N.Y. Comp. Codes R. & Regs. tit. 8 § 114.2

Current through Register Vol. 46, No. 45, November 2, 2024

Section 114.2 - Food service management contracts

Any public school district, private, nonprofit school or "residential child care institution" as defined in 7 CFR 210.2 (Code of Federal Regulations, 1993 edition, Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402--available at Office of Regional Field Services, Room 775, Education Building Annex, Albany, NY 12234), hereinafter referred to as a "school," may contract with a private food service management company for the purpose of managing and operating, in whole or in part, its food service program. In such cases, the school shall continue to be eligible to receive both Federal and State reimbursement and food in accordance with existing law and regulations and in the same manner as for school-operated programs, provided the requirements of this section are complied with.

(a) Responsibility for program.

(1) The food service program shall remain the legal responsibility of the school in accordance with a written agreement with the department as required by 7 CFR 210.9 (Code of Federal Regulations, 1993 edition, Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402: 1993-- available at Office for Regional Field Services, Room 775, Education Building Annex, Albany, NY 12234).

(2) An advisory board composed of parents, teachers, and students to assist in menu planning shall be established by the school in accordance with 7 CFR 210.16(a)(8) (Code of Federal Regulations, 1993 edition, Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402: 1993-- available at Office for Regional Field Services, Room 775, Education Building Annex, Albany, NY 12234), and directives of the commissioner.

(3) A copy of the contract with a food service management company and any public school district shall be filed with the department. A copy of the contract with a food service management company and any private, nonprofit school or residential child care institution participating in the National School Lunch Program, School Breakfast Program or Special Milk Program shall be filed with the department.

(b) Free and/or reduced-price meals. The written policy of the school requiring feeding of children free or at reduced prices, adopted in accordance with 7 CFR 245.3(b) (Code of Federal Regulations, 1993 edition, Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402: 1993-- available at Office for Regional Field Services, Room 775, Education Building Annex, Albany, NY 12234), will apply in the same manner as for school-operated programs.

(c) Bidding. The provisions of Education Law, section 305, subdivision 14, relating to bidding shall apply to all contracts entered into pursuant to this Part. The provisions of 7 CFR 210.16 (Code of Federal Regulations, 1993 Edition, Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402; 1993--available at Office for Regional Field Services, Room 775, Education Building Annex, Albany, NY 12234) relating to the invitation to bid shall apply to all contracts entered into pursuant to this Part.

(d) Contract. The contract period shall not exceed one year. Options for the yearly renewal of a contract signed after February 16, 1988 may not exceed four additional years. The contract shall include provisions with respect to the following:

(1) A stipulation that the contract will be subject to approval by the commissioner as a condition to approval of the school agreement with the department.

(2) A stipulation that the lunch meals served will meet the nutritional requirements of 7 CFR 210.10 (Code of Federal Regulations, 1993 edition, Superintendent of Documents, U.S. Government Printing Office Washington DC 20402: 1993--available at Office for Regional Field Services, Room 775, Education Building Annex, Albany, NY 12234), and will be priced as a unit.

(3) A stipulation that breakfasts served will meet the nutritional requirements of 7 CFR 220.8 (Code of Federal Regulations, 1993 edition, Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402: 1993-- available at Office for Regional Field Services, Room 775, Education Building Annex, Albany, NY 12234), and guidelines of the commissioner.

(4) An assurance by the food service management company that any federally donated commodities received by the school and made available to the food service management company shall accrue to the benefit of the school's nonprofit school food service and specifically to the school lunch meal pattern or breakfast meal pattern offering, as defined in 7 CFR 210.10 and 220.8 (Code of Federal Regulations, 1993 edition, Superintendent of Documents U.S. Government Printing Office Washington, DC 20402: 1993--available at Office for Regional Field Services, Room 775, Education Building Annex, Albany, NY 12234), and that the food service management company shall have records available to support such assurance.

(5) The food service management company shall maintain such records (supported by invoices, receipts or other evidence) as the school will need to meet monthly reporting responsibilities and shall report thereon to the school no later than the fifth day following the end of each month in which services were rendered.

(6) Books and records of the food service management company pertaining to the feeding operation shall be available for a period of three years from the end of the fiscal year to which they pertain for inspection and audit by either State or Federal representatives and auditors.

(7) Provision against subcontracting or assignment of contract insofar as food preparation and service are concerned without approval of the school.

(8) A stipulation that the school retain control of the quality, extent and general nature of its food service, and the prices to be charged to the children for meals.

(9) A stipulation that the food service management company receive a fixed fee for its services.

(e) Accounting. Financial accounting in school districts shall be in accordance with regulations of the commissioner and shall be conducted in the same manner as if the school district were operating its own food service program.

(f) Contingency budgets. In any school district operating on a contingency budget and conducting a food service program under contract with a food service management company, the following conditions must be met:

(1) The program at all times shall be operated at no cost to the school district.

(2) There can be no transfer or loan of funds from the general fund.

(3) In the event the end-of-month operating statement from the food service management company reflects a deficit, such deficit will be a responsibility of the food service management company pending mutual determination by such food service management company and the school district as to actions to be taken to eliminate such deficit.

(g) Annual extensions of contracts. Annual extension(s) of contracts shall be prepared on forms prescribed by the commissioner; such extensions shall be filed with and approved by the commissioner, and shall be subject to all laws, rules and regulations pertaining to the filing of food service management contracts. Only contracts awarded in accordance with the competitive bidding requirements of subdivision 14 of section305 of the Education Law may be extended. Annual extension(s) of contracts may provide for increases not to exceed the contractual amount paid in the preceding year by more than the increase in the regional consumer price index for the N.Y.-Northeastern N.J. area for the 12-month period immediately preceding the month in which the contract terminates. Each district proposing to extend a contract shall file with the commissioner satisfactory evidence of the increase in administrative cost of the contractor's operation during the 12-month period immediately preceding the month in which the contract terminates.

N.Y. Comp. Codes R. & Regs. Tit. 8 § 114.2