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Fara Fasat

Berry Amendment

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Question on the Berry Amendment, the original, not specialty metal.

Basically it applies to certain fibers and fabrics in certain categories of products, such as clothing.

Question: a helmet is molded from a substance that contains fiberglass. In its liquid state it is poured into a mold to make the helmet. Is the fiberglass used in the substance the type of "fiber" that the Berry Amendment applies to?

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See http://www.acq.osd.mil/dpap/dars/pgi/pgi_htm/PGI225_70.htm#225.7002-1 for discussion concerning Kevlar helmets , which are considered to be headwear under the Berry Amendment . The list is considered to be not all inclusive...

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Thanks Joel, but I don't think that answers the question. The type of helmet we are concerned with is a personal protective helmet and is not made of kevlar. I'm not even sure whether kevlar contains fiberglass, but I don't know. At any rate, all that the PGI says is that a kevlar helmet is not clothing. The helmet at issue is.

What is really need to know is whether the fiberglass that is mixed in the substance to make the helmet is the type of fiber that the Berry Amendment applies to.

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Guest Vern Edwards

The attorney won't know. I don't think anybody knows. I've been looking for guidance, but can't find any.

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That's my experience, too -- but the question is a legal question -- the Berry Amendment is messy.

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Fara, the way I read the Amendment it requires clothing, and the materials from which clothing is made, to be " grown, reprocessed, reused, or produced in the United States." This restriction appears to apply regardless of the type of fabric, fiber or other material that is used to produce the clothing. In your case, if the helmet is considered an item of clothing, the fiberglass would have to be "grown, reprocessed, reused, or produced in the United States."

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Below are GAO bid protest decisions mentioning the Berry Amendment that still show up on the docket search function on the GAO website:

Technology Management Company, Inc.

http://www.gao.gov/products/D09034

B-409976: Sep 26, 2014

Kipper Tool Company

http://www.gao.gov/products/D07741

B-409585.2,B-409585.3: Jun 19, 2014

MSC Industrial Direct Company, Inc.

http://www.gao.gov/products/D07758

B-409585,B-409585.4,B-409585.9: Jun 12, 2014

Integrity Supply

http://www.gao.gov/products/D03083

B-406860: Sep 10, 2012

Simba USA, LLC; New Western Supply, LLC

http://www.gao.gov/products/A88754

B-401971,B-401971.2: Dec 28, 2009

Infrastructure Defense Technologies

http://www.gao.gov/products/A90831

B-401860.2,B-401860.3: Jul 27, 2010

Outdoor Venture Corporation

http://www.gao.gov/products/A88070

B-401628: Oct 2, 2009

MMI-Federal Marketing Service Corp.

http://www.gao.gov/products/A47397

B-297537: Feb 8, 2006

Capps Shoe Company, Inc.

http://www.gao.gov/products/A62565

B-298196,B-298196.2: Jul 6, 2006

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Guest Vern Edwards

If you can get access to it, read "The Persistence of Time: A Brief History and Analysis of the Berry Amendment," by Sean P. Banford. It appeared in the Spring 2003 issue of Public Contract Law Journal (32 Pub. Cont. L. J. 577). It summarizes the law and the GAO decisions and case law up to 2002.

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Guest Vern Edwards

No, they don't. You'll just have to decide. Maybe the easiest thing to do is decide that Berry does apply and see what response you get.

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My question is why are you looking to see if the fiberglass is considered fabric or not? 225.2002-1(a)(2) specifically refers to headgear as clothing, so the berry amendment applies in this situation since a helmet is headgear, correct? Even if you assume (a)(2) doesn't apply, is fiberglass then considered a synthetic fabric or a coated synthetic fabric under (a)(7)? Your answer is probably going to need someone from your requirements community to sit down with you and the attorney to walk through it.

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The research took awhile. I was tempted to do like the Supreme Court and just conclude that Congress didn't really mean "fiber" when it used the word "fiber."

However, I dug in to the article and the cases, and concluded as follows:

Basically, as applied to non-food products, the Berry Amendment applies in two ways:

1. If the end item is clothing (DFARS 225.7002-1(a)(2)) or individual equipment in FSC 8465 that contains any of the fibers or fabrics listed in 2 below (225.7002-1(a)(10)), then the item and all materials and components must be made in the US. The only exception is things that are not normally associated with clothing, such as sensors, electronics, etc.

2. For the following:

  • cotton or other natural fibers (225.7002-1(a)(4)),
  • woven silk or blends (22507002-1(a)(5)),
  • synthetic fabrics or coated synthetic fabrics and the fibers and yarns used in the fabrics (225.7002-1(a)(7)),
  • canvas products (225-7002-1(a)(8)), and
  • wool, in the form of fiber or yarn or contained in fabrics or materials (225-7002-1(a)(9)),

​These must be made, grown, or processed in the US, whether bought as end items themselves, or as components of end items. An example of the latter is a wooden chair with a fabric seat cushion. The chair does not need to be made in the US because it is not clothing or individual equipment. But the cushion does, because it is a fabric on the list and it is a component of the end item.

Short version: any of the listed fabrics and fibers contained in an end item must be made or produced in the US. Any clothing, or individual equipment that contains fabrics or fibers, must be made in the US, AND have all components made in the US.

There are also numerous exceptions that are beyond the scope of a short explanation.

Now, as applied to the helmet: the helmet is clothing, specifically special purpose clothing. Therefore #1 above applies, and the helmet and all components must be made in the US. The fiberglass is a component of the shell substance, and must be made in the US. It is not any of the fibers from the list, but because it is a component of clothing, it must be produced in the US.

Comments, contrary conclusions?

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Fara Fasat, you write, "Now, as applied to the helmet: the helmet is clothing, specifically special purpose clothing." This seems to be based on a reading of FSC 8415, which is among the FSCs listed in DFARS PGI 225.7002-1(a)(2)(A). However, DFARS PGI 225.7002-1(a)(2)( C ) provides, "Each item should be individually analyzed to determine if it is clothing, rather than relying on the Federal Supply Class alone to make that determination." I suspect this language in the DFARS PGI is based in part on the fact that the statute does not define clothing, and on the fact that by its express terms the statute does not reach items added to clothing and not normally associated with clothing. 10 USC 2533a( b )(1)( B ), as revised by Pub. L. 109-163. Could fiberglass helmets be analogized to small arm protective inserts ("SAPI plates"), mentioned at H. Rept. 109-360 (at 760) as not qualifying as clothing? I would be hesitant to rely on decisions that preceded the current version of 10 USC 2533a( b )(1)( B ), as that amendment simultaneously extended the Berry Amendment's coverage to certain materials and components of clothing, but, particularly important for your discussion, excluded from that extension materials and components added to clothing and not normally associated with clothing. I don't disagree with your reasoning, but there may be room for the exercise of discretion. See Vern's Post #11 above. Finally, I suspect you'll also want to satisfy yourself that the exception at DFARS 225.7002-2(m) does not apply to your facts.

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I agree that not everything in the clothing FSCs are clothing. However it does include headgear. In addition, the acquisition of these helmets has been treated as Berry-required for years.

Nevertheless, I would welcome it if someone on the government side would weigh in and tell us whether a protective helmet (not a ballistic helmet) is clothing and thus falls under the Berry Amendment..

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I think a very good argument can be made that a protective helmet qualifies as clothing. For instance, you could analogize to a steel-toed boot. A normal boot plainly qualifies as clothing. Simply because I’ve reinforced it does not turn it into something else. One could also analogize to work gloves. Just because someone rarely wear gloves, or only wears work gloves under specific circumstances, doesn't necessarily mean that, e.g., leather work gloves don't qualify as clothing. On the other hand, I’ve tried to make a potentially plausible argument on how a protective helmet might not qualify as clothing. It probably isn’t as compelling as the opposite argument, but it might not be UNREASONABLE. Is the molded plastic eye protection I wear over my glasses clothing? Maybe not. Just because I wear it doesn't necessarily make it clothing. At some point, the intended purpose may become so far removed from clothing that calling it clothing doesn't seem reasonable. Night vision goggles probably aren't clothing. I hope we can all agree a virtual reality glove or a virtual reality helmet isn't clothing. A bullet-proof vest may or may not be clothing. Hopefully, the GAO or whatever forum that would review the PCO’s decision would apply the correct standard of review. That said, part of that review considers whether the agency’s current interpretation is consistent with its past interpretations (assuming no change in the law that would warrant a change). It may be that, at this point, it would NOT be reasonable under the specific facts and circumstances of a given acquisition, for a PCO to reverse course without good reason.

It would surprise me if there is a single government position on your question.

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The "on the one hand...but on the other hand" arguments are nice for an academic discussion, but it doesn't solve the problem. We're making a product - a firefighter's protective helmet. The fiberglass in the shell will now come from Mexico. Protective clothing and helmets are in FSC 8415. If the helmet is clothing, the helmet and all components must be made in the US. If it is not clothing, the Berry Amendment will not apply.

So for the contracting officers out there, what is it? Do you buy this as clothing and require Berry compliance? Or do you not consider this clothing? You represent the government; you apply the laws to your acquisitions and put the applicable clauses in your contracts. We'll do what you say, but we need to know whether it's OK as is, or whether we need to request a DNAD for the non-US fiberglass.

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Fara,

I sure hope folks respond to your request in Post #17 above, but if they don’t, and you’re just interested in what folks have done rather than why they’ve done it, consider searching through FedBizOpps postings. Again, I don't think you'll find uniformity. Contrast FA4625-15-Q-0035, N0021615RC028XB, W9124M-15-Q-ES19, N68836-14-T-001, 0010569034, 0010559083, RFQ893088, N4223714RC011X2 (omitting any reference to 252.225-7012 or Berry Amendment when use of combined synopsis solicitation suggests that the posting would include the reference if the PCO believed the clause was prescribed) with F6T4CL9259A002 (including Berry Amendment clause, but purchasing additional items beyond firefighters helmet).

Of course, it may just be that my searches only happened across procurements where one of the exceptions to coverage applied. On second thought, don't bother searching FBO, because I don't know what you would be able to conclude from it.

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I am honestly bewildered by this discussion. If the answer is not obvious -- and it seems that the answer is not obvious -- then why doesn't the CO pick a position, document the rationale for that position, and then move on? What's the worst that can happen -- a successful protest? We hear about them frequently here, so why would that be such a terrible outcome?

I'm sorry, but I really don't see why "getting the right answer" is such an impediment, when so many smart and experienced folks can't seem to articulate it.

Take a risk. To me, it doesn't seem to be a huge risk. Make the best call you can, and move forward.

H2H

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Guest Vern Edwards

Thank you, help. You're the voice of reason in a wilderness of confusion. I hope that ends this thread.

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Help: Maybe it wasn't clear, but I'm asking from the contractor side, not the government, so a protest is not our concern. And getting the answer is a big deal. The fiberglass maker is moving operations to Mexico. Finding another US source for the fiberglass, IF it is required, could be a time-consuming and costly exercise. There is IP involved, both in the fiberglass and the shell formula. Using another source for the fiberglass might require tooling and machinery to be changed as well. These and other changes would be unnecessary if we could be certain that a protective helmet is not clothing. If the helmet manufacturer makes these changes and it turns out they weren't required, then its costs went up for no reason, making the product less competitive.

Uncertainty is the biggest enemy of business planning. It would be helpful if there is a government buyer on this forum who has bought protective gear before and can say what he or she did. If not, then yes, this thread will end.

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See. PGI 225.7002-1. "The Federal Supply Classes listed in paragraph (a)(2)(A) of this subsection also contain items that are not clothing, such as—

(1) Visors;

(2) Kevlar helmets;

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Kevlar is an aramid fiber not fiberglass.

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