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Two Exceptions to the Buy American Provision

There are two situations which are exceptions to the Buy American provision and permit purchases of foreign products:

  1. Availability: when the product is not produced or manufactured in the U.S. in sufficient and reasonable available quantities of a satisfactory quality.
  2. Cost: when responses to solicitations reveal that the cost of a U.S. product is significantly higher than the cost of a comparable foreign product.

Before utilizing an exception, alternatives to purchasing non-domestic food products should be considered. For example, SFAs should ask:

  • Are there other domestic sources for this product?
  • Is there a domestic product that could be easily substituted, if the non-domestic product is less expensive (e.g. substitute domestic pears for non-domestic apples)?
  • Am I soliciting bids for this product at the best time of year? If I contracted earlier or later in the season, would prices and/or availability change?

Again, although exceptions to the Buy American provision exist, they are to be used as a last resort. These exceptions, as originally outlined in the 2012 guidance, are:

  • The product is not produced or manufactured in the U.S. in sufficient and reasonable available quantities of a satisfactory quality; or
  • Competitive bids reveal the costs of a U.S. product are significantly higher than the non-domestic product. If a SFA is using one of the above exceptions, there is no requirement to request a waiver in order to purchase a non-domestic product. SFAs must, however, keep documentation justifying the exception(s).

It should be noted that FNS has not defined a dollar amount or percentage triggering this exception.