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Panoptic Enterprises' FEDERAL CONTRACTS DISPATCH

DATE: May 13, 2004

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

SOURCE: Federal Register, May 13, 2004, Vol. 69, No. 93, page 26508

AGENCIES: Department of Defense (DOD)

ACTION: Interim Rule

SYNOPSIS: DOD is issuing an interim rule amending 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 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."

DATES: The effective date of this interim rule is May 13, 2004. Comments on the interim rule must be submitted on or before July 12, 2004.

ADDRESSES: Respondents may submit comments directly on the web site at http://emissary.acq.osd.mil/dar/dfars.nsf/pubcomm. As an alternative, respondents may e-mail comments to: dfars@acq.osd.mil. Also, respondents who cannot submit comments through the web site or by e-mail may submit comments to Defense Acquisition Regulations Council, Attn: Amy Williams, OUSD(AT&L)DP(DAR), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062, or by fax to 703-602-0350. Cite "DFARS Case 2003-D099" when making comments on this interim rule.

FOR FURTHER INFORMATION CONTACT: Amy Williams, 703-602-0328.

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.

This interim rule adds two 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 is added as paragraph (f) of DFARS 225.7002-2 (paragraphs (f) through (i) are redesignated as paragraphs (g) through (j), respectively). 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 is added as paragraph (k) of DFARS 225.7002-2 (paragraphs (j) through (m) are redesignated as paragraphs (l) through (o), respectively).

In addition, a corresponding change is made to DFARS 252.225-7012, Preference for Certain Domestic Products. Paragraph (c)(3) is added to exempt from the Berry Amendment "waste and byproducts of cotton or wool fiber for use in the production of propellants and explosives" (paragraphs (c)(3) through (c)(5) are redesignated as paragraphs (c)(4) through (c)(6), respectively). (EDITOR'S NOTE: It is interesting that no changes are being made to DFARS 252.225-7011 (which addresses food); DFARS 252.225-7014, Preference for Domestic Specialty Metals; or DFARS 252.225-7015, Restriction on Acquisition of Hand or Measuring Tools.)

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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