NCMA Berry Amendment Rex Bragaw

Berry Amendment Impact on Contracting: 

Berry Amendment Impact on Contracting NCMA - Central Virginia Chapter Luncheon 29 March 2007 Rex Bragaw

Berry Amendment: 

Section 2533a of title 10, United States Code Public Law 107-107 NOT the Buy American Act Purpose was to protect the Defense Industrial Base of the United States Berry Amendment

Berry AmendmentWhat Does It Do?: 

Berry Amendment What Does It Do? A statutory requirement that restricts the Department of Defense from using funds appropriated or otherwise available to DoD for procurement of: “food, clothing, tents/ tarpaulins/covers, cotton and other natural fiber products, woven silk or woven silk blends, spun silk yarn for cartridge cloth, synthetic fabric or coated synthetic fabric, canvas products, or wool (including in manufactured articles), any item of individual equipment containing any of the restricted fibers or fabrics, or hand or measuring tools,,,” that are not grown, reprocessed, reused, or produced in the U.S.

Berry Amendment Restrictions - DFAR 225.7002-1(a): 

Berry Amendment Restrictions - DFAR 225.7002-1(a) Food Clothing Tents/Tarpaulins/Covers Cotton and Other Natural Fiber Products Woven Silk or Woven Silk Blends Spun Silk Yarn for Cartridge Cloth Synthetic Fabric or Coated Synthetic Fabric Canvas Products Wool (including in manufactured articles) Any Item of Individual Equipment containing textiles Hand or Measuring Tools

Berry Amendment Why Does It Matter? : 

Berry Amendment Why Does It Matter? Prohibits the purchase of certain items with “….funds appropriated or otherwise available to the Department….” It only applies to funds appropriated or otherwise available to DoD, no other Federal Agencies If you send funds to another Federal Agency, the Berry Amendment still applies to our funds It is a violation of the Berry Amendment if DoD pays for equipment that is non-compliant. It may also be a violation of the Anti-Deficiency Act (31 U.S.C. 1341) which provides for: - Fines up to $5000.00 - Imprisonment up to 2 years (31 U.S.C. 1350) - Adverse personnel actions

Berry AmendmentDFAR Provisions : 

Berry Amendment DFAR Provisions Prescribed at DFARS 225.7002, “Restrictions on food, clothing, fabrics, and hand or measuring tools” Implemented via DFARS clauses 252.225-7012 and 252.225-7015 Also see PGI 225.7002

Berry AmendmentGeneral Rule : 

Berry Amendment General Rule Applies to both End products and Components Requires items to be grown, reprocessed, reused, produced in the United States.

Berry Amendment FY 2006 Legislative Changes : 

Berry Amendment FY 2006 Legislative Changes Section 832 – Training of acquisition workforce for acquisition workforce substantially involved in buying textiles Section 833 (a) – FedBizOps notice of certain waivers/exceptions Applies only to textiles Section 833 (b) – “Materials and components” of clothing Expands coverage of Berry to zippers, steel toes in boots, ….etc. normally part of clothing

Berry Amendment vs.Buy American Act : 

Berry Amendment vs. Buy American Act Potential for much confusion Berry Amendment only applies to DoD Federal Supply Schedules may not meet requirements Berry Amendment does not provide a commercial item exception Berry applies in addition to Buy American Act Berry is more restrictive than the Buy American Act No “greater than 50% domestic component cost” allowance in Berry No Qualifying Country exception, except for chemical warfare protective clothing and para-aramid fibers from the Netherlands, in Berry No 50% proposal evaluation cost factor in Berry Vendor may be in compliance with Buy American Act yet be in violation of Berry Amendment No contractor “certification” required such as with Buy American Act – requirements may be overlooked

Berry AmendmentPre-Award : 

Berry Amendment Pre-Award Pre-award actions to minimize potential for violations – Avoid Non-compliance later Consider the application of Berry for every procurement Use clauses as prescribed at 225.7002-3 Pre-proposal conference discussion item Potential pre-award survey interest item Negotiation discussion point Consider flow down requirement Federal Supply Schedule orders DoD ordering activity must confirm item meets Berry requirements Vendor confirmation placed in delivery order file

Berry AmendmentPost Award : 

Berry Amendment Post Award Post-award actions to minimize potential for violations Be proactive where appropriate Highlight compliance at post-award conferences Consider ongoing DCMA assistance/emphasis IAW FAR 42.302(a)(50) to ensure contractor purchasing system/inventory practices maintain ability to implement domestic source restrictions Sources Sought in FEDBIZOPS Market Research, Department of Commerce Alternatives? Conditional Acceptance and Withhold Payment?

Berry AmendmentClothing Requirements : 

Berry Amendment Clothing Requirements Prior to Friday, January 6, 2006, the Berry Amendment (10 U.S.C. 2533a) provided that the Department of Defense could not buy an article or item of "clothing" that was not grown, reprocessed, reused, or produced in the United States. On January 6, 2006, President Bush signed into law the National Defense Authorization Act for Fiscal Year 2006. Section 833 of the Act added language to 10 U.S.C. 2533a stating that the restriction applies to clothing ''and the materials and components thereof, other than sensors, electronics*, or other items added to, and not normally associated with, clothing (and the materials and components thereof)." *this exception for electronics only applies to clothing with electronics

Berry Amendment SAT Exception : 

Berry Amendment SAT Exception Simplified Acquisition Threshold Currently $100,000.00, BUT Higher thresholds apply to Contingency Operations Must be a single, one time buy No splitting of requirements This exception cannot be used by our sub-tier suppliers—only applies for DoD buyer’s prime contract. DFARS 225.7002-2 (a)

Berry AmendmentNon-Availability Exception : 

Berry Amendment Non-Availability Exception Acquisitions of any of the items in 225.7002-1(a), if the Secretary concerned determines that items grown, reprocessed, reused, or produced in the United States cannot be acquired as and when needed in a satisfactory quality and sufficient quantity at U.S. market prices. Does not apply to hand or measuring tools DFARS 225.7002-2(b)

Berry AmendmentNon-Available Articles List : 

Berry Amendment Non-Available Articles List Acquisitions of items listed in FAR 25.104(a), unless the items are hand or measuring tools. Some items listed are available Requires market research Removal of article from list DFARS 225.7002-2(c)

Berry AmendmentCombat Operations Exception : 

Berry Amendment Combat Operations Exception As determined by OSD “Procurements made outside the US in support of” Currently Limited to Middle East and Afghanistan Applies to all Berry restricted items/articles DFARS 225.7002-2 (d)

Berry AmendmentContingency Operations Exception : 

Berry Amendment Contingency Operations Exception Consult with DOD/DLA In conjunction with J&A approval of other than competitive procedures on the basis of unusual and compelling urgency in accordance with FAR 6.302-2. Limited to Food and Hand or Measuring Tools This exception cannot be used for textiles or clothing DFARS 225.7002-2 (f)

Berry Amendment Emergency Acquisitions or Urgent and Compelling Exception : 

Berry Amendment Emergency Acquisitions or Urgent and Compelling Exception Emergency (DFARS 225.7002-2 (g)) Consult with DOD knowledgeable experts in Services, DLA and DPAP as needed. Overseas Activities OCONUS personnel If “Urgent and compelling” exception in FAR 6.302-2 was used (DFARS 225.7002-2(f) Only for food or hand or measuring tools, not clothing or textiles

Berry AmendmentVessels in Foreign Waters : 

Berry Amendment Vessels in Foreign Waters Only applicable for buyers on vessels in foreign waters DFARS 225.7002-2 (h)

Berry AmendmentCommissary Resale : 

Berry Amendment Commissary Resale Acquisition of items specifically for commissary resale Defense Commissary Agency Ship’s Stores NAFIS operated by DoD DFARS 225.7002-2 (i)

Berry AmendmentQualifying Country Exception : 

Berry Amendment Qualifying Country Exception Applies only to: CHEMICAL WARFARE PROTECTIVE CLOTHING Acquisitions of chemical warfare protective clothing when the acquisition furthers an agreement with a qualifying country (see 225.872) Para-Aramid fibers and yarns only from the Netherlands (see 225.7002-2(o))

Berry AmendmentNotification Requirements : 

Berry Amendment Notification Requirements TEXTILES/CLOTHING: Additional notification within 7 days of award Required in FEDBIZOPS for DNADS for textiles and when using a qualifying country source for chemical warfare protective clothing

Berry Amendment: 

Berry Amendment So, What Is The Impact On Contracting???????????

Additional Sources: 

Additional Sources http://www.acq.osd.mil/dpap/paic/berryamendmentfaq.htm http://www.acq.osd.mil/dpap/paic/attachments/berry-training-200610.ppt