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Panoptic Enterprises' FEDERAL CONTRACTS DISPATCH

DATE: September 17, 2004

SUBJECT: Defense Federal Acquisition Regulation Supplement (DFARS); Berry Amendment Changes

SOURCE: Federal Register, September 17, 2004, Vol. 69, No. 180, page 55989

AGENCIES: Department of Defense (DOD)

ACTION: Final Rule

SYNOPSIS: DOD is adopting as final, without change, the May 13, 2004, interim rule that amended DFARS 225.7002, Restrictions on Food, Clothing, Fabrics, Specialty Metals, and Hand or Measuring Tools, to implement Sections 826 and 827 of the National Defense Authorization Act for Fiscal Year 2004 (Public Law 108-136), which provide exceptions to the domestic source requirements of the Berry Amendment.

EDITOR'S NOTE: For more on the interim rule, see the May 13, 2004, FEDERAL CONTRACTS DISPATCH "Defense Federal Acquisition Regulation Supplement (DFARS); Berry Amendment Changes."

For more on other acquisition-related provisions of Public Law 108-136, see the November 25, 2003, FEDERAL CONTRACTS DISPATCH "Enactment of the National Defense Authorization Act for Fiscal Year 2004."

EFFECTIVE DATE: September 17, 2004.

FOR FURTHER INFORMATION CONTACT: Amy Williams, Defense Acquisition Regulations Council, OUSD(AT&L)DPAP(DAR), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062; 703-602-0328; fax: 703-602-0350.

SUPPLEMENTAL INFORMATION: The "Berry Amendment" requires that procurements of covered items in excess of 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..." The Berry Amendment is 10 U.S.C. Chapter 148, Section 2533a, Requirement to Buy Certain Articles from American Sources; Exceptions.

DFARS 225.7002 addresses the requirements and restrictions of the Berry Amendment. DFARS 225.7002-1, Restrictions, contains requirements for the acquisition of certain items from domestic sources, and DFARS 225.7002-2, Exceptions, provides exceptions to these requirements.

On May 13, 2004, DOD published an interim rule which added new exceptions to DFARS 225.7002-2 to implement Sections 826 and 827 of Public Law 108-136. Section 826 exempts from the Berry Amendment the acquisition of food, specialty metals, and hand or measuring tools when they are needed to support contingency operations or when the use of other than competitive procedures has been approved on the basis of unusual and compelling urgency -- this exemption was added as paragraph (f) of DFARS 225.7002-2. Section 827 exempts from the Berry Amendment the acquisition of waste and byproducts of cotton or wool fiber for use in the production of propellants and explosives-- this exemption was added as paragraph (k) of DFARS 225.7002-2. In addition, a corresponding change was made to DFARS 252.225-7012, Preference for Certain Domestic Products.

No comments were received on the interim rule, so DOD is adopting the interim rule as final without changes.

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

Copyright 2004 by Panoptic Enterprises. All Rights Reserved.

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