Understanding and Complying with the Berry Amendment
Government contractors selling certain products to the Department of War (DoW) must comply with a special series of domestic preference rules collectively known as the Berry Amendment. Because these rules apply only to the DoW, they’re lesser-known than other domestic preferences like the Trade Agreements Act and Buy American Act–but compliance is no less important. Here is a high-level overview of what the Berry Amendment is, when it applies, and what it requires.
What is the Berry Amendment?
The Berry Amendment is a federal statute set forth at 10 U.S.C. 4862 and implemented by several DFARS clauses. The Berry Amendment generally prohibits the DoW from buying certain items “either as end products or components, unless the items have been grown, reprocessed, reused, or produced in the United States.”
What Items Does the Berry Amendment Cover?
The items covered by the Berry Amendment are listed both in the statute and DFARS 225.7002-1. These items include, but are not limited to, food, most clothing and clothing components, tents and tarpaulins, cotton and other natural fiber products, hand or measuring tools, and American flags.
Are There Exceptions to the Berry Amendment?
Unlike the Buy American Act, which allows federal agencies to purchase non-domestic products when the cost of domestic products is deemed unreasonably high, the Berry Amendment does not allow for the purchase of non-domestic products based on the price difference between domestic and foreign products. Additionally, unlike the Trade Agreements Act and the “qualifying country” provisions of the DoW’s Buy American Act program, the Berry Amendment does not include the products of any foreign country as equivalents of domestic products.
However, there are certain exceptions, which are identified in DFARS 225.7002-2. These exceptions include, but are not limited to, acquisitions below $200,000 (except for American flags and certain footwear), emergency acquisitions, and acquisitions of perishable foods for personnel serving outside of the United States.
How Do I Know If My Contract is Covered by the Berry Amendment?
When the Berry Amendment applies to an acquisition, the DoW Contracting Officer should include one of three clauses depending on the items being acquired: DFARS 252.225-7012, DFARS 252.225-7015, or DFARS 252.225-7006. These clauses will also appear in the solicitation, allowing offerors to adjust their bidding strategies accordingly.
A Few Final Words
Violations of the Berry Amendment can expose a contractor to potentially significant sanctions, such as liability under the False Claims Act or contract termination. Therefore, compliance is essential. To learn more about the Berry Amendment, visit the DoW’s Berry Amendment webpage.
Disclaimer:
Nothing contained in this article is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. This article is intended for educational and information purposes only. Although the author strives to present accurate information, the information provided in this article is not guaranteed to be accurate, complete, or up-to-date. Reading this article does not establish an attorney-client relationship with the author.
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