Buy American

The National School Lunch Program (NSLP) began as a program to help feed American children and to support American agriculture. Both of these program goals remain in effect today. All Federal Child Nutrition Programs are covered by the Buy American Provision, which states that SFAs will "purchase, to the maximum extent practicable, domestic commodity or product." This applies to meal components—in other words, kitchen equipment is not subject to Buy American regulations, nor are condiments and spices, but agricultural commodities (such as flour) are. When purchasing these items with school foodservice funds, SFAs must attempt to use American products first. Compliance with the Buy American provision starts with menu planning, and continues through the bid process until the food arrives at your facility.

The first document below shows how to consider Buy American requirements at each stage of the process, and provides links to additional resources. The second document is the most recent policy memo on the Buy American Provision, and includes a Question & Answer section with sample language to include in bid solicitations. The last handout is a portion of a recent USDA webinar that gives more insight on how SFAs can follow the Buy American Provision.

Resources:

Q&A for the Buy American Provision

1) How would an SFA determine that an item is a “domestic commodity or product”?
Answer: Section 12(n) of the NSLA defines “domestic commodity or product” as an agricultural commodity produced in the U.S. and a food product processed in the U.S. substantially using agricultural commodities that are produced in the U.S. Reports accompanying the legislation noted that “substantially means over 51% from American products.” For products procured by SFAs for use in the Child Nutrition Programs, the food component of the product (i.e. meats/meat alternates, grains, vegetables, fruits, and fluid milk) is the agricultural commodity . Any product processed by a responsive vendor must contain over 51% of the food component, by weight or volume, from U.S. origin.

When considering juice for example, in order for the product to be considered “domestic” in accordance with the Buy American provision, the juice must contain over 51% of the juice or juice concentrate, by volume, from fruits or vegetables grown in the U.S. FNS does not consider water – whether tap or bottled – to be a domestically grown agricultural commodity for purposes of this provision. Likewise, packaging and labor are not agricultural commodities. For products procured by SFAs to be served in the Child Nutrition Programs, the fruit/vegetable component of the product, by volume, is the agricultural commodity.

For more details, see the Q&A Portion of SP38-2017.
2) Does the Buy American provision apply to entities that purchase on behalf of an SFA, such as a purchasing cooperative or a food service management company?
Answer: Yes. Any entity that purchases food or food products on behalf of the SFA must follow the same Buy American provisions and exceptions that the SFA is required to follow.
3) Are all agricultural commodity or food products purchased using the nonprofit food service account subject to the Buy American provision?
Answer: Yes. SFAs must ensure that all agricultural commodity or food products procured using funds from the nonprofit school food service account comply with the Buy American provision. As a consequence, the entire nonprofit school food service account (including Federal funds, all money received from children as payment for program meals, all proceeds from the sale of competitive foods, and all other income generated by the school food service) becomes subject to Federal procurement standards.

For more details, see the Q&A Portion of SP38-2017.
4) What can an SFA do to comply with the requirements of the Buy American provision?
Answer: To ensure compliance with the Buy American provision the SFA must ensure solicitations and contracts include the requirement for domestic agricultural commodities and products, include this requirement in its documented procurement procedures, and retain records documenting any exceptions.

Additionally, SFAs are required by 2 CFR 200.318(b) to monitor contractor performance to ensure compliance with all contractual requirements. This includes compliance with the Buy American provision. SFAs can also require their suppliers to provide certification of domestic origin on food products delivered and on invoices submitted.

For more details and sample contract language, see the Q&A Portion of SP38-2017.
5) How can SFAs comply with the requirement to retain records, which should include documentation of exceptions in adhering to the Buy American provision?
Answer: SFAs may document exceptions by maintaining records of communications between them and their food supplier; this may include emails, documentation of telephone communications, etc. The documentation must be maintained for review by the State agency during procurement reviews of local agency procurement practices.

One resource SFAs and State agencies may use in order to document exceptions is the market news reports available from AMS. AMS provides free, unbiased price and sales information on farm commodities at: https://marketnews.usda.gov/mnp/fv-report-config-step1?type=termPrice. Using this website, SFAs and State agencies can find third-party verification of cost and availability of domestic and nondomestic foods. Further, SFAs may use the information to communicate alternatives with food suppliers and document purchase decisions.

For more details and sample documentation language, see the Q&A Portion of SP38-2017
6) What is sample language contractors can use to document their compliance with the Buy American provision?
Answer: Below is sample language contractors may use to comply with the Buy American provision; however, language should be tailored to the needs of the contracting parties.

Sample Language:

“We certify that ___(insert product name)___ was processed in the U.S. and contains over 51% of its agricultural food component, by weight or volume, from the U.S.," with space for the supplier to fill in the name of the product and its specific percentage of the domestic agricultural food component contained therein.
7) How should an SFA document the domestic commodity food components for a processed end product?
Answer: SFAs should ask the supplier, i.e., manufacturer or distributor, for specific information about the percentage of U.S. content in the processed end product. In order for SFAs to be able to document the domestic content, they should include in their bidding process a requirement for certification such as: "We require that suppliers certify the food product was processed in the U.S. and certify the percentage of U.S. content, by weight or volume, in the food component of processed food products supplied to us.”

SFAs may also include the following statement in the bidding process: “We require bidders to certify that ___(insert product name)___ was processed in the U.S. and contains over ____(insert % of weight or volume) of its agricultural food component from the U.S.," with space for the supplier to fill in the name of the product and its percentage of the domestic agricultural food component (by weight or volume) contained therein.

State agencies should also include such language in any prototype solicitation documents and contracts provided to the SFAs.
8) Can a product made from a U.S. agricultural product but manufactured in another country be purchased from the nonprofit school food service account absent a limited exception?
Answer: No. Section 12(n) of the National School Lunch Act defines “domestic commodity or product” as one that is produced and processed in the U.S. substantially using agricultural commodities that are produced in the U.S.” This means that the product must be processed entirely in the U.S. and must use 51% domestic agricultural commodities. A large number of items received by schools state on the label that they are “packed” in the U.S. Non-domestic foods packed in the U.S. or non-domestic foods in packaging produced in the U.S. do not meet the Buy American requirements.
9) Can FNS or a State agency provide a list of foods that are not available domestically and therefore not subject to the Buy American provision?
Answer: No. Neither FNS nor a State agency may make the determination that a domestic commodity or product is not available. Although the Federal Acquisition Regulations (FAR) contain such a list, this applies to procurement by the Federal government only. Each SFA should determine on an individual basis, whether domestic alternatives exist first, and if not, whether an exception is warranted. SFAs can maintain documentation of exceptions for domestic foods that are prohibitively costly or not available in sufficient quantities and present this during reviews by the State agency.

For more details about exceptions to the Buy American provision, see SP38-2017.

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