Part 2: The Buy American Provision Applies to: National School Lunch School Breakfast USDA Foods Welcome to the ODE CNP Procurement training, Part 2-The Buy American Provision. This part of the procurement training is intended for Sponsors who are participating in the NSLP, SBP and USDA Foods programs.

Buy American Added to the National School Lunch Act by Section 104(d) of the William F. Goodling Child Nutrition Reauthorization Act of 1998 (Public Law 105-786). Domestic commodity or product: Agricultural commodity produced in US Food product processed in US using commodities substantially produced in US The "Buy American" provision was added to the National School Lunch Act by Section 104(d) of the William F. Goodling Child Nutrition Reauthorization Act of 1998 (Public Law 105-786). The provision requires NSLP and SBP sponsors to purchase, to extent practical, a domestic commodity or product. In the Act, “domestic commodity or product” is defined (click)as 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.

Buy American Substantial Applies to SFAs Over 51 % grown domestically Applies to SFAs Purchasing commercial products (click) “Substantial” means that (click) 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. (click)The Buy American provision is one of the procurement standards School Food Authorities (SFAs) must comply with when (click) purchasing commercial food products served in the school meals programs. (click)The references listed on this slide and the next slide are available on the ODE CNP School Nutrition Memos page. The link is provided on the resource slide at the end of this presentation. May 24, 2016 ODE CNP Memo; SP-24-2016; Sample Buy American Provision Language; USDA Letter to Industry

Buy American Funds in food service account include Federal Funds Payment for meals Sales of competitive foods Other NSLP and SBP sponsors must ensure that all procurements for food using funds from the nonprofit school food service account comply with the Buy American provision. According to Child Nutrition Program regulations, all 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 must accrue to the food service account. As a consequence, the entire nonprofit school food service account becomes subject to Federal procurement standards. The Buy American provision supports the mission of the Child Nutrition Programs, which is to serve children nutritious meals and support American agriculture. When NSLP or SBP sponsors use funds from the nonprofit food service account, procurement transactions for food products on the commercial market must comply with the Buy American provision, whether food products are purchased by School Food Authorities (SFA)or entities that are purchasing on their behalf. Some examples of entities purchasing on behalf of SFAs include food service management companies, vended meal agreements, group purchasing organizations, cooperatives or inter-entity agreements. May 24, 2016 ODE CNP Memo; SP-24-2016; Sample Buy American Provision Language; USDA Letter to Industry

Determining if Domestic Commodity or Product Packaging information at delivery Invoices/receipts To determine if an item meets the Buy American provision the Sponsor would look at packaging information of food products during deliveries and review invoices/receipts to determine the county of origin.

How to Comply with Buy American Use Buy American Language in all Product specifications Bid solicitations RFPs Contracts Purchase orders Procurement documents Check products – Delivery Monitor Contactor performance What do you need to do to comply with the Buy American Provision? • (click) Use Buy American Provision Sample Language in all issued (click) product specifications, bid solicitations, requests for proposals (RFPs), contracts, purchase orders, and other procurement documents. A Sample Buy American Language is posted on the School Nutrition Website as an attachment to the May 24, 2016 memo titled: “Compliance with and Enforcement of the Buy American Provision. • (click)Check the products when delivered. To determine if an item meets the Buy American provision the SFA would need to look at packaging information on food products during deliveries and review delivery invoices/receipts to determine the country of origin. Do not accept products without country of origin documentation or pre-approved exception. • (click) Monitor contractor performance to ensure compliance with all contractual requirements. This includes the compliance with the Buy American provision. Sponsors can also ask their suppliers to provide certification as to the origin of the product. It is recommended that Program sponsors require country of origin on all products and invoices submitted for payment and implement procedures for monitoring the country of origin at the time of delivery.

Exceptions to the Buy American Provision Product is not produced or manufactured in the United States in sufficient and reasonable available quantities or Competitive bids reveal that costs of a United States product are significantly higher Exceptions= documentation must be on file There are two situations which are exceptions to the "Buy American" provision and permit purchases of foreign products and should only be used as a last resort: The Product is not produced or manufactured in the United States in sufficient and reasonable available quantities of a satisfactory quality; or 2. A competitive bids reveal that costs of a United States product are significantly higher than the non-domestic product. Before accepting a non-domestic product, an alternative domestic product which meets program requirements must be considered. In order to use either of these exceptions, program sponsors must keep the documentation justifying the exception on file. This documentation must be available for review by ODE as either part of an administrative review or procurement review.

Buy American Exceptions Justification Domestic food product - exception is considered Quantity to be purchased Domestic substitute(s) meet program need Price of domestic substitute Non-domestic substitution with specifications Price of non-domestic product Domestic substitute availability – quantity ordered Why non-domestic product purchased When an exception is made to the Buy American Provision, the following information or documentation is required: Identify the domestic food product with specifications for which an exception is being considered Quantity to be purchased Is there an identified domestic substitute(s) that meet the meet the program need The price of the identified domestic substitute The identified non-domestic substitute product with specifications The price of the non-domestic product Description of the domestic substitute availability in relation to the quantity ordered Description of why the non-domestic product was purchased This information is kept on file by the Sponsor and must be available for review during administrative reviews.  

SUMMARY A substantial amount of the final purchased product consists of commodities grown domestically Funds from Non-profit food service account comply Methods to comply with the Buy American Provision The Buy American Provision is required of sponsors participating in the NSLP, SBP and USDA Foods Program. In summary, sponsors must ensure that a substantial amount of purchased commercial products consists of commodities grown domestically. The funds used from the non-profit food service account comply with the Buy American provision. Methods to comply with the Buy American Provision were discussed. The resource slide in this presentation provides the link to the webpage with sample language to use in procurement documents The exceptions and documents required to justify the exception were discussed.

Questions If you have any questions regarding this session please contact your assigned specialist.

Resources Buy American Provision ODE CNP May 24, 2016 Memo (includes links to SP-24-2016; Buy American Sample Language; USDA Letter to Industry) The memo cited in this slide may be found on the ODE CNP webpage. The memo includes attachments. The attachment titled SP-24-2016 includes questions and answers, which may be helpful as you implement the Buy American provision.

In accordance with Federal civil rights law and U. S In accordance with Federal civil rights law and U.S. Department of Agriculture (USDA) civil rights regulations and policies, the USDA, its Agencies, offices, and employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, sex, disability, age, or reprisal or retaliation for prior civil rights activity in any program or activity conducted or funded by USDA. Persons with disabilities who require alternative means of communication for program information (e.g. Braille, large print, audiotape, American Sign Language, etc.), should contact the Agency (State or local) where they applied for benefits. Individuals who are deaf, hard of hearing or have speech disabilities may contact USDA through the Federal Relay Service at (800) 877-8339. Additionally, program information may be made available in languages other than English. To file a program complaint of discrimination, complete the USDA Program Discrimination Complaint Form, (AD-3027) found online at: http://www.ascr.usda.gov/complaint_filing_cust.html, and at any USDA office, or write a letter addressed to USDA and provide in the letter all of the information requested in the form. To request a copy of the complaint form, call (866) 632-9992. Submit your completed form or letter to USDA by: (1) mail: U.S. Department of Agriculture Office of the Assistant Secretary for Civil Rights 1400 Independence Avenue, SW Washington, D.C. 20250-9410; (2) fax: (202) 690-7442; or (3) email: program.intake@usda.gov This institution is an equal opportunity provider.” Thank you for participating in ___Buy American______ Training for ODE Child Nutrition Programs. If you have any questions please contact your assigned Child Nutrition Specialist. We greatly appreciate the work that you do to fuel Oregon’s future.