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You are here: Home / Archives for Berry Amendment

January 29, 2019 By AMK

Domestic sourcing requirement doesn’t fit DoD’s gloves

The Government Accountability Office (GAO) recently issued a bid protest decision regarding the application of the Berry Amendment’s domestic sourcing requirement to a U.S. Department of Defense (DoD) solicitation for leather combat gloves with touchscreen capability. 

In that decision, the GAO found that the nonavailability exception to the Berry Amendment applied to the glove’s kidskin leather even though the agency determined, through market research, that this type of leather was available domestically.  Importantly, this decision provides an opportunity for stakeholders to consider the nuances associated with the Berry Amendment’s nonavailability exception and to reflect upon the complex regulatory landscape of domestic sourcing requirements.

Federal Government Domestic Sourcing Regimes and the Nonavailability Exception

Over the last 100 years, the U.S. government has enacted myriad domestic sourcing laws.  For example, during the Great Depression, Congress enacted the Buy American Act (BAA) to “create jobs for American workers and protect American industry” by requiring the U.S. government, under certain circumstances, to procure items that have been mined, produced or manufactured in the United States.  As implemented through the Federal Acquisition Regulation (FAR) and agency supplemental regulations, like the Defense Federal Acquisition Regulation Supplement (DFARS), the BAA generally requires executive agencies to purchase “domestic end products” unless an exception or waiver applies.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2019/01/domestic-sourcing-requirement-doesnt-fit-dods-gloves/

Filed Under: Government Contracting News Tagged With: Berry Amendment, Buy American Act, DFARS, domestic content preference, domestic products, domestic sourcing, FAR, GAO

November 9, 2018 By AMK

Takeaways from DoD’s proposed changes to certain sourcing restrictions

Pursuant to Sections 817 and 881(b) of the FY 2017 National Defense Authorization Act (NDAA), the Department of Defense (DoD) recently issued a proposed rule to amend certain sourcing restrictions found in DFARS subpart 225.70 and related clauses. 

Specifically the proposed rule would amend the DFARS to:

  • Extend the Berry Amendment’s domestic sourcing restrictions to the acquisition of certain athletic footwear for members of the Armed Forces, when the procurement is valued at or below the simplified acquisition threshold [Section 817], and
  • Recognize that Australia and the United Kingdom of Great Britain and Northern Ireland (the UK) are now members of the National Technology Industrial Base (“NTIB”), thereby permitting the United States to acquire certain items (that are subject to the sourcing restrictions in 10 U.S.C. 2534) if they are manufactured in the UK, Australia, Canada or the United States [Section 881(b)].

Keep reading this article at: https://www.insidegovernmentcontracts.com/2018/10/takeaways-dods-proposed-changes-certain-sourcing-restrictions/

Filed Under: Government Contracting News Tagged With: Berry Amendment, DFARS, DoD, manufacturing, NDAA, simplified acquisition, sourcing

June 8, 2016 By AMK

Alabama-based Lt. Col. indicted for fraudulently supplying promotional gear from China as ‘Made in USA’

A federal grand jury has indicted a lieutenant colonel in the U.S. Army Reserves for fraudulently supplying, as “100 % U.S. Made,” hundreds of thousands of Chinese-produced baseball caps and backpacks.  The items were furnished through Department of Defense (DoD) contracts for promotional items for the Army Recruiting Command.

A three-count indictment filed in U.S. District Court charges that Frederick L. Burnett, 48, through his Alabama-based company, Lamar International Inc., schemed to defraud the DoD on three contracts, worth a total of $6.2 million, between 2005 and 2009.  All the contracts were for promotional items — baseball caps and backpacks — to be given to Army recruits.

Buy American ActBurnett certified on all three contracts that he would meet the requirements of the Buy American Act, the Berry Amendment, and federal regulations that require the government to buy domestic products and materials, according to the indictment.

The Buy American Act (BAA) is a law requiring the federal government to buy domestic articles, materials and supplies, primarily to protect American labor. The Berry Amendment is a legal restriction that prohibits DoD from spending its funds on clothing, fabrics, fibers and yarns that are not grown, reprocessed, reused or produced in the United States. The purpose of the Berry Amendment is to protect the viability of the textile and clothing production base in the United States.

According to the indictment:

  • Beginning in 2005, Burnett, through his company, supplied Army recruiters with 209,706 baseball caps over a three year period.  The government paid him $1.4 million for these initial deliveries.
  • Under a second contract, awarded in 2007, Lamar supplied 590,042 ball caps, and the government paid him about $4 million.
  • Under the third contract, also awarded in 2007, Lamar supplied the Army with 146,375 backpacks for which he was paid $1.1 million.

In addition to the required compliance with the BAA and the Berry Amendment, both of the 2007 contracts included the requirement, in all capital letters, that the “PRODUCT MUST BE 100% U.S. MADE.”

Instead of providing American-made products however, Burnett negotiated and contracted with suppliers directly from China, along with American companies who he knew were procuring the products from China. He used Chinese-made products to fill orders under all three contracts and hid their foreign manufacture by hiring workers on a cash basis to remove all the Chinese labels and repackage the items he sent to the Army Recruiting Command, the indictment says.

After award of the second contract, a competitor protested the bid, claiming Burnett could only bid as low as he did if he were using foreign suppliers. The government allowed Burnett to proceed with the contract after he submitted documentation that he was using only American-made products and that he would comply with all aspects of the Buy American Act and the Berry Amendment, according to the indictment.

The indictment, handed down on May 25, 2016, seeks to have Burnett forfeit the total dollar value of all three contracts as proceeds of illegal activity.  In addition, Burnett faces up to 20 years in prison and a $250,000 fine.

DCIS ACIDDCIS and Army CID investigated the case, which Assistant U.S. Attorney David H. Estes is prosecuting in Birmingham, Alabama.

Readers are reminded that an indictment contains only charges. A defendant is presumed innocent unless and until proven guilty.

Source: https://www.justice.gov/usao-ndal/pr/army-reserves-lt-col-indicted-fraudulently-supplying-chinese-made-army-promotional-gear

Filed Under: Government Contracting News Tagged With: abuse, ACID, acquisition workforce, Army, Army Recruiting Command, BAA, Berry Amendment, Buy American Act, DCIS, DoD, DOJ, fraud, indictment, Justice Dept., U.S. Army Reserves

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