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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

    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

    slide2

    Will Thanhauser

    • The Big Apple Kid
    • Devoted Vegetarian
    • Helping you buy chicken

    Michelle Poncetta

    • Eats everything
    • Farm town kid
    • Let’s talk local
    agenda1
    Agenda

    I. How: How legal review facilitates school district procurement goals.

    agenda2
    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.

    agenda3
    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.

    agenda4
    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

    How: How legal review facilitates school district procurement goals.
    slide9

    Agenda:

    I. How

    II. GP

    III. Low AB Chx

    IV. Conclusion

    Procurement Goal:

    slide10

    Agenda:

    I. How

    II. GP

    III. Low AB Chx

    IV. Conclusion

    Procurement Goal:

    Healthful,

    Regionally-Sourced,

    Sustainable

    School Food

    slide11

    Agenda:

    I. How

    II. GP

    III. Low AB Chx

    IV. Conclusion

    Legal support for innovative procurement:

    slide12

    Agenda:

    I. How

    II. GP

    III. Low AB Chx

    IV. Conclusion

    Legal support for innovative procurement:

    slide13

    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.
    slide14

    Agenda:

    I. How

    II. GP

    III. Low AB Chx

    IV. Conclusion

    Legal support for innovative procurement:

    slide15

    Agenda:

    I. How

    II. GP

    III. Low AB Chx

    IV. Conclusion

    Legal support for innovative procurement:

    slide16

    Agenda:

    I. How

    II. GP

    III. Low AB Chx

    IV. Conclusion

    Legal support for innovative procurement:

    slide17

    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.

    slide18

    Agenda:

    I. How

    II. GP

    III. Low AB Chx

    IV. Conclusion

    Legal support for innovative procurement:

    slide19

    Agenda:

    I. How

    II. GP

    III. Low AB Chx

    IV. Conclusion

    Legal support for innovative procurement:

    slide20

    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.

    slide21

    Agenda:

    I. How

    II. GP

    III. Low AB Chx

    IV. Conclusion

    Legal support for innovative procurement:

    geographic preference1
    Geographic Preference

    NSLP permits school districts to give a defined competitive advantage to minimally processed, locally grown or raised agricultural products

    maximizing geographic preference
    Maximizing Geographic Preference

    Federal Overview

    USDA Rules

    Legal Authority & Limitations

    State Framework

    Guides

    Helpful Comparisons

    Review District Practices

    “The Legal Check-up”

    gp at a glance

    Federal

    GP at a Glance

    USDA Baseline Requirements

    Preference

    Policy

    Product

    Minimally processed agricultural products

    Cannot restrict “full & open competition”

    Locally grown or raised

    gp at a glance1

    Federal

    GP at a Glance

    Minimally Processed

    Product

    No change to the inherent character of the product

    gp at a glance2

    Federal

    GP at a Glance

    Locally Grown or Raised

    Preference

    School defines “local”

    gp at a glance3

    Federal

    GP at a Glance

    Full and Open Competition

    Policy

    Cannot

    unnecessarily restrict competition

    sources of legal authority

    State

    Sources of Legal Authority

    Strongest

    Explicit

    Implicit

    Child Nutrition Programs

    Weakest

    working with limitations

    State

    Working with Limitations

    State geographic preference laws

    working with limitations1

    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

    working with limitations2

    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

    working within state law

    State

    Working within State Law

    Possible Alternatives:

    In-State Only

    working within state law1

    State

    Working within State Law

    Possible Alternatives:

    In-State Regional

    In-State Only

    working within state law2

    State

    Working within State Law

    Possible Alternatives:

    In-State Regional

    In-State Only

    Tiered

    choosing preference weight

    Guides

    Choosing Preference Weight

    Comparing Other Product Preferences

    • Can provide a starting point
    • Recycled preferences are most common
    • 5% generally safe
    common pitfalls
    Common Pitfalls

    Example:

    The district is accepting bids for locally grown apples.

    common pitfalls1
    Common Pitfalls

    Example:

    The district is accepting bids for locally grown apples.

    Problem:

    Excluding non-local apples violates full and open competition.

    common pitfalls2
    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 pitfalls3
    Common Pitfalls

    Example:

    Preference is given to apple vendors located within 200 miles of the school district.

    common pitfalls4
    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 pitfalls5
    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.
    value of the legal review
    Value of the Legal Review

    Informs policy decisions

    Craft legally defensible practices

    Limit legal challenges

    Confidence to move forward

    slide46

    Low AB Chicken

    Low Antibiotic (AB) Chicken

    low ab chicken1
    Low AB Chicken

    Problem – the potential risks from administering antibiotics to animals.

    low ab chicken2
    Low AB Chicken

    Problem – the potential risks from administering antibiotics to animals.

    Federal Solution? – federal regulation of administering antibiotics to animals.

    low ab chicken3
    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.

    slide51

    Low AB Chx Agenda:

    A. Problem

    B. Federal Solution?

    C. Legal Questions

    Low AB Chicken

    Low Antibiotic (AB) Chicken

    slide52

    Low AB Chx Agenda:

    A. Problem

    B. Federal Solution?

    C. Legal Questions

    Low AB Chicken

    Low Antibiotic (AB) Chicken

    Problem:

    slide53

    Low AB Chx Agenda:

    A. Problem

    B. Federal Solution?

    C. Legal Questions

    Low AB Chicken

    Low Antibiotic (AB) Chicken

    Problem:

    slide54

    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
    slide55

    Low AB Chx Agenda:

    A. Problem

    B. Federal Solution?

    C. Legal Questions

    Federal Solution?

    Low Antibiotic (AB) Chicken

    slide56

    Low AB Chx Agenda:

    A. Problem

    B. Federal Solution?

    C. Legal Questions

    Federal Solution?

    Low Antibiotic (AB) Chicken

    Recent FDA action

    slide57

    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

    slide58

    Low AB Chx Agenda:

    A. Problem

    B. Federal Solution?

    C. Legal Questions

    Federal Solution?

    Low Antibiotic (AB) Chicken

    Current Status

    slide59

    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.

    slide60

    Low AB Chx Agenda:

    A. Problem

    B. Federal Solution?

    C. Legal Questions

    Low Antibiotic (AB) Chicken

    slide61

    Low AB Chx Agenda:

    A. Problem

    B. Federal Solution?

    C. Legal Questions

    Legal Questions

    Low Antibiotic (AB) Chicken

    slide62

    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

    slide63

    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

    slide64

    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.

    slide65

    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

    slide66

    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

    slide67

    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.

    focus ing on staying legal
    FOCUSing on Staying Legal
    • Knowing the legal questions
    • Source of authority
    • Avoid legal challenges
    • Ground work for future innovations
    geographic preference primer
    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
    Evolving Goals
    • Continuing with geographic preference
    • Beginning stages with low antibiotic chicken
    • Examining new objectives
    your input
    Your Input

    Legal Concerns?

    Barriers?

    Resources?