FAR 26.404—Contract clause.
Plain-English Summary
FAR 26.404 is a very short but important contract-clause prescription that tells contracting officers when to include the clause at 52.226-6, Promoting Excess Food Donation to Nonprofit Organizations. It applies to solicitations and contracts valued at more than $35,000 when the acquisition is for the provision, service, or sale of food in the United States. In practice, this section is about making sure food-related federal contracts carry the required clause so contractors are formally put on notice of the Government’s policy interest in encouraging donation of excess food to nonprofit organizations. The section does not itself describe the full substance of the clause, but it establishes the threshold, the covered types of acquisitions, and the geographic scope that trigger insertion of the clause. For contracting officers, the key task is identifying whether the procurement involves food and exceeds the dollar threshold; for contractors, the practical effect is that the solicitation and resulting contract may include obligations tied to excess food donation. This section matters because missing the clause can create compliance gaps in food procurements and undermine the Government’s food donation policy objectives.
Key Rules
Insert the required clause
Contracting officers must insert clause 52.226-6, Promoting Excess Food Donation to Nonprofit Organizations, in covered solicitations and contracts. The clause is not optional when the rule applies.
Dollar threshold applies
The clause is required only for solicitations and contracts greater than $35,000. At or below that amount, this section does not require insertion of the clause.
Covers food acquisitions
The rule applies to the provision, service, or sale of food. The acquisition must involve food-related performance, not just any general supply or service contract.
Limited to the United States
The prescription applies only to food acquisitions in the United States. Contracts performed outside the United States are not covered by this section.
Applies to both solicitations and contracts
The clause must be included in the solicitation and carried into the contract when the requirement is met. This ensures offerors are informed before award and the obligation is incorporated into the final contract.
Responsibilities
Contracting Officer
Determine whether the acquisition is for the provision, service, or sale of food in the United States and whether the value exceeds $35,000. If so, insert clause 52.226-6 in the solicitation and contract.
Contractor
Review the solicitation and contract for the clause and comply with any resulting obligations related to promoting excess food donation to nonprofit organizations.
Agency
Ensure acquisition personnel apply the clause prescription consistently in covered food procurements and support policy implementation through proper solicitation and contract preparation.
Practical Implications
This is a screening requirement: the main day-to-day task is deciding whether the procurement is food-related, performed in the United States, and above the $35,000 threshold.
A common pitfall is overlooking the clause in mixed procurements where food is only one part of the requirement; if the contract is for food provision, service, or sale, the clause may still be required.
Another frequent issue is treating the rule as a post-award administrative matter; it must be included in the solicitation so offerors know the requirement before they submit proposals or quotes.
Contracting officers should document the basis for including or excluding the clause, especially when the acquisition scope or place of performance is not obvious.
Contractors should flag the clause early because it may affect internal handling of excess food and coordination with nonprofit donation channels.
Official Regulatory Text
Insert the clause at 52.226-6 , Promoting Excess Food Donation to Nonprofit Organizations, in solicitations and contracts greater than $35,000 for the provision, service, or sale of food in the United States.