Harrison-FOCUS Deliverable #1_Han DRAFT v8_10.1.2011 Rationale for Adopting a Geographic Preference Policy Geographic preference for school food Federal regulations allow school districts to use a geographic preference (GP) to purchase minimally processed food with federal funds. A GP gives an advantage to locally grown or raised agricultural products. Minimal processing includes washing, packing and other preparations that do not change the character of the food. School districts are free to define “locally grown or raised,” e.g., a 100-mile radius, a number of contiguous counties, or within the state. They are also free to define the advantage – a percent of price or additional evaluation points – so long as bidding remains competitive. Federal rationales The National School Lunch Act cites three rationales for purchasing local food: food security, child health, and promotion of nutritious food. Local sourcing responds to food security, and minimal processing gives an advantage to whole foods, for example, fruits and vegetables that undergo minimal processing. In other words, the preference is not simply local; the preference is for whole food that is local. State rationales The federal health and nutrition rationales are consistent with the authority that states delegate to school districts to operate child nutrition programs. While a preference for whole foods is not a nutrition standard, state courts defer to school districts when they purchase with rational criteria – like minimal processing – that are related to quality, freshness or avoidance of ingredients (e.g., salt or saturated fats) or additives (e.g., pesticide or hormone residues) that are known to impair health. Likewise, state and federal rationales are aligned when schools involve local food suppliers in educational programs (e.g., choosing healthy foods, visiting farms and markets). In addition to health and education, some advocates would like to use food purchasing to promote local agricultural markets and economic development. Arguably, these might exceed local authority to provide “child nutrition.” However, a state court is not likely to second-guess a legitimate health rationale because there are additional economic benefits – unless, that is – the local preference is so extreme that it undermines the state’s competitive bidding law. For example, using a qualification that only local bidders are eligible to respond to a bid (rather than giving a mere preference for local products) would eliminate non-local competition. Competitive bidding School districts lack the authority to make exceptions to state law that requires schools to award contracts to the “lowest responsible bidder.” For example, courts in numerous cases have rejected “buy local” requirements in the absence of a statutory exception for local products. However, state courts defer to school districts that choose someone other than the lowest bidder when (1) their decisions are based on quality and freshness, (2) the prices are close to wholesale norms, and (3) they are spending federal funds in accord with federal rules. While it is possible that a school district’s preference for locally grown food is so strong that it would violate these tests for competitive bidding, it is much more likely that state courts will accept a school’s geographic preference that is consistent with federal regulations. And of course, if a state legislature authorizes a local preference (e.g., as part of a farm to school program), then this issue goes away. Harrison-FOCUS Deliverable #1_Han DRAFT v8_10.1.2011 Competitive bidding process Federal regulations require purchases at and over $100,000 to use advertising and a formal bidding process; purchases under $100,000 require informal soliciting of bids from at least three vendors. State and local procurement laws may be more stringent than the federal regulations and have different thresholds for when formal and informal bidding applies. Whichever law is more stringent – state or federal – that law would control. Need for a written policy In states where the legislature has passed a law allowing school districts to apply a local preference pursuant to a specific legislative rationale, then school districts applying such a local preference are within their delegated authority. For example, if a state has passed a farm to school law expressing its purpose of connecting local farms to schools for educational, economic or nutritional reasons, this provides the rationale for a school district to apply a local preference. However, absent a legislative rationale, it is important for school districts to have a written GP policy to establish that the purpose of its GP is to obtain minimally processed foods, consistent with federal regulations. A written policy also provides information on how the school district defines “local” (the geographic scope of preference), the extent of the preference (percent or points), the evaluation process, and when a preference will be used (e.g., products and growing seasons). Supportive bidding specifications In addition to using a GP, a school district can develop bidding specifications about the products and services sought. For example, bidding specifications can promote factors related to quality like freshness, for example, by requesting that green beans be delivered within 5 days of harvest. Specifications can also include educational service components in buying local. For example, a specification could require vendors to come to the school and present information on how food is grown. Vendor qualifications Vendor qualifications state who is eligible to respond to a bid. As long as qualifications are connected to the service or product the school district is seeking, then school districts will have a fair amount of discretion to establish vendor qualifications. School districts looking for vendors that have experience providing to schools or experience providing educational information about food should clearly explain the qualifications they seek. If successful performance in past relationships or contracts with the schools is a qualification, the school district should state this qualification in its bidding documents. Future guidance on geographic preference In 2012, FOCUS will provide guidelines for writing a local GP policy and sample language for invitations for bids and requests for proposals.