Are You Complying With the Berry Amendment?

Are you selling certain products to the Department of Defense (DoD) or the Department of Homeland Security (DHS)? Then, you may have to comply with the Berry Amendment or the Kissell Amendments.

The Buy American Act (BAA) codified in title 41, sections 8301-8305, creates a system for the acquisition of materials manufactured in the United States when such materials are procured by United States Federal agencies. To be covered under the BAA, two conditions must be met:

(1) the purchase must be intended for public use within the United States, and

(2) the items or materials to be bought or manufactured must be available in the United States in sufficient and reasonably available commercial quantities of a satisfactory quality.[1]

It is absolutely crucial to understand that the Berry Amendment, codified in 10 U.S.C. 4862 and applicable to DoD, and the similar but not identical Kissell Amendment, codified at 6 U.S.C. 453b and applicable only to DHS, impose stricter domestic content requirements than the Buy American Act (BAA). They are similar but not identical amendments. The BAA stipulates that the product must be mined, manufactured, or produced in the United States. Still, it only mandates that generally 60% of the costs of its components must be manufactured in the United States, or the product must be a commercially available off-the-shelf item. However, both the Berry and Kissell Amendments demand the products to be 100% domestically sourced, subject to certain exceptions.[2]

The Kissell Amendment

This provision requires the Department of Homeland Security, “when using appropriated funds directly related to national security interests, to buy textiles, clothing, and footwear from domestic sources.” It is worth noting that practically, the Kissell Amendment exclusively applies to the Transportation Security Administration (TSA),[3] while the procurement of imported goods by other DHS agencies is covered by exemptions provided for under the Trade Agreements Act.

The Berry Amendment

The Berry Amendment is implemented through the Defense Federal Acquisition Regulation Supplement (DFARS) at DFARS 225.7002-2. Unless an exception applies, the production of raw materials, manufacturing of the products from that raw material, and the final assembly must all take place within the U.S. This Amendment is a lot stricter than the BAA as it requires those covered products purchased by the DoD to be 100% domestic in origin. Among the covered products are:

1. textiles,
2. clothing,
3. footwear,
4. food,
5. hand or measuring tools,
6. stainless steel flatware, and dinnerware.

The above list is not exclusive. DFARS 225.7002-1 has the full list of Berry Amendment covered items.

The Berry Amendment also applies when DoD funds awards by other federal agencies. In other words, the Berry Amendment applies to all funds ‘made available’ to the DoD. The other federal agencies will have to incorporate the Berry Amendment provisions when procuring through this funding.[4] Applicability of the Berry Amendment is determined on a case-by-case basis by the contracting officer.

Exceptions to the Berry Amendment

The full list of exceptions to the Berry Amendment is covered in DFARS 225.7002. A summary is below:

1. purchases are part of a contract whose value is at or below $150,000.
2. A waiver based on Domestic Non-Availability Determination (DNAD) can be granted if the Secretary of the Army, Navy or Air Force, the Under Secretary of Defense for Acquisition and Sustainment, or the Director of the Defense Logistics Agency determines that items grown, reprocessed, reused, or produced in the United States cannot be acquired in satisfactory quality and sufficient quantity at U.S. market prices when needed.[5]
3. The Federal Acquisition Regulation (FAR) 25.104(a) lists items determined to be not available under the provisions of the Buy American Act. This determination does not necessarily mean that there is no domestic source for the listed items but that domestic sources can only meet 50 percent or less of total U.S. Government and nongovernment demand.[6]

It is the contracting officer’s responsibility to ensure that the appropriate determination and documentation is included in the contract file. This documentation should provide clear justification for why the exception is necessary and how it aligns with the overall goals and objectives of the contract. Furthermore, it is important to note that when exceptions are used, the normally required DFARS clauses must be omitted from both the solicitation and the contract to avoid confusion or potential conflicts that may arise from including clauses that are not applicable to the specific contract at hand.

If you have any questions or need any additional information, please do not hesitate to contact the author or the Centre Law attorney with whom you normally work.

[1] Buy American Act (BAA), Buy American Act (BAA)

[2] https://sgp.fas.org/crs/natsec/IF10609.pdf (2023)

[3] 65 No. 5 Government Contractor ¶ 28

[4] https://www.acq.osd.mil/asda/dpc/cp/ic/berry-amendment.html (2023)

[5] DFARS 225.7002

[6] FAR 25.104(a) is also mentioned in DFARS 225.7002.