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Friday, July 27, 2012

The Berry Amendment: Requiring Defense Procurement to Come from Domestic Sources

Valerie Bailey Grasso
Specialist in Defense Acquisition

This report examines the original intent and purpose of the Berry Amendment and legislative proposals to amend the application of domestic source restrictions, as well as potential options for Congress. In order to protect the U.S. industrial base during periods of adversity and war, Congress passed domestic source restrictions as part of the 1941 Fifth Supplemental Department of Defense (DOD) Appropriations Act. These provisions later became known as the Berry Amendment. The Berry Amendment [Title 10 United States Code (U.S.C.) Section 2533a, Requirement to Buy Certain Articles from American Sources; Exceptions] contains a number of domestic source restrictions that prohibit DOD from acquiring food, clothing (including military uniforms), fabrics (including ballistic fibers), stainless steel, and hand or measuring tools that are not grown or produced in the United States. The Berry Amendment applies to DOD purchases only.

There are new proposals affecting the Berry Amendment, including H.R. 2955, the “American Shoes for American Servicemembers Act,” and H.R. 679, the Berry Amendment Extension Act. Provisions were enacted in the Ike Skelton National Defense Authorization Act for FY2011 (P.L. 111-383), to prohibit DOD from specifying the use of fire-resistant, rayon fiber in certain solicitations, and to provide DOD with a non-availability exception for the procurement of domestic hand or measuring tools.

P.L. 111-383 also required the Comptroller General to report to the House and Senate Armed Services Committees on assessing the supply chain for the procurement of fire-resistant and fireretardant fibers and materials for the production of military uniforms. GAO released its report to Congress in June 2011, and stated that an Austrian company was the sole source for fire-resistant rayon fiber for the manufacture of fire-resistant uniforms for military personnel. GAO concluded that DOD had taken steps to identify and test alternative fire-resistant, fabric blends to meet current demands, but found debate over whether the flame resistant characteristics of fireresistant rayon were superior to other alternatives. GAO did not provide a recommendation.

Some policymakers believe that policies like the Berry Amendment contradict free trade policies, and that the presence and degree of such competition is the most effective tool for promoting efficiencies and improving quality. On the other hand, some other policymakers believe that key domestic sectors (like manufacturing) need the protections afforded by the Berry Amendment. The debate over the Berry Amendment raises several questions, among them: (1) If the United States does not produce a solely domestic item, or if U.S. manufacturers are at maximum production capability, should DOD restrict procurement from foreign sources, and (2) to what extent do U.S. national security interests and industrial base concerns justify waiver of the Berry Amendment?

Date of Report: July 20, 2012
Number of Pages: 21
Order Number: RL31236
Price: $29.95

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