Buy American Provision Requirements for School Nutrition Programs

Transcription

1 Buy American Provision Requirements for School Nutrition Programs CARMEN OCANAS-LERMA FOOD AND NUTRITION PROGRAM DIRECTOR REGION ONE EDUCATION SERVICE CENTER

2 Federal Regulations & Guidance 7 C.F.R (d) Buy American Code of Federal Regulations List of nonavailable domestic items USDA Memo - SP Compliance with and Enforcement of the Buy American Provision in the National School Lunch Program

3 7 C.F.R (d) Buy American Definition of Domestic Commodity or Product: i. An agricultural commodity that is produced in the United States; and ii. A food product that is processed in the United States substantially using agricultural commodities that are produced in the United States. Requirement: i. In general. Subject to paragraph (d)(2)(ii) of this section, the Department shall require that a school food authority purchase, to the maximum extent practicable, domestic commodities or products. ii. Limitations. Paragraph (d)(2)(i) of this section shall apply only to A. A school food authority located in the contiguous United States; and B. A purchase of domestic commodity or product for the school lunch program under this part.

4 Code of Federal Regulations Provides a list of articles that have been determined to be nonavailable in accordance with (b), food items include: Bamboo shoots Bananas Beef, corned, canned Beef extract Brazil nuts, unroasted Capers Cashew nuts Chestnuts Cocoa beans Coconut and coconut meat Coffee, raw or green bean Grapefruit sections, canned Olive oil Olives (green) Oranges, mandarin, canned Pineapple, canned Tapioca flour & cassava Tartar, crude; tartaric acid & cream of tartar Tea in bulk Vanilla beans Water chestnuts Yeast, active dry and instant active dry

5 USDA Memo SP Compliance & Enforcement of the Buy American Provision REQUIREMENTS: Section 104(d) of the William F. Goodling Child Nutrition Reauthorization Act of 1998 (Public Law ) added a provision, Section 12(n) to the NSLA (42 USC 1760(n)): Requires school food authorities (SFAs) to purchase, to the maximum extent practicable, domestic commodity or product. Definition of domestic commodity or product is an agricultural commodity that is produced in the United States and a food product that is processed in the United States using substantial agricultural commodities that are produced in the United States. Substantial means that over 51 percent of the final processed product consists of agricultural commodities that were grown domestically. Products from Guam, American Samoa, Virgin Islands, Puerto Rico, and the Northern Mariana Islands are allowed under this provision as territories of the United States.

6 USDA Memo SP Compliance & Enforcement of the Buy American Provision IMPLEMENTATION: Supports the mission of Child Nutrition Programs Serve children nutritious meals, and Support American agriculture When CNP funds are used, procurement transactions for food products on the commercial market must comply with the Buy American Provision. USDA-FNS encourages specifications be included in solicitations and contracts that only 100% domestically grown and processed products are approved for purchase.

7 USDA Memo SP Compliance & Enforcement of the Buy American Provision SUPPORTS LOCAL & SMALL BUSINESS: Using food products from local sources supports small local farms and provides healthy choices for children in the school meal programs. Supports the local economy. Encourages conducting business with local, or small, minority, and womenowned businesses. As required in 2 CFR

8 USDA Memo SP Compliance & Enforcement of the Buy American Provision LIMITED EXCEPTIONS: Only to be used as a last resort. 1. The product is not produced or manufactured in the U.S. in sufficient and reasonable available quantities of a satisfactory quality; or 2. Competitive bids reveal the costs of a U.S. product are significantly higher than the non-domestic product The School Food Authority (SFA) must keep documentation justifying the exception(s).

9 USDA Memo SP Compliance & Enforcement of the Buy American Provision BEFORE USING AN EXCEPTION: Alternatives to purchasing non-domestic food products should be considered 1. Are there other domestic sources for this product? 2. Is there a domestic product that could easily be substituted, if the nondomestic product is less expensive (e.g. substitute domestic pears for nondomestic apples)? 3. Am I soliciting bids for this product at the best time of year? If I contracted earlier or later in the season, would prices and/or availability change?

10 USDA Memo SP Compliance & Enforcement of the Buy American Provision MONITORING BY THE SFA: Include the Buy American provision in solicitations, contacts, and product specifications, this ensures Contractors are aware of the Buy American requirements Bidder is responsive and responsible to the solicitation Best practice: Include language in the solicitation and contract on how the bidder would address alternative methods to conform to the Buy American provision, if needed. Solicitation and contract should include a method of requesting exceptions before supplying non-domestic products

11 USDA Memo SP Compliance & Enforcement of the Buy American Provision MONITORING BY THE SFA, continued: Ensure contractors perform in accordance with terms, conditions, and specifications of their contracts or purchase orders (POs). Required in 2 CFR Part (b) Ensure product labels designates the United States, or its territories, as the county of origin Review products an/or delivery invoices/receipts to identity the county of origin is the US or its territories. Conduct a periodic review of storage facilities, freezers, refrigerators, dry storage, and warehouse to ensure products comply with the Buy American provision.

12 USDA Memo SP Compliance & Enforcement of the Buy American Provision MONITORING BY THE STATE AGENCY (Texas Department of Agriculture): Compliance with the Buy American provision is checked by TDA during procurement and/or administrative reviews TDA must determine if SFA s solicitation and contract documents contain the language for contracts to supply products in compliance with the Buy American provision Review product labels to ensure it designates the United States, or its territories, as the county of origin Review supplier invoices/receipts to ensure the county of origin is the US or its territories. Conduct a review of storage facilities, freezers, refrigerators, dry storage, and warehouse to ensure products comply with the Buy American provision. Request documentation to justify any exception(s) TDA must issue a finding and require corrective action if non-domestic products are identified and there is no documentation justifying the exception(s).

13 State Guidance (TDA) Administrators Reference Manual (ARM) Section 17: Procurement Buy American Buy American Checklist for Non-Domestic Food Product Purchases

14 TDA-Administrator s Reference Manual Updated 4/4/17: New Buy American Guidance Definition of Buy American: Requirement for schools to purchase, to the maximum extent practicable, domestic commodities and products. A domestic commodity or product means an agricultural commodity that is grown in the United States and processed in the United States or that is processed in the United States substantially using agricultural commodities that are produced in the Untied States. For a food product to meet the Buy American requirement, over 51% of the final processed food product must consist of agricultural commodities that were grown domestically. Applies to all purchases made with SNP funds. The Buy American requirement must be included in all contracts, requests for offers, and purchase orders with all potential contractors.

15 TDA-Administrator s Reference Manual Updated 4/4/17: New Buy American Guidance Considerations for a Buy American Exception: The CE/School District must determine that the use of non-united States (US) or non-domestic food product is acceptable (not the distributor, supplier or vendor). The purchase of non-domestic food product should be an occasional not frequent occurrence. Each time a non-domestic food product is purchased or delivered, the CE/School District must determine if the Buy American requirements are met. If the distributor, supplier, or vendor is repetitively unable to provide US or domestic food products, the CE/School District should discuss the Buy American requirements with the distributor, supplier, or vendor and determine if the entity is capable of fulfilling the terms and conditions of the contract.

16 TDA-Administrator s Reference Manual Updated 4/4/17: New Buy American Guidance Considerations for a Buy American Exception, continued: The CE/School District may purchase food products that are an exception to the Buy American provision, in the following situations: 1. The Food Product is not produced in sufficient quantities of a satisfactory quality 2. Competitive offers reveal that the cost of a domestic food product is significantly higher than the non-domestic food product

17 TDA-Administrator s Reference Manual Updated 4/4/17: New Buy American Guidance Considerations for a Buy American Exception, continued: The CE/School District must first determine if the food product is gown in the US or not:

18 TDA-Administrator s Reference Manual Updated 4/4/17: New Buy American Guidance Considerations for a Buy American Exception, continued: The CE/School District must determine if the domestically grown food can be purchased in large enough quantities of a satisfactory quality:

19 TDA-Administrator s Reference Manual Updated 4/4/17: New Buy American Guidance Considerations for a Buy American Exception, continued: If the CE/School District purchases non-domestic food products, it must maintain documentation demonstration the situation that warrants on exception. TDA has developed the Buy American Checklist for Non-Domestic Food Product Purchases to assist CEs/School Districts in maintaining documentation. The CE/School District may verify that a food product is not grown in the US in sufficient quantities for purchase as a domestic food product through the USDA Agricultural Marketing Resource Center ( - use the search text box to find item. If the CE uses this source, it must retain documentation to demonstrate compliance. Reasonable cost is defined as the amount that does not exceed a cost that a prudent (sensible) person would consider acceptable under similar circumstances.

20 TDA s Buy American Checklist for Non- Domestic Food Product Purchases

21 TDA s Buy American Checklist for Non- Domestic Food Product Purchases

22 Buy American Resources 7 C.F.R (d) Buy American Code of Federal Regulations USDA Memo SP Compliance with and Enforcement of the Buy American Provision in the National School Lunch Program TDA-FNS Administrators Reference Manual Section 17: Procurement TDA-FNS Buy American Checklist for Non-Domestic Food Product Purchases Region One CNP-STC Buy American Rules, Regulations and Nonavailable Items

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