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Panoptic Enterprises' FEDERAL CONTRACTS DISPATCH

DATE: May 9, 2001

SUBJECT: Air Force Federal Acquisition Regulation Supplement (AFFARS); Determinations Under the Berry Amendment

SOURCE: Assistant Secretary Memorandum, May 3, 2001

AGENCIES: Department of the Air Force (AF)

ACTION: Interim Revision

SYNOPSIS: The AF is issuing an interim revision to AFFARS 5325.7002, Restrictions on Food, Clothing, Fabrics, Specialty Metals, and Hand or Measuring Tools, to require that all AF non-availability determinations under the "Berry Amendment" be made by the Secretary of the AF without power of redelegation.

EDITOR'S NOTE: The AFFARS is Chapter 53 of Title 48 of the Code of Federal Regulations. It is available on the Internet at http://farsite.hill.af.mil/vfaffara.htm.

EFFECTIVE DATE: May 1, 2001, and the interim revision will remain in effect until incorporated into the AFFARS.

FOR FURTHER INFORMATION CONTACT: J. P. McCusker, SAF/AQCP, DSN 425-7031, e-mail: mccusker@pentagon.af.mil.

SUPPLEMENTAL INFORMATION: The Berry Amendment (Title 10 of the United States Code, Section 2241, note) requires that any acquisition above the $100,000 simplified acquisition threshold for "food, clothing, tents, tarpaulins, covers, cotton and other natural fiber products, woven silk or woven silk blends, spun silk yarn for cartridge cloth, synthetic fabric or coated synthetic fabric, canvas products, or wool...or specialty metals including stainless steel flatware, or hand measuring tools..." must be grown, reprocessed, reuse, or produced in the United States or its possessions, unless the "Secretary of Department concerned" determines that satisfactory quality and sufficient quantity "cannot be procured as and when needed at United States market prices..." Defense Federal Acquisition Regulation Supplement (DFARS) 225.7002-2, Exceptions, permits the Secretary concerned, or designee, to make this determination. AFFARS 5325.7002-2, Exceptions, stated that the AF secretary delegated the authority to make this determination for specialty metals to the heads of contracting activities.

On May 1, 2001, Deputy Secretary of Defense Paul Wolfowitz issued a memorandum to the Undersecretary of Defense for Acquisition, Technology and Logistics, and to the Secretaries of the Army, Navy, and Air Force withdrawing their authority to redelegate their authority to make determinations to waive the Berry Amendment. In addition, the memorandum directs the undersecretary and the service secretaries "prior to making any determination to waive the requirements of the Berry Amendment, you must present the requiring activity with alternatives that would not require a waiver under the Berry Amendment. Only after the requiring activity certifies, with specificity, in writing why such alternatives are unacceptable and you agree, may you make the necessary Berry Amendment determinations."

Therefore, the AF is revising AFFARS 5325.7002-2, Exceptions, to state that "only the Secretary of the Air Force, without delegation, may make determinations under this paragraph." The interim AFFARS revision goes on to state that "the contracting officer must prepare a request for determination and submit it through command channels to SAF/AQCK for processing. As a guide, use the format and information requirements for a non-availability determination in [AFFARS] 5325.102-90 [Format for Non-availability Determination] (adjusted to address the restrictions of [DFARS] 225.7002-1 [Restrictions]). Before a request for a determination can be submitted, the contracting officer must try to develop acquisition alternatives that meet the restrictions and do not require a determination under the Berry Amendment. SAF/AQC can assist in developing alternatives for a proposed determination. If such alternatives are not acceptable to meet the requirement, the reasons must be documented and certified by the requiring activity in writing."

The AF Assistant Secretary (Acquisition) memorandum transmitting the Deputy Secretary of Defense's memorandum and the interim AFFARS revision states that the AF is "developing implementing guidance for presenting alternatives and obtaining a requiring activity certification. In the interim, if you have any situation where you need to propose the execution of a non-availability determination under [DFARS] 225.7002-2(a), you may consult with Mr. J. P. McCusker...about developing alternatives for your situation."

FOR FURTHER INFORMATION CONTACT: Panoptic Enterprises at 703-451-5953 or by e-mail to Panoptic@FedGovContracts.com.

Copyright 2001 by Panoptic Enterprises. All Rights Reserved.

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