FAR 52.226-6—Promoting Excess Food Donation to Nonprofit Organizations.
Plain-English Summary
FAR 52.226-6 implements the Federal Food Donation Act of 2008 and tells contractors how to handle excess food that is no longer needed by the Government but is still safe and suitable for donation. The clause defines key terms such as apparently wholesome food, excess food, food-insecure, and nonprofit organization so contractors know exactly what food may be donated and who may receive it. It encourages contractors, to the maximum extent practicable and safe, to donate excess, apparently wholesome food to nonprofits that assist food-insecure people in the United States. The clause also allocates all donation-related costs and logistics to the contractor and makes those costs unallowable for reimbursement. It addresses liability protections under the Bill Emerson Good Samaritan Food Donation Act while preserving state and local health and safety requirements. Finally, it requires flowdown of the clause to covered subcontractors and suppliers performing food-related work in the United States, so the donation policy applies throughout the supply chain.
Key Rules
Key terms control scope
The clause defines apparently wholesome food, excess food, food-insecure, and nonprofit organization. These definitions determine what food may be donated, when food is considered excess, and which recipient organizations qualify.
Donation is encouraged, not mandatory
Contractors are encouraged, to the maximum extent practicable and safe, to donate excess, apparently wholesome food. The clause creates a strong policy preference for donation, but it does not require donation in every case.
Contractor pays all donation costs
The contractor and any subcontractors must bear all costs and logistical support for collecting, transporting, maintaining safety of, and distributing donated food. The Government does not reimburse these costs, and any costs associated with excess food donations are unallowable.
Liability protections apply
The Government and the contractor, including subcontractors, are exempt from civil and criminal liability to the extent provided by the Bill Emerson Good Samaritan Food Donation Act. However, the clause does not override state or local health regulations.
Flowdown is required for covered tiers
The contractor must insert the clause in covered contracts, task orders, delivery orders, purchase orders, and similar instruments exceeding the FAR 26.404 threshold when the subcontractor or supplier will perform food provision, service, or sale in the United States.
Applies only to excess food not needed by agencies
Food qualifies as excess only if it is not required to meet executive agency needs and would otherwise be discarded. Contractors should not treat food as excess until agency requirements are satisfied and disposal would otherwise occur.
Responsibilities
Contracting Officer
Include the clause when prescribed by FAR 26.404 and ensure the contract structure supports the food donation policy where applicable. The contracting officer should also recognize that donation-related costs are unallowable and that the clause does not displace state or local health rules.
Contractor
Identify excess, apparently wholesome food; determine whether donation is practicable and safe; arrange and fund collection, transport, storage, and distribution; and ensure donated food goes to qualifying nonprofit organizations serving food-insecure people in the United States. The contractor must also flow the clause down to covered lower-tier instruments.
Subcontractors and Suppliers
Comply with the clause when flowed down, including handling excess, apparently wholesome food consistent with the contractor’s donation arrangements and bearing their own donation-related costs unless the prime contract provides otherwise. They must also follow applicable health and safety laws.
Government/Agency
Identify when food is no longer needed for agency purposes and may become excess, and rely on the clause’s liability and cost rules when contractors donate food. The agency must still observe applicable state and local health regulations and cannot reimburse donation costs absent some other authority.
Nonprofit Organizations
Receive donated food only if they qualify under the Internal Revenue Code definition and provide assistance to food-insecure people in the United States. They are the intended beneficiaries, but they are not assigned operational duties by the clause.
Practical Implications
Contractors should build donation decisions into inventory and disposal processes so usable food is identified before it is discarded, but only after agency needs are fully met.
The biggest cost pitfall is assuming donation expenses can be billed to the Government; this clause makes those costs unallowable, so contractors need to budget for handling, transport, and coordination themselves.
Food safety and local health compliance remain critical: even though the clause encourages donation and provides liability protection, it does not excuse violations of state or local sanitation, labeling, or handling rules.
Flowdown is easy to miss in multi-tier supply chains; primes should check whether lower-tier contracts involve food provision, service, or sale in the United States and whether the FAR 26.404 threshold is exceeded.
Contractors should document donation decisions, recipient qualifications, and safety checks to show that donations were made only when food was apparently wholesome and donation was practicable and safe.
Official Regulatory Text
As prescribed in 26.404 , insert the following clause: Promoting Excess Food Donation to Nonprofit Organizations (Jun 2020) (a) Definitions . As used in this clause- Apparently wholesome food means food that meets all quality and labeling standards imposed by Federal, State, and local laws and regulations even though the food may not be readily marketable due to appearance, age, freshness, grade, size, surplus, or other conditions. Excess food means food that- (1) Is not required to meet the needs of the executive agencies; and (2) Would otherwise be discarded. Food-insecure means inconsistent access to sufficient, safe, and nutritious food. Nonprofit organization means any organization that is— (1) Described in section 501(c) of the Internal Revenue Code of 1986; and (2) Exempt from tax under section 501(a) of that Code. (b) In accordance with the Federal Food Donation Act of 2008 ( 42 U.S.C. 1792 ), the Contractor is encouraged, to the maximum extent practicable and safe, to donate excess, apparently wholesome food to nonprofit organizations that provide assistance to food-insecure people in the United States. (c) Costs . (1) The Contractor, including any subcontractors, shall assume the responsibility for all the costs and the logistical support to collect, transport, maintain the safety of, or distribute the excess, apparently wholesome food to the nonprofit organization(s) that provides assistance to food-insecure people. (2) The Contractor will not be reimbursed for any costs incurred or associated with the donation of excess foods. Any costs incurred for excess food donations are unallowable. (d) Liability . The Government and the Contractor, including any subcontractors, 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 ). Nothing in this clause shall be construed to supersede State or local health regulations (subsection (f) of 42 U.S.C. 1791 ). (e) Subcontracts . The Contractor shall insert this clause in all contracts, task orders, delivery orders, purchase orders, and other similar instruments that exceed the threshold specified in Federal Acquisition Regulation 26.404 on the date of subcontract award with its subcontractors or suppliers, at any tier, who will perform, under this contract, the provision, service, or sale of food in the United States. (End of clause)