26.403 Procedures
Source: FAR 26.403 on acquisition.gov
Contractors are encouraged to donate excess food to nonprofits but must do so at their own expense, with liability protections provided under federal law.
Overview
FAR 26.403 outlines the procedures executive agencies and contractors must follow regarding the donation of excess, apparently wholesome food to nonprofit organizations serving food-insecure people in the United States. This section implements the Federal Food Donation Act of 2008 and clarifies the encouragement of food donations, the handling of associated costs, and liability protections for both agencies and contractors.
Key Rules
- Encouragement of Donations
- Agencies must encourage contractors, to the maximum extent practicable and safe, to donate excess wholesome food to eligible nonprofits under applicable contracts.
- Costs and Reimbursement
- Agencies are not responsible for the costs or logistics of collecting, transporting, or distributing donated food. Contractors cannot claim reimbursement for these costs, and such expenses are not allowable as public relations costs under FAR 31.205-1(f)(8).
- Liability Protections
- Both agencies and contractors are exempt from civil and criminal liability for food donations to the extent provided by the Bill Emerson Good Samaritan Food Donation Act.
Responsibilities
- Contracting Officers: Must include encouragement for food donation in applicable contracts and ensure contractors are aware of cost and liability provisions.
- Contractors: Should consider donating excess food but must bear all associated costs and cannot seek reimbursement.
- Agencies: Must not assume responsibility for donation logistics or costs, and must inform contractors of liability protections.
Practical Implications
- This section exists to promote food donations while clarifying that the government will not cover related costs or logistics. Contractors are protected from liability but must absorb all expenses. Common pitfalls include misunderstanding cost allowability and liability coverage.
(a) In accordance with the Federal Food Donation Act of 2008 an executive agency shall comply with the following:
(1) Encourage donations. In the applicable contracts stated at section 26.404, encourage contractors, to the maximum extent practicable and safe, to donate apparently wholesome excess food to nonprofit organizations that provide assistance to food-insecure people in the United States.
(2) Costs.
(i) In any case in which a contractor enters into a contract with an executive agency under which apparently wholesome food is donated to food-insecure people in the United States, the head of the executive agency shall not assume responsibility for the costs and logistics of collecting, transporting, maintaining the safety of, or distributing excess, apparently wholesome food to food-insecure people in the United States under this Act.
(ii) The Government will not reimburse any costs incurred by the contractor against this contract or any other contract for the donation of Federal excess foods. Any costs incurred for Federal excess food donations are not considered allowable public relations costs in accordance with 31.205-1(f)(8).
(3) Liability. An executive agency (including an executive agency that enters into a contract with a contractor) and any contractor making donations pursuant to this Act shall be exempt from civil and criminal liability to the extent provided under the Bill Emerson Good Samaritan Food Donation Act (http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1791&num=0&edition=prelim" target="_blank">42 U.S.C. 1791).