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Update to Buy American Provision


On April 25, 2024, the U.S. Department of Agriculture (USDA) published the final rule, Child Nutrition Program: Meal Patterns Consistent With the 2020-2025 Dietary Guidelines for Americans 89 Federal Registration (FR) 31962. Among other provisions, this rule finalizes regulations that strengthen the Buy American provision in the School Nutrition Programs (SNP).

The Buy American provision requires school food authorities to purchase, to the maximum extent practicable, domestic commodities or products. Updates to the Buy American Provision are effective July 1, 2024, and include the following:

Limited Exceptions to Buy American Requirement

Regulations provide two limited exceptions when non-domestic food may be purchased if:

  1. The product is listed on the Federal Acquisitions Regulations Nonavailable articles list found at 48 Code of Federal Regulations (CFR), Section 25.104 Nonavailable articles list and/or is not produced or manufactured in the U.S. in sufficient and reasonably available quantities of a satisfactory quality.

  2. Competitive bids reveal the costs of a domestic product are significantly higher than the non-domestic product.

The California Food and Agriculture Code 58596.3, requires school food authorities (SFAs) that receive $1 million or more annually in federal SNP reimbursement to solicit bids for the purchase of an agricultural food product to include in their solicitation for bids and contracts that only the purchase of agricultural food products grown, packed, or processed domestically is authorized, unless any of the following applies:

(1) The bid or price of the nondomestic agricultural food product is more than 25 percent lower than the bid or price of the domestic agricultural food product.

(2) The quality of the domestic agricultural food product is inferior to the quality of the agricultural food product grown, packed, or produced nondomestically.

(3) The agricultural food product is not produced or manufactured domestically in sufficient and reasonably available quantities of a satisfactory quality to meet the needs of the Local Agency.

Note: Federal regulations do not define significantly higher. SFAs that receive less than $1 million in federal SNP reimbursement annually, may define significantly higher in their procurement procedures.

Cap on Non-Domestic Food Purchases

The USDA established new thresholds for Buy American Exceptions as follows:

  • Beginning in School Year (SY) 2025–26, the non-domestic food purchases cap will be 10 percent.
  • Beginning in SY 2028–29, the non-domestic food purchases cap will be 8 percent.
  • Beginning in SY 2031–32, the non-domestic food purchases cap will be 5 percent.

Note: Items listed on the Federal Acquisitions Regulations Nonavailable articles list must be counted toward the cap on non-domestic purchases when it goes into effect.

Exception Documentation and Reporting Requirements

Regulations require SFAs to maintain documentation to demonstrate the use of exceptions. Items found on the Federal Acquisitions Regulations Nonavailable articles list are exempt from the documentation requirement, but these items must be counted toward the cap on non-domestic purchases when that goes into effect.

Note: The USDA developed a Buy American Standard Tracking Form for Local Agencies to use to track use of exceptions and the cap on non-domestic food purchases. The Nutrition Services Division (NSD) encourages use of the Buy American Tracking Form to document the use of exceptions and demonstrate compliance with the non-domestic cap. The Buy American Standard Tracking Form is available in the Child Nutrition Information and Payment System (CNIPS) Download Forms; Form ID PRU-10.

Procurement Procedures, Solicitations, and Contracts

Regulations require that SFAs include Buy American requirements provisions in all procurement procedures, solicitations, and contracts. The NSD has sample procurement procedures available for use. These procedures include the Buy American provisions and justification requirements, and are available in CNIPS Download Forms, Form ID PRU 08b Procurement Sample.

Resources

The USDA policy memo SP 23-2024, Buy American Provisions Related to the Final Rule Titled, Child Nutrition Programs: Meal Patterns Consistent With the 2020-2025 Dietary Guidelines for Americans, and Buy American Standard Tracking Form can be located that the USDA Food and Nutrition Services Documents and Resources web page at FNS Documents & Resources External link opens in new window or tab..

A California Department of Education (CDE) Management Bulletin regarding Buy American requirements is forthcoming.

Contact Information

For questions related to the limited exceptions to Buy American requirement, cap on non-domestic food purchases, and exception documentation and reporting requirements, please reach out to email the Nutrition Services Division at NSDBuyAmericanProvision@cde.ca.gov.

For questions about Buy American procurement procedures, solicitations, and contract processes, please reach out to NSDProcurementReview@cde.ca.gov.

Questions:   Nutrition Services Division | 800-952-5609
Last Reviewed: Friday, June 21, 2024
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