1. 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.

2. 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 ).
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 ). 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.

3. 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 ; Sample Buy American Provision Language; USDA Letter to Industry

4. 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 ; Sample Buy American Provision Language; USDA Letter to Industry

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

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

11. Resources Buy American Provision
ODE CNP May 24, 2016 Memo (includes links to SP ; 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 includes questions and answers, which may be helpful as you implement the Buy American provision.

12. 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) 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: 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) Submit your completed form or letter to USDA by: (1) mail: U.S. Department of Agriculture Office of the Assistant Secretary for Civil Rights Independence Avenue, SW Washington, D.C ; (2) fax: (202) ; or (3) 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.