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Does Berry Apply


rmeman2k

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A contractor self reported what they believe is a Berry Amendment violation. One of their sub-contractors is providing a fabric carrying case that contains nondomestic fabric.

The firm fixed priced supply contract for Optical Weapon Sights includes the following clauses:

52.225-1 Buy American Act--Supplies (JUN 2003).

252.225-7012 Preference for Certain Domestic Commodities (JUN 2010)

After review of both clauses in the contract in relation to the end item delivered to the US Army, $15,000.00 optical sight, and the component fabric case, $17.00 (the price of the case is included in the end item price), I believe this is a de minims issue. In other words, the case contains incidental amounts of natural fibers with a value less than 10% the value of end item, thus not evoking a Berry Amendment violation. Similar application of Buy American restrictions would require a 50% threshold. After review of the issue described, I believe the contractor is acting in good faith in delivery of the subject case and that this is not a Berry Amendment violation. I welcome feedback.

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Time out. What are those two clauses doing in the same contract? If it's a DoD contract, FAR 52.225-1 doesn't apply.

In any case, DFARS 252.225-7012( c ) is clear on when the clause does not apply:

( c ) This clause does not apply—

(2) To incidental amounts of cotton, other natural fibers, or wool incorporated in an end product, for which the estimated value of the cotton, other natural fibers, or wool—

(i) Is not more than 10 percent of the total price of the end product; and

(ii) Does not exceed the simplified acquisition threshold in FAR Part 2;

What are you having trouble understanding?

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Thank you for the response.

I read an article on DAU Acquisition Community Connection (https://acc.dau.mil/communitybrowser.aspx?id=526692) that indicated “The Berry Amendment applies to BOTH end items and components.“ Component, as defined in 41 U.S.C. § 403, is “any item supplied to the Federal Government as part of an end item or of another component.” For the procurement in question if the bags are viewed as a component of the end item, optical sight, do I apply the 10% rule to the component only? This procurement is in excess of SAP.

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DFARS 252.225-7012( c )(2) uses the word "end product"--not "component." I don't see how it would apply to components.

The exception applies to "incidental amounts of cotton, other natural fibers, or wool incorporated in an end product." The carrying case may meet the definition of "component", but is it "incorporated" in the optical sight?

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Don,

The carrying case is not incorporated in the optical sight. It is a stand alone bag used to safely transport the sight when not mounted on a weapon system. I agree the DFARS clause does not mention component.

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