Berry Amendment food, clothing and textiles

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1. What the Berry Amendment restricts

The Defense Federal Acquisition Regulation Supplement (DFARS) implements 10 U.S.C. 4862, known as the Berry Amendment (DFARS 225.7002-1(a)). Subject to the listed exceptions, the Defense Department may not acquire certain items, as end products or components, unless they have been grown, reprocessed, reused or produced in the United States (DFARS 225.7002-1(a)(1)). The list starts with food and clothing, and the materials and components of clothing.

Clothing includes items such as outerwear, headwear, underwear, nightwear, footwear, hosiery, handwear, belts, badges and insignia (DFARS 225.7002-1(a)(1)(ii)). It excludes sensors, electronics or other items added to clothing that are not normally associated with it. The list continues with tents and their structural components, tarpaulins and covers (DFARS 225.7002-1(a)(1)(iii)). A structural component of a tent contributes to its form and stability, such as poles, frames, flooring, guy ropes and pegs, but not heating, cooling or lighting equipment (DFARS 252.225-7012(a)).

The remaining textile items are cotton and other natural fiber products, woven silk or silk blends, spun silk yarn for cartridge cloth, and synthetic or coated synthetic fabric, including its fibers and yarns (DFARS 225.7002-1(a)(1)(iv) to DFARS 225.7002-1(a)(1)(vii)). Canvas products and wool in any form are also on the list (DFARS 225.7002-1(a)(1)(viii) and DFARS 225.7002-1(a)(1)(ix)). So is any item of individual equipment in product or service code 8465 made from or containing the listed materials (DFARS 225.7002-1(a)(1)(x)).

2. Hand tools and the flag

Hand or measuring tools may not be acquired unless they were produced in the United States (DFARS 225.7002-1(a)(2)). A separate restriction comes from section 8123 of the Defense Appropriations Act, 2014, and the same provision in later Defense appropriations acts (DFARS 225.7002-1(b)). Under it, the Department may not acquire a flag of the United States unless the flag, including its materials and components, is manufactured in the United States. The restriction does not cover items for flying or displaying the flag, such as flag poles and accessories.

3. Value, nonavailability and listed articles

Acquisitions not exceeding $200,000 are not subject to the restrictions (DFARS 225.7002-2(a)). That value exception does not cover athletic footwear bought for members of the Army, Navy, Air Force or Marine Corps on initial entry into the armed forces, which stays restricted at any value. The restrictions also do not apply if the secretary concerned determines that domestic items cannot be acquired as and when needed in satisfactory quality and sufficient quantity at United States market prices (DFARS 225.7002-2(b)). The DFARS cross-refers to its separate requirement in DFARS 205.301 to synopsize within 7 days after award when using this exception.

Five officials may make that domestic nonavailability determination, without power to redelegate (DFARS 225.7002-2(b)(1)). They are the Under Secretary of Defense for Acquisition and Sustainment, the Secretaries of the Army, Navy and Air Force, and the Director of the Defense Logistics Agency. The supporting documents must include the requiring activity’s written analysis and certification of why alternatives that avoid a determination are unacceptable (DFARS 225.7002-2(b)(2)). Items listed in FAR 25.104(a) as nonavailable are also excepted (DFARS 225.7002-2(c)).

4. Operations and overseas activities

Acquisitions outside the United States in support of combat operations are excepted (DFARS 225.7002-2(d)). So are perishable foods bought by or for activities outside the United States for their own personnel (DFARS 225.7002-2(e)). Food and hand or measuring tools are excepted in support of contingency operations, or where other than competitive procedures were approved for unusual and compelling urgency (DFARS 225.7002-2(f)).

Emergency acquisitions by activities outside the United States for their personnel are excepted (DFARS 225.7002-2(g)). So are acquisitions by vessels in foreign waters and items bought specifically for commissary resale (DFARS 225.7002-2(h) and DFARS 225.7002-2(i)). Purchases the Department makes for other federal agencies or state and local governments, under contracts transferred from the General Services Administration or as its item manager, are also outside the statute to that extent (DFARS 225.7002-2(o)).

5. Fibers, food and protective clothing

Incidental amounts of cotton, other natural fibers or wool in an end product are excepted if worth no more than 10 percent of its price and no more than $200,000 (DFARS 225.7002-2(j)). Waste and byproducts of cotton or wool fiber used to produce propellants and explosives are excepted (DFARS 225.7002-2(k)). Foods manufactured or processed in the United States are excepted wherever they were grown (DFARS 225.7002-2(l)). That food exception does not apply to fish, shellfish or seafood, under section 8118 of the Defense Appropriations Act for Fiscal Year 2005.

The clause sets the seafood rule (DFARS 252.225-7012(d)). Fish, shellfish and seafood must be taken from the sea by United States-flag vessels or, if not taken from the sea, from fishing within the United States. Any processing must take place on a United States-flag vessel or in the United States.

Fibers and yarns for synthetic or coated synthetic fabric are excepted, though the fabric itself is not, in two cases (DFARS 225.7002-2(m)). One is where the fabric is a component of an end product that is not a textile product. Examples of textile products are draperies, bedding, apparel, upholstered seats and parachutes. The other is para-aramid fibers and continuous filament para-aramid yarns manufactured in a qualifying country. Chemical warfare protective clothing is excepted where the purchase furthers an agreement with a qualifying country (DFARS 225.7002-2(n)).

6. The clauses

Unless an exception applies, solicitations and contracts use the clause at DFARS 252.225-7012, Preference for Certain Domestic Commodities, including those for commercial products and services (DFARS 225.7002-3(a)). Contracts above $200,000 that require hand or measuring tools use DFARS 252.225-7015 (DFARS 225.7002-3(b)). Contracts for the American flag above that threshold use DFARS 252.225-7006 (DFARS 225.7002-3(c)). Under the commodities clause, the contractor must deliver the listed items, as end products or components, only if grown, reprocessed, reused or produced in the United States (DFARS 252.225-7012(b)).

Key terms

Berry Amendment	10 U.S.C. 4862, the domestic source rule for food, clothing, textiles and tools.
Structural component of a tent	Parts giving a tent form and stability, not heating, cooling or lighting.
$200,000 threshold	The value at or below which the restrictions do not apply, except for recruit athletic footwear.
Incidental fibers	Cotton, natural fiber or wool worth no more than 10 percent of the end product and no more than $200,000.
DFARS 252.225-7012	The clause requiring domestic delivery of the listed commodities.

Every statement above links to the document behind it. The full source list for this piece is on the sources page.

This page describes public United States government programs for general information. It is not legal, regulatory or procurement advice, and it does not address the facts of any particular case.

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