Berry Amendment Applies
The Berry Amendment - Application
When the Berry Amendment Applies
The Berry Amendment applies when buying covered items by or for DoD. The law applies to all purchases over the simplified acquisition threshold using funds either appropriated for DoD or otherwise made available to it. This includes foreign military sale transactions and any time a DoD buying activity is purchasing on behalf of another agency. Likewise, any purchase on behalf of DoD by another agency, for example the General Services Administration (GSA), must also comply. Berry Amendment rules apply even if the DoD-funded purchase is not a DoD-awarded contract. The Berry Amendment follows the funds – if DoD funds are sent to another federal agency, Berry still applies.
The law applies to BOTH end items and components. Acquisition officers are responsible for investigating if a covered material may be present in a component of the item(s) being purchased. The requirement for domestic origin flows down through all the tiers of suppliers, e.g., it does not stop with what the prime contractor manufactures or assembles. The prime contractor is responsible for verifying the source of all materials and components from subcontractors.
When buying clothing, all components of the clothing are covered (if they are normal components of clothing).
However, if the Berry Amendment applies to a particular fabric, the other components of an item containing that fabric may not be covered by the Berry Amendment. For example, if a procurement is for a wooden chair with a padded seat cushion, the fabric of the seat cushion is covered but the wood is not.
Whether the Berry Amendment applies is determined for any procurement on a case-by-case basis by the contracting officer.
The Berry Amendment does not apply to DoD non-appropriated funds.