) Includes in its request for proposals the 21-day cycle menu with food specifications.

(3) Ensure that food provided by FSMCs is consistent with the 21-day cycle menu, meet food specifications and of good quality; changes to the 21-day cycle menu may be made after 21 days of implementation, upon mutual agreement of the sponsor and the FSMC;

(4) Monitor the operation and performance of the FSMC to ensure that the FSMC complies with the contract, with these rules and with federal policy. The Sponsor shall maintain records of same, and provide such records to the Department upon request;

(5) Coordinate, monitor, review and control food service operations, and perform the responsibilities that must be retained by Sponsors under federal policy, including but not limited to:

(a) National School Lunch Program, School Breakfast Program, Special Milk Program;

(b) Signature authority of state agency -- sponsor agreement;

(c) Activities contained in the free and reduced price policy statement;

(d) Claiming;

(e) Use of nonprofit food service account revenues only for allowable costs;

(f) Ensure full utilization of federally donated foods for the benefit of the school food service program;

(g) Annual food safety inspections;

(h) Establishing an advisory board composed of parents, teachers and students to assist in menu writing three times a year;

(6) Child and Adult Food Program:

(a) Assign Sponsor staff with authority to manage program;

(b) Assure compliance with regulations;

(c) Approve Confidential Income Statements and develop OMAR;

(d) Monitor sites;

(e) Correct problems found during site monitoring or record reviews;

(f) Train staff with CACFP duties;

(g) Attend annual ODE training for CACFP Sponsors;

(h) Approve menus;

(i) Review and maintain all required CACFP records; actual menus served, documentation demonstrating CACFP menu compliance; invoices for meals purchased; confidential income statements,

(j) Validate and submit reimbursement claims;

(k) Communicate with FSMC;

(l) Complete annual ODE Agreement Renewal application Summer Food Service Program:

(A) Ordering meals for sites;

(B) Maintaining program records;

(C) Submitting claim for reimbursement;

(D) Training and monitoring sites;

(E) Determining eligibility for free and reduced price meals in order to establish site eligibility.

(7) Administer the contract so as to provide for good, efficient and effective use of public funds, and avoid delegating responsibility for contract administration to the FSMC;

(8) If the contract provides for reimbursement of costs to the FSMC, independently monitor costs incurred under the contract for compliance with 7 CFR Sec. 3015, 3016 or 3019, and other applicable federal policies; and

(9) Perform all functions required by federal regulation and by guidance of the United States Department of Agriculture.

Stat. Auth.: ORS 326.051, 7 CFR 210.21 & 7 CFR part 3015
Stats. Implemented:
Hist.: ODE 6-1999, f.& cert. ef. 1-12-99; ODE 25-2004, f. & cert. ef. 8-10-04

581-051-0565

Responsibilities of Food Service Management Companies

(1) A FSMC shall sign and perform its duties under a contract for food service management services in accordance with these rules and federal policy.

(2) The FSMC shall serve meals substantially as described in the sponsor's 21-day cycle menu, and which shall not be of lesser quality, appeal, or nutritional value than as described in the 21-day cycle menu.

(3) The FSMC shall maintain complete business and financial records of the food service operations and shall make them available upon request to the Department or its authorized designee.

(4) The FSMC shall refrain from performing any function under USDA regulations and procedures, which is the non-delegable responsibility of a School Food Authority.

(5) The FSMC shall seek reimbursement of food costs and administrative expenses only as follows:

(a) Food costs must be 100 percent of actual and reasonable costs paid to independent third parties who negotiate with the FSMC at arms' length. If food is manufactured or provided by the FSMC itself, the FSMC must independently demonstrate to the satisfaction of the Sponsor and of the Department that such costs are not above market. If the FSMC receives from third parties any rebate or discount against commodity or purchased food costs which have been charged to the Sponsor, such rebates and discounts must be refunded to the Sponsor; and

(b) Reimbursable administrative expenses must be actual and reasonable and must relate solely to administration of the food service management at the particular Sponsor served and not to Sponsors or customers of the FSMC in general.

(6) All food service management companies who contract with Oregon schools and other sponsors to provide food services will be required to meet the same employee screening standards as other school district employees. Such standards should include, but not be limited to fingerprint screening and criminal conviction screening applicable to school employees. Such standards should be consistent with ORS 326.603 and OAR 581-22-0716.

Stat. Auth.: ORS 326.051, 7 CFR 210. 16, 226.21, 225.15(h) & 7 CFR part 3015, 3016, 3019
Stats. Implemented:
Hist.: ODE 6-1999, f.& cert. ef. 1-12-99; ODE 26-2004, f. & cert. ef. 8-10-04

581-051-0570

Procurement Procedures Required

(1) Sponsors shall procure food service management services in accordance with the requirements of these rules, as well as with 7 CFR Part 3015, 3016, 3019 and other applicable contracting laws. Each sponsor shall also comply with such public contracting rules and regulations as it may have adopted, or if a sponsor has adopted no public contracting rules and regulations as it may have adopted, or if a sponsor has adopted no public contracting rules and regulations, the sponsor shall comply with the Oregon Attorney General's Model Public Contract Rules, OAR 137-030-0000 et seq.

(2) Sponsors shall conduct procurement for food service management services in a manner as to maximize free and open competition by issuance of Requests for Proposals.

(a) The Request for Proposal shall:

(i) Specify the scope of work required;

(ii) Specify the criteria which will be used to evaluate proposals, and the relative importance of each criterion; and

(iii) Specify the manner in which proposals will be evaluated.

(b) The RFP shall include a contract form which is identical to the document issued by the Department pursuant to OAR 581-051-0530(3),

(c) The Sponsor shall provide the Department with a copy of the RFP 60 days prior to publication for review.

(d) The Sponsor shall solicit proposals from qualified sources to permit reasonable competition, consistent with the nature and requirements of the procurement;

(e) The Sponsor shall evaluate the proposals in accordance with the published criteria and shall ensure that it has, or shall else retain, adequate technical expertise to reasonably evaluate the proposals. The Sponsor may avail itself of technical assistance from the Department as authorized in OAR 581-051-0530(5);

(f) The Sponsor will negotiate price and terms with top-ranked offerors.

(g) The Sponsor shall make award to the responsible offeror whose proposal is most advantageous to the District;

(h) The Sponsor shall submit the contract with the selected proposer to the Department for review within 10 days after Board or governing body of the District has approved the selected proposer.

(i) The sponsor shall submit the final contract to the Department within 10 days after signature;

(j) Alternative procurement methods may be approved by the Department.

(3) Sponsors shall not:

(a) Place any unreasonable requirement upon proposers that would tend to exclude qualified proposers;

(b) Foster or encourage any collusion between proposers or other noncompetitive practice;

(c) Allow any conflict of interest that is prohibited by Oregon law;

(d) Use a form of RFP or contract that has been provided by an FSMC in preparing the Request for Proposal;

(e) Negotiate with any proposer prior to evaluation of all proposals;

(f) Disclose the contents of any proposal to another proposer until all proposals are opened and made public;

(g) Provide relevant information to only some and not to all proposers.

(4) Exception for secondary contract. Any Sponsor may, without Requests for Proposals, enter into an agreement with any other Sponsor which has a valid contract for food service management, for the provision of meals, provided that:

(a) The subordinate Sponsor is otherwise qualified as a School Food Authority under 7 CFR;

(b) The subordinate Sponsor entered into a written agreement for delivery of meals;

(c) The proceeds of such meals and reimbursements are kept in segregated accounts under the management of the subordinate Districts; and

(d) The subordinate Sponsor fulfills the obligations of a Sponsor under OAR 581-051-0560 herein.

Stat. Auth.: ORS 326.051, 7 CFR 210.21, 220.16, 225.17, 226.22 & 7 CFR part 3015, 3016, 3019
Stats. Implemented:
Hist.: ODE 6-1999, f.& cert. ef. 1-12-99; ODE 27-2004, f. & cert. ef. 8-10-04

581-051-0580

Contract Terms Required

(1) Financial terms and payment provisions must be objective and unambiguous, such that two different parties are able to independently calculate the cost or payment and obtain identical results. Administrative and management fees must be itemized in detail to accurately describe the actual costs incurred by the FSMC for which the Sponsor will make payment.

(2) All revenue and expenses must accure to the non-profit school food service account, never the District or the FSMC.

(3) Where a contract provides for special functions outside the nonprofit school food service, the contract must delineate the cost allocation for those special functions in such a manner as to demonstrate that labor costs will not be double billed for program meals and special function meals.

(4) The contract shall provide a fiscal guarantee to the District.

(5) Where the contract permits a la carte food sales and the conversion of a la carte sales into equivalent pattern meals, the calculation to make that conversion is to be the current NSLP free reimbursement rate plus the commodity value rate.

(6) No change in charges payable to the FSMC from the Sponsor shall be permitted upon contract renewal unless the contract in place contains specific terms permitting such change.

(7) Annual increases in charges payable to the FSMC from the Sponsor upon contract renewal shall be limited to such reasonable predictions of anticipated increased costs as are defined in the original Contract.

(8) Contracts shall be based on a one-month accounting period, consistent with Department and Sponsor accounting practices.

(9) The following terms are prohibited and may not be included in any contract for the management of food service operations in Oregon schools:

(a) A "cost plus" fee structure in which the Sponsor pays to the FSMC cost plus a percentage of cost or income;

(b) Duplicate fee structures that permit a FSMC to bill management fees and charge the same costs as cost-reimbursable expenses;

(c) Purchasing clauses, where the Sponsor makes purchases that limit the selection of vendors to only those approved by the FSMC;

(d) Acceleration clauses that require full payment of multi-year equipment purchases if the contract is not renewed;

(e) Interest may not be charged for past due invoices, equipment purchases, or any other reason to the extent that federal program funds are used in payment;

(f) Contingent return provisions that make the financial guarantee of the contract contingent upon contract renewal or multi-year performance of the contract;

(g) Automatic renewal of the contract, or any other process for renewal inconsistent with OAR 581-051-0550 or any provision acting as penalty for non-renewal;

(h) Subcontracting of food service management operations;

(i) Loans from the FSMC to the District, whether in the form of direct lending, advances of payments, or deferral of invoices due; and

(j) Restrictions on the ability of the Sponsor to rehire non-management FSMC food service employees in the event that the contract is not renewed.

Stat. Auth.: ORS 326.051, 7 CFR 210. 16, 220.16, 225.15(h), 226.21 & 7 CFR part 3015, 3016, 3019
Stats. Implemented:
Hist.: ODE 6-1999, f.& cert. ef. 1-12-99; ODE 28-2004, f. & cert. ef. 8-10-04

581-051-0590

Meal Quality

The nutrition standards of Section 210.10, 210.10a, 220.8a, 225.16, and 226.20 of Title 7, Code of Federal Regulations shall apply to all programs under these rules.

Stat. Auth.: ORS 326.051, 7 CFR 210.21 & 7 CFR part 3015
Stats. Implemented: Federal Regulations
Hist.: ODE 6-1999, f.& cert. ef. 1-12-99

The official copy of an Oregon Administrative Rule is contained in the Administrative Order filed at the Archives Division, 800 Summer St. NE, Salem, Oregon 97310. Any discrepancies with the published version are satisfied in favor of the Administrative Order. The Oregon Administrative Rules and the Oregon Bulletin are copyrighted by the Oregon Secretary of State. Terms and Conditions of Use

Oregon Secretary of State • 136 State Capitol • Salem, OR 97310-0722
Phone: (503) 986-1523 • Fax: (503) 986-1616 • oregon.sos@state.or.us

© 2013 State of Oregon All Rights Reserved​