Contracts & Legal

Berry Amendment

The Berry Amendment (USC, Title 10, Section 2533a), requires the Department of Defense (DoD) to give preference in procurement to domestically produced, manufactured, or homegrown products, most notably food, clothing, fabrics, and specialty metals. Congress originally passed domestic source restrictions as part of the Fifth Supplemental DoD Appropriations Act of 1941 in order to protect the domestic industrial base in the time of war. It was made permanent in 1993, then added to the United States Code in 2002. [1]

Definition: The Berry Amendment is a federal regulation that requires DOD funds to be spent on U.S. manufactured items in order to protect the United States industrial base in the time of war.

Regulation: Defense Federal Acquisition Regulation Supplement (DFARS) 225.7002

Berry Amendment Exceptions

There are a number of exceptions provided by the law. When using any of the exceptions, the contracting officer must ensure that the appropriate determination or documentation is in the contract file and the normally required DFARS clauses are omitted from the solicitation and contract. The exceptions established in DFARS 225.7002-2.

The Defense Federal Acquisition Regulation Supplement (DFARS) 225.7002 was amended to include exceptions for the acquisition of food, specialty metals, and hand or measuring tools when needed to support contingency operations or when the use of other-than-competitive procedures is based on an unusual and compelling urgency. [1]

Berry Amendment Specialty Metals

The specialty metals provision was added in 1973. This provision requires that specialty metals incorporated in products delivered under DOD contracts to be melted in the United States or a “qualifying country”. Specialty metals include certain steel, titanium, zirconium, and other metal alloys that are important to the DOD. [1]

The aerospace and defense industry is impacted by provisions that apply to specialty metals: [2]

  • Steel with more than 1.65 percent manganese, .6 percent silicon or copper, or .25 percent aluminum, chromium, cobalt, columbium, molybdenum, nickel, titanium, tungsten, or vanadium.
  • Alloys of nickel, iron-nickel, or cobalt with other alloying metals in excess of 10 percent.
  • Titanium and titanium alloys.
  • Zirconium and zirconium alloys.

Berry Amendment vs. Buy American Act

The Buy American Act and Berry Amendment are two separate laws that differ with regard to their scope, threshold, exceptions, and waiver authority. The Buy American Act (BAA) (41 U.S.C. 8301) was passed in 1933 and restricts the purchase of supplies that are not domestic end products. It applies to all U.S. federal government agency purchases of goods valued over the purchase threshold but does not apply to services. Under the Act, all goods for public use (articles, materials, or supplies) must be produced in the U.S., and manufactured items must be manufactured in the U.S. from U.S. materials.

Berry Amendment Determination

The procurement contracting officer (PCO) is responsible for adhering to the Berry amendment in all contracts.

AcqLinks and References:

Updated: 7/18/2021

Rank: G10.9

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