Book Description

The Berry Amendment requires the Department of Defense (DOD) to give preference in procurement to domestically produced, manufactured, or home grown products, notably food, clothing, fabrics, and specialty metals. In order to protect the U.S. industrial base during periods of adversity and war, Congress passed domestic source restrictions as part of the 1941 Fifth Supplemental DOD Appropriations Act; these provisions later became the Berry Amendment. Since then numerous other items have been proposed and/or added. Congress modified the Berry Amendment in Section 832 of S. 1438, the FY2002 DOD Authorization Act, P.L. 107-107. The Berry Amendment is now part of the United States Code (10 U.S.C. ʹ 2533a. The Defense Federal Acquisition Regulation Supplement (DFARS) was amended to include exceptions for the acquisition of food, speciality 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; it was revised in January 2005 to add new items, components, and materials covered under the Berry Amendment. In the spring of 2001, Congress revisited the Berry Amendment largely in response to a controversy involving the Army2s procurement of black berets. DOD had granted the Defense Logistics Agency authority to waive the Berry Amendment in order to purchase berets from foreign sources. However, it was reported that DOD had known for 25 years that no U.S. firm produced a solely domestic beret; this suggested that other violations of the Berry Amendment may have been overlooked or under-reported. This procurement event raised important questions: (1) If the U.S. does not produce a solely domestic item, should DOD procurement be restricted from access to foreign sources? (2) Do procurement policies under the Berry Amendment adequately provide the best value to DOD and the federal government? (3) To what extent do U.S. national security interests justify waivers of the Berry Amendment? Some policymakers believe that policies like the Berry Amendment contradict free trade policies, and that the presence and degree of such competition is the most effective tool for promoting efficiencies and improving quality. On the other hand, others believe that key U.S. sectors need the protections afforded by the Berry Amendment. These two views have been the subject of ongoing debate in Congress. In the debate over the passage of the FY2004 defense authorization bill, Representative Duncan Hunter, Chairman of the House Armed Services Committee, sought to strengthen and expand both the Berry Amendment and the Buy American provisions. In the 108th Congress, both the proposed FY2005 National Defense Authorization Act (H.R. 4200), and P.L. 108-287, the FY2005 Department of Defense Appropriations Act, (H.R. 4613), contain provisions that may affect domestic source provisions in the Berry Amendment and the Buy American Act. This report examines the original intent and purpose of the Berry Amendment, legislative proposals to amend both laws and regulations governing the application of domestic source restrictions, as well as options for Congress. The report will be updated as events warrant.