Q: Our District has been distracted this year with COVID and has not yet updated our procurement documents to reflect recent changes to the new Buy American Provision from the Texas Department of Agriculture. Is this something we need to do?
A: Yes. The Buy American provision, set out in 7 C.F.R. Part 210.21(d), requires participants in the National School Lunch Program and School Breakfast Program to use the nonprofit food service funds, to the maximum extent practical, to buy “domestic commodities or products” for Program meals. As such, new assurances will need to be added to all procurement documents.
A “domestic commodity or product” is defined as one that is either produced in the U.S. or is processed in the U.S. substantially using agricultural commodities that are produced in the U.S., with “substantially” meaning more than 51%.
If not already completed, school districts will need to update their vendor packets to include new certifications required as of August 2020 by the Texas Department of Agriculture. These assurances include certification that the vendor is providing food products that comply with the Buy American provision, that the products meet the definition of “domestic commodities or products,” and that the food products supplied are processed in the United States. Vendors are also required to certify the percentage of U.S. content, by weight or volume, in the food component of processed food products supplied. School district vendors must also provide documentation that demonstrates that its food products comply with the Buy American provision (e.g. data on delivery invoices, receipts and compliant product labels). Finally, food vendors must notify a purchasing school district if a delivery contains non-domestic products so the purchasing school district may approve delivery as an exception to the Buy American provision. The decision to purchase or accept delivery of a non-U.S. product must be made by the purchasing school district, only after determining that the use of a non-domestic food product is appropriate under the circumstances, meaning the location, climate or other limitations prohibit a domestic purchase. Importantly, the determination of appropriateness must be made on an individual, case-by-case basis; blanket approval of exceptions is prohibited.
The Texas Department of Agriculture has provided guidance regarding compliance with the Buy American Provision, which is available here. Please contact your local school attorney if you seek additional information or have specific questions regarding compliance with applicable laws, rules, and regulations for procurement.