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Buy American Provision
Introduction
The Buy American provision was added to the National School Lunch Act (NSLA) by Section 104(d) of the William F. Goodling Child Nutrition Reauthorization Act of 1998 (Public Law 105-336). Section 12(n) to the NSLA (42 USC 1760(n)), requiring School Food Authorities (SFAs) to purchase, to the maximum extent practicable, domestic commodity or product. The Buy American Provision supports the mission of Child Nutrition Programs (CNP), which is to serve children nutritious meals in schools and support American agriculture. Using food products from local sources supports local farmers and continues to provide healthy choices for children in the school meal programs while supporting the local economy. The Buy American Provision also supports SFAs working with local, or small, minority, and women-owned businesses as required by Title 2, Code of Federal Regulations (2 CFR), Section 200.321. SFAs are encouraged to purchase food products from local and regional sources when expanding farm to school efforts.
The Buy American provision (7 CFR Part 210.21(d)) is one of the procurement standards SFAs must comply with when purchasing commercial food products served in the school meals programs. All procurement transactions for food products on the commercial market must comply with the Buy American Provision Title 7, Code of Federal Regulations (7 CFR, sections 210.21(d) and 220.16(d)), whether food products are purchased by SFAs, or entities that are purchasing on their behalf. Some examples of entities purchasing on the behalf of SFAs include food service management companies, group purchasing organizations, cooperatives, agents, third-party services, and interagency or intergovernmental agreements.
Buy American Provision Requirements
The NSLA defines domestic commodity or product 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. 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.
To ensure food products meet the Buy American Provision requirements, the U.S. Department of Agriculture (USDA) Food and Nutrition Service (FNS) requires SFAs to include the Buy American Provision requirement in documented procurement procedures, all School Nutrition Programs (SNP) procurement solicitations and contracts (including domestic requirements in bid specifications, contract monitoring, and verifying cost and availability of domestic and nondomestic foods), and retain records for documenting any exceptions. All responsive and responsible bidders must acknowledge and agree to comply with the Buy American Provision requirements.
SFAs that receive any federal reimbursement through the SNP are required to adhere to the Buy American Provision by purchasing to the maximum extent practicable, domestic commodity, or product. This includes SNPs that also operate a Child and Adult Care Food Program or a Summer Food Service Program.
USDA Foods Comply with Buy American Provision Requirements
SFAs are encouraged to maximize their use of USDA Foods, which comply with Buy American Provision requirements. USDA Foods are domestic, purchased from 100 percent domestic origin sources, which is a long-standing USDA policy based on Section 32 of the Agriculture Act of 1935 (Public Law 74-320 as amended; 7 U.S.C.612c). However, processed end products that contain USDA Foods need to meet the minimum requirement of 51 percent domestic, by weight or volume.
Limited Exceptions to the Buy American Provision and Compliance
It is each SFA's responsibility to ensure USDA dollars are spent on American grown products. SFAs must track non-domestic product(s) purchased which do not comply with the Buy American Provision using the Buy American Justification Form (michigan.gov). This form must be retained by the SFA and will be reviewed by MDE during the on-site portion of the Administrative Review. In addition, as part of the Procurement Review, MDE will review solicitations, contracts, invoices and/or receipts to ensure compliance with the Buy American provision.
Resources and Policy Memos
Buy American Justification Form (michigan.gov), MDE
Buy American and the Agriculture Improvement Act of 2018, SP 32-2019, USDA, 08/15/2019
Compliance with and Enforcement of the Buy American Provision in the NSLP, SP 38-2017, USDA, 06/30/2017
Buy American Reminder, SP 29-2006, USDA, 08/09/2006
Buy American Fact Sheet, USDA, 05/30/2019
