FAR 26.403—Procedures.
Plain-English Summary
FAR 26.403 explains how executive agencies and contractors are to handle donations of apparently wholesome excess food under the Federal Food Donation Act of 2008. It covers three main subjects: encouraging donations in applicable contracts, allocating costs and logistics so the Government does not take on collection, transport, safety, or distribution responsibilities, and limiting liability for agencies and contractors under the Bill Emerson Good Samaritan Food Donation Act. In practice, this section tells contracting officers when and how to include food-donation encouragement in solicitations and contracts, and it tells contractors that any donation activity is voluntary and generally at their own expense. It also makes clear that donation-related costs are not reimbursable by the Government and are not allowable public relations costs. The liability provision is important because it gives agencies and contractors protection from civil and criminal liability to the extent provided by the Good Samaritan statute, which reduces legal risk for good-faith food donations. Overall, the section is designed to promote food donation while preventing the Government from becoming financially or operationally responsible for the donation process.
Key Rules
Encourage food donations
In applicable contracts identified under FAR 26.404, executive agencies must encourage contractors, to the maximum extent practicable and safe, to donate apparently wholesome excess food to nonprofit organizations that assist food-insecure people in the United States. This is an encouragement requirement, not a mandate to donate.
No Government logistics role
If a contractor donates apparently wholesome food under a covered contract, the executive agency may not assume responsibility for collecting, transporting, maintaining the safety of, or distributing the excess food. The contractor remains responsible for the donation process unless another arrangement is independently made outside the Government’s responsibility.
Donation costs are not reimbursable
The Government will not reimburse contractors for any costs incurred in donating Federal excess food, whether those costs are charged to the donation contract or another contract. Contractors cannot shift donation-related expenses to the Government through contract billing.
No allowable public relations cost
Costs incurred for Federal excess food donations are not allowable public relations costs under FAR 31.205-1(f)(8). This prevents contractors from treating donation expenses as recoverable indirect or promotional costs.
Liability protection applies
Executive agencies and contractors making donations under the Act are exempt from civil and criminal liability to the extent provided by the Bill Emerson Good Samaritan Food Donation Act, 42 U.S.C. 1791. The protection applies only within the scope of that statute and does not eliminate all possible legal exposure in every circumstance.
Responsibilities
Contracting Officer
Include the required encouragement language in applicable contracts and solicitations identified by FAR 26.404. Ensure the contract does not imply that the Government will collect, transport, store, safeguard, or distribute donated food, and do not authorize reimbursement of donation-related costs.
Executive Agency
Encourage donations in applicable contracts, but do not take on operational or financial responsibility for the donation process. Rely on the statutory liability protections only to the extent allowed by the Bill Emerson Good Samaritan Food Donation Act.
Contractor
If choosing to donate apparently wholesome excess food, do so at its own expense and arrange the logistics, safety, and distribution without expecting Government reimbursement. Ensure donation activities comply with applicable food safety and liability requirements.
Nonprofit Recipient Organizations
Receive donated food from contractors for assistance to food-insecure people in the United States, subject to the contractor’s donation arrangements and applicable food safety requirements.
Practical Implications
Contractors should treat food donation as a voluntary, self-funded activity unless another non-Government arrangement exists; it is not a reimbursable contract task.
Contracting officers should be careful not to draft language that suggests the Government will handle pickup, transport, storage, or distribution, because FAR 26.403 places those burdens outside Government responsibility.
Donation-related expenses should not be billed as direct costs, indirect costs, or public relations costs to the Government.
Both agencies and contractors should still pay close attention to food safety, handling, and documentation, because liability protection is statutory and does not excuse careless or noncompliant conduct.
A common pitfall is assuming that because the Government encourages donations, it also authorizes reimbursement or operational support; FAR 26.403 expressly rejects that assumption.
Official Regulatory Text
(a) In accordance with the Federal Food Donation Act of 2008 an executive agency shall comply with the following: (1) Encourage donations . In the applicable contracts stated at section 26.404 , encourage contractors, to the maximum extent practicable and safe, to donate apparently wholesome excess food to nonprofit organizations that provide assistance to food-insecure people in the United States. (2) Costs . (i) In any case in which a contractor enters into a contract with an executive agency under which apparently wholesome food is donated to food-insecure people in the United States, the head of the executive agency shall not assume responsibility for the costs and logistics of collecting, transporting, maintaining the safety of, or distributing excess, apparently wholesome food to food-insecure people in the United States under this Act. (ii) The Government will not reimburse any costs incurred by the contractor against this contract or any other contract for the donation of Federal excess foods. Any costs incurred for Federal excess food donations are not considered allowable public relations costs in accordance with 31.205-1 (f)(8). (3) Liability . An executive agency (including an executive agency that enters into a contract with a contractor) and any contractor making donations pursuant to this Act shall be exempt from civil and criminal liability to the extent provided under the Bill Emerson Good Samaritan Food Donation Act ( 42 U.S.C. 1791 ).