The Berry Amendment
The Berry Amendment requires that any funding appropriated or otherwise made available to the Department of Defense (DoD) may not be used for the procurement of any of the following items, either as end products or components, unless the items have been grown, reprocessed, reused or produced in the United States. This applies to prime contractors and subcontractors.
In February 2014, DoD issued a class deviation for the acquisition of the American Flag. Effective immediately, when using funds appropriated under the Department of Defense Appropriations Act of 2014 (Public Law 113-76, Division C), contracting officers shall incorporate the following clause in all solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that are for the acquisition of American flags and have an estimated value that exceeds the simplified acquisition threshold, unless the flags are for commisary resale. This class deviation implements section 8123 of the Department of Defense Appropriations Act of 2014:
Acquisition of the American Flag (Class Deviation 2014-00010) (FEB 2014)
"United States,", as used in this clause, means the 50 States, the District of Columbia, and outlying areas.
(b) If the Contractor is required to deliver under this contract one or more American flags (Federal Supply Class 8345), such flag(s), including the materials and components thereof, shall be manufactured in the United States, consistent with the requirements at 10 U.S.C. 2533a (commonly known as the "Berry Amendment:);
(c) This clause does not apply to the acquisition of any end items or components related to flying or displaying the flag (e.g., flagpoles and accessories).
DoD advises that the Berry Amendment is case-specific. If a domestic industry interest bids on a clothing or textile contract, and the interested party has questions as to whether or not his/her material is Berry compliant, the interested party should consult with the contracting officer in charge of that contract to determine how Berry affects that procurement. Whether the Berry Amendment applies is determined for any procurement on a case-by-case basis by the contracting officer.
Office of Textiles and Apparel (OTEXA)
U.S. Department of Commerce
Washington, DC 20230
Phone: (202) 482-5078 | Fax: (202) 482-2331