Understanding how the Berry Amendment Applies During Covid-19

By Jacquie Spearman, PTAC Advisor at UNC-Charlotte

Across America, we are witnessing our first responders and health care providers struggling to secure medical-grade PPE (Personal Protective Equipment). In response to this need, many of our businesses are re-purposing and retooling their factories to produce medical equipment, supplies, and PPE to battle this virus. Many of our federal agencies are leading the effort in working together to supply the needs across the country. A quick search for PPE on beta.sam.gov for contract opportunities will garner many different agencies needing various items. How does the Berry Amendment apply to these opportunities?

What is the Berry Amendment?

In 1941, Congress passed the DoD Appropriations Act to protect the domestic industrial base during time of war, it was later renamed and referred to as the Berry Amendment (10 U.S.C. 2533a). This meant that restrictions were placed that required the Department of Defense to give preference in procurement to domestically produced, manufactured, or home-grown products. Over the years it has undergone revisions with the current regulations being implemented through the Defense Federal Acquisition.

Regulation Supplement (DFARS) at 225.7002 https://www.acq.osd.mil/dpap/dars/dfars/html/current/225_70.htm. The Berry Amendment mandates that “funds appropriated or otherwise available to” the DOD cannot be used to procure food, clothing, tents, textiles, and hand tools unless those items are “grown, reprocessed, reused, or produced in the United States.” You can find a detailed list of what is covered here http://34.232.160.87/Berry_Amendment/covered_items.htm.

If a vendor will be supplying to the DoD they will have to be compliant, however, there are a few exceptions. Most notably is if the government contract value is at or below the Simplified Acquisition Threshold (SAT) which is $250,000 https://www.federalregister.gov/documents/2019/10/02/2019-20796/federal-acquisition-regulation-increased-micro-purchase-and-simplified-acquisition-thresholds, an exception can be applied. If you exceed the threshold, the vendor will require a waiver to be exempt. In the list of exceptions to the Berry Amendment https://www.acq.osd.mil/dpap/dars/dfars/html/current/225_70.htm, also includes if the products cannot be acquired when needed in a satisfactory quality and sufficient quantity at U.S. market prices. During this Covid-19 Disaster, the requests are largely for gowns, gloves, face masks, goggles, face shields, and N95 respirators. In general, the amendment means that if the vendor provides or produces any type of personal protective equipment (PPE) for the Department of Defense, it must be compliant. The contracting officer must ensure that the appropriate determination and documentation are applied for the purchase. The contracting officer determines case by case on the application of the Berry Amendment. The vendor should always check the terms of the order to determine if the product complies with the requirements. If it does not, the vendor should alert the agency in writing the details (country of origin) for the PPE products being ordered. The vendor may need to request a waiver for the products. There are serious repercussions for misleading the federal government, so it would be wise to disclose possible conflicts before executing an order. Your local PTAC Advisor can help guide you in interpreting the requirements under The Berry Amendment.

Information about the Kissell Amendment
https://www.dhs.gov/sites/default/files/publications/DMO%20-%20OCPO%20-%20DHS%20Compliance%20with%20the%20Buy%20American%20Act%20and%20Kissell%20Amendment.pdf

https://fas.org/sgp/crs/natsec/IF10609.pdf

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