ESBD_399645_1740777024653_FANS Procurement Code of Conduct.pdf

Plano ISD

Food and Nutritional Services Department

PROCUREMENT

CODE OF CONDUCT

6600 Alma Drive Suite B Plano, Texas 75023

469-752-5783

CODE OF CONDUCT 2022 PLANO ISD FOOD AND NUTRITIONAL SERVICES

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Plano ISD Food and Nutritional Services employees are expected to conduct themselves in a professional and ethical manner, maintaining high standards of integrity.

State Requirements According to The Handbook on Purchasing for Texas Public Schools, Junior Colleges and Community Colleges (Module 3 of FASRG, Appendix 1), it is a serious breach of the public trust to subvert the public purchasing process by directing purchases to certain favored vendors, or to tamper with the purchasing process, whether it is done for kickbacks, friendship or any other reason. State law relating to violation of purchasing requirements imposes upon violators certain criminal penalties, which are found in Section 44.032, Texas Education Code, and Chapter 271.029, Local Government Code.

The following common standards of ethics shall govern the conduct of District employees involved in the purchasing function:

1. It is a breach of ethics to attempt to realize personal gain through public employment with a school district by any conduct inconsistent with the proper discharge of the employee's duties.

2. It is a breach of ethics to attempt to influence any public employee of a school district to breach the standards of ethical conduct set forth in this code.

3. It is a breach of ethics for any employee of a school district to participate directly or indirectly in a procurement when the employee knows that:

a. The employee or any member of the employee's immediate family has a financial interest pertaining to the procurement; or

b. A business or organization in which the employee, or any member of the employee's immediate family, has a financial interest pertaining to the procurement; or

c. Any other person, business or organization with whom the employee or any member of the employee's immediate family is negotiating or has an arrangement concerning prospective employment is involved in the procurement.

d. Circumstances where interests, financial or otherwise, are not substantial or are within the limits of applicable Federal, State and local laws and the policies and procedures of the Plano ISD, the Superintendent’s Cabinet shall determine whether the conflict is material.

4. Soliciting of Gifts: Plano ISD Food and Nutritional Services employees will not solicit gifts, including but not limited to travel packages or other incentives, and/or donations from prospective contactors. Incentive language may be included as part of the competitive procurement solicitation language to acquire the most favorable terms for the operation and benefit of the non-profit food service account.

Such incentives include, but are not limited to, volume rebates, timely payment discounts, program promotion assistance, and upfront savings.

Conflict of Interest A conflict of interest is any action that allows a person to benefit at the expense of the public interest or the expense of his or her employer. A conflict of interest may be real or apparent. To be considered a conflict of interest, it does not have to be acted upon. In all http://tea.texas.gov/Finance_and_Grants/Financial_Accountability/Financial__Accountability_System_Resource_Guide/

2 | P a g e cases if the District has a question on whether a specific situation is a conflict of interest, the District will consult with legal counsel. The District’s standards of conduct covering conflicts of interest and governing the actions of its employees engaged in the selection, award, and administration of federal contracts include the following Federal standards:

1. No employee, officer, or agent may participate in the selection, award, or administration of a contract supported by a federal award if he or she has a real or apparent conflict of interest. Such a conflict of interest would arise when the employee, officer, or agent, any member of his or her immediate family, his or her partner, or an organization which employs or is about to employ any of the parties indicated herein has a financial or other interest in or a tangible personal benefit from a firm considered for a contract.

2. The officers, employees, and agents of the District may neither solicit nor accept gratuities, favors, or anything of monetary value from contractors or parties to subcontracts, unless the gift is an unsolicited item of nominal value.

3. When there is a real or apparent conflict of interest, the employee, officer, or agent cannot participate in the selection, award, or administration of a contract supported by Federal funds.

Local Government Code, Chapter 176 defines family member “as a person related to another person within the first degree of consanguinity or affinity, as an example described by Subchapter B, Chapter 573, Government Code, except that the term does not include a person who is considered to be related to another person by affinity only as described by Section 573.024 (b), Government Code”. Anyone meeting the definition would be prohibited from making business decisions related to any commercial activity that the District may be involved with. That person should remove themselves from the decision making process.

Plano ISD considers all tangible benefits, as defined below but not limited to, to be a conflict of interest.

1. Offering a special item at a much lower price than the price structure for a current contract

2. Offering an item not presently used by the CE at a special price that is below market value

3. Offering an incentive, such as equipment or other prizes for purchasing items

4. Allowing staff to make purchases from a CE-procured contract

Plano ISD will communicate its expectations and applicable procedures related to program integrity to individuals and entities acting on the District’s behalf. Plano ISD will review all solicitations, agreements, contracts, and other communications prepared on their behalf to ensure compliance with all Federal and State requirements and regulations.

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Plano ISD defines individuals or agencies acting on behalf of the CE include, but not limited to the following:

1. Agent

2. Business

3. Consultant

4. Contractor

5. Cooperative

6. Distributor

7. Food Processor

8. For Profit Organization

9. Non-Profit Organization

10. Third Party

11. Vendor

Incentives, Gratuities, or Kickbacks Plano ISD Food and Nutritional Services employees cannot receive incentives, gratuities, or kickbacks to take a financial action or procure an item or service. This includes, but are not limited to, personal gifts, gratuities, or personal purchases off a CE-procured contract.

These benefits or incentives may be construed to have been given to influence the purchasing process.

In a situation where a benefit offered as part of a responsive offer is allowable the benefit or incentive must become the property of the District. Under no condition can incentive become the property of an individual.

No food, including leftovers, can be taken from school property by District employees for personal use, personal gain, or benefit to another person or entity.

1. Incentives: When a CE is evaluating the documentation submitted by an offeror, the CE must only consider elements that are specifically responsive to the technical requirements presented in the solicitation for offers. Contractor provided incentives (bonuses, stamps, equipment, or other benefits) that will be received by the CE, the school nutrition program, or enrolled students that may influence the contract award must be treated the same as a gratuity, favor, or anything of monetary value given to a school nutrition program employee, officer, or agent of the CE. These kinds of incentives are nonresponsive or overly responsive elements and must not be considered in awarding the contract.

2. Gratuities: It is a breach of ethics to offer, give or agree to give any employee or former employee of a school district, or for any employee or former employee of a school district to solicit, demand, accept or agree to accept from another person, a gratuity or an offer of employment in connection with any decision, approval, disapproval, recommendation, preparation of any part of a program requirement or purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, auditing, or in any other advisory

4 | P a g e capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter pertaining to any program requirement or a contract or subcontract, or to any solicitation or proposal therefore pending before this government. Acceptance of gratuities may be construed as a criminal offense.

3. Kickbacks: It is a breach of ethics for any payment, gratuity or offer of employment to be made by or on behalf of a subcontractor under a contract to the prime contractor or higher tier subcontractor for any contract of a school district, or any person associated therewith, as an inducement for the award of a subcontract or order.

Texas law makes a gift (an item valued at $50 or more, cash of any amount, or a negotiable instrument of any value) to a public employee a Class A misdemeanor if the employee is someone who exercises some influence in the purchasing process of the governmental body (Texas Penal Code, 36.09[d] and [h]).

Nominal Value Plano ISD’s nominal value may be no more than the value of a cup of coffee. Acceptance of such offerings is highly recommended against, but Plano ISD is aware that sometimes such offerings are unavoidable. It is required that all vendors be informed by the District staff that such offerings are not allowed.

Contracting with Persons and Companies for Assistance in Developing a Solicitation When acquiring goods and services, CE’s may contract with agents or companies that provide technical information in drafting procurement specifications and/or technical requirements. This provision is intended to encourage program administrators to obtain information from as many sources as possible to assist them in drafting procurement documents.

Plano ISD must not (1) engage an individual, entity, business, or organization in the development of a food service solicitation and/or contract if that individual, entity, business, or organization will be submitting an offer for a food service contract or (2) use information that is prepared by an individual, entity, business, or organization that will be submitting an offer for a contract.

Debarment and Suspension Plano ISD and their subcontractors must not make or permit any award, sub-award, sub-grant, or contract with an individual or entity that is debarred or suspended or is otherwise excluded from or ineligible for participation in Federal assistance programs.

1. Plano ISD will include the following debarment and suspension certification in every written agreement with subcontractors: {Enter name of subcontracting organization} certifies that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participating in this Agreement by any Federal department or agency or by

5 | P a g e the State of Texas. {Enter name of subcontracting organization} shall immediately provide written notice to Plano ISD if at any time the {enter name of subcontracting organization} learns that this certification was erroneous when submitted or has become erroneous by reason of changed circumstances. Plano ISD may rely upon a certification of a subcontractor that it is not debarred, suspended, ineligible, or voluntarily excluded from the covered contract, unless it knows that the certification is erroneous.

2. Plano ISD will require the subcontractor to sign and submit the TDA form entitled “Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion for Covered Contracts (H2048)” and maintain the signed form with its contract record.

3. Plano ISD will print the page from the System for Award Management (SAM) which indicates the subcontractor is not presently debarred or otherwise excluded from participation in the contract by any federal department or agency or by the State of Texas and will maintain that document on file with the contract documents. The System for Award Management can be accessed at www.sam.gov/portal/SAM/#1

Certification Regarding Lobbying Lobbying certification requirements are applicable to grants, sub-grants, cooperative agreements, and contracts exceeding $100,000 in federal funds.

Plano ISD uses the following procedures to ensure this requirement is met:

1. Ensure the proper documentation is prepared, shared as required, and retained.

2. Federal funds must not be paid by or behalf of the CE to any person influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of a Federal contract, the making of a Federal grant, the making of a Federal loan, the entering into a cooperative agreement, and the extension, continuation, renewal, amendment, or modification of a Federal contract, grant, loan, or cooperative agreement.

Written Procedures The following, but not limited to, Plano ISD School Board policies relate to ethics and in particular to ethical standards for District employees: CAA, DH, DBD, CB. District employees are required to sign an annual acknowledgement statement regarding ethics training and complete an annual conflict of interest survey. As part of the Districts conflict of interest survey, District employees are required to disclose gifts received and monetary value.

Disciplinary Action The District will impose appropriate sanctions or disciplinary actions, including but not limited to termination and/or prosecution, for any employee or officer who violates any of these requirements related to standards of conduct and conflict of interest 2 CFR § 200.318(c)(1).

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Reporting of Fraud, Bribery, and Gratuity Violations Plano ISD will report, in writing to TDA, all violations of Federal criminal law – fraud, bribery, or gratuity.

The non-Federal entity or applicant for a Federal award must disclose, in a timely manner, in writing to the Federal awarding agency or pass-through entity all violations of Federal criminal law involving fraud, bribery, or gratuity violations potentially affecting the Federal award. Failure to make required disclosures can result in any of the remedies described in CFR 200.338 Remedies for noncompliance, including suspension or debarment. (2 CFR 200.113; 31 U.S.C. 3321).

Plano ISD defines fraud as:

Whoever embezzles, willfully misapplies, steals or obtains by fraud any funds, assets or property provided under the National School Lunch Program and/or School Breakfast Program [and/or Special Milk Program] whether received directly or indirectly, shall, if such funds, assets or property are of a value of $100 or more, be fined no more than $25,000 or imprisoned not more than 5 years or both; or if such funds, assets or property are of a value of less than $100, be fined not more than $1,000 or imprisoned not more than 1 year or both. Whoever receives, conceals or retains for personal use or gain, funds, assets or property provided under the National School Lunch Program and/or School Breakfast Program, whether received directly or indirectly, knowing such funds, assets or property have been embezzled, willfully misapplied, stolen or obtained by fraud, shall be subject to the same penalties.

Record Retention Plano ISD will maintain records for all program operations, including procedures and processes related to program integrity. Records related to program integrity will include documentation related to all operational issues, including but not limited to, financial management and procurement. Plano ISD will maintain records on paper and electronically for five years.

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In accordance with Federal civil rights law and U.S. Department of Agriculture (USDA) civil rights regulations and policies, the USDA, its Agencies, offices, and employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, sex, disability, age, or reprisal or retaliation for prior civil rights activity in any program or activity conducted or funded by USDA. Persons with disabilities who require alternative means of communication for program information (e.g. Braille, large print, audiotape, American Sign Language, etc.), should contact the Agency (State or local) where they applied for benefits. Individuals who are deaf, hard of hearing or have speech disabilities may contact USDA through the Federal Relay Service at (800) 877-8339. Additionally, program information may be made available in languages other than English.

To file a program complaint of discrimination, complete the USDA Program Discrimination Complaint Form, (AD- 3027) found online at: How to File a Complaint, and at any USDA office, or write a letter addressed to USDA and provide in the letter all of the information requested in the form. To request a copy of the complaint form, call (866) 632-9992. Submit your completed form or letter to USDA by: (1) mail: U.S. Department of Agriculture, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue, SW, Washington, D.C. 20250-9410; (2) fax: (202) 690-7442; or (3) email: program.intake@usda.gov. This institution is an equal opportunity provider.

This manual is updated every year and as necessary based on changes to the TDA Administrative Reference Manual.

January 6, 2022: Manual updated for SY22