The Berry Amendment
Recent DFARS Changes
- On June 29, 2012 DoD published in the Federal Register an interim rule to mplement sections 368 and 821 of the NDAA for FY 2012 (Pub. L. 112-81). Section 368 requires that contracts for tents or other temporary structures awarded by or on behalf of DoD shall provide best value to the Government. Section 821 modifies 10 U.S.C. 2533a (the “Berry Amendment”) to extend the restriction requiring acquisition of domestic tents to include the structural components of tents, applicable to acquisitions that exceed the simplified acquisition threshold.
- On August 30, 2010, the Department of Defense (DoD) published in the Federal Register a final rule amending the Federal Acquisition Regulation (FAR) to implement section 807 of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005. Section 807 requires an adjustment every five (5) years of acquisition-related thresholds for inflation using the Consumer Price Index. The simplified acquisition threshold (SAT), at FAR 2.101, is raised from $100,000 to $150,000. The effective date for these rule changes is October 1, 2010.
- On June 21, 2010, the Department of Defense (DoD) published in the Federal Register a final rule, with changes, adopting the interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement determinations made by the Under Secretary of Defense for Acquisition, Technology, and Logistics ((USD(AT&L)) with regard to the acquisitions of items containing para-aramid fibers and yarns manufactured in a foreign country. The determination authorizes DoD to acquire articles containing para-aramid fibers and yarns manufactured in foreign countries that have entered into a reciprocal defense procurement memorandum of understanding (MOU) with the United States. The effective date for this rule is June 21, 2010.
DoD received comments on the interim rule, published in the Federal Register on December 18, 2008, from nine respondents. Based on public comments, changes were made to the interim rule. The differences between the interim rule and this final rule include: (1) restricting the authority to require para-aramid fibers and yarns manufactured in a qualifying country 2009, which contains a five year review requirement; and (2) amplifying the definition of "qualifying country" to make clear that these are countries with which DoD has negotiated reciprocal defense procurement memoranda of understanding. These countries include Australia, Austria, Belgium, Canada, Denmark, Egypt, Finland, France, Germany, Greece, Israel, Italy, Luxembourg, the Netherlands, Norway, Portugal, Spain, Sweden, Switzerland, Turkey, and the United Kingdom.
- On September 15, 2008, the Department of Defense published in the Federal Register an interim rule with request for comments, on acquisitions in support of operations in Iraq or Afghanistan, Defense Acquisition Requlations System. The interim rule amending the DFARS is to implement, amongst other things, Sections 886 of the National Defense Authorization Act for FY 2008. Section 886 of the National Defense Authorization Act for FY 2008 provides authority for DoD to limit competition when acquiring products or services in support of military operations or stability operations in Iraq or Afghanistan (including security, transition, reconstructionk and humanitarian relief activities) under certain circumstances. In those circumstances, and when the required determination is made, Section 886 authorizes DoD to 1) limit competition to products or services from Iraq or Aghanistan: 2) restrict an acquisition to a particular source or sources from Iraq or Afghanistan; and provide a preference for products or services from Iraq or Afghanistan. DoD must ensure that 1) full and open competition is obtained to the maximum extent possible; 2) no responsible U.S. manufacturer is excluded from competing for such acquisitions; and 3) products manufactured in the United States are not excluded from the competition. See Interim Rules: Acquisitions in Support of Operations in Iraq or Afghanistan (DFARS Case 2008-2002) for the DFARS changes made by this rule, and for the text added to PGI.
- On August 12, 2008, the Department of Defense published in the Federal Register an interim rule with request for comments, amending the Defense Federal Acquisition Regulation Supplement to implement section 827 of the National Defense Authorization Act for FY 2008. Section 827 amended 10 U.S.C. 2410n to require the use of competitive procedures in the acqusition of items for which Federal Prison Industries (FPI) has a significant market share. Section 827 provides that FPI shall be treated as having a significant share of the market for a product is DoD, in consultation with the Office of Procurement Policy, determines that the FPI share of the DoD market for the category of products including that product is greater than 5 percent. NOTE: so far, DoD has NOT determined that FPI has a significant market share of items in the clothing and textile Federal Supply Classes (FSCs), i.e., textiles; leather; furs; apparel; shoe findings; tents & flags; and clothing & individual equipment. See Interim Rules: Competition Requirements for Purchases from Federal Prison Industries (DFARS Case 2008-D015) for the DFARS changes made by this rule, and for the text added to PGI.
- On August 2, 2007, a notice was published in the Federal Register to finalize, without change, the interim rule amending DFARS to implement Sec. 833(a) and Sec. 833(b) of the National Defense Authorization Act for Fiscal Year 2006. Sec. 833(a) requires the posting of a notice on the FedBizOpps website when certain exceptions to domestic source requirements apply to an acquisition. These include a qualifying country exception used for chemical warfare protective clothing or a determination of non-availability for an item of clothing, or an item containing covered fabric, fiber, or yarn.
- Sec. 833(b) expands the foreign source restrictions applicable to the acquisition of clothing to also include leather, and clothing materials and components like zippers, buttons, and steel toes in boots, items normally associated with clothing. Sensors, electronics, and other items not normally associated with clothing remain outside the scope of the Berry Amendment.
- Sec. 832 of the National Defense Authorization Act of 2006 provides that the Secretary of Defense shall ensure that each member of the defense acquisition workforce who participates personally and substantially in acquisition of textiles on a regular basis receives training during Fiscal Year 2006 on the requirements of the Berry Amendment, and the regulations implementing the Berry Amendment. This training – Continuous Learning Course (CLC) 125 is available at the Defense Acquisition University
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