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Staying Legal On the Cutting Edge of Procurement

Staying Legal On the Cutting Edge of Procurement. Presentation by Michelle Poncetta & Will Thanhauser Harrison Institute for Public Law Georgetown University Law Center. School Food FOCUS National Gathering 2014 Oakland, California February 7, 2014. Will Thanhauser

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Staying Legal On the Cutting Edge of Procurement

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  1. Staying LegalOn the Cutting Edge of Procurement

    Presentation by Michelle Poncetta & Will Thanhauser Harrison Institute for Public Law Georgetown University Law Center School Food FOCUS National Gathering 2014 Oakland, California February 7, 2014
  2. Will Thanhauser The Big Apple Kid Devoted Vegetarian Helping you buy chicken Michelle Poncetta Eats everything Farm town kid Let’s talk local
  3. Agenda
  4. Agenda I. How: How legal review facilitates school district procurement goals.
  5. 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.
  6. 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.
  7. 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.
  8. Agenda: I. How II. GP III. Low AB Chx IV. Conclusion How: How legal review facilitates school district procurement goals.
  9. Agenda: I. How II. GP III. Low AB Chx IV. Conclusion Procurement Goal:
  10. Agenda: I. How II. GP III. Low AB Chx IV. Conclusion Procurement Goal: Healthful, Regionally-Sourced, Sustainable School Food
  11. Agenda: I. How II. GP III. Low AB Chx IV. Conclusion Legal support for innovative procurement:
  12. Agenda: I. How II. GP III. Low AB Chx IV. Conclusion Legal support for innovative procurement:
  13. 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. Identifying sources and limits of authority. Mapping scope of authority.
  14. Agenda: I. How II. GP III. Low AB Chx IV. Conclusion Legal support for innovative procurement:
  15. Agenda: I. How II. GP III. Low AB Chx IV. Conclusion Legal support for innovative procurement:
  16. Agenda: I. How II. GP III. Low AB Chx IV. Conclusion Legal support for innovative procurement:
  17. 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.
  18. Agenda: I. How II. GP III. Low AB Chx IV. Conclusion Legal support for innovative procurement:
  19. Agenda: I. How II. GP III. Low AB Chx IV. Conclusion Legal support for innovative procurement:
  20. 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.
  21. Agenda: I. How II. GP III. Low AB Chx IV. Conclusion Legal support for innovative procurement:
  22. Geographic Preference
  23. Geographic Preference NSLP permits school districts to give a defined competitive advantage to minimally processed, locally grown or raised agricultural products
  24. Maximizing Geographic Preference Federal Overview USDA Rules Legal Authority & Limitations State Framework Guides Helpful Comparisons Review District Practices “The Legal Check-up”
  25. Federal GP at a Glance USDA Baseline Requirements Preference Policy Product Minimally processed agricultural products Cannot restrict “full & open competition” Locally grown or raised
  26. Federal GP at a Glance Minimally Processed Product No change to the inherent character of the product
  27. Federal GP at a Glance Locally Grown or Raised Preference School defines “local”
  28. Federal GP at a Glance Full and Open Competition Policy Cannot unnecessarily restrict competition
  29. State Sources of Legal Authority Strongest Explicit Implicit Child Nutrition Programs Weakest
  30. State Working with Limitations State geographic preference laws
  31. State Working with Limitations State geographic preference laws Example: Washington agricultural products must be given preference over out-of-state products. Uniform price preference within a radius
  32. State Working with Limitations State geographic preference laws Example: Washington agricultural products must be given preference over out-of- state products. Conflict: “Local” products from Oregon cannot receive equal preference. Uniform price preference within a radius
  33. State Working within State Law Possible Alternatives: In-State Only
  34. State Working within State Law Possible Alternatives: In-State Regional In-State Only
  35. State Working within State Law Possible Alternatives: In-State Regional In-State Only Tiered
  36. Guides Choosing Preference Weight Comparing Other Product Preferences Can provide a starting point Recycled preferences are most common 5% generally safe
  37. Reviewing District Procedures
  38. Common Pitfalls Example: The district is accepting bids for locally grown apples.
  39. Common Pitfalls Example: The district is accepting bids for locally grown apples. Problem: Excluding non-local apples violates full and open competition.
  40. 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.
  41. Common Pitfalls Example: Preference is given to apple vendors located within 200 miles of the school district.
  42. Common Pitfalls Example: Preference is given to apple vendors located within 200 miles of the school district. Problem: GP applies to products NOT vendors.
  43. 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 grownvendors locatedwithin 200 miles of the school district.
  44. Value of the Legal Review Informs policy decisions Craft legally defensible practices Limit legal challenges Confidence to move forward
  45. Low AB Chicken
  46. Low AB Chicken Low Antibiotic (AB) Chicken
  47. Low AB Chicken
  48. Low AB Chicken Problem – the potential risks from administering antibiotics to animals.
  49. Low AB Chicken Problem – the potential risks from administering antibiotics to animals. Federal Solution? – federal regulation of administering antibiotics to animals.
  50. Low AB Chicken Problem – the potential risks from administering antibiotics to animals. Federal Solution? – federal regulation of administering antibiotics to animals. Legal Questions – considerations to facilitate effective solicitation of low AB chicken.
  51. Low AB Chx Agenda: A. Problem B. Federal Solution? C. Legal Questions Low AB Chicken Low Antibiotic (AB) Chicken
  52. Low AB Chx Agenda: A. Problem B. Federal Solution? C. Legal Questions Low AB Chicken Low Antibiotic (AB) Chicken Problem:
  53. Low AB Chx Agenda: A. Problem B. Federal Solution? C. Legal Questions Low AB Chicken Low Antibiotic (AB) Chicken Problem: ✚
  54. 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
  55. Low AB Chx Agenda: A. Problem B. Federal Solution? C. Legal Questions Federal Solution? Low Antibiotic (AB) Chicken
  56. Low AB Chx Agenda: A. Problem B. Federal Solution? C. Legal Questions Federal Solution? Low Antibiotic (AB) Chicken Recent FDA action
  57. Low AB Chx Agenda: A. Problem B. Federal Solution? C. Legal Questions Federal Solution? Low Antibiotic (AB) Chicken Recent FDA action FDA Guidance for Industry #209 FDA Guidance for Industry #213
  58. Low AB Chx Agenda: A. Problem B. Federal Solution? C. Legal Questions Federal Solution? Low Antibiotic (AB) Chicken Current Status
  59. Low AB Chx Agenda: A. Problem B. Federal Solution? C. Legal Questions Federal Solution? 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.
  60. Low AB Chx Agenda: A. Problem B. Federal Solution? C. Legal Questions Low Antibiotic (AB) Chicken
  61. Low AB Chx Agenda: A. Problem B. Federal Solution? C. Legal Questions Legal Questions Low Antibiotic (AB) Chicken
  62. Low AB Chx Agenda: A. Problem B. Federal Solution? C. Legal Questions Legal Questions Is there an available market for low AB chicken? How can low AB chicken be verified? Low Antibiotic (AB) Chicken
  63. Low AB Chx Agenda: A. Problem B. Federal Solution? C. Legal Questions Legal Questions Is there an available market for low AB chicken? Low Antibiotic (AB) Chicken
  64. Low AB Chx Agenda: A. Problem B. Federal Solution? C. Legal Questions Legal Questions Is there an available market for low AB chicken? Low Antibiotic (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.
  65. Low AB Chx Agenda: A. Problem B. Federal Solution? C. Legal Questions Legal Questions Is there an available market for low AB chicken? How can low AB chicken be verified? Low Antibiotic (AB) Chicken
  66. Low AB Chx Agenda: A. Problem B. Federal Solution? C. Legal Questions Legal Questions How can low AB chicken be verified? Low Antibiotic (AB) Chicken
  67. Low AB Chx Agenda: A. Problem B. Federal Solution? C. Legal Questions Legal Questions How can low AB chicken be verified? Possible options for school districts: Require self-verification (vendors verify in bid/contract). Require third-party verification. Require self-verification while reserving the right to demand third-party verification.
  68. FOCUSing on Staying Legal Knowing the legal questions Source of authority Avoid legal challenges Ground work for future innovations
  69. 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
  70. Evolving Goals Continuing with geographic preference Beginning stages with low antibiotic chicken Examining new objectives
  71. Your Input Legal Concerns? Barriers? Resources?
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