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Fara Fasat,

Thanks for setting me straight that you are a contractor. Much appreciated.

That said, the answer from your side of the fence is even simpler. The Berry Amendment applies if the RFP says it does. It doesn't apply if the RFP says it doesn't apply. The CO has to make the call and I'm willing to bet that the decision will vary by individual, given the paucity of guidance (or alternately its contradictory nature).

I get that it's a big deal to the contractor because, as you posted, there are IP issues and tons of other issues involved in ensuring a US source if the current manufacturer moves to Mexico. If the contractor assumes the Berry Amendment is not applicable, but the RFP says otherwise, then the contractor will be at a severe disadvantage and will have no choice but to protest. If the contractor assumes the Berry Amendment is applicable, a whole lot of dollars and effort will be spent, and if the RFP says the Berry Amendment is NOT applicable then the contractor may be at a significant cost disadvantage. But the thing is, the contractor has to make its best call and then live with the consequences.

I also get that it would be nice to reduce the risk by having some experienced CO tell you that the Amendment is or is not applicable; but, even if you received such assurance, you still couldn't rely on it, since the RFP will control. It would be, at best, an illusory risk reduction; and it might even lull the contractor into a false sense of security.

Regardless of any answer you may receive or not receive, the contractor still has to make a business decision and the risk of making a bad decision is still there.

That's my view, anyway.

Hope this helps.

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