52.226-6 Promoting Excess Food Donation to Nonprofit Organizations
Source: FAR 52.226-6 on acquisition.gov
Contractors providing food-related services are encouraged to donate excess food to nonprofits, but must bear all costs and ensure proper clause flowdown to subcontracts.
Overview
FAR 52.226-6 encourages contractors to donate excess, apparently wholesome food to nonprofit organizations serving food-insecure individuals in the United States, in accordance with the Federal Food Donation Act of 2008. The clause defines key terms such as "excess food," "apparently wholesome food," and "nonprofit organization," and clarifies that contractors are responsible for all costs and logistics associated with food donation, with no reimbursement from the government. The clause also provides liability protection under the Bill Emerson Good Samaritan Food Donation Act, provided state and local health regulations are not superseded. Contractors must flow down this clause to applicable subcontracts exceeding the threshold in FAR 26.404 for food-related services in the U.S.
Key Rules
- Encouragement of Food Donation
- Contractors are encouraged to donate excess, apparently wholesome food to eligible nonprofits serving food-insecure people in the U.S.
- Cost Responsibility
- Contractors and subcontractors must bear all costs and logistics for food donation; such costs are unallowable and not reimbursed by the government.
- Liability Protection
- Both the government and contractors are protected from civil and criminal liability under the Bill Emerson Good Samaritan Food Donation Act, except where state/local health regulations apply.
- Subcontract Flowdown
- The clause must be included in all applicable subcontracts and orders exceeding the FAR 26.404 threshold for food-related work in the U.S.
Responsibilities
- Contracting Officers: Ensure inclusion of this clause in applicable contracts and verify flowdown to subcontracts.
- Contractors: Encourage food donation, assume all related costs, comply with safety and legal standards, and flow down the clause to qualifying subcontracts.
- Agencies: Oversee compliance and provide guidance on clause application.
Practical Implications
- This clause aims to reduce food waste and support food-insecure populations by facilitating safe food donations from government contractors. Contractors must plan for the logistical and financial aspects of donation, ensure compliance with health regulations, and properly flow down requirements to subcontractors. Failure to comply may result in missed opportunities for liability protection or noncompliance with contract terms.
As prescribed in 26.404 , insert the following clause:
Promoting Excess Food Donation to Nonprofit Organizations (Jun 2020)
(a) Definitions. As used in this clause-
Apparently wholesome food means food that meets all quality and labeling standards imposed by Federal, State, and local laws and regulations even though the food may not be readily marketable due to appearance, age, freshness, grade, size, surplus, or other conditions.
Excess food means food that-
(1) Is not required to meet the needs of the executive agencies; and
(2) Would otherwise be discarded.
Food-insecure means inconsistent access to sufficient, safe, and nutritious food.
Nonprofit organization means any organization that is—
(1) Described in section 501(c) of the Internal Revenue Code of 1986; and
(2) Exempt from tax under section 501(a) of that Code.
(b) In accordance with the Federal Food Donation Act of 2008 (http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1792&num=0&edition=prelim" target="_blank">42 U.S.C. 1792), the Contractor is encouraged, to the maximum extent practicable and safe, to donate excess, apparently wholesome food to nonprofit organizations that provide assistance to food-insecure people in the United States.
(c) Costs.
(1) The Contractor, including any subcontractors, shall assume the responsibility for all the costs and the logistical support to collect, transport, maintain the safety of, or distribute the excess, apparently wholesome food to the nonprofit organization(s) that provides assistance to food-insecure people.
(2) The Contractor will not be reimbursed for any costs incurred or associated with the donation of excess foods. Any costs incurred for excess food donations are unallowable.
(d) Liability. The Government and the Contractor, including any subcontractors, 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). Nothing in this clause shall be construed to supersede State or local health regulations (subsection (f) of http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1791&num=0&edition=prelim" target="_blank">42 U.S.C. 1791).
(e) Subcontracts. The Contractor shall insert this clause in all contracts, task orders, delivery orders, purchase orders, and other similar instruments that exceed the threshold specified in Federal Acquisition Regulation 26.404 on the date of subcontract award with its subcontractors or suppliers, at any tier, who will perform, under this contract, the provision, service, or sale of food in the United States.
(End of clause)