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Presentation on theme: "BERRY AMENDMENT TRAINING"— Presentation transcript:

SECTION 832, FY 2006 NDAA Section 832 of the National Defense Authorization Act for Fiscal Year 2006 requires the “Secretary of Defense to ensure that each member of the defense acquisition workforce, who participates personally and substantially in the acquisition of textiles on a regular basis, receives training during fiscal year 2006 on the requirements of section 2533a of title 10, United States Code (commonly referred to as the “Berry Amendment”), and the regulations implementing that section.”

2 HISTORY of the Berry Amendment
Purpose To protect the Defense Industrial Base of the United States Who was E.Y. Berry? Ellis Yarnal Berry (R) served as South Dakota's western district congressman from The Berry Amendment was first passed in 1941 and its purpose was to protect the defense industrial base of the United States. It has been named after Congressman Ellis Berry, South Dakota’s western district congressman.

3 What is it? A statutory requirement – 10 U.S.C. 2533a
Restricts the Department of Defense from using funds appropriated or otherwise available to DoD for procurement of: “food, clothing, tents/ tarpaulins/covers, cotton and other natural fiber products, woven silk or woven silk blends, spun silk yarn for cartridge cloth, synthetic fabric or coated synthetic fabric, canvas products, or wool (including in manufactured articles), any item of individual equipment containing any of the restricted fibers or fabrics, or hand or measuring tools,,,” that are not grown, reprocessed, reused, or produced in the U.S. What is the Berry Amendment? It’s a statutory requirement directed at the Department of Defense that restricts the Department from using appropriated funds or funds otherwise made available to the Department for the procurement of certain items that are not grown, reprocessed, reused, or produced in the U.S. It does not apply to procurements using non-appropriated funds. Items covered under Berry include food, clothing, tents/tarpaulins/covers, natural and synthetic fibers and fabrics, items of individual equipment, and hand or measuring tools.

4 What items are restricted?
Food Clothing Tents/Tarpaulins/Covers Cotton and Other Natural Fiber Products Woven Silk or Woven Silk Blends Spun Silk Yarn for Cartridge Cloth Synthetic Fabric or Coated Synthetic Fabric Canvas Products Wool (including in manufactured articles) Any Item of Individual Equipment containing textiles Hand or Measuring Tools Here is a more extensive list. This list is available at DFARS DFARS (a)

5 Anti-Deficiency Act (ADA) Violation
Berry prohibits the purchase of certain items with “….funds appropriated or otherwise available to the Department….” It only applies to funds appropriated or otherwise available to DoD, no other Federal Agencies If you send funds to another Federal Agency, the Berry Amendment still applies to our funds It is a violation of the Berry Amendment if DoD pays for equipment that is non-compliant. It may also be a violation of the Anti-Deficiency Act (31 U.S.C. 1341) which provides for: - Fines up to $ - Imprisonment up to 2 years (31 U.S.C. 1350) - Adverse personnel actions It may be an Anti-Deficiency Act violation to buy items that are not compliant. Failure to comply with this law can result in adverse personnel actions, fines, or imprisonment. The Berry Amendment applies to Foreign Military Sales as well as to purchases made with DoD funds sent for procurement to other agencies outside DoD.

6 Where is it in the Acquisition Regulations?
Prescribed at DFARS , “Restrictions on food, clothing, fabrics, and hand or measuring tools” Implemented via DFARS clauses and Also see PGI The Berry Amendment only applies to the Department of Defense, and, again, applies even if the DoD funded purchase is not on a DoD awarded contract. The restrictions of the Berry Amendment can be found at DFARS The implementing contract clauses are at “Preference for Certain Domestic Commodities” and ”Restrictions on Acquisitions of Hand or Measuring Tools”

7 General Rule The Berry Amendment:
Applies to both End products and Components Requires items to be grown, reprocessed, reused, produced in the United States. The Berry Amendment applies to both the end product as well as all of the components of the item. This will be discussed later in slide 23. Textiles restrictions are based on where the fiber, fabric, or yarns are grown, reprocessed, reused or produced.

8 FY 2006 Legislative changes
Section 832 – Training of acquisition workforce for acquisition workforce substantially involved in buying textiles Section 833 (a) – FedBizOps notice of certain waivers/exceptions Applies only to textiles Section 833 (b) – “Materials and components” of clothing Expands coverage of Berry to zippers, steel toes in boots, ….etc. normally part of clothing The National Defense Authorization Act for Fiscal Year 2006 contained two other changes to the Berry Amendment besides the Section 832 training requirement. Both apply only to textiles. One requires additional notification in the FEDBIZOPs whenever a non-availability exception is used for chemical warfare protective clothing or an item containing textiles. The second expanded the coverage of the Berry Amendment to all materials and components of clothing, such as zippers or steel toes in boots that are normally associated with clothing. It does not apply to sensors or electronics or any like item not normally associated with clothing.

ARE YOU SURE it doesn’t apply to what you buy? Generally, applies to both end items AND components. Covered items may be components in less-obvious procurements (ex. fiber material in fuel filters, cotton in medical gauze/bandages). Violations may lead to: Anti-Deficiency Act violations GAO & IG audit Congressional interest Many headaches! Generally, the law applies to both end items AND components. Sometimes, it is not obvious to us that we are buying something that contains items restricted by the Berry Amendment. For example, fiber material is part of fuel filters. Cotton is part of medical supplies like gauze and bandages. Remember that failure to comply can lead to ADA violations, audits and oversight, and Congressional interest

10 What’s the difference between Buy American Act and Berry Amendment?
Potential for much confusion Berry Amendment only applies to DoD Federal Supply Schedules may not meet requirements So if you use them, you must insert the proper clause (slide #5) Berry Amendment does not provide a commercial item exception Berry applies in addition to Buy American Act Berry is more restrictive than the Buy American Act No “greater than 50% domestic component cost” allowance in Berry No Qualifying Country exception, except for chemical warfare protective clothing and para-aramid fibers from the Netherlands, in Berry No 50% proposal evaluation cost factor in Berry Vendor may be in compliance with Buy American Act yet be in violation of Berry Amendment No contractor “certification” required such as with Buy American Act – requirements may be overlooked A question often asked is ‘ what is the difference between the “Buy American Act” and the “Berry Amendment”? Another often asked question is does one have precedence over the other? First, the Berry Amendment applies only to DoD funds and funds available to DoD. It does not apply to other agency’s funds, unless DoD is awarding the contract or purchase order on behalf of another agency. Second, there is no commercial exception provided in the Berry Amendment. It applies at the prime contract for all items, and must be flowed down to all sub-tier suppliers in all cases except specialty metals. Third, the Berry Amendment applies in addition to the Buy American Act. The Buy American Act is a different domestic preference law. It requires that items be manufactured in the United States and that greater than 50% of the component cost of any item be of domestic origin. Under Berry, the restricted items must be 100% domestic in origin. The BAA allows a qualifying country exception for all items, meaning that we can treat items from the countries listed on the next slide and in DFARS , as if they were domestic, based on the reciprocal defense procurement memorandas of understanding that DoD has negotiated with these countries. Berry only provides an exception for qualifying countries for procurement of chemical warfare protective clothing, and for para-aramid fibers and fabrics from the Netherlands only. But NOT to hand or measuring tools or food. Last, Berry does not require contractor certification as does the BAA. The Berry Amendment requires contractor self-reporting. Berry compliance should be verified by DCMA as part of their purchasing system reviews.

11 Qualifying Countries Australia France Luxembourg
DoD has entered into reciprocal defense procurement memoranda of understanding with the following countries. These countries are acceptable sources for specialty metals: Australia France Luxembourg Austria Germany Netherlands Belgium Greece Norway Canada Finland Portugal Denmark Israel Spain Egypt Italy Sweden Switzerland Turkey United Kingdom DFARS (n) The Department has signed reciprocal defense procurement MOUs with these countries. We refer to these countries as “qualifying countries”. This is important with regard to the Berry Amendment because one exception to the clothing restriction allows us to procure chemical warfare protective clothing from these countries.

12 Pre-Award Pre-award actions to minimize potential for violations – Avoid Non-compliance later Consider the application of Berry for every procurement Ask yourself – does the product I am buying contain any of the items restricted by Berry? Use clauses as prescribed at Pre-proposal conference discussion item Potential pre-award survey interest item (confirming the contractor’s ability to trace origin of materials) Negotiation discussion point – ensure contractor understanding of Berry Amendment requirements Consider flow down requirement Federal Supply Schedule orders DoD ordering activity must confirm item meets Berry requirements Vendor confirmation placed in delivery order file The time to deal with the Berry Amendment is in the pre-award stage. If your contract contains or might contain any item restricted by Berry, it is imperative that you include the appropriate clauses at DFARS and 7015 in your solicitation. And it is also imperative that you ensure the contractor understands these clauses and can comply with them. If not, you need to find another contractor, or discuss alternative items he can use that are from a US source. If he can’t comply, your options are limited. Either find another contractor, find alternative domestic items that meet your needs, qualify another source, or –if none of these is possible, process a domestic non-availability determination under DFARS (b). This process will be addressed later.

13 Post award Post-award actions to minimize potential for violations
Be proactive where appropriate to avoid delayed payments and delayed warfighter support Highlight compliance at post-award conferences Consider ongoing DCMA assistance/emphasis IAW FAR (a)(50) to ensure contractor purchasing system/inventory practices maintain ability to implement domestic source restrictions Sources Sought in FEDBIZOPS Market Research, Department of Commerce Alternatives? Conditional Acceptance and Withhold Payment? Domestic Non-Availability Determination exception What happens if you did all the right things in the pre-award phase and the contractor later informs you after award that one of his sub-tier suppliers is non-compliant? The same rules apply –you must press the contractor to comply. If he cannot replace the part, or it is not in the Government’s best interest for him to replace the part, and he cannot find a US supplier after conducting a thorough market research, discussing availability with cognizant Department of Commerce personnel and after issuing a sources sought synopsis in FEDBIZOPS, you can either terminate the contract for default, order him to find alternate domestic items to substitute that are acceptable to you, or see if any exception to Berry in DFARS applies. After that decision process, you can process a domestic non-availability determination, if justified. Failure on the part of the contractor to comply with Berry can show a defect in his purchasing system, and may be taken into account in past performance reports.

14 Non-compliance? What do I do if my contractor has a potential Berry Amendment violation? Notify legal counsel! Verify the item is subject to Berry restriction – ask contractor to confirm place of origin Suspend Government acceptance of non-conforming items IAW FAR Ensure DFAS suspends payment on non-conforming supplies pending resolution Conduct market research for domestic source of item in question Determine substitute item availability if no domestic source found Present customer with substitute item(s) options for acceptability If a Domestic Non-Availability Determination is justified, prepare for Secretarial signature prior to acceptance Let’s go over this one more time. What do I do if my contractor tells me a part may be non-compliant? If the contractor offers an item for inspection and acceptance and discloses that it is not compliant with Berry, you have few options. First, you should notify your lawyer, verify that the contract requires compliance and that the item falls under the restricted items in Berry, and get a listing of the parts and the value of the component containing the metal, at the lowest level. You can not accept the item until the contractor complies. .

Now let’s talk about specific rules that relate only to textiles.

16 Clothing Components Prior to Friday, January 6, 2006, the Berry Amendment (10 U.S.C. 2533a) provided that the Department of Defense could not buy an article or item of "clothing" that was not grown, reprocessed, reused, or produced in the United States. On January 6, 2006, President Bush signed into law the National Defense Authorization Act for Fiscal Year Section 833 of the Act added language to 10 U.S.C a stating that the restriction applies to clothing ''and the materials and components thereof, other than sensors, electronics*, or other items added to, and not normally associated with, clothing (and the materials and components thereof)." *this exception for electronics only applies to clothing with electronics The FY2006 National Defense Authorization Act provided a new requirement under the Berry Amendment. The definition of clothing is now expanded to include not just the textile components but also other components such as zippers and buttons normally associated with clothing. The law clearly states that sensors, electronics and other items not normally associated with clothing are not covered, however. This change applies to all procurements using DoD funds obligated after January 5, If you are buying items off of a contract signed prior to January 6, 2006, this restriction applies and you must review your existing contracts to determine which items are affected.

17 Applies to An Article or Item of--
CLOTHING AND THE MATERIAL AND COMPONENTS THEREOF; TENTS, TARPAULINS, OR COVERS; COTTON AND OTHER NATURAL FIBER PRODUCTS, WOVEN SILK BLENDS, SPUN SILK YARN FOR CARTRIDGE CLOTH, SYNTHETIC FABRIC (INCLUDING ALL TEXTILE FIBERS AND YARNS THAT ARE FOR USE IN SUCH FABRICS, CANVAS PRODUCTS, WOOL (WHETHER IN THE FORM OF FIBER OR YARN OR CONTAINED IN FABRICS, MATERIALS OR MANUFACTURED ARTICLES); OR ANY ITEM OF INDIVIDUAL EQUIPMENT MANUFACTURED FROM OR CONTAINING SUCH FIBERS, YARNS OR FABRICS, OR MATERIALS. Here is the list of items covered under the textile restrictions of Berry. All clothing and the material and components normally associated with clothing; Tents, tarpaulins or covers Cotton and other natural fibers products, woven silk blends, spun silk yarn for cartridge cloth, synthetic fabric and coated synthetic fabric – including all textile fibers and yarns that are used in such fabrics Canvas products Wool, whether in the form of fiber or yarn or contained in fabrics, materials or manufactured articles Items of individual equipment manufactured from or containing any of the above fibers, yarns, fabrics or materials. Items such as Draperies, floor coverings, furnishings, bedding, flags, parachutes, and upholstered seats covered by the Berry Amendment.

18 New Clothing Components Applicability
Current contracts (funds obligated after Jan 5, 2006 are subject to the restriction, such as on 2005 IDIQ awarded contracts with continued performance) - Delivery Orders - Exercise of Options New contracts Again, the new FY2006 change expanded the definition of clothing to include components of clothing beyond the fiber, fabrics, and textile materials. Be aware of this when using delivery orders or options from contracts awarded prior to January 6, 2006. The Congressional conference report contained language that small arms protective inserts for body armor are not clothing, or materials or components thereof, under Berry, however the fibers and fabrics in SAPI are restricted under Berry.

Incidental Incorporation of Textiles APPLIES TO TEXTILES ONLY: (NOT TO FOOD, etc.) Acquisitions of end products incidentally incorporating cotton, other natural fibers, or wool, for which the estimated value of the cotton, other natural fibers, or wool-- (1) Is not more than 10 percent of the total price of the end product; and (2) Does not exceed the simplified acquisition threshold. DFARS (j) An exception which applies only to textiles is the incidental incorporation language implemented at DFARS 225,7002-2(j). It allows the Department to buy end items which include cotton and other natural fibers, like wool in very small quantities and percentage of the item from other than US sources. This means if the total value of the natural or cotton or wool fiber is under the simplified acquisition threshold AND comprises no more than 10% of the total price of the end item) it does NOT have to be from a US source.

20 Exceptions for Textiles
Chemical warfare protective clothing may be purchased from “qualifying countries” DFARS (n) Acquisitions of waste and byproducts of cotton or wool fiber for use in the production of propellants and explosives DFARS (k) Acquisitions of fibers and yarns for use in synthetic fabric or coated synthetic fabric if the fabric is to be used in a component or end item that IS NOT A TEXTILE PRODUCT. But this does not apply when buying the synthetic or coated synthetic fabric itself DFARS (o) Para-aramid fibers and yarns manufactured in the Netherlands. DoD has determined that procuring only domestic articles would result in sole source contracts or subcontracts for the supply of the para-aramid fibers and yarns, and the sole source contracts or subcontracts are not in the best interest of the Government, and the Netherlands permits US companies selling para-aramid firms compete with foreign firms in that country. DFARS (o)(2) There are several other textile-specific exceptions besides the incidental incorporation exception we just discussed. One mentioned earlier allows us to purchase chemical warfare protective clothing from qualifying countries. Remember that qualifying countries means those listed in DFARS with which we have negotiated a reciprocal defense procurement MOU. Another allows us to buy waste and byproducts of cotton or wool fiber for use in propellants and explosives from anywhere. Third, there is an exception for fibers and yarns for use in synthetic fabric or coated synthetic fabric if the fabric is to be used in a component or end item that is not a textile product. Examples of this would be fiberglass fabric panels for marine or automotive systems or fibers in circuit cards. Last, there is an exception for para-aramid fibers and yarns manufactured in the Netherlands, if procuring it from a US source would put us in a sole source situation, and we determine that the sole source situation is not in the best interests of the Government, and the Netherlands permits US companies to compete for para-aramid requirements.

Let’s talk about some general exceptions to Berry that are not specifically restricted to textiles. Generally, these exceptions apply regardless of the type of item you are buying.

22 1. SAT Exception Simplified Acquisition Threshold
Currently $100,000.00, BUT Higher thresholds apply to Contingency Operations Must be a single, one time buy No splitting of requirements This exception cannot be used by our sub-tier suppliers—only applies for DoD buyer’s prime contract. DFARS (a) First – there is an exception under the Berry Amendment when the DoD is buying something under the simplified acquisition threshold, currently at $100,000. It must be a single, one-time buy and we are not permitted to split requirements to get under this threshold. But this exception is not available to our prime contractors or sub-tier suppliers. The SAT exception applies only to the Government’s contract. It has no relevance for a prime contractor’s contract with a subcontractor.

23 2. Non-Availability Exception
Acquisitions of any of the items in (a), if the Secretary concerned determines that items grown, reprocessed, reused, or produced in the United States cannot be acquired as and when needed in a satisfactory quality and sufficient quantity at U.S. market prices. Does not apply to hand or measuring tools DFARS (b) The second major exception is our “non-availability” exception which applies to food, clothing, textiles items but NOT to hand or measuring tools. This exception may be approved by either the Secretary of the Military Department concerned, or the Under Secretary of Defense for Acquisition, Technology & Logistics if they determine that items grown, reprocessed, reused, or produced in the US cannot be acquired as and when needed in satisfactory quality and sufficient quantity at US market prices.

24 Non-Availability Exception
Domestic Non-Availability Determinations (DNADS). Requests for a DNAD: Should be narrowly drawn Excepted item(s) should be specifically defined Period of time, quantity if possible, re-analysis annually Should explain market research performed, efforts made to find alternatives, and why no alternatives will suffice Exceptions should require annual market research Exceptions may be limited or unlimited in duration It is not automatically necessary that DoD take action to maintain, create, or expand domestic industrial capabilities for the items identified in a DNAD (see DoD Handbook H “Assessing Defense Industrial Capabilities”) In cases where DoD intends to take action to maintain, create, or expand domestic capacity, the exception should be limited to the time required to achieve adequate availability. In cases where DoD action is not warranted, the exception may be unlimited in duration. However, if it is anticipated that the item will be available at certain known point in the future, the exception may be limited to the intervening period. Requires Analysis of Alternatives – Deputy Secretary Paul Wolfowitz’ memorandum of May 1, 2001. If you find yourself in a situation where you cannot find an item grown, reprocessed, reused or produced in the US, after performing market research, including sources sought announcements in FedBizOps and through discussions with the Department of Commerce for help in locating possible domestic sources, you may have a justified case for a domestic non-availability determination, or DNAD. When developing your proposed DNAD D&F, your exception should be narrowly drawn. It should contain a requirement to review the status of the industry on an annual basis and a report required to document that the review was performed. We will discuss in a moment the conditions under which you should consider taking action to maintain, create, or expand domestic capacity. In those cases where such action is warranted, the DNAD should be limited in duration to the time required to achieve adequate domestic supply. In cases where DoD action is not warranted, the DNAD may be unlimited in duration. As discussed, you are required to conduct annual market research. Should the market develop sufficient new capacity, you will be required to notify the approving authority and the DNAD will no longer remain effective. If you have reason to believe that the market, on its own, will make sufficient supply available by a certain date in the future, you can limit the DNAD to the date. Before a DNAD can be approved, you are required to look at alternatives and include an analysis of alternatives, including the reasons why each alternative would not suffice, in your proposed DNAD. This requirement for an analysis of alternatives was directed by the Deputy Secretary of Defense on May 1, 2001. Again, this requirement applies to all Berry Amendment restricted items, except hand or measuring tools.

25 Non-Available Articles List
Acquisitions of items listed in FAR (a), unless the items are hand or measuring tools. Some items listed are available Requires market research Removal of article from list DFARS (c) FAR Part contains a list of items that are generally considered to be not available in sufficient quantities to meet all of DoD’s needs. However, it doesn’t necessarily mean that the item is not available for the purpose of a Berry Amendment DNAD. You are still required to do the market research to determine if your Berry restricted item or article is eligible for a DNAD.

26 Process for DNADS See DFARS (b), PGI (b)(3) and your agency procedures General Content for a DNAD Request: 1. Item or class of items, quantity, length of time DNAD is needed 2. Current and detailed market research justifying the non-availability of item(s) in satisfactory quality and sufficient quantity at U.S. market prices 3. Analysis of alternatives that would not require a domestic nonavailability determination 4. Written certification by the requiring activity, with specificity, why such alternatives are unacceptable. 5. Report and recommendation of the Contracting Activity Commander discussing supply and procurement situation (mission impacts), commercial practices, and other relevant facts in greater detail 6. Potential political ramifications, Congressional involvement, small business concerns, etc. 7. Expected outcome if a DNAD is not approved What is the process for getting a DNAD approved? Each Military Department should have a process documented. For USD(AT&L) approved DNADs, the process requires a documented package, consisting of a written Determinations and Findings explaining the item or class of items, the quantity and length of time that the DNAD is needed; documentation of a current and detailed market research conducted that justifies the non-availability of the item(s) in satisfactory quality and sufficient quantity at US market prices; an analysis of alternatives that explains the alternatives reviewed and an explanation why each would not suffice; a written certification by the requiring activity, with specifics, why these alternatives would not suffice; a report and recommendation of the contracting activity commander discussing the supply and procurement situation, including mission impacts, commercial practices, and other relevant facts in greater detail that support the waiver; the potential political ramifications, Congressional involvement, and small business concerns or other issues AT&L should be aware of with regard to the approval sought; and a discussion of the expected outcome if a DNAD is not approved.

27 Process for DNADS, cont’d
Coordinate with Legal and organizational levels as required Obtain Approval: Secretary of Army, Navy, Air Force, or USD(AT&L) Once granted, annually assess necessity of the DNAD and determine if market conditions have changed or acceptable product substitutions have become available Notification clothing/textile items: Clothing/textiles - Section 833 of the FY2006 NDAA requires notification in FEDBIZOPS within 7 days of award. You should coordinate your DNAD well in advance with your legal counsel. Approval can be granted by the Secretary of the Military Department concerned or by USD AT&L. After approval, market conditions could change or acceptable substitutions could become available, so any proposed DNAD D&F should include a requirement to check availabilities at least annually. It is important to note that whenever a DNAD for the procurement of clothing or textile items is approved, there is a FEDBIZOPS notification requirement within 7 days of award.

28 3. Combat Operations As determined by OSD
“Procurements made outside the US in support of” Currently Limited to Middle East and Afghanistan Applies to all Berry restricted items/articles DFARS (d) A third general exception permits DoD to waive the Berry Amendment if the purchase is made outside the United States in support of combat operations. Currently this exception is limited to procurements for the Middle East and Afghanistan.

29 4. Contingency Operations
Consult with DOD/DLA In conjunction with J&A approval of other than competitive procedures on the basis of unusual and compelling urgency in accordance with FAR Limited to Food and Hand or Measuring Tools This exception cannot be used for textiles or clothing DFARS (f) Fourth, we have an exception for contingency operations. This exception does not pertain to textiles or clothing, however –only to food and hand or measuring tools. Also be aware that the simplified acquisition threshold for contingency operations differs from the usual threshold in FAR.

30 5. Emergency Acquisitions or Urgent and Compelling exception
Emergency (DFARS (g)) Consult with DOD knowledgeable experts in Services, DLA and DPAP as needed. Overseas Activities OCONUS personnel If “Urgent and compelling” exception in FAR was used (DFARS (f) Only for food or hand or measuring tools, not clothing or textiles We have several exceptions in emergency or urgent and compelling situations. First, purchases by, or for, an establishment located outside the US in support of US personnel located there. Second, if we are buying something using other than competitive procedures approved on the basis of an unusual and compelling urgency exception under FAR , there is an exception from the requirements of the Berry Amendment for food or hand or measuring tools only.

31 6. Vessels in Foreign Waters
Only applicable for buyers on vessels in foreign waters DFARS (h) This exception is only applicable to buyers on vessels operating in foreign waters.

32 7. Commissary Resale Acquisition of items specifically for commissary resale Defense Commissary Agency Ship’s Stores NAFIS operated by DoD DFARS (i) This exception covers items specifically bought for our commissaries for resale or ship’s stores.

33 8. Qualifying Country Applies only to:
CHEMICAL WARFARE PROTECTIVE CLOTHING Acquisitions of chemical warfare protective clothing when the acquisition furthers an agreement with a qualifying country (see ) Para-Aramid fibers and yarns only from the Netherlands (see (o)) Earlier we discussed what we mean by Qualifying Countries, and we said that the Department of Defense has negotiated reciprocal defense procurement MOUs with these countries. Under an exception, we can buy chemical warfare protective clothing from these 21 countries. If we meet certain requirements in DFARS (o), we can buy para-aramid fibers and yarns only from the Netherlands.

34 Notification Requirements
TEXTILES/CLOTHING: Additional notification within 7 days of award Required in FEDBIZOPS for DNADS for textiles and when using a qualifying country source for chemical warfare protective clothing Let me summarize once more the Notification Requirements under the Berry Amendment. If you are using the Non-Availability exception at DFARS (b) for textiles or clothing, you must publish a notice in FEDBIZOPS within 7 days of award.

35 SUMMARY - EXCEPTIONS What exceptions apply?
Acquisitions at or below the SAT Note higher SAT threshold for contingency operations and to support recovery from NBCR* attacks “Domestic non-availability determinations” (DNAD) Can only be approved by the Secretary of Defense or the Secretary of the military department concerned -- non-delegable! Must first perform market research to confirm no domestic source is available, present requestor with alternatives that would not require a DNAD, and requesting activity must confirm that such alternatives are unacceptable Procurements of items listed at FAR Not an automatic exception to Berry Amendment, market research required Various procurements when overseas Combat operations, “emergency” acquisitions, perishable foods Other miscellaneous *Nuclear, Biological, Chemical In summary, you should now be aware of the restrictions in the Berry Amendment and where they are in the DFARS. You should be able to explain what items or articles are covered and the component coverage for textiles. You should also be able to explain the different exceptions DoD is granted in the statute. Last, you should be able to explain the notification requirements, to Congress and to FedBizOps for textiles and clothing, respectively.

36 EXCEPTIONS FOR FOOD There are a few unique food-related EXCEPTIONS you should be aware of under the Berry Amendment.

37 1. Perishable Food What is Perishable? OCONUS Contract
Shelf Life ??? Needs to be Chilled, Cooled, or Frozen to Maintain Wholesomeness OCONUS Contract Personnel Overseas Previous Solution: BPA issued OCONUS New Change: “by or for” eliminates need for BPA DFARS (e) DoD is permitted to buy perishable foods for an activity located outside the US. In the past, we were talking about an OCONUS contract for personnel overseas. In the FY2006 NDAA, an expansion of this exception was granted to allow purchases of perishable foods for personnel overseas, even if the contract is being awarded in the US.

38 2. Processed Foods What is processing?
Components can be foreign/unknown Significant processing in U.S. Exception: Seafood DFARS (l) There is an exception to the restriction on food for foods manufactured or processed in the US, even if the food or any of the components of the food item were grown or produced outside the US. HOWEVER, this exception does not apply to fish, shellfish, or seafood contained in foods manufactured or processed in the US.

39 3. Seafood Exception Fished within U.S. or
Taken from sea by U.S. flag vessel Processed in U.S./ U.S. flag vessel DFARS (l) and Section 8136 of P.L Seafood must be of US origin in order for DoD to buy it. Any seafood product, manufactured or processed in the US, must be wholly of US origin. This means that the seafood was fished within the US, taken from sea by a US flagged ship, or processed in the US by a US flag ship.


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