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THE BERRY AMENDMENT and the Newest Rules on Specialty Metals A Brief Overview Presented By: Jessica A. VanLeeuwen June 2008. Opening Remarks. Rules apply OCONUS but with many exceptions Rules are detailed & challenging New Specialty Metal provisions are helpful but complex
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Newest Rules on Specialty Metals
A Brief Overview
Jessica A. VanLeeuwen
Rules apply OCONUS but with many exceptions
Rules are detailed & challenging
New Specialty Metal provisions are helpful but complex
This is a overview
Statutory requirement (10 U.S.C. 2533a):
Restricts the Department of Defense
from using funds appropriated or otherwise available to DoD
for procurement of specific items
if not grown, reprocessed, reused, or produced in the U.S.
Berry prohibits the purchase of certain items with “….funds appropriated or otherwise available to the Department….”
It only applies to DoD, no other Federal Agencies
It applies if DoD sends funds to another Federal Agency
FMS funds are included
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
Clothingand the materials and components thereof, …
Cotton and Other Natural Fiber Products
Woven Silk or Woven Silk Blends
Spun Silk Yarn for Cartridge Cloth
Synthetic Fabric or Coated Synthetic Fabric
Wool (including in manufactured articles)
Any Item of Individual Equipment containing any of the restricted fibers, fabrics, yarns, or materials
Hand or Measuring Tools
Specialty Metals shall be melted or produced in United States or outlying areas (“the US”).
Potential for confusion
Berry only applies to DoD / BAA applies to all Fed agencies
Berry covers specific items / BAA covers all supply purchases.
Berry does not provide a commercial item exception* / BAA does
Berry applies in addition to Buy American Act
Berry must be flowed to all sub-tier suppliers
Berry is more restrictive than the Buy American Act:
Requires 100% domestic content / BAA requires greater than 50% domestic component cost
No Qualifying Country exception*, except for chemical warfare protective clothing, and para-aramid fibers from the Netherlands
No contractor “certification” required as with Buy American Act
Vendor may be in compliance with Buy American Act yet be in violation of Berry Amendment
Has arisen most often at sub level in programs where flow-down required:
Aircraft; missile and space systems; ships, tank-auto; weapons; ammo (DFARs 225.7002-2)
See also DFARS 252.244-7000 (subcontracts for commercial items)
It’s still the Prime’s problem
Prime didn’t flow down clause to subs
Prime contract used confusing or inappropriate language
Prime contract omitted required language – Christian Doctrine?
(GAO reported 60% of contracts had “problems”)
Prime not taking ownership (overseeing) sub compliance – getting a cert is not enough
General lack of understanding of the requirement
Combat Operations - procurements made outside the US to support operations
Contingency Operations -only acquisitions of food, specialty metals, hand/measuring tools
Emergency Acquisitions –by activities located OCONUS for personnel of those activities
Urgent & Compelling Acquisitions -for food or hand or measuring tools, not clothing, textiles, or related items
Acquisitions of vessels in foreign Waters
Commissary Retail items
Qualifying Country – certain acquisitions in furtherance of an agreement with a qualifying country
Commercial off the Shelf (COTS)
Market Basket Exemption –applies to commercial Item fasteners
2% Minimum threshold –“de minimis” exception permits DoD to accept delivery of items if weight of non-compliant specialty metal does not exceed 2% of the total weight of all specialty metal in the item
Nat’l Security Waiver -USD (AT&L) may approve acquisition of End Items (aircraft, ships, etc.) if necessary to US national security interests
Qualifying Country -Acquisitions of End Items or their components from a qualifying country. Not specialty metal itself as an end product.
For Berry (other than Specialty Metals), applies only to:
Chemical Warfare Protective Clothing
Para-Aramid fibers and yarns from the Netherlands
For Specialty Metals, applies to:
Acquisitions of the following items, or their components: aircraft, missile or space system, tank or automotive item, weapon system, or ammunition.
Not specialty metal as an end product
DoD has entered into reciprocal defense procurement memoranda of understanding with the following countries. They are treated equally with “domestic” sources for items containing specialty metals and some Berry restrictions (see DFARS 225.872-1):
Australia France Netherlands
Austria Germany Norway
Belgium Greece Portugal
Canada Israel Spain
Denmark Italy Sweden
Egypt Luxembourg Switzerland
Finland Portugal Turkey
Reciprocal agreement that make inapplicable the “buy national” laws do not affect the application of the Berry Amendment
Domestic Specialty Metals clause independent from the “qualifying country” under 225.872
FY2007 NDAA “get well” provision
FY08 NDAA introduces new Specialty Metal Exceptions
DoD Class Deviation 2008-O0002 implements the FY08 changes with specific authority for PCOs to apply a single standard to all contracts.
If 2008-O0002 is not applied by PCO, may need to administer 5 different sets of restrictions at a single contractor location.