Staying
Legal
On the
Cutting Edge
of Procurement
School Food FOCUS
National Gathering 2014
Oakland, California
February 7, 2014
Presentation by
Michelle Poncetta & Will Thanhauser
Harrison Institute for Public Law
Georgetown University Law Center
Will Thanhauser
• The Big Apple Kid
• Devoted Vegetarian
• Helping you buy chicken
Michelle Poncetta
• Eats everything
• Farm town kid
• Let’s talk local
Agenda
Agenda
I. How: How legal review facilitates school district procurement goals.
Agenda
I. How: How legal review facilitates school district procurement goals.
II. Geographic Preference (GP): How GP works; Legal and logistical
considerations in implementing GP.
Agenda
I. How: How legal review facilitates school district procurement goals.
II. Geographic Preference (GP): How GP works; Legal and logistical
considerations in implementing GP.
III. Low AB Chicken: Facilitating future school district procurement goals.
Agenda
I. How: How legal review facilitates school district procurement goals.
II. Geographic Preference (GP): How GP works; Legal and logistical
considerations in implementing GP.
III. Low AB Chicken: Facilitating future school district procurement goals.
IV. Conclusion: Procurement tools available to school districts; prospective
legal questions.
How: How legal review facilitates school
district procurement goals.
Agenda:
I. How
II. GP
III. Low AB Chx
IV. Conclusion
Procurement Goal:
Agenda:
I. How
II. GP
III. Low AB Chx
IV. Conclusion
Procurement Goal:
Healthful,
Regionally-Sourced,
Sustainable
School Food
Agenda:
I. How
II. GP
III. Low AB Chx
IV. Conclusion
Legal support for innovative
procurement:
Agenda:
I. How
II. GP
III. Low AB Chx
IV. Conclusion
Legal support for innovative
procurement:
Agenda:
I. How
II. GP
III. Low AB Chx
IV. Conclusion
Legal support for innovative
procurement:
1. Surveying: defining the legal framework for
school districts.
A. Identifying sources and limits of authority.
B. Mapping scope of authority.
Agenda:
I. How
II. GP
III. Low AB Chx
IV. Conclusion
Legal support for innovative
procurement:
Agenda:
I. How
II. GP
III. Low AB Chx
IV. Conclusion
Legal support for innovative
procurement:
Agenda:
I. How
II. GP
III. Low AB Chx
IV. Conclusion
Legal support for innovative
procurement:
Agenda:
I. How
II. GP
III. Low AB Chx
IV. Conclusion
Legal support for innovative
procurement:
2. Highlighting:
pinpointing legal
consideration
particular to
school districts.
Agenda:
I. How
II. GP
III. Low AB Chx
IV. Conclusion
Legal support for innovative
procurement:
Agenda:
I. How
II. GP
III. Low AB Chx
IV. Conclusion
Legal support for innovative
procurement:
Agenda:
I. How
II. GP
III. Low AB Chx
IV. Conclusion
Legal support for innovative
procurement:
3. Resources:
create tools for
school districts’
procurement
reference.
Agenda:
I. How
II. GP
III. Low AB Chx
IV. Conclusion
Legal support for innovative
procurement:
Agenda:
I. How
II. GP
III. Low AB Chx
IV. Conclusion
Geographic Preference
Geographic Preference
NSLP permits school districts to give a
defined competitive advantage to
minimally processed, locally grown or
raised agricultural products
Maximizing Geographic Preference
Federal Overview
USDA Rules
State Framework
Guides
Legal Authority & Limitations
Helpful Comparisons
Review District Practices
“The Legal Check-up”
GP at a Glance
Federal
USDA Baseline Requirements
Product
Minimally
processed
agricultural
products
Preference
Policy
Locally grown
or raised
Cannot restrict
“full & open
competition”
GP at a Glance
Minimally Processed
Product
No change to
the inherent
character of
the product
Federal
GP at a Glance
Locally Grown or Raised
Preference
School defines
“local”
Federal
GP at a Glance
Federal
Full and Open Competition
Policy
Cannot
unnecessarily
restrict
competition
Sources of Legal Authority
Strongest
Explicit
Implicit
Child Nutrition Programs
Weakest
State
Working with Limitations
State geographic preference laws
State
Working with Limitations
State geographic preference laws
Example:
Washington agricultural
products must be given
preference over out-ofstate products.
Uniform price preference
within a radius
State
Working with Limitations
State geographic preference laws
Example:
Washington agricultural
products must be given
preference over out-ofstate products.
Conflict:
“Local” products from
Oregon cannot receive
equal preference.
Uniform price preference
within a radius
State
Working within State Law
Possible Alternatives:
In-State Only
State
Working within State Law
Possible Alternatives:
In-State Only
In-State Regional
State
Working within State Law
State
Possible Alternatives:
In-State Only
In-State Regional
Tiered
Choosing Preference Weight
Comparing Other Product Preferences
• Can provide a starting point
• Recycled preferences are most common
• 5% generally safe
Guides
Reviewing District Procedures
The “Legal Check-up”
Federal and state compliance
Impact on full and open competition
Clarity of preference procedures
Accuracy of language
Justification and authority referenced
Common Pitfalls
Example:
The district is accepting bids for locally grown apples.
Common Pitfalls
Example:
The district is accepting bids for locally grown apples.
Problem:
Excluding non-local apples violates full and open
competition.
Common Pitfalls
Example:
The district is accepting bids for locally grown apples.
Problem:
Excluding non-local apples violates full and open
competition.
Fix:
The district is accepting bids for apples and will give a
5% price preference to locally grown apples.
Common Pitfalls
Example:
Preference is given to apple vendors located within
200 miles of the school district.
Common Pitfalls
Example:
Preference is given to apple vendors located within
200 miles of the school district.
Problem:
GP applies to products NOT vendors.
Common Pitfalls
Example:
Preference is given to apple vendors located within
200 miles of the school district.
Problem:
GP applies to products NOT vendors.
Fix:
Preference is given to apples grown vendors located
within 200 miles of the school district.
Value of the Legal Review
• Informs policy decisions
• Craft legally defensible practices
• Limit legal challenges
• Confidence to move forward
Low AB Chicken
Low AB Chicken
Low Antibiotic (AB) Chicken
Low AB Chicken
Low AB Chicken
A. Problem – the potential risks from administering
antibiotics to animals.
Low AB Chicken
A. Problem – the potential risks from administering
antibiotics to animals.
B. Federal Solution? – federal regulation of
administering antibiotics to animals.
Low AB Chicken
A. Problem – the potential risks from administering
antibiotics to animals.
B. Federal Solution? – federal regulation of
administering antibiotics to animals.
C. Legal Questions – considerations to facilitate
effective solicitation of low AB chicken.
Low AB Chicken
Low AB Chx Agenda:
A. Problem
B. Federal Solution?
C. Legal Questions
Low Antibiotic (AB) Chicken
Low AB Chx Agenda:
A. Problem
B. Federal Solution?
C. Legal Questions
Low AB Chicken
Low Antibiotic (AB) Chicken
Problem:
Low AB Chx Agenda:
A. Problem
B. Federal Solution?
C. Legal Questions
Low AB Chicken
Low Antibiotic (AB) Chicken
Problem:
✚
Low AB Chx Agenda:
A. Problem
B. Federal Solution?
C. Legal Questions
Low AB Chicken
Low Antibiotic (AB) Chicken
Problem:
• 2 million infected with antibiotic resistant bacteria
• 23,000 die from antibiotic resistant bacteria infection
• $20 billion in additional health care expenses
Federal Solution?
Low AB Chx Agenda:
A. Problem
B. Federal Solution?
C. Legal Questions
Low Antibiotic (AB) Chicken
Federal Solution?
Low AB Chx Agenda:
A. Problem
B. Federal Solution?
C. Legal Questions
Low Antibiotic (AB) Chicken
Recent FDA action
Federal Solution?
Low AB Chx Agenda:
A. Problem
B. Federal Solution?
C. Legal Questions
Low Antibiotic (AB) Chicken
Recent FDA action
FDA Guidance for Industry #209
FDA Guidance for Industry #213
Federal Solution?
Low AB Chx Agenda:
A. Problem
B. Federal Solution?
C. Legal Questions
Low Antibiotic (AB) Chicken
Current Status
Federal Solution?
Low AB Chx Agenda:
A. Problem
B. Federal Solution?
C. Legal Questions
Low Antibiotic (AB) Chicken
Current Status
FDA has encouraged judicious use of AB in
food-producing animals, but has declined to
impose mandatory limits on farmers.
Low AB Chx Agenda:
A. Problem
B. Federal Solution?
C. Legal Questions
Low Antibiotic (AB) Chicken
Legal Questions
Low AB Chx Agenda:
A. Problem
B. Federal Solution?
C. Legal Questions
Low Antibiotic (AB) Chicken
Legal Questions
1. Is there an available market for
low AB chicken?
2. How can low AB chicken be
verified?
Low AB Chx Agenda:
A. Problem
B. Federal Solution?
C. Legal Questions
Low Antibiotic (AB) Chicken
Legal Questions
1. Is there an available market for
low AB chicken?
Low AB Chx Agenda:
A. Problem
B. Federal Solution?
C. Legal Questions
Low Antibiotic (AB) Chicken
Legal Questions
1. Is there an available market for
low AB chicken?
Federal regulations
School districts using federal funds under any of
the Child Nutrition Programs (e.g., National
School Lunch Program) must use “full and open
competition” when procuring goods/services.
Low AB Chx Agenda:
A. Problem
B. Federal Solution?
C. Legal Questions
Low Antibiotic (AB) Chicken
Legal Questions
1. Is there an available market for
low AB chicken?
2. How can low AB chicken be
verified?
Low AB Chx Agenda:
A. Problem
B. Federal Solution?
C. Legal Questions
Low Antibiotic (AB) Chicken
Legal Questions
2. How can low AB chicken be
verified?
Low AB Chx Agenda:
A. Problem
B. Federal Solution?
C. Legal Questions
Low Antibiotic (AB) Chicken
Legal Questions
2. How can low AB chicken be
verified?
Possible options for school districts:
A. Require self-verification (vendors
verify in bid/contract).
B. Require third-party verification.
C. Require self-verification while
reserving the right to demand
third-party verification.
Low AB Chx Agenda:
A. Problem
B. Federal Solution?
C. Legal Questions
FOCUSing on Staying Legal
• Knowing the legal questions
• Source of authority
• Avoid legal challenges
• Ground work for future innovations
Geographic Preference Primer
Available on the FOCUS homepage
Includes:
– Background
– Overview of the Federal Law
– Explanation of State Authority
– Sample language
– Examples of geographic preference methods
Evolving Goals
• Continuing with geographic preference
• Beginning stages with low antibiotic chicken
• Examining new objectives
Your Input
Legal Concerns?
Barriers?
Resources?