Overview
FAR Subpart 26.4 implements the Federal Food Donation Act of 2008, encouraging executive agencies and their contractors to donate "apparently wholesome" excess food to nonprofit organizations. The goal is to reduce food waste and support food-insecure populations in the United States while providing clear guidelines on liability and cost responsibility.
Key Rules
- Threshold for Application: The requirement to include food donation clauses applies to all solicitations and contracts exceeding $35,000 for the provision, service, or sale of food within the United States.
- Non-Reimbursable Costs: The government will not reimburse contractors for any costs associated with the donation process (e.g., collection, storage, or transportation).
- Cost Accounting: Expenses related to food donations are explicitly deemed unallowable as public relations costs under FAR 31.205-1(f)(8).
- Wholesome Standards: Donated food must meet all Federal, State, and local quality and labeling standards, even if the food is not "marketable" due to age, appearance, or surplus.
- Liability Protection: Both the government and the contractor are protected from civil and criminal liability regarding the donated food, as provided by the Bill Emerson Good Samaritan Food Donation Act.
Responsibilities
- Contracting Officers:
- Must insert the clause at 52.226-6, Promoting Excess Food Donation to Nonprofit Organizations, in applicable food service or provision contracts over $35,000.
- Executive Agencies:
- Required to encourage contractors to donate excess food to the maximum extent practicable and safe.
- Prohibited from assuming responsibility for the logistics or costs of food distribution.
- Contractors:
- Responsible for identifying "apparently wholesome" excess food that would otherwise be discarded.
- Manage the logistics and safety of food donations if they choose to participate.
- Bear all financial costs associated with the donation activity.
Practical Implications
In real-world scenarios, this subpart primarily affects contractors providing cafeteria services, military base catering, or large-scale event hosting for the federal government. While the FAR encourages rather than mandates the actual act of donation, it creates a structured "permission slip" for contractors to engage in Corporate Social Responsibility (CSR).
Contractors must be aware that because donation costs are non-reimbursable and unallowable, they should not include logistics or labor costs for food recovery in their contract bids. From a risk management perspective, the reference to the Bill Emerson Good Samaritan Food Donation Act provides significant legal comfort to contractors who fear litigation stemming from food safety issues, provided the food was "apparently wholesome" at the time of donation.