International Contracting - Berry Amendment (10 U.S.C. 2533a)

The Berry Amendment was originally passed by Congress in 1941 to promote the purchase of certain U.S. goods. The Amendment was included in subsequent defense appropriations act until it was made permanent in Fiscal Year 1994 by section 8005 of Public Law 103-139. It was subsequently codified as 10 U.S.C. 2533a in 2002 by section 832 of Public Law 107-107. On October 17, 2006, the President signed the National Defense Authorization Act for Fiscal Year 2007 (Public Law 109-364). Under section 842 of this Act, the restrictions relating to specialty metals were deleted from 10 U.S.C. 2533a and placed in 10 U.S.C. 2533b.

The Berry Amendment is implemented through the Defense Federal Acquisition Regulation Supplement (DFARS) at 225.7002.

Yes. FMS funding and other Federal agencies' funding is being made available to DoD and therefore falls under the Berry Amendment. The Berry Amendment also applies when DoD provides funding to another agency to buy items. The other Federal agency must incorporate and enforce the Berry Amendment in contracts awarded on behalf of DoD. Violation of the Berry Amendment would generally also result in the violation of the Anti-Deficiency Act (31 U.S.C. 1341).

Yes, there are a number of exceptions provided by the law. When using any of the exceptions, the contracting officer must ensure that the appropriate determination or documentation is in the contract file and the normally required DFARS clauses are omitted from the solicitation and contract. See DFARS 225.7002-2 Exceptions.

The Buy American Statute and Berry Amendment are two separate laws implemented by two different regulations. They differ with regard to their scope, threshold, exceptions, and waiver authority.

For DoD, additional implementation guidance is in the Defense Federal Acquisition Regulation Supplement (DFARS) at subparts 225.1 and 225.2.

For a more in depth analysis of the Buy American Statute and the Berry Amendment, review the Defense Acquisition University’s continuous learning modules: CLC 027 Buy American Statute and CLC 125 Berry Amendment.

The application of the Berry Amendment is determined for any procurement on a case-by-case basis by the contracting officer.

DNADs under the Berry Amendment are made only if the USD(A&S), a Secretary of a Military Department, or the Director of the Defense Logistics Agency (DLA) 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. An analysis of alternatives must be completed as part of this review, and a determination must be made that none of the possible alternatives can meet the DoD requirements.

As part of your market research, you should publicly advertise a "sources sought notification" in (SAM beta.GOV) to determine if the product or good you are procuring is available domestically in sufficient quality and quantity. See FAR Part 5 for Synopsizing Contracting Actions. You should also consult the U.S. trade associations representing that product regarding the availability of U.S. sources.

Talk to the customer to determine if there are any other alternative products available domestically that would meet the requirement.

If no alternative products are determined to be acceptable, and you have evidence that the product or component of the product you are procuring is not available domestically you may begin the process of requesting a domestic non-availability determination (DNAD), pursuant to DFARS 225.7002-2(b). Simultaneously, you should proceed with advertising your solicitation. If you are uncertain whether or not the product or its components are available domestically, you should wait until you receive all the proposals for the procurement in the event that a domestic source is available that you may not have known about. You can proceed with requesting a DNAD only when you are certain that no domestic sources are available.

In accordance with DFARS 225.7002-2(b), the USD(A&S), a Secretary of a Military Department, or the Director of the Defense Logistics Agency (DLA), without power of re-delegation, have authority to approve DNAD Determination and Findings for their respective requirements. The USD(A&S) serves as the approval authority for the other defense agencies. Each DNAD approval authority has its own procedures for this action and you should contact the appropriate policy office for guidance.

Procedures, Guidance, and Information (PGI) 225.7002-2 Exceptions establishes the process that should be used for requesting a Determination of Non-Availability from the USD(A&S).

Your request for determination shall include:

• Documentation of your market research and results
• An analysis of alternatives that would not require a domestic nonavailability determination; and
• A written certification by the requiring activity, with specificity, why such alternatives are unacceptable
• A corrective action plan for obtaining compliant items and your schedule for attaining same

Yes. The Berry Amendment applies to all funds "made available" to the Defense Department. Also, appropriated funds are obligated for FMS procurements although expenditures are usually funds provided by the customer country. Therefore, FMS procurements must comply with the Berry Amendment restrictions.

• Notify your legal counsel immediately. Depending on whether this is occurring pre-award or post-award can effect the options available to DoD.
• Verify that the item is subject to Berry restriction – ask the contractor to confirm place of origin. You are not authorized to accept non-compliant Berry supplies.
• Suspend Government acceptance of non- compliant items IAW FAR 46.407 Nonconforming supplies or services.
• Ensure DFAS suspends payment on non- compliant supplies pending resolution.
• Require the contractor to replace the non-compliant parts with Berry compliant ones.
• If no domestic item can be found, the contractor will have to determine if a substitute domestic item is available.
• Present customer with substitute item(s) options for acceptability.
• If justified, prepare waiver request for signature prior to acceptance.

Under most circumstances, the item probably does not meet the requirements of the Berry Amendment. End items, components and materials must be wholly grown, reprocessed, reused, or produced in the United States.

You should contact the Government contracting officer responsible for this procurement. He/she may know whether there are domestic suppliers for this material based on their market research. He/she may be aware of an already existing determination of non-availability for this fiber or material, however such determinations are rare. If they agree that there are no domestic suppliers, the contracting officer may ask you to proceed with submitting a proposal for a domestic non-availability waiver for this procurement.

You should notify the contracting officer responsible for this procurement. If the clause at 252.225-7012 Preference for Certain Domestic Commodities is in the solicitation/contract, the contracting Officer will investigate whether or not the contractor is complying with the contract.

Yes, because under DFARS 225.7002-2(n) there is an exception to the Berry Amendment for chemical warfare protective clothing from countries identified as "qualifying countries" in DFARS 225.003 Definitions. However, anything to be purchases incidental to the chemical warfare protective clothing is not exempt and therefore subject to the Berry Amendment. For example, if your chemical suits or masks are provided in a canvas bag (or any other material defined as a textile), the materials for the bag must be from a US source, since there is no exception beyond the chemical warfare protective clothing itself.

DoD has negotiated Reciprocal Defense Procurement Memorandums of Understanding with 27 countries. These countries are qualifying countries. These agreements promote rationalization, standardization, and interoperability of defense equipment with allies and friendly governments. Each country waives their respective "buy national" restrictions and customs duties, and allows the other's contractors to participate, on a competitive basis, in their defense procurements without unfair discrimination.

It depends. If the food product is not fish, shellfish or seafood and is manufactured or processed in the U.S., it is compliant with the Berry Amendment regardless of where the raw materials were grown or produced as long as the U.S. company is operating in the U.S.

No, this does not comply with the Berry Amendment. All fish, shellfish or seafood contained in food, even if it was manufactured or processed in the US, MUST come from a US-flag vessel or be obtained from fishing within the United States; AND any processing or manufacturing of the fish, shellfish or seafood must be performed on a US-flag vessel or in the United States. However, non-seafood food items that are used in the manufacture of fish products (ie. bread crumbs, spices, etc) are not subject to the restrictions that apply to seafood and can be produced outside the United States.