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DEFENSE LOGISTICS AGENCY

AMERICA’S COMBAT LOGISTICS SUPPORT AGENCY

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Berry 

Amendment

Ashley Liddle

November 15, 2017
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Agenda

• Definition 

• Implementation

• Examples

• Exceptions 

• DNAD

• Anti-Deficiency Act

• Buy American

• Berry vs Buy American

• Questions
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Berry Amendment

• 10 U.S.C § 2533a directs DoD to procure U.S. 

products and goods 

• Applies to: 

– All purchases over the Simplified Acquisition Threshold of $150,000 for: Foreign military sales, DoD Purchases for 

another agency, Other agency purchased for DoD

– Applies to both end items & components

– Food; Clothing; Tents; Tarpaulins; Covers; Cotton & Other 

Natural Fiber Products; Woven Silk & Woven Silk Blends 

and Spun Silk Yarn for cartridge Cloth; Synthetic Fabrics, 

Canvas Products, Wool, fiber or yarn or in fabrics, 

including in manufactured articles; Items of Individual 

Equipment, Federal supply Class 98465 containing any of 

the listed fibers or fabrics; Hand & Measuring tools; Makers 

of American Flags 
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Berry Amendment 

Implementation

• Clothing definition includes items materials 

and components normally associated with 

clothing --like zippers, buttons, and steel 

toes in boots. 

• DFARS Section 225.7002

• Contract clauses are found at 252.225-

7006, 252.225-7012 and 252.225-7015.
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Textile and Apparel Production Steps

• All components and subcomponents must be sources from a US 

firm 

• Non-textile subcomponents must be from domestic sources 
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Berry

Example - Boot

Speedloop

Eyelet Cattlehide

Midsole
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Common C&T Berry

Exceptions

• Exceptions to these restrictions 

– Purchases under the Simplified Acquisition 

Threshold

– Chemical warfare protective clothing from 

qualifying countries

– Cotton & wool waste or byproducts for 

propellants & explosives 

– Para-aramid fibers & yarns (from qualifying 

countries only) 
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Berry Amendment – Qualifying 

Countries

• Listed in DFARS 225.003(10)

• "Qualifying Country" is a foreign government 

with which DoD has signed a reciprocal defense 

procurement Memorandum of Understanding 

(MOU). DoD may only purchase certain items 

such as Chemical warfare protective clothing 

and Para-aramid fibers (cut resistant) from 

qualifying countries, see DFARS 225.7002· 

2(m)(2) 
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Berry 

Domestic Non-Availability Determination

• Used when an item can not be grown, 

reprocessed, reused or produced in the 

US in the satisfactory quality and in 

sufficient quantity

• DFARS 225.7002-2(b) provides DNAD 

guidance
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Berry - DNAD

• Individuals Who Can Approve DNAD 

– Under Secretary of Defense, AT&L 

– Secretary of the Army 

– Secretary of the Navy 

– Secretary of the Air Force 

– Director of the Defense Logistics Agency 

• General DNAD Issues

– Market Research
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Approved DNADS in Effect for C&T

• Chemical and Oil Protective Nitrile Gloves

• Rayon Yarn

• Snap Fastener

• CR/CR2 8TZ Zipper Components
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Potential Penalties for 

Contracting Officers 

• Berry prohibits the purchase of certain items 

with appropriated funds available to DoD

• It is a violation of the Berry Amendment if 

DoD pays for items that are non-compliant

• Penalties for Contracting Officers for violation 

of the Anti-Deficiency Act:

– Fines up to $5000.00

– Imprisonment up to 2 years

– Adverse personnel actions
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Buy American Statute

• 41 United States Code (U.S.C.) chapter 83, Buy 

American and 

• Executive Order (EO) 10582 

• Statute implemented in FAR Part 25

• requires the United States (U.S.) government to prefer 

U.S. made products when making purchases for public 

use

• The Buy American statute restricts the purchase of 

supplies that are not domestic end products. For 

manufactured end products, the Buy American statute 

uses a two-part test to define a domestic end product.
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Buy American Statue

• Two-Part Test 

– In order to be considered a domestic end 

product, the item must meet two 

requirements: 

• The article must be manufactured in the United 

States. 

• The cost of all domestic components must exceed 

fifty percent of the cost of all the components. 
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Buy American Statue

Buy American Exceptions Buy American Waivers

Items below the micro-purchase 

threshold

Trade Agreements Act (TAA)

-World Trade Organization Government 

Procurement Agreement (WTO GPA)

-least developed countries

- Caribbean Basin Trade Initiative

Items being outside the United States or 

Outlying Areas

Non-availability of items

-at a reasonable quantity

-at a reasonable quality

Unreasonable price or cost Free Trade Agreements (FTA)

- North American Free Trade 

Agreement (NAFTA), Australia FTA, etc. Information technology that is considered 

a commercial item

Inconsistent with public interest

- Department of Defense (DoD) 

Qualified Countries

Commissary Resale
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Berry vs Buy American

The Berry Amendment..... The Buy American Statue.....

DoD Specific All federal agencies

Specifies covered items Covers supply purchases

Applies over SAT $150K Applies over micro-purchase $5K

Requires 100% domestic content Requires 50% domestic content

No commercial exception for food, 

textiles or hand or measuring tools

Exception for commercial information 

technology

Qualifying countries exception for 

chemical warfare protective clothing and 

para-aramid fibers

Qualifying country exception applies to all 

purchases

Applies for supplies used worldwide Applies to supplies used in U.S. only

No contractor certification requirement Requires contractor certification
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Questions