FAR 25.001:  The Berry Amendment (10 U. S. C. § 2533(a))

Comptroller General - Key Excerpts

New Inspire International protests the award to Lag Sports, arguing that the awarded contract price was so low that it could only be based on an intent to furnish non‑domestic products, in violation of the Berry Amendment. Protest at 1. In support of this allegation, the protester asserts that the Marner Group, named in the RFQ as a brand name manufacturer of the style of cap sought, agrees that the required quantity of that company’s products could not be manufactured and resold for the price of the awarded contract. Id.

In reviewing an agency’s technical evaluation of vendor submissions under an RFQ, we will not reevaluate the quotations; we will only consider whether the agency’s evaluation was reasonable and in accordance with the evaluation criteria listed in the solicitation and applicable procurement statutes and regulations. American Recycling Sys., Inc., B-292500, Aug. 18, 2003, 2003 CPD ¶ 143 at 4. In determining the technical acceptability of a quotation, an agency may not accept at face value a promise to meet a material requirement where there is significant countervailing evidence, reasonably known to the agency, that should create doubt whether the vendor will or can comply with that requirement. MMI-Federal Marketing Service Corp., B-297537, Feb. 8, 2006, 2006 CPD ¶ 38 at 5. With regard to domestic manufacturing requirements, we have concluded that an agency should go beyond an offeror’s self-certification where the agency has reason to believe, prior to award, that a vendor will not provide compliant products. See Leisure-Lift, Inc., B-291878.3, B-292448.2, Sept. 25, 2003, 2003 CPD ¶ 189 at 3-4.

On this record, we find that the agency reasonably relied on the representations made in Lag Sports’s quotation, and also sought additional reassurances regarding the domestic manufacture of the caps. Lag Sports’s quotation provided the representations and certifications required by the RFQ with regard to its intent to comply with the domestic production requirements of the Berry Amendment and Buy America Act. AR, Tab 5, Lag Sports Quotation, at 21-23, 44.

The protester, however, insists that the low price offered by Lag Sports’s quotation was sufficient to alert the agency that the awardee did not intend to comply with the Berry Amendment, and to require additional scrutiny. We disagree with the assertion that the awardee’s price, by itself or in comparison with an incumbent’s price, is dispositive of the vendor’s intent. For example, a firm, in its business judgment, properly may decide to submit a price that is extremely low, or even below the cost of performance. Government Contracts Consultants, B‑294335, Sept. 22, 2004, 2004 CPD ¶ 202 at 2. Moreover, notwithstanding the self-certification regarding the awardee’s intended compliance here, the Army sought additional information from Lag Sports and received assurances regarding the awardee’s intent to comply with the requirements of the Berry Amendment. AR, Tab 7, Correspondence. In its response, Lag Sports identified the domestic mills that would be supplying the fabric it would use to make the caps, and confirmed that Lag Sports itself would be manufacturing the caps in the United States.

In short, Inspire International has not shown that the Army failed to follow the required procedures for ascertaining the awardee’s intent with regard to the Berry Amendment, nor has it shown any reasonable basis to conclude that the awardee will furnish noncompliant products.  (Inspire International B-413798: Dec 8, 2016)

As it relates to the protest, the RFP included Department of Defense Federal Acquisition Regulation Supplement (DFARS) Clause 252.225-7012, “Preference for Certain Domestic Commodities.” RFP at 54. This clause provides that articles of clothing, defined to include gloves (referred to as “handwear”), offered in response to the solicitation, must be produced in the United States. DFARS 252.225-7012. This provision implements the requirements of 10 U.S.C. § 2533(a) (2006), commonly referred to as the “Berry Amendment.” The Berry Amendment generally restricts the Department of Defense’s expenditure of funds for certain articles (including “clothing”) to domestically produced products. See 10 U.S.C. § 2533a(b).

Integrity’s offer was one of six submitted in response to the RFP. During the course of proposal evaluations, the agency determined that Integrity’s proposal was unacceptable because the items proposed by Integrity were to be manufactured in Malaysia, and therefore did not qualify as domestically produced.[2] Agency Report (AR), at 6-7. In a letter dated May 30, 2012, the agency advised Integrity that its proposal had been found unacceptable because “the end items proposed [ ] will not be produced in the United States.” AR, Encl. 10, Letter to Integrity, May 30, 2012. Integrity filed this protest on June 6.

Integrity argues that the electrical gloves at issue should not be considered “clothing” within the meaning of the Berry Amendment and DFARS Clause 252.225-7012, and, as a consequence, the domestic source restrictions do not apply. In this regard, Integrity maintains that the electrical gloves are worn solely to protect against electrical shock and therefore should be regarded as a “tool” (characterizing the gloves as “’insulating liners’”) rather than an article of “clothing.” See Protest at 1; Comments at 1. The protester’s emphasis on the protective nature of the gloves is misplaced, however. The term “clothing,” as used in the Berry Amendment, is understood to include “a wide variety of items,” including items worn for the purpose of protection. Gumsar, Ltd., B-231630, Oct. 6, 1988, 88-2 CPD ¶ 329 at 4 (holding that term “clothing” in Berry Amendment encompassed protective coverings worn by civilian personnel to access toxic areas to dismantle chemical munitions). Accordingly, we have no basis to conclude that the agency acted unreasonably when it rejected Integrity’s gloves pursuant to the domestic production restrictions established by the Berry Amendment.  (Integrity Supply, B-406860, Sep 10, 2012)  (pdf)

MMI contends that the agency unreasonably relied upon information provided by Iguana certifying that it would comply with the Berry Amendment in the impregnation of the bednet fabrics with permethrin. As discussed in detail below, the agency requested that Iguana provide information to establish its quotation’s compliance with the Berry Amendment, and the agency relied upon this information to determine that Iguana’s quotation did comply. It is clear, however, based on our review of the record, that Iguana’s submissions did not convey the information that the agency believed was required to establish compliance with the Berry Amendment. In sum, we believe that the agency’s evaluation of Iguana’s quotation was unreasonable. Because Iguana’s quotation as originally submitted disclosed a manufacturing process in China that violated the Berry Amendment requirements, and because Iguana advised the agency that domestic facilities capable of performing the EXPEL impregnation processes were not then available, the agency was required to verify, prior to award, that Iguana’s intended manufacturing process would comply with the Berry Amendment. The agency’s pre-award determination regarding Iguana’s compliance was flawed because the agency relied on inadequate information to satisfy its concerns. Although Iguana identified Burlington as the domestic facility where permethrin impregnation would occur, the establishment number relied upon by the agency to verify Iguana’s self-certification of Berry Amendment compliance could not, as the agency acknowledges, have provided sufficient information needed to determine whether Burlington could perform the work. Instead, the agency confirms that, aside from verifying that the EPA establishment number for Burlington was valid, the agency did not determine whether Burlington, Bickel and Iguana had made the required arrangements to establish that Iguana’s quotation complied with the Berry Amendment. Furthermore, there is still substantial doubt as to whether post-award changes to Iguana’s manufacturing process bring Iguana’s quotation into compliance with the Berry Amendment, and the record does not show that the agency has evaluated these post-award changes. (MMI-Federal Marketing Service Corp., B-297537, February 8, 2006) (pdf)

Comptroller General - Listing of Decisions

For the Government For the Protester
New Inspire International B-413798: Dec 8, 2016 MMI-Federal Marketing Service Corp., B-297537, February 8, 2006 (pdf)
Integrity Supply, B-406860, Sep 10, 2012  (pdf)  


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