The Berry Amendment: Requiring Defense
Procurement to Come from Domestic Sources
Valerie Bailey Grasso
Specialist in Defense Acquisition
January 13, 2012
Congressional Research Service
7-5700
www.crs.gov
RL31236
CRS Report for Congress
Pr
epared for Members and Committees of Congress
The Berry Amendment: Requiring Defense Procurement to Come from Domestic Sources
Summary
This report examines the original intent and purpose of the Berry Amendment and legislative
proposals to amend the application of domestic source restrictions, as well as potential options for
Congress. 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 Department
of Defense (DOD) Appropriations Act. These provisions later became known as the Berry
Amendment. The current Berry Amendment (Title 10 United States Code [U.S.C.] Section 2533a,
Requirement to Buy Certain Articles from American Sources; Exceptions) contains a number of
domestic source restrictions that prohibit DOD from acquiring food, clothing (like military
uniforms), fabrics (including ballistic fibers), stainless steel, and hand or measuring tools that are
not grown or produced in the United States. The Berry Amendment currently applies to DOD
purchases only.
There are several new provisions affecting the Berry Amendment. H.R. 2955, the “American
Shoes for American Servicemembers Act,” was introduced on September 15, 2011 by
Representative Mike Michaud and referred to the House Armed Services Committee. This
provision would amend Title 10 U.S.C. Section 2533a(b)(1)(B) by clarifying that the Berry
Amendment includes athletic footwear as well as the materials and components of the footwear.
On November 18, 2011, DOD adopted the final rule to implement Section 821 of the Ike Skelton
National Defense Authorization Act for FY2011 (P.L. 111-383), which prohibits DOD from
specifying the use of fire-resistant, rayon fiber in solicitations issued before January 1, 2015.
Section 821 also requires the Comptroller General to submit reports to the House and Senate
Armed Services Committees, not later than March 15, 2011, that assessed the supply chain for the
procurement of fire-resistant and fire-retardant fibers and materials for the production of military
uniforms. The GAO report was submitted to Congress in June 2011.
Section 847 of P.L. 111-383, the National Defense Authorization Act for FY2011 provided a non-
availability exception for the procurement of domestic hand or measuring tools. On March 17,
2011, DOD issued an interim rule in accordance with Section 847. The interim rule was published
in the Federal Register and the public comment period extended through May 16, 2011. The final
rule was issued on August 19, 2011.
H.R. 679, the Berry Amendment Extension Act, was introduced on February 11, 2011, and
referred to the House Homeland Security Subcommittee on Oversight, Investigations, and
Management. The proposed measure would amend Subtitle H of Title VIII of the Homeland
Security Act of 2002 to prohibit the Department of Homeland Security from the purchase of
clothing, tents, tarpaulins, and certain other textiles unless the items are grown, reprocessed,
reused, or produced in the United States.
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, some other policymakers believe that key
domestic sectors need the protections afforded by the Berry Amendment. The debate over the
Berry Amendment raises several questions, among them (1) If the United States does not produce
a solely domestic item, or if U.S. manufacturers are at maximum production capability, should
DOD restrict procurement from foreign sources, and (2) to what extent do U.S. national security
interests and industrial base concerns justify waiver of the Berry Amendment?
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The Berry Amendment: Requiring Defense Procurement to Come from Domestic Sources
Contents
Major Developments........................................................................................................................ 1
New Legislative Provisions and Proposals................................................................................ 1
GAO Reports on the Berry Amendment.................................................................................... 1
The Berry Amendment and DHS............................................................................................... 3
The Strategic Materials Protection Board.................................................................................. 4
Berry Amendment Resources .......................................................................................................... 5
Background...................................................................................................................................... 6
Controversy over the Berry Amendment ......................................................................................... 7
History of the Berry Amendment..................................................................................................... 8
When Was It Enacted and Why? ............................................................................................... 8
How Does the Buy American Act Differ from the Berry Amendment?.................................... 9
What Is the Relevance of the Berry Amendment Today?........................................................ 10
Application of the Berry Amendment............................................................................................ 11
Department of Defense Views of the Berry Amendment ........................................................ 11
Other Views ............................................................................................................................. 12
Options for Congress ..................................................................................................................... 13
Option 1: Take No Action, Retain the Berry Amendment as Enacted..................................... 13
Option 2: Eliminate Some Selected Restrictions..................................................................... 13
Option 3: Adopt a “Componency Standard” ........................................................................... 14
Option 4: Study the Lessening or Elimination of Provisions .................................................. 14
Option 5: Study What Percentage of Domestic Clothing, Textiles, Food, and Specialty
Metals Is Sold to the Military............................................................................................... 15
Option 6: Appoint a “Berry Amendment Commission”.......................................................... 15
Option 7: Audit and Investigate Berry Amendment Contracts................................................ 15
Legislative Activity........................................................................................................................ 15
112th Congress ......................................................................................................................... 16
111th Congress.......................................................................................................................... 16
110th Congress ......................................................................................................................... 17
Contacts
Author Contact Information........................................................................................................... 17
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The Berry Amendment: Requiring Defense Procurement to Come from Domestic Sources
Major Developments
New Legislative Provisions and Proposals
There are several new provisions affecting the Berry Amendment.
• H.R. 2955, the “American Shoes for American Servicemembers Act,” was introduced on
September 15, 2011 by Representative Mike Michaud. This provision would amend Title
10 U.S.C. Section 2533a(b)(1)(B) by clarifying that the Berry Amendment includes
athletic footwear as well as the materials and components of the footwear. The bill was
referred to the House Armed Services Committee.
• On November 18, 2011, DOD adopted the final rule to implement Section 821 of the Ike
Skelton National Defense Authorization Act for FY2011 (P.L. 111-383) which prohibits
DOD from specifying the use of fire-resistant, rayon fiber in solicitations issued before
January 1, 2015. Section 821 also requires the Comptroller General to submit reports to
the House and Senate Armed Services Committees, not later than March 15, 2011, that
assessed the supply chain for the procurement of fire-resistant and fire-retardant fibers
and materials for the production of military uniforms. The GAO report was submitted to
Congress in June 2011.
• Section 847 of P.L. 111-383, the Ike Skelton National Defense Authorization Act for
FY2011 provided a non-availability exception for the procurement of domestic hand or
measuring tools. On March 17, 2011, DOD issued an interim rule in accordance with
Section 847. The interim rule was published in the Federal Register and the public
comment period extended through May 16, 2011. The final rule was issued on August 19,
2011.1
• Also, the Berry Amendment Extension Act (H.R. 679) was introduced on February 11,
2011, and was referred to the House Homeland Security Subcommittee on Oversight,
Investigations, and Management. Similar bills have been introduced in previous
Congresses.
GAO Reports on the Berry Amendment
A recent GAO report examined the use of fire-resistant and fire-retardant materials in military
uniforms. Military uniforms are procured in accordance with the provisions of the Federal
Acquisition Regulation (FAR), DLA’s own internal regulations, the Berry Amendment and the
Buy American Act (BAA).2 Legislative initiatives which may impact the procurement of military
1 Defense Federal Acquisition Regulation Supplement; Non-availability Exception for Procurement of Hand or
Measuring Tools. (DFARS Case 2011-D025), Federal Register, March 17, 2011 (Volume 76, Number 52).
2 The Buy American Act (41 U.S.C. 10a through 10d, as amended ) is the principal domestic preference statute
governing most procurement by the federal government. It restricts foreign access to U.S. government procurement by
giving preference to domestically produced, manufactured, or home-grown products. For further discussion of the Buy
American Act, refer to CRS Report 97-765, The Buy American Act: Requiring Government Procurements to Come
from Domestic Sources, by John R. Luckey.
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uniforms were enacted in Public Law (P.L.) 111-383 (H.R. 6523), the Ike Skelton National
Defense Authorization Act for FY2011. Specifically, Section 821 of P.L. 111-383 required the
Comptroller General to submit reports to the House and Senate Armed Services Committees, not
later than March 15, 2011, that assessed the supply chain for the procurement of fire-resistant and
fire-retardant fibers and materials for the production of military uniforms. This legislation
reflected congressional concern that with the continued threat of improvised explosive device
(IED) attacks, all combat personnel were subject to the possibility of fire-related injuries. Thus
vehicle and aircraft fires remained a significant force protection and safety threat, whether they
occurred during ongoing combat operations or training for future deployment.
The Government Accountability Office (GAO) assessed the supply chain for the procurement of
fire-resistant and fire-retardant fibers and materials for the production of military uniforms. and
submitted a report to Congress in June 2011.
GAO was directed to provide an assessment of the following areas:
(A) The current and anticipated sources of fire-resistant rayon fiber for the production of
military uniforms;
(B) The extent to which fire-resistant rayon fiber has unique properties that provide
advantages for the production of military uniforms;
(C) The extent to which the efficient procurement of fire-resistant rayon fiber for the
production of military uniforms is impeded by existing statutory or regulatory requirements;
(D) The actions the Department of Defense has taken to identify alternatives to fire-resistant
rayon fiber for the production of military uniforms;
(E) The extent to which such alternatives provide an adequate substitute for fire-resistant
rayon fiber for the production of military uniforms;
(F) The impediments to the use of such alternatives, and the actions the Department has
taken to overcome such impediments;
(G) The extent to which uncertainty regarding the future availability of fire-resistant rayon
fiber results in instability or inefficiency for elements of the United States textile industry
that use fire-resistant rayon fiber, and the extent to which that instability or inefficiency
results in less efficient business practices, impedes investment and innovation, and thereby
results or may result in higher costs, delayed delivery, or a lower quality of product delivered
to the Government; and
(H) The extent to which any modifications to existing law or regulation may be necessary to
ensure the efficient acquisition of fire-resistant fiber or alternative fire-resistant products for
the production of military uniforms.3
GAO found that an Australian company was the sole source for fire-resistant rayon fiber for the
manufacture of fire-resistant uniforms for military personnel; that DOD had taken steps to
identify and test alternative fire-resistant, fabric blends to meet current demands; and, that there
3 Section 821 of P.L. 111-383, the Ike Skelton National Defense Authorization Act for FY2011. The bill was signed
into law on January 7, 2011.
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was debate as to whether fire-resistant rayon’s flame resistant characteristics posed a superior
advantage over other alternatives. GAO did not provide a recommendation.4
A 2003 GAO report had questioned whether the Berry Amendment was sufficient protection for
the defense industrial base and whether alternatives and solutions existed to keep critical
industries healthy and viable in times of peace and war. The report was in response to a request
from the House Armed Services Committee, directing GAO to determine whether the Defense
Logistics Agency (DLA) was properly implementing applicable statutory and regulatory guidance
for best value purchases and to solicit DLA views on the domestic clothing and textile supplier
base. GAO officials acknowledged that the Berry Amendment was a positive factor in helping
DOD to maintain a domestic supplier for some of DOD’s unique military needs; however,
officials pointed out that the overall domestic clothing and textile industry was in decline due to
declining employment and production levels, as well as the implementation of various free trade
agreements that may affect different levels of the domestic supply chain. As a result, DLA was
reportedly to initiate a study to examine both clothing and textile industries.5
The Berry Amendment and DHS
One legislative provision was passed and three other provisions proposed that would impact the
application of the Berry Amendment to DHS.
• The American Reinvestment and Recovery Act of 2009 (P.L. 111-5, H.R. 1) contained a
provision (Section 604) that is similar to the Berry Amendment. Section 604 of P.L. 111-5
affected all funds appropriated or otherwise made available to DHS. These restrictions
prohibited DHS from the purchase of certain textiles unless the items are grown,
reprocessed, reused, or produced in the United States. Section 604 is referred to as the
“Kissell Amendment.”6
• H.R. 917 (110th Congress), the Berry Amendment Extension Act, was introduced on
February 8, 2007, by Representative Robin Hayes. The proposed measure would have
prohibited DHS from the purchase of clothing, tents, tarpaulins, and certain other textiles
unless the items are grown, reprocessed, reused, or produced in the United States. The
bill was referred to the House Homeland Security Subcommittee on Managements,
Investigations, and Oversight. No further action was taken.
4 U.S. Government Accountability Office. Military Uniforms: Issues Related to the Supply of Flame Resistant Fibers
for the Production of Military uniforms. GAO-11-682R, June 2011. The report can be accessed online at
http://www.gao.gov/new.items/d11682r.pdf.
5 Contract Management: DLA Properly Implemented Best Value Contracting for Clothing and Textiles and Views the
Supplier Base as Uncertain. Report to the Chairman and Ranking Minority Member, Committee on Armed Services,
House of Representatives. U.S. General Accounting Office, GAO-03-440, February 2003. 18 p.
6This bill contains restrictions on the Department of Homeland Security's (DHS) acquisition of certain foreign textile
products. Specifically, Section 604 of the American Reinvestment and Recovery Act, codified as 6 U.S.C. 453b, limits
DHS acquisition of foreign textile products under DHS contract actions entered into on or after August 16, 2009, using
funds appropriated or otherwise made available to DHS on or before February 17, 2009, the date of the Act. DHS may
not use those funds for the procurement of certain clothing and other textile items directly related to the national
security interests of the United States if such items are not domestically grown, reprocessed, reused, or produced in the
United States. See Revision of Department of Homeland Security Acquisition Regulation: Restrictions on Foreign
Acquisition (HSAR Case 2009-004). http://www.federalregister.gov/articles/2010/06/09/2010-13804/revision-of-
department-of-homeland-security-acquisition-regulation-restrictions-on-foreign#p-12.
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• H.R. 3116 (111th Congress), the Berry Amendment Extension Act, was introduced on
July 7, 2009, by Representative Larry Kissell. The proposed measure would have
prohibited the purchase of clothing, tents, tarpaulins, and certain other textiles unless the
items are grown, reprocessed, reused, or produced in the United States. The bill was
referred to the Senate Homeland Security and Governmental Affairs Committee. No
further action was taken.
• H.R. 679 (112th Congress), the Berry Amendment Extension Act, was introduced on
February 11, 2011, and on February 17, 2011, was referred to the House Homeland
Security Subcommittee on Oversight, Investigations, and Management. The proposed
measure would amend Subtitle H of Title VIII of the Homeland Security Act of 2002 to
prohibit DHS from the purchase of clothing, tents, tarpaulins, and certain other textiles
unless the items are grown, reprocessed, reused, or produced in the United States.
The Strategic Materials Protection Board
Section 842 of P.L. 109-364, the John Warner National Defense Authorization Act for FY2007
established the policy governing materials considered critical to national security, and Section
843 established the Strategic Materials Protection Board (see text box) with the following
individuals: the Secretary of the Defense; Under Secretary of Defense for Acquisition,
Technology, and Logistics; Under Secretary of Defense for Intelligence; and Secretaries of the
Army, Navy, and Air Force.7 The board is required to meet at least once every two years, and
prepare and submit reports to Congress. The first meeting of the board was held on July 17,
2007.8 The board issued its final report to Congress on December 12, 2008.9 No report was issued
in December 2010.
P.L. 110-181, the National Defense Authorization Act for FY2008, contained a provision (Section
803) which required the Strategic Materials Protection Board to perform an assessment of the
viability of domestic producers of strategic materials, the purpose of which is to assess which
domestic producers are investing, or plan to invest on a sustained basis, in the development of a
continued domestic production capability of strategic materials to meet national defense
requirements.
7 Title 10, Subtitle A, Part 1, Chapter 7, Section 187 – Strategic Materials Protection Board. The Board was charged
with determining what items are designated as critical to national security; analyzing risks and effect on national
defense that the non-availability of such items would pose; recommending to the President strategies for ensuring
domestic availability of such items; recommending other strategies to strengthen the industrial base; and publishing in
the Federal Register the list of items critical to national security.
8 Strategic Materials Protection Board Studies Impact of New Bill. Inside the Pentagon. Volume 23, Number 51,
December 20, 2007.
9 http://www.acq.osd.mil/ip/docs/report_from_2nd_mtg_of_smpb_12-2008.pdf.
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Highlights of Sec. 842, (P.L. 109-364)
Protection of Strategic Materials Critical to National Security
Funds appropriated may not be used for the procurement of strategic materials “critical to national security” which
are not reprocessed, reused, or produced in the United States. Such items are (1) specialty metals, and (2) items
critical to national security, as determined by the Strategic Materials Protection Board.
The Secretary of Defense may invoke several exceptions: (1) “availability exception” if sufficient quantity and quality
are not available; (2) procurement outside of the United States in support of combat operations or contingency
operations; (3) procurement by vessels in foreign waters; (4) procurement by which the use of “other than
competitive procedures” has been approved based on an urgent and compelling need; (5) procurement necessary to
comply with existing agreements with foreign governments; (6) procurement by commissaries, exchanges, and other
non-appropriated fund instrumentalities; (7) procurement less than the simplified acquisition threshold referred to in
10 U.S.C. 2304(g).
The first provision of Section 842 (P.L. 109-364) granted a one-time waiver of the specialty
metals domestic source requirements if such materials were incorporated in the items produced in
the United States before the enactment of this bill, with certain conditions: (1) the contracting
officer would have to determine, in writing, that it would not be practical or economic to replace
the specialty metals incorporating into the item with materials that would meet the domestic
source requirement; (2) the prime contractor and subcontractor would have in place a plan to
ensure compliance with the requirements of the Berry Amendment; and (3) that the lack of
compliance is not knowing or willful.
In 2008 there were first media reports that the Under Secretary of Defense for Acquisition,
Technology, and Logistics had considered several legislative proposals to broaden the exceptions
provided under the Berry Amendment. Inside the Pentagon reported that John Young, then
DOD’s senior acquisition executive, had formally submitted proposals to be considered as part of
DOD’s submission for the FY2009 National Defense Authorization bill. One such proposal would
have granted DOD authority to waive the requirements of the Berry Amendment during so-called
emergency operations. Such emergency operations might include military action taken against
U.S. adversaries, military action in response to an attack with weapons of mass destruction, or
military action resulting from national emergencies declared by the President. Another proposal
would have authorized military procurement officials to give contracting preference to indigenous
groups for the purpose of expanding economic development in a contingency operation.10 DOD
had also submitted a legislative proposal that would have amended the Berry Amendment to
permit the purchase of fresh fruits and vegetables from all sources.11
Berry Amendment Resources
Two public resources provide answers to many of the most often-asked questions on the Berry
Amendment. DOD’s Office of Defense Procurement and Acquisition Policy (DPAP) has prepared
a “Frequently Asked Questions” compendium of general information on the Berry Amendment.
The questions and answers ranged from origin and history, authority, policy, and exceptions;
comparisons with other domestic source restrictions like the Buy American Act; the policy
10 Young Seeks Legislative Changes to Streamline Contingency Buying. Inside the Pentagon, February 28, 2008, Vol.
24, No. 9.
11 U.S. Department of Defense. Seventh Package of Legislative Proposals Sent to Congress for Inclusion in the
National Defense Authorization Act for FY2009, sent to Congress on May 28, 2008. See http://www.dod.mil/dodgc/
olc/legispro.html.
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governing determinations of non-availability (DNAD); and many questions often raised by
suppliers and other industry personnel.12
Also, the U.S. Department of Commerce has launched a website to provide textile and other
manufacturers a resource for the latest information on the Berry Amendment. According to the
website, this resource was compiled with the support of the Commerce’s International Trade
Administration’s Office of Textiles and Apparel, DOD, Office of the Under Secretary of Defense
for Acquisition, Technology, and Logistics, DPAP; Army, Air Force, and Navy acquisition offices,
and others.13
Background
The Berry Amendment contains a number of domestic source restrictions that prohibit DOD from
acquiring food, clothing, fabrics (including ballistic fibers), specialty metals, stainless steel, and
hand or measuring tools that are not grown or produced in the United States.14
Congress and DOD have long debated the need to protect the U.S. defense industrial base by
restricting certain federal procurement to U.S. markets through legislation known as “domestic
source restrictions.”15 Many defense appropriations bills passed since 1942 have included some
mention of a preference for U.S. articles, supplies, and materials. One particular group of
domestic source restrictions was first enacted into law on April 5, 1941, as part of the FY1941
Fifth Supplemental National Defense Appropriations Act, P.L. 77-29. During the second session
of the 82nd Congress, Elias Y. Berry, Representative from South Dakota, introduced two bills to
amend the Buy America Act to include wool as a product or material, produced or manufactured
in the United States16 Reportedly, this amendment would come to be known as the Berry
Amendment.
On December 13, 2001, the passage of the FY2002 National Defense Authorization Act codified
and modified the Berry Amendment,17 making it a permanent part of the United States Code.
Under the Berry Amendment, the Secretary of Defense has the authority to waive the requirement
to buy domestically, under certain conditions.18
12 The Defense Contract Management Agency has provided a list of items for which waivers have been issued due to
lack of a domestic supplier, as well as the corrective action plans submitted by suppliers to meet compliance with the
Berry Amendment. For further information, see http://www.acq.osd.mil/dpap/cpic/ic/berry_amendment_faq.html.
13 http://web.ita.doc.gov/tacgi/eamain.nsf/BerryAmendment/Berry%20Amendment?Opendocument.
14 10 U.S.C. § 2533a, Requirement to Buy Certain Articles from American Sources; Exceptions.
15 For a discussion of domestic source restrictions, see “Defense Acquisition: Rationale for Imposing Domestic Source
Restrictions.” GAO/NSIAD-98-191, July 17, 1998, 20 pages.
16 Congressional Record. Proceedings and Debates of the 82nd Congress, Second Session. Volume 98-Part 3. March 25,
1952 - April 22, 1952 (pages 3859-3861).
17 Within DOD regulations, the Berry Amendment can be found in the Defense Federal Acquisition Regulation
Supplement (DFARS), Restrictions on Food, Clothing, Fabrics, Specialty Metals, and Hand or Measuring Tools. See
DFARS, Part 225.7002.
18 10 U.S.C. § 2533(c)(d)(e)(f)(g)(h) Exceptions to the Berry Amendment are: when the Secretary of Defense or the
Secretary of the military department determine that satisfactory quality and sufficient quantity of any such article or
item or specialty metal cannot be procured as and when needed at United States market prices; procurement outside the
United States in support of combat operations; procurement by vessels in foreign waters; emergency procurement of
perishable foods by an establishment located outside the United States, for the personnel attached to such an
(continued...)
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The 2001 controversy over the procurement of black berets, the waiver authority of the Secretary
of Defense, as well as the presence of other domestic source provisions have created considerable
interest in the Berry Amendment. Some policymakers believe that the Berry Amendment’s
restrictions (like the specialty metal clause) contradict free trade policies, and that the presence
and degree of such competition is the most effective tool for promoting efficiencies and
improving quality. Others believe that U.S.-based companies need the protections afforded by the
Berry Amendment. These two views have been the subject of ongoing debate in Congress.
Controversy over the Berry Amendment
On October 17, 2000, the Army Chief of Staff, General Eric Shinseki, announced that the black
beret would become the standard headgear for the U.S. Army. The Army planned to issue a one-
piece beret to each of the 1.3 million active duty and reserve soldiers during the spring of 2001,
while a second beret would be issued to each soldier in the fall of 2001. The Army was to pay
approximately $23.8 million for about 4.7 million berets. DOD awarded the first contract to
Bancroft, an Arkansas-based company that had manufactured military headgear since World War
I. Other contracts were awarded to several foreign manufacturing firms; five of the foreign firms
had production facilities in the People’s Republic of China, Romania, Sri Lanka, and other low-
wage countries.
To purchase the black berets, the Defense Logistics Agency (DLA)19 granted two waivers of
specific restrictions in the Berry Amendment. The first waiver was granted to DOD so that the
Department could purchase military uniforms from foreign sources. DLA granted this waiver
when it determined that no U.S. firm could produce a sufficient quantity of one-piece, black
berets by the Army’s deadline. As a result, there were protests from some segments of domestic
manufacturing, military and veterans groups, Members of Congress, and the public. The House
Small Business Committee held a hearing on May 2, 2001, to discuss the statutory authority to
waive Berry Amendment restrictions, as well as the concerns of the small business community
regarding the contract award process.
DLA granted the second waiver to allow Bancroft to retain its contract and continue to produce
the black berets for the Army, even though Bancroft used materials from foreign sources.
Bancroft, the sole U.S. manufacturer of the one-piece beret, had procured materials from two
overseas suppliers, who, in turn, had procured material from other foreign sources. Bancroft’s
president reported that, as early as 1976, DOD had been notified that some beret materials were
procured from foreign sources.
On October 4, 2002, DOD announced that the Bancroft Cap Company of Cabot, AR, was
awarded a $14.8 million dollar firm-fixed-price contract to manufacture up to 3.6 million black,
wool berets for the United States Army and the United States Air Force. The contract was a two-
(...continued)
establishment; procurement of specialty metals or chemical warfare protective clothing produced outside the United
States, under certain circumstances; procurement which complies with reciprocal agreements with foreign
governments; procurement of certain foods; procurement for resale at commissaries, exchanges, and other non-
appropriated fund instrumentalities; procurement values that are under the simplified acquisition threshold.
19 The Defense Logistics Agency is a logistics combat support agency whose primary role is to provide supplies and
services to American military forces worldwide. See http://www.dla.mil.
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year contract with three one-year options. There were 154 proposals solicited, and thirteen
vendors responded. The contract was administered through the Defense Supply Center,
Philadelphia, PA.20
By some, where DOD purchases its berets is viewed as a relatively minor matter, when compared
to where it purchases its electronics, specialty metals, and other hardware used for logistics
support, communications and weapons modernization. However, to others small businesses loss
of such a contract to foreign sources can be seen as unacceptable.
History of the Berry Amendment
When Was It Enacted and Why?
The Berry Amendment, which dates from the eve of World War II, was established for a narrowly
defined purpose: to ensure that U.S. troops wore military uniforms wholly produced within the
United States and to ensure that U.S. troops were fed with food products solely produced in the
United States.21 Other industries, such as tools and specialty metals, were added later. Originally
enacted on the eve of World War II, it overrode exceptions added to the Buy American Act of
193322 for products procured by the Department of Defense.
In 1941, House and Senate Members held spirited discussions23 over the passage of what has
come to be known as the Berry Amendment, although the precise identity of the author of the
amendment remains unknown.24 Several issues were raised during the debate. Even though the
United States was not at war, Congress was concerned that the nation be prepared for adversity
and thus provided the impetus for such legislation. Some policymakers were also concerned that
despite the enactment of the Buy American Act in 1933, one department of the federal
government had reportedly purchased meat from Argentina. Likewise, another department had
reportedly contracted to purchase a large quantity of wool, about 50% of which came from
foreign sources. Questions were raised over the disposal of some 500 million bushels of surplus
wheat, with one policymaker noting that “wheat products and wheat should be purchased from
the production here in the United States when we have such a surplus on hand and that our own
farmers should be given preference.”25 In an expression of that concern, the original version of
20 Defense Link. U.S. Department of Defense. Contracts for October 4, 2002.
21 On April 5, 1941, the Berry Amendment was first enacted as part of the FY1941 Fifth Supplemental National
Defense Appropriations Act, P.L. 77-29, 10 U.S.C. § 2241 note. The Berry Amendment was made permanent when
P.L. 102-396, Section 9005, was amended by P.L. 103-139, Section 8005. Since then, Congress has regularly added or
subtracted Berry Amendment provisions. On December 13, 2001, the FY2002 National Defense Authorization Act
codified and modified the Berry Amendment, repealing Sections 9005 and 8109 of the above-mentioned bills. The
Berry Amendment is now codified at 10 U.S.C. 2533a.
22 See discussion on the Buy American Act, in this report.
23 An example of a discussion of the issues surrounding the passage of the Berry Amendment can be found in the
Congressional Record, vol. 87, part 15. 77th Congress, 1st Session, pp. 2460-2984 and pp. 2711-2720.
24 Legislative reference specialists suggest (but are not certain) that the amendment may have been named after George
Leonard Berry (D-TN), who was appointed to serve the remainder of an unexpired U.S. Senate term (1937-38) due to
the death of Nathan Buchman, and was defeated for election in the Democratic presidential primary of 1938. At age 24,
Senator Berry had been elected president of the International Printing Pressmen and Assistants’ Union in 1907, a
position he held until his death in 1948.
25 Statement of James Francis O’Connor, Representative from Montana, March 21, 1941, during congressional debate
(continued...)
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the House bill added a provision which required the purchase of American agricultural products
in fulfilling national defense needs. (The Senate version initially deleted the provision, but later
reinstated it, broadening the bill to include all agriculture.) The bill was enacted into law on April
5, 1941.
Largely as a result of the controversy surrounding the procurement of the black berets,
Representative Walter B. Jones introduced a bill to amend Title 10 of the United States Code, thus
making the Berry Amendment a permanent provision of law. On April 3, 2001, Representative
Jones introduced H.R. 1352 (107th Congress), the purpose of which was to codify and modify the
provisions of the Berry Amendment. At the introduction of the bill, Representative Jones stated
that the black beret controversy and the decision of the Defense Logistics Agency to waive the
Berry Amendment provisions and allow the procurement of berets from foreign sources
highlighted the need to review the current law and look for ways to improve the effectiveness of
the law. H.R. 1352 would also add a requirement that the Secretary of Defense notify the House
and Senate committees on Appropriations, Armed Services, and Small Business before a waiver
is made. The provisions of H.R. 1352 were enacted into law as part of the FY2002 National
Defense Authorization Act, P.L. 107-107.
How Does the Buy American Act Differ from the Berry
Amendment?
The Buy American Act (BAA) and the Berry Amendment are often confused, and the terms are
sometimes used interchangeably. The BAA, enacted in 1933, is the principal domestic preference
statute governing most procurement by the federal government, while the Berry Amendment,
enacted on the eve of World War II, governs DOD procurement only.26 The BAA seeks to protect
domestic labor by giving preference to domestically produced, manufactured, or home-grown
products in government purchases, with certain exceptions. The Berry Amendment overrides
many of these exceptions, primarily for food, clothing, and specialty metals.
The two major differences between the BAA and the Berry Amendment are that (1) the BAA
applies only to federal government contracts to be carried out within the United States, while the
Berry Amendment, which is for defense contracts only, is not limited to contracts within the U.S.;
and (2) the BAA requires that “substantially all” of the costs of foreign components not exceed
50% of the cost of all components (thus, an item can be of 51% domestic content and still be in
compliance with the BAA) while the Berry Amendment requires that items be 100% domestic in
origin.
It should be noted that there are a number of other domestic source provisions which generally
govern specific types of procurement; these provisions are not covered by the BAA or the Berry
Amendment. These provisions will not be covered in this report but must be considered when
(...continued)
over the 1941 Fifth Supplemental National Defense Act (see Congressional Record, vol. 87, part 15. 77th Congress, 1st
Session, p. 2564.)
26 The Buy American Act (41 U.S.C. §§10a through 10d, as amended), enacted in 1933, is the major domestic source
restriction governing procurement by all of the federal government. It restricts U.S. government procurement by giving
preference to domestically produced, manufactured, or home-grown products. For further discussion of the Buy
American Act, refer to CRS Report 97-765, The Buy American Act: Requiring Government Procurements to Come
from Domestic Sources, by John R. Luckey.
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determining whether or not a specific domestic source provision affects a particular type of
procurement.27
What Is the Relevance of the Berry Amendment Today?
Some observers argue that the Berry Amendment restrictions may not always represent the best
value to DOD or the federal government, nor is there always a justifiable national security interest
to preserve certain items currently under the Berry Amendment. Nevertheless, others have
asserted that U.S. workers and businesses have an expectation that Congress will consider their
interests in determining procurement policies.
A number of Berry Amendment-restricted items may be in line with the original purpose and
intent, based on the end use products that are produced. For example, certain items like chemical
warfare protective clothing (composed of ballistic fibers, made from textiles) may warrant further
study. Specialty metals may be critical and vital to the war-fighting effort if they are used for
“high-tech” electronics and communications. Food restrictions, on the other hand, are not critical
and may make it more difficult for DOD to take advantage of commercial business practices. In
an increasingly globalized economy, many food suppliers find it difficult to adhere to this
restriction as it deviates from standard commercial business practices, so some may decline to sell
to DOD. Many food suppliers who sell to DOD claim they are often forced to adopt unique,
costly, and inefficient business practices to do business with the defense sector.28
Economic, social, and political factors come into play when examining the purpose and intent of
the Berry Amendment. If the United States becomes dependent on purchasing equipment and
supplies from foreign sources, what prevents an adversary from cutting off U.S. access to such
items or refusing to build militarily critical items in times of crisis or conflict? Another argument
for maintaining the Berry Amendment restrictions is that they often benefit small, minority-
owned, and disadvantaged businesses which may depend on DOD for their viability. According to
congressional testimony, U.S. textile and apparel industries combined lost approximately 540,000
jobs during the 1990s.29
Some would argue that the Berry Amendment is still relevant today because of the tragic events
of September 11, 2001. There are also concerns over the possibility of future acts of terrorism and
the safety and security of the nation’s food supply. Some specialty metals and steel products,
27 See 41 U.S.C. § 10a through 10d, and 10 U.S.C. § 2533, Determinations of Public Interest under the Buy American
Act. For further discussion of the Buy American Act, see CRS Report 97-765, The Buy American Act: Requiring
Government Procurements to Come from Domestic Sources, by John R. Luckey. For further discussion of defense
domestic source provisions not covered by the Buy American Act or the Berry Amendment, refer to Title 10 of the
United States Code.
28 According to Leslie G. Sarasin of the American Frozen Food Institute (AFFI), “The Berry Amendment required
DOD to procure foods, entirely of U.S. origin ingredients. Often, DOD was forced to reject multi-ingredient,
commercially available food items processed in the United States because the domestic origin of all ingredients and
components of the product could not be demonstrated. This policy put DOD at odds with common commercial practice
in the food industry, which typically follows U.S. tariff law in determining questions of foreign origin, and limited its
access to the widest possible selection of products.” Memorandum to the Defense Acquisition Regulations Council on
AFFI comments on DOD’s proposed interim rule regarding modification of the Berry Amendment, June 21, 2002. See
DFARS Case 2002-D002, at http://www.affi.com/policy.asp.
29 Statement of Evan Joffe, Marketing Manager of Springfield, LLC, before the House Committee on Small Business,
May 22, 2001.
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items covered under the Berry Amendment, are produced by distressed U.S. industries. One such
company, Bethlehem Steel, one of the largest U.S. steel manufacturers, filed for Chapter 11
bankruptcy protection, in part because of the competition from cheaper, foreign-made and
possibly subsidized steel.30 Additionally, the procurement of certain items like ballistic fibers
(found in body armor, which is critical to the protection of U.S. military troops) is restricted to
domestic producers under the Berry Amendment. Generally, proponents of the Berry Amendment
have argued that these types of restrictions are necessary to maintain a viable industrial base, and
that the Berry Amendment serves as some protection for critical industries by keeping them
healthy and viable in times of peace and war. For these reasons, some believe that this is not the
time to change the provisions of the Berry Amendment, arguing that the United States should
maintain its current capacity, at a minimum, to feed and clothe its military forces.
However, critics argue that the Berry Amendment can undercut free market competition and may
produce other negative effects, such as reducing business incentives to modernize, causing
inefficiency in some industries due to a lack of competition, and causing higher costs to DOD
(because the military services may pay more for “protected” products than the market requires).
Critics also contend that the Berry Amendment promotes U.S. trade policies that might
undermine international trade agreements. For example, the delays associated with the
procurement of body armor for U.S. troops in Iraq were a source of congressional criticism
including during the 108th Congress.31
Application of the Berry Amendment
Department of Defense Views of the Berry Amendment
DOD officials have expressed contrasting views about the necessity for the Berry Amendment.
Then Secretary of Defense Richard Cheney32 issued a 1989 report to Congress called “The
30 Behr, Peter. Bethlehem Steel Files for Bankruptcy; Struggles With Competition From Imports, Labor Costs
Exacerbated by Aftermath of Attacks. Washington Post, October 16, 2001, p. E01. Bethlehem Steel, a 97-year-old
company based in Bethlehem, PA, was the 25th steel company to file for bankruptcy protection since 1998. The
company listed $4.3 billion dollars in assets, $6.75 billion dollars in liabilities, including an unfunded health care
obligation of $1.85 billion dollars.
31 According to Vice Admiral Keith W. Lippert, United States Navy, who is the Director of the Defense Logistics
Agency, the Army has adequately equipped all of the U.S. troops with the Interceptor Body Armor. In his testimony on
March 30, 2004, before the House Armed Services Subcommittee on Readiness, he reported that “As we prepared (for
Operation Iraqi Freedom), we built on lessons learned from previous conflicts. Our preparations were good in some
areas, but needed to improve in others. I’ve discussed our joint planning with the Services in advance of the operation.
In some cases, actual demand for items exceeded projections. For example, the Small Arms Protective Inserts—the
SAPI plates you’ve all heard about—the estimated FY2003 requirements were seventeen million dollars. For a very
good reason, the protection of our American war fighter—The Army increased their requirement for Interceptor Body
Armor. Today all troops in Iraq are equipped with Interceptor Body Armor. To meet the increased requirement, funded
requisitions began coming to us in January 2003. By November 2003, we actually bought three hundred seventy
million dollars of the SAPI plates - using exigency contracts, awarded within thirty days, with an average delivery
beginning within eighty-three days. The Army Audit Agency conducted a special inspection of body armor and found
that we were timely in making awards and that quality products were delivered on time. However, SAPI production
right now is constrained by the availability of raw materials, mainly the ceramic tiles contained in the plates. At
present, known worldwide production of qualified ballistic packages is limited to twenty-five thousand SAPI sets (or
fifty thousand plates) per month.”
32 Secretary of Defense, March 1989 - January 1993.
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Impact of Buy American Restrictions Affecting Defense Procurement.” The report suggested that
an alternative to the Berry Amendment would be a specifically targeted approach to provide DOD
with the ability to establish assured sources of supply for mobilization purposes through existing
mobilization base planning under the Defense Production Act.33 The report concluded that
“statutory and regulatory policies and other federal and DOD acquisition regulations like the
Berry Amendment, which prohibit or impede foreign-source participation in U.S. defense
contracting, constitute a considerable departure from the concept of full and open competition.”
In 1997, the DOD Acquisition Reform Executive Focus Group’s final report called for the
elimination of some Berry Amendment restrictions on food, clothing, and textiles, while retaining
restrictions on specialty metals and measuring tools.
A former DLA Deputy Director, Major General (Ret.) Charles R. Henry, testified that the Berry
Amendment was critical to the maintenance of a “warm” U.S. industrial base during periods of
adversity and war. He summed up his opinion, as follows:
The point here is that, through the Berry Amendment, our defense procurement
establishment is able to maintain a stable of independent, competing producers who
understand the mil-specs of different items and who have the commitment to service the U.S.
military. They are there for our military when there is a surge in requirements—as there was
with Desert Storm—and they must be there during peacetime.34
Other Views
Some proponents of the Berry Amendment believe that the U.S. military should not be dependent
on foreign sources for critical textile products and that dependency on foreign sources for military
items could lead to problems with supply, demand, delays, and a potentially adversarial
relationship with suppliers during times of war or military mobilization. Furthermore, some
believe that the Berry Amendment should be expanded to include other important industries and
that new federal agencies like the Department of Homeland Security should be covered by the
provisions of the Berry Amendment.35 However, some representatives of domestic and foreign
companies have criticized the Berry Amendment, stating that it undercuts free market
competition, may promote discriminatory practices, robs businesses of incentives to modernize,
causes inefficiency in some industries due to a lack of competition, and results in higher costs to
DOD, because the military services pay more for “protected” products than the market requires.
Some critics of the Berry Amendment also argue that the United States will lose its technological
edge in the absence of competition and alienate foreign trading partners, thereby provoking
33 For further discussion on the Defense Production Act, see CRS Report RS20587, Defense Production Act: Purpose
and Scope, by Daniel H. Else, 6 p.
34 Testimony before the Oversight and Investigations Subcommittee, House Committee on Education and the
Workforce. Hearing on Federal Prison Industries’ Proposed Military Clothing Production Expansion - Assessing
Existing Protections for Workers, Business, and FPI’s Federal Agency Customers. October 5, 2000.
35 It should be noted that H.R. (111th Congress)1, the American Recovery and Reinvestment Act of 2009 (P.L. 111-5)
contained a provision (Section 604) which affected all funds appropriated or otherwise made available to DHS. These
restrictions prohibited DHS from the purchase of certain textiles unless the items were grown, reprocessed, reused, or
produced in the United States. Section 604 is sometimes referred to as the Kissell Amendment. Also, the Berry
Amendment Extension Act was reintroduced by Representative Kissell on February 11, 2011 and referred to the House
Homeland Security Subcommittee on Oversight, Investigations, and Management. The bill seeks to extend the
provisions of the Berry Amendment to DHS.
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retaliations and loss of foreign sales. They assert that the Berry Amendment will ultimately
reduce the ability of the United States to negotiate and persuade its allies to sell or not sell to
developing countries. They contend that the Berry Amendment promotes U.S. trade policies that
undermine the international trade agreements. Furthermore, restrictions on food mean that in most
cases it is illegal for DOD to purchase an item or food if it is a foreign item or if it has any foreign
ingredient or processing. On the other hand, critics have also expressed concern over the
increased levels of imported, ready to wear goods, and the prevalent “sweat shop conditions” of
foreign markets.
In 2006, the Berry Amendment Reform Coalition (a group of associations and member companies
that support legislative reforms to the Berry Amendment) proposed legislative reforms that
advocated for exceptions to the Berry Amendment for domestic specialty metals.36 The passage of
the John Warner National Defense Authorization Act for FY2007 (P.L. 109-364, Sections 842 and
843) effectively moved the specialty metal provision out of the Berry Amendment and into a
separate section of Title 10. The specialty metals clause provides protection for strategic materials
critical to national security.
Options for Congress
The Army’s black beret controversy, which revealed that the berets are not 100% domestic in
origin, and the resulting waiver of Berry Amendment restrictions to allow DLA to procure the
berets from foreign sources raised questions which have not been settled, as to the original
purpose, intent, and value of the Berry Amendment. Congress may choose to examine the
domestic source restrictions under the Berry Amendment and other procurement provisions and to
determine whether they help or hurt the defense industrial base, including relationships with
foreign trading partners.
Option 1: Take No Action, Retain the Berry Amendment as Enacted
Congress may choose to take no action, to retain the current provisions of the Berry Amendment
as enacted in law.
Option 2: Eliminate Some Selected Restrictions
Congress might eliminate some selected restrictions, such as the restrictions on food. Eliminating
the restrictions on purchasing food items (with less than 100% domestic content) would allow
U.S. food suppliers to use more commercial business practices that are more cost effective. This
move would arguably promote more competition and interest in selling food to DOD. For
example, some in DOD believe that elimination of the food restriction would allow food suppliers
a greater and more practical latitude to use foreign ingredients and processing, in line with current
commercial practice. Many food suppliers find this restriction to be the least practical, and even
trade associations of food suppliers have stated that this restriction makes it more difficult to do
business with DOD. The Pentagon believes that the food provisions of the Buy American Act
would continue to provide U.S. food suppliers a significant advantage over foreign suppliers.
36 Berry Amendment Reform Coalition, https://oasis.northgrum.com/general/docs/
BerryAmendmentReformCoalition.pdf.
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Likewise, Congress could eliminate or modify the clothing restriction, allowing DOD to find the
best item for the most competitive price.37 DOD has reportedly known for 25 years that it does
not produce a solely domestic beret.38 One alternative would be for restricted items to be
classified according to a prioritized system, with “high-tech” and “low-tech” classifications,
which each could have different waiver requirements. Some military uniform components, such
as the beret, could be classified as “low-tech,” and therefore could be procured without a waiver.
This option would most likely be opposed by groups such as the American Manufacturing Trade
Action Coalition and the National Council of Textile Organizations.
Option 3: Adopt a “Componency Standard”
Congress might revise the Berry Amendment and amend the provisions to say that manufactured
articles are considered domestic if “substantially all” of their components have been mined,
produced, or manufactured domestically. This is similar to the requirements of the Buy American
Act and could eliminate future procurement issues like those encountered in the Army black beret
procurement.
Such a provision was proposed in the House-passed version of H.R. 1588, the FY2004 National
Defense Authorization Act. Section 829, titled “Requirement Relating to Purchases by
Department of Defense Subject to Buy American Act,” would have broadened the definition of
what makes an item “domestic” in origin. In Section 829, an item was defined as domestic and
covered under the Buy American Act if it was at least 65% domestic in origin. Adoption of this
provision would have provided DOD the authority to procure items that may be a combination of
both domestic and foreign in origin. This provision alone would represent a significant departure
from the 100% domestic requirement of the Berry Amendment, and more closely parallel the
provisions of the BAA.39 However, this provision was dropped in the final version of the bill.40
Option 4: Study the Lessening or Elimination of Provisions
Congress could solicit the opinions of trade associations, labor organizations, and industry experts
on the selected use of Berry Amendment restrictions and use of the waiver requirement. Many
industry experts say that this approach is preferable to an “all or nothing” stance taken by some
interest groups.
37 However, the American Manufacturing Trade Action Coalition http://www.amtacdc.org advocates for the
preservation of the Berry Amendment and the Buy American Act, so that the U.S. military does not become dependant
on foreign sources for critical textile products.
38 At the May 2, 2001 hearing before the House Committee on Small Business, Ms. Michele Goodman from Atlas
Headwear, Inc. (a small business supplier based in Phoenix, Arizona) testified that American companies could have
fulfilled the Army’s black beret requirement had DLA’s Defense Supply Center of Philadelphia been given enough
time to proceed properly, and had the U.S. Army been more open minded about the type of beret it wanted. Her
company attempted to bid for the beret contract, without success. See the prepared statement of Michele Goodman,
“Black Beret Procurement: Business as Usual at the Pentagon?” House Committee on Small Business, May 2, 2001.
39 The Buy American Act requires the federal government to procure items that are “substantially” composed of
domestic materials, while the Berry Amendment requires that the Department of Defense procure items that are wholly
(100%) domestic.
40 H.R. 1588, the National Defense Authorization Act for 2004, was enacted as P.L. 108-136 on November 24, 2003.
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The American Apparel and Footwear Association (AAFA) supports the preservation of the Berry
Amendment. AAFA believes that the controversy surrounding the procurement of the berets has
helped shore up support for such a change in the law. The association has suggested that Congress
might want to consider whether one particular restriction adversely impacts a U.S. company or its
workers that might have become dependent upon the provisions of the Berry Amendment for their
economic well-being.41
Option 5: Study What Percentage of Domestic Clothing, Textiles,
Food, and Specialty Metals Is Sold to the Military
Congress might determine whether these markets are wholly dependent on the military or
whether they represent a statistically significant portion of the total market. For example, during
Desert Storm the apparel and textile industry proved that its surge capacity could rapidly respond
to a major contingency and a sudden call-up for servicemen and women. The industry started
with nine manufacturers producing 2 million camouflage fatigues in 1988; by 1991, the number
of manufacturers increased to 16, producing some 5 million camouflage fatigues. Congress may
also want to explore the impact of Berry Amendment restrictions on U.S. relationships with
foreign trading partners.
Option 6: Appoint a “Berry Amendment Commission”
Congress might appoint a commission to study the effects of the Berry Amendment restrictions
on the U.S. industrial base, national security, and the military’s war-fighting capability. The
commission could assess the economic, social, and political impact of current restrictions and
make recommendations to the Congress. The commission could determine whether current
coverage of the Berry Amendment is appropriate or whether it should be expanded or contracted.
Option 7: Audit and Investigate Berry Amendment Contracts
Congress could investigate all military procurement contracts for compliance with the Berry
Amendment. Noting that congressional testimony suggested that DLA had known that the
Bancroft Cap Company has used foreign suppliers for the past 25 years implies that there may be
other similar instances that have been overlooked or underreported. Congress could direct the
Government Accountability Office42 or the DOD Inspector General to conduct an audit of a
representative sample of contracts awarded for each restricted item under the Berry Amendment,
including whether end products incorporated materials from foreign sources.
Legislative Activity
Several domestic source provisions governing the Berry Amendment were proposed and/or
enacted into law during recent Congresses. One common theme among the bills was the
broadening of the Secretary of Defense’s waiver authority (authority to waive the Berry
41 AAFA Legislative Update, March/April/May 2001.
42 Effective July 7, 2004, the General Accounting Office’s legal name is the Government Accountability Office.
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Amendment) when he believes that there is an unusual and compelling reason to procure items
from foreign sources.
112th Congress
H.R. 2955, the “American Shoes for American Servicemembers Act,” was introduced on
September 15, 2011 by Representative Mike Michaud. This provision would amend Title 10
U.S.C. Section 2533a(b)(1)(B) by clarifying that the Berry Amendment includes athletic footwear
as well as the materials and components of the footwear. The bill was referred to the House
Armed Services Committee.
The Berry Amendment Extension Act (H.R. 679) was introduced on February 11, 2011 by
Representative Larry Kissell, and was referred to the House Homeland Security Subcommittee on
Oversight, Investigations, and Management. The bill seeks to extend the provisions of the Berry
Amendment to the Department of Homeland Security.
111th Congress
H.R. 3116, the Berry Amendment Extension Act, was introduced on July 7, 2009, by
Representative Larry Kissell. The proposed measure would have prohibited the purchase of
clothing, tents, tarpaulins, and certain other textiles unless the items are grown, reprocessed,
reused, or produced in the United States. The bill was referred to the Senate Homeland Security
and Governmental Affairs Committee. No further action was taken.
H.R. 5013, the Implementing Management for Performance and Related Reforms to Obtain Value
in Every Acquisition Act of 2010, was introduced on April 14, 2010, by Representative Robert
Andrews and referred to the Senate Armed Services Committee. The proposed measure would
have contained a provision (Section 409) that expressed a “sense of Congress” that:
in order to create jobs, level the playing field for domestic manufacturers, and strengthen
economic recovery, it is the sense of Congress that the Department of Defense should—
(1) ensure full contractor and subcontractor compliance with the Berry Amendment (10
U.S.C. 2533a) and the Buy American Act (41 U.S.C. 10a et seq.); and
(2) not procure products made by manufacturers in the United States that violate labor
standards as defined under the laws of the United States.43
The House Armed Services Committee expressed its concern over DOD’s application of the
Berry Amendment to tents, tarpaulins, or covers, as reflected in its comments in H.Rept. 111-419
for H.R. 5136 (the proposed National Defense Authorization Act for FY2011), as quoted here.44
43 Section 409, Sense of the Congress in Regard to Compliance with the Berry Amendment, the Buy American Act, and
Labor Standards of the United States.
44 H.R. 5136 was introduced in the House on April 26, 2010 and referred to the Senate on June 28, 2010. A related bill,
H.R. 6523, was introduced in the House on December 15, 2010, passed the House on December 17, 2010, passed the
Senate on December 22, 2010 and signed by the President on January 7, 2011 as P.L. 111-383.
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APPLICATION OF BERRY AMENDMENT TO TENTS AND RELATED ITEMS
The committee is aware that the Director, Defense Logistics Agency has chosen to interpret
the requirement to buy certain articles from domestic sources per subsection (b) of section
2533a of title 10, United States Code, in such a manner that it applies expressly to tents,
tarpaulins, or covers, but not to the materials and components of tents, tarpaulins, or covers.
The committee is concerned that this narrow interpretation of the statute is inconsistent with
the law. Therefore, the committee directs the Director, Defense Logistics Agency to review
the interpretation of the current statute to ensure that it is compliant with both the law and
with congressional intent and submit a report to the congressional defense committees not
later than October 1, 2011, explaining how the committees’ concerns were addressed.45
H.R. 5013 also included two amendments (H.Amdt. 615 and H.Amdt. 617) that propose to
strengthen the application of the Berry Amendment to defense procurement. H.Amdt. 615 would
have required GAO to conduct a study of certain procurement items to determine if there is
sufficient domestic production to adequately supply the Armed Forces, and to evaluate whether
such items could be made in the United States under the Berry Amendment. H.Amdt. 617 would
have expressed the “Sense of the Congress” that DOD should operate in full compliance through
the acquisition process of the Berry Amendment and the Buy American Act, and that DOD should
not procure products made by manufacturers in the United States that violate U.S. labor
standards.
H.R. 6262, the Jobs Through Procurement Act, was introduced on September 29, 2010, by then
Representative Phil Hare. The proposed bill sought to strengthen the domestic sourcing
requirements of the Berry Amendment and the Buy American Act. The bill was referred to the
Committees for House Oversight and Government Reform and the House Armed Services
Committee.
110th Congress
H.R. 917, the Berry Amendment Extension Act, was introduced on February 8, 2007, by
Representative Robin Hayes. The proposed measure would have prohibited DHS from the
purchase of clothing, tents, tarpaulins, and certain other textiles unless the items are grown,
reprocessed, reused, or produced in the United States. The bill was referred to the House
Homeland Security Subcommittee on Management, Investigations, and Oversight. No further
action was taken.
Author Contact Information
Valerie Bailey Grasso
Specialist in Defense Acquisition
vgrasso@crs.loc.gov, 7-7617
45 H.Rept. 111-491 for the National Defense Authorization Act for FY2011 (H.R. 5136).
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