Does Berry clause conflict with Specialty Metal clause?

[Fara Fasat]

The Berry Amendment and the specialty metals restrictions have a long and tortured history. Without recounting that history, the current state is: the specialty metals law (10 USC 2533b) and clause (DFARS 252.225-7009) apply the restrictions only to the acquisition of aircraft, missile or space systems, ships tank or automotive items weapon systems or ammunition. Presumably the clause would not be used in acquisitions for any other items, which means that any specialty metal in those products can come from any country without restriction.

Now, look at the Berry Amendment clause (DFARS 252.225-7012), which generally applies to acquisitions of clothing, fabrics and individual equipment. The restriction reads as follows: ?The Contractor shall deliver under this contract only such of the following items, either as end products or components, that have been grown, reprocessed, reused, or produced in the United States: [clothing (including outwear, footwear, belts, etc) ? individual equipment?]?

Here is the problem. Clothing and footwear can contain specialty metal as a component. The specialty metals clause would not be in contracts for those items because they are not aircraft, missiles, etc. Only the Berry clause would be in, and it says that all end products and components have to be produced in the US. Is this in conflict with the specialty metals law and regulations that apply the restrictions only to contracts for aircraft, missiles, etc.?

[Iron Man]

DFARS 252.225-7009 is in reserved status. DFARS 252.225-7014 now addresses specialty metals and, unless an exception applies, should be included in all "solicitations and contracts exceeding the simplified acquisition threshhold that requires delivery of an article containing specialty metals" (although there is an Alternate I clause to be used for aircraft, missile or space systems, ships, tank-automotive, weapons, or ammunition solicitations/contracts). See DFARS 225.7002-3(.

In any event, can you explain a little more why you think they would conflict? 252.225-7014 may overlap with 252.225-7012 in some cases, but I don't see a conflict.

[ron vogt]

I'm not sure why you are saying 252.225-2009 is reserved and that 7014 is now the correct clause. Everything you are citing is the old rule and clauses, which were replaced in July 2009. Please see DFARS Case 2008-D003.

I'm interested in the answer because it seems that with the new specialty metals rule, DoD has said that there is a restriction only in contracts for the six listed categories (aircraft, ammunition, etc). So in a contract for uniform items or individual equipment, there would be no specialty metals clause and apparently no restriction on the source of any specialty metal in the equipment. Yet the Berry Amendment clause (DFARS 252.225-7012) says that the item and all components must be produced in the US.

Remember, the specialty metals restriction used to part of the Berry Amendment until it was made separate statute a couple of years ago. The specialty metals clause then underwent several revisions until its current version. It seems that the decision to apply the restriction only to contracts for the six listed categories would be nullified by the language of 7012. Then again, maybe it's an oversight.

[Iron Man]

My apologies, I was looking at my latest print version, dated July 1, 2009. Should have known to check online.

With regard to the original question, however, there is still no conflict between the clauses.

252.225-7012((2) applies to ?Clothing and the materials and components thereof,? while 252.225-7009 is used in contracts for ?(A) Aircraft. ( Missile or space systems. (C ) Ships. (D) Tank or automotive items. (E) Weapon systems. (F) Ammunition.?

Just because 252.225.7009 restricts specialty metals for one category of acquisitions, doesn?t mean another clause cannot also restrict specialty metals (along with numerous other components/materials) for a different set of acquisitions. Absent more information, I don't think you can assume that by giving specialty metals its own clause, Congress or DoD intended all restrictions, other than 7009, to be rescinded?

[ron vogt]

Given the history of the Berry Amendment and the clauses, I think it's possible that there is at least an oversight. That's not exactly unprecedented in the FAR and DFARS.

At one time the specialty metals clause, 252.225-7014, went in all contracts. The difference between contracts for the six categories (aircraft, ammunition, etc.) and all other contracts was in the flowdown requirement. The decision to separate those categories was part of DoD's struggle to implement the statutory requirement, and was not fully consistent with the statutory language. A 1972 memo (the "Laird memo") concluded that the legislation was never intended to "achieve the impossible" in its implementation, and that there would be no real benefical result to justify the cost of implementing the restrictions in anything other than the six specified categories. Now the specialty metals restriction is at 10 USC 2533b and is separate from the Berry Amendment. The new clauses (252.225-7008 and 7009) are the result.

What remains in the Berry Amendment is the original restriction, and is clearly aimed at something other than metal. The restriction (must be produced in the US) covers food, clothing and the materials and components thereof, tents, tarpaulins or covers, cotton and other natural fibers, and individual equipment manufactured from such fibers, yarns, fabrics or materials. It's pretty clear that the restriction is aimed at food, fibers and fabrics. In fact the original Berry Amendment was named for Congressman Ellis Berry from South Dakota, not coincidentally a major food, cotton and wool producing state.

I think it is not at all unreasonable to conclude that the Berry Amendment covers food and fabrics, not metal. It may not even have been considered that fabrics and clothing would contain metal. Looking at it another way, if there was a conscious decision by DoD that there would be no beneficial result from applying the specialty metals restriction to anything other than the six categories, why should a restriction come in through the back door in another clause?

[Iron Man]

The restriction (must be produced in the US) covers food, clothing and the materials and components thereof, tents, tarpaulins or covers, cotton and other natural fibers, and individual equipment manufactured from such fibers, yarns, fabrics or materials. It's pretty clear that the restriction is aimed at food, fibers and fabrics. In fact the original Berry Amendment was named for Congressman Ellis Berry from South Dakota, not coincidentally a major food, cotton and wool producing state.

I think it is not at all unreasonable to conclude that the Berry Amendment covers food and fabrics, not metal. It may not even have been considered that fabrics and clothing would contain metal. Looking at it another way, if there was a conscious decision by DoD that there would be no beneficial result from applying the specialty metals restriction to anything other than the six categories, why should a restriction come in through the back door in another clause?

The other categories already cover food, fibers and fabric. Such an interpretation would render superfluous the category of "Clothing and the materials and components thereof..." It seems Congress clearly contemplated there could be non fiber (including metal) components to clothing, when it exempted from the Amendment "sensors, electronics, or other items added to, and not normally associated with, clothing (and the materials and components thereof)".

So, there is a specific exemption for items that are not normally associated with clothing. However, if there is a component that is normally associated with clothing, e.g., belt buckle or steel toe, then that component is subject to the Amendment.

My understanding is that the Berry Amendment is intended (at least in part) to support/protect the nations textile/clothing industry. To the extent a belt buckle or steel toe manufacturer is considered to be part of that industry (i.e., its product is normally associated with clothing), it is consistent with the Berry Amendment to make sure such components are domestic.

Don't get me wrong. I'm not saying there might not someday be a legislative change to bring the statute and regs more in line with what you are saying. However, at this point, I do not think DoD can unilaterally decide not to apply the restriction.

[ron vogt]

The other categories already cover food, fibers and fabric. Such an interpretation would render superfluous the category of "Clothing and the materials and components thereof..."

I'm not sure what you mean, but in the end it doesn't matter. I agree that the language of 7012 supports your conclusion. It's just odd that DoD can make a deliberate decision not to apply a restriction to any contracts except for the six specified categories, because the costs of implementation would outweigh any benefits, yet allow that restriction to come in through another provision. What happened to the costs of implementation? Then again, you could search in vain for consistency in all of the manufacturing and content restrictions.

[Fara Fasat]

So then the only issue is whether a metal item is "normally associated" with the clothing or material? In the case of boots, would metal sole inserts be considered normally associated with boots? They don't go in most shoes or boots, only special purpose shoes or boots. Would that make their use non-normal, and not subject to the "produced in the US" requirement?

[Iron Man]

So then the only issue is whether a metal item is "normally associated" with the clothing or material? In the case of boots, would metal sole inserts be considered normally associated with boots? They don't go in most shoes or boots, only special purpose shoes or boots. Would that make their use non-normal, and not subject to the "produced in the US" requirement?

In my opinion, metal sole inserts are normally associated with boots and are covered. I think you should first look at the item itself and make the determination without regard to the materials that make up the item or component. With regard to boot soles, some have metal in the soles and some don't, but all boots have soles. I think the key is that adding metal simply adds to the purpose of the sole, i.e., protecting the bottom of the foot. Now, if the metal were put into the sole because it was spring loaded and would shoot out and stab someone (a la James Bond), then I think you would have to consider it a separate item that is not normally associated with clothing. But because this is really just a type of boot sole, all the materials and components that go into making that boot sole should be domestic.