A little Review: Differences between Buy America Act and Berry Amendment

PEOsoldier_ArmyCombatShirt

Photo PEO Soldier, US Army

I know its a thoroughly discussed subject but sometimes it’s good to go back to the source and review – just exactly what are the differences between Buy America Act (BAA) and Berry Amendment? 

The Berry Amendment applies to the Department of Defense (DoD) and covers procurement of Clothing,Tents, tarps, and covers,Cotton and other natural fiber products, Woven silk blends, Spun silk yarn for cartridge cloth,Synthetic fabric and coated synthetic fabric,Canvas products, Wool: wool fiber, wool yarn and wool in fabrics, materials or manufactured articles, and items of individual equipment (FSC 8465) containing covered fibers, yarns, fabrics or material. There are five important exceptions to this law (1) Incidental incorporation, (2) Chemical warfare protective clothing from qualifying country, (3) Cotton & wool waste or byproducts for propellants & explosives, (4) Fibers and yarns in synthetic & coated synthetic fabrics for non-textile products: examples include fibers in circuit cards and fibers in SAPI plates, and (5) Para-aramid fibers & yarns (from qualifying countries only).

The Berry Amendment is specific to  DoD procurement where the BAA applies to all federal agencies (the Berry Amendment is IN ADDITION TO the BAA). 

Photo PEO Soldier US Army – MOLLE Pack

Berry Amendment and BAA Differences

  1. Berry is DoD specific, BAA is government-wide
  2. Berry specifies covered items, BAA covers supply purchases
  3. Berry Amendment applies over the Simplified Acquisition Threshold ($150,000), while Buy American Act applies over the micropurchase threshold ($2,500)
  4. Berry requires 100% domestic content, BAA requires 50% domestic content
  5. Berry Amendment has no commercial exceptions for food, textiles, or hand or measuring tools, BAA has exception for commercial information technology
  6. For Berry, qualifying country exceptions exist for chemical warfare protective clothing (all qualifying countries) and   (Netherlands only). For BAA, the qualifying country exception applies to all purchases
  7. Berry applies for contracts performed worldwide, BAA applies to U.S. only
  8. Berry has no contractor certification requirement

Key take aways are that the Buy American Act compliance does not equal Berry Amendmentcompliance and that both laws apply to DoD but Berry is more restrictive.  For more information on which countries fall within the BAA please see DFARS 225.003 for details. Partial list follows as: Australia, Austria, Belgium, Canada, Czech Republic, Denmark, Egypt, Federal Republic of Germany, Finland, France, Greece, Israel, Italy, Luxembourg, Netherlands, Norway, Poland, Portugal, Spain, Sweden,Switzerland, Turkey, United Kingdom of Great Britain and Northern Ireland.

THE FINE PRINT – the Berry Amendment (10 U.S.C. 2533a), covers textiles, food and hand or measuring tools. Specialty metals are no longer part of this law. Specialty metals are restricted under Section 842 of the FY2007 NDAA. You can find all the details as implemented through the Defense Federal Acquisition Regulation Supplement (DFARS) at Subpart 225.7002. The contract clauses that apply to the acquisition of the items listed in A.1., above, are DFARS 252.225-7012 and DFARS 252.225-7015 You can also find policy on the Berry Amendment in Procedures, Guidance and Information (PGI) 225-70.  For more information on Defense Procurement and Policy (DPAP) please visit http://www.acq.osd.mil/dpap/cpic/ic/berry_amendment_faq.html

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