Reprocessed and the Berry Amendment: When Domestic Preference Turns a Blind Eye to Common Usage

Transcription

1 Reprocessed and the Berry Amendment: When Domestic Preference Turns a Blind Eye to Common Usage By Vincent J. Napoleon and Angela N. Buckner interpretation may not be supported by the plain language of the amendment and is certainly not practical in today s global economy. In the context of the acquisition of yarn or textiles, one way to lessen the strict standard espoused by the GAO is to apply the common usage definition of reprocessed, which is a special process or treatment in preparation for reuse. Vincent J. Napoleon Angela N. Buckner Hypothetical: Client, a manufacturer of products made from yarns and textiles imported from various foreign suppliers, including China, is interested in meeting the needs of the Department of Defense (DoD) for such products. These products will be used in conjunction with the manufacture of certain military clothing and battlefield items worn by US military personnel. In purchasing these products, however, the DoD is restricted by Congress. More specifically, pursuant to the Berry Amendment the congressionally mandated restriction on the DoD is centered on the use of appropriations. Funds made available to the DoD may not be used to purchase clothing, tents, tarpaulins, or covers, cotton and other natural fiber products, woven silk or woven silk blends, spun silk yarn for cartridge cloth, synthetic fabric or coated synthetic fabric, canvas products, or wool (whether in the form of fiber or yarn) or items of individual equipment manufactured from or containing such fibers, yarns, fabrics, or materials unless it is grown, reprocessed, reused, or produced in the United States. 1 Given the foreign content of its products and the congressionally imposed restriction, Client is concerned that it may be precluded from selling its products to the DoD. Unfortunately, the Berry Amendment is not readily understood by DoD contracting officers, who either misinterpret the provision or choose to avoid its application by leaving it out of contracts. If the Berry Amendment appears in a solicitation, however, bidders such as Client, should be aware that the Government Accountability Office (GAO) incorrectly interprets the amendment to integrate grown and reprocessed and reused and produced into one manufacturing process that must occur in the United States. This strict Vincent J. Napoleon is a partner and Angela N. Buckner is an associate with Nixon Peabody LLP in Washington, D.C. They are both members of the firm s Government Contracts and Commercial Litigation practice groups. It Starts with Congress Congress may place conditions on the use of appropriations in a number of ways, including requiring a domestic preference for purchases made by federal government agencies. The most well-known domestic preference requirements are contained in the Buy American Act (BAA), 2 which requires that end products be made in the United States. Additionally, the BAA requires that the total cost of domestic components used to make an end product exceed 50 percent of the total cost of all components. 3 Efforts during World War II to protect wartime US industries, such as the textile and metals industries, took this preference one step further, resulting in additional domestic restrictions that were promulgated and implemented in the Fifth Supplemental National Defense Appropriations Act (Fifth Supplemental Act). 4 Under the Fifth Supplemental Act, all components were required to be American-made. 5 This new restriction would later be codified and become known as the Berry Amendment. The Berry Amendment, which requires that items purchased by the DoD be grown, reprocessed, reused, or produced in the United States, creates more uncertainty than surety, and more ambiguity than clarity in contract interpretation and administration. At the center of Berry Amendment uncertainty is the definition of reprocessed, particularly as it relates to the use of yarn, silk, wool, and other textiles and fibers. This uncertainty exists in significant part because of the lack of guidance in this area. In an attempt to provide greater clarity and eliminate the confusion inherent in interpreting the requirements of the Berry Amendment, we will attempt to provide a meaningful definition of the term reprocessed. More specifically, reprocessed will be defined and interpreted in the context of whether Client and other manufacturers of products containing foreign-supplied yarns and textiles may provide such products to the DoD without running afoul of the Berry Amendment. Analysis of this issue begins with the Buy American Act, and addresses how a domestic preference, given the realities of today s Volume 49, Number 3 The Procurement Lawyer 3

2 global marketplace, has become a domestic constraint. In addition, an examination of the issues regarding the implementation of and compliance with the Berry Amendment will provide contextual background to an understanding of how DoD contracting agencies should interpret what is meant by the word reprocessed in the context of the Amendment. Finally, in an attempt to address the dilemma encountered by Client and other similarly situated manufacturers, and to provide guidance upon which government contractors can confidently rely when bidding, we will suggest interpretations that better align with the realities of fabric and textile production in support of DoD requirements. The Buy American Act In the wake of the Great Depression, the Buy American Act, codified at 41 U.S.C. 10a-10d and implemented by Federal Acquisition Regulation (FAR) Part 25, 6 was first passed by Congress in Congress s objective was to protect domestic labor by providing a required preference for American goods in direct government purchases. In its current form, the BAA requires US government agency purchasers to give preferential treatment to domestic supplies, services, and construction materials, unless certain exceptions apply. 7 The domestic preference applies specifically to end products. FAR defines domestic end product as: (1) An unmanufactured end product mined or produced in the United States; (2) An end product manufactured in the United States, if (i) The cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind as those that the agency determines are not mined, produced, or manufactured in sufficient and reasonably available commercial quantities of a satisfactory quality are treated as domestic. Scrap generated, collected, and prepared for processing in the United States is considered domestic; or (ii) The end product is a COTS [commercial off-theshelf] item. In addition, FAR uses a two-part test to define a domestic end product: (1) The article must be manufactured in the United States; and (2) The cost of domestic components must exceed 50 percent of the cost of all the components. 8 Despite the enactment of the BAA in 1933, Congress continued to have concerns regarding federal purchases of items from foreign sources. 9 For example, subsequent to the enactment of the BAA, in 1941 questions were raised over the domestic preference for surplus wheat. 10 Congress noted that wheat products should be purchased from US producers and that when there is a surplus, US farmers should be given preference. 11 In another example, a congressional review of government procurements revealed that a department bought meat from Argentina as opposed to US producers. 12 And, in yet another instance, an agency reportedly purchased a large quantity of wool from foreign sources. 13 These concerns resulted in the development of more restrictive domestic preference amendments the Little Buy American Act amendments for purchases made by the DoD. Thus while the BAA has only been substantively amended four times 14 since its enactment, every Congress in the intervening years has seen fit to enact some form of additional domestic preference legislation. 15 This legislation has been generally directed at purchases that were not governed by the BAA, and has often taken the form of a temporary law that was enacted each year, often as an appropriations rider, to deny the use of funds to purchase goods that were not of domestic origin. 16 While this approach has not been abandoned, the current trend appears to be to codify these Little Buy American Acts as permanent law. 17 One example of such legislation is the Berry Amendment. The Berry Amendment The Berry Amendment, which dates to World War II, was established to ensure that US military uniforms were wholly produced within the United States. 18 Equally as important, the Berry Amendment was promulgated to ensure that US troops were fed with domestically produced food products, 19 which meant that the food must be grown or produced in the United States. 20 In 1941, this provision was moved to defense appropriations and amended as part of the Fiscal Year 1941 Fifth Supplemental National Defense Appropriations Act (FY 41 Appropriations Act) to include a restriction on DoD procurements. 21 The domestic preference provision, renewed annually through each year s appropriation act, 22 also expanded the restriction to clothing. 23 The FY 41 Appropriations Act provided, in relevant part: This Act shall be available for the procurement of any article of food or clothing not grown or produced in the United States or its possessions, except articles of food of clothing not so grown or produced, or which cannot be procured in sufficient quantities as and when needed. 24 Although continuously renewed, nearly a decade passed without amendment to the provision included in the FY 41 Appropriations Act. In 1951, the first amendment to this language came in recognition of market realities. For example, where there was a scarcity of component items in the United States, such as sugar, the likelihood of the DoD acquiring end products such as jams, jellies, and preserves from foreign sources increased. 25 To this end, the 1951 General Appropriation Act (FY 51 General Appropriation Act) was 4 The Procurement Lawyer Spring 2014

3 enacted to [m]ake possible the purchase in the United States of processed products, which contain component materials not produced in the United States, such as sugar and cocoa. Experience has shown that changes are necessary in this provision because it has created difficult administrative problems. 26 The FY 51 General Appropriation Act provided in relevant part: [N]othing herein shall preclude the procurement of foods manufactured or processed in the United States [notwithstanding the fact that food components were acquired from foreign sources]. 27 Therefore, the FY 51 General Appropriation Act limited the domestic restriction to the end product (in contrast to both the end product and its component parts), recognizing that market realities sometimes necessitated the use of foreign sources when end product components, like sugar, were scarce. 28 Notwithstanding the more flexible legislative intent outlined in the FY 41 Appropriation Act and the FY 51 General Appropriation Act, US Congressman Ellis Yarnal Berry sought in 1952 to make the Berry Amendment more restrictive in a newly proposed domestic preference amendment. As the amendment related to clothing and textiles, Berry explained that contracting agencies were incorrectly and narrowly interpreting the domestic preference amendment to only apply to end products as opposed to the raw materials and components of which the manufactured products consisted. 29 Berry concluded that this interpretation was in error, as raw material likewise had to be of domestic origin. 30 His amendment attempted to clarify congressional intent by including cotton and wool in the amendment s language. 31 Using the reprocess language of the wool industry found in the Wool Products Labeling Act of 1933, the 82nd Congress, in implementing the Berry Amendment, mandated that these items be grown, reprocessed, reused, or produced in the United States. In relevant part, Congressman Berry s amendment provided that: No part of this or any other appropriation contained in this Act shall be available for the procurement of any article of food, clothing, cotton or wool (whether in the form of fiber or yarn or contained in fabrics, materials, or manufactured articles), not grown, reprocessed, reused, or produced in the United States or its possessions. 32 In 1955, the scope of the amendment was further expanded to include silk and woven blends. 33 In 1968, synthetic fabric and synthetic coated fabric were also added. 34 The 1970s saw the scope of the amendment expanded to specialty metals. 35 In 1988, tents, tarpaulins, canvas products, and items of individual equipment that contained fiber yarns or materials already protected under the Berry Amendment were added. 36 When finally codified in 1992, the Berry Amendment stated: No part of any appropriation contained in this Act, except for small purchases in amounts not exceeding $25,000, shall be available for the procurement of any article or item of food, clothing, tents, tarpaulins, covers, cotton and any other natural fiber products, woven silk or woven silk blends, spun silk yarn for cartridge cloth, synthetic fabric or coated synthetic fabric, canvas products, or wool (whether in the form of fiber or yarn or contained in fabrics, materials, or manufactured article), or any item of individual equipment manufactured from or containing such fibers, yarns, fabrics, or materials, or specialty metals including stainless steel flatware, or hand tools, not grown, reprocessed, reused, or produced in the United States or its possessions, except to the extent that the Secretary of the Department concerned shall determine that satisfactory quality and sufficient quantity of (such) articles or items... grown, reprocessed, reused, or produced in the United States or its possessions cannot be procured as and when needed at the United States market prices. 37 Though finally codified, the Berry Amendment existed only in the historical and revision notes of 10 U.S.C There were a number of politically charged controversies, 39 however, that resulted in Congress moving in the direction of recodifying the Berry Amendment and making it a more prominent legislative mandate. This included taking it out of the realm of a note and giving it the same importance afforded to other codified legislative initiatives. The resulting 2002 recodification of the Berry Amendment, in its current version, now reads: (a) Requirement. Except as provided in subsections (c) through (h), funds appropriated or otherwise available to the Department of Defense may not be used for the procurement of an item described in subsection (b) if the item is not grown, reprocessed, reused, or produced in the United States. (b) Covered items. An item referred to in subsection (a) is any of the following: (1) An article or item of (A) food; (B) clothing and the materials and components thereof, other than sensors, electronics, or other items added to, and not normally associated with, clothing (and the materials and components thereof); (C) tents (and the structural components thereof), tarpaulins, or covers; (D) cotton and other natural fiber products, woven silk or woven silk blends, spun silk yarn for cartridge cloth, synthetic fabric or coated synthetic fabric (including all textile fibers and yarns that are for use in such fabrics), canvas products, or wool (whether in the form of fiber or yarn or contained in fabrics, materials, or manufactured articles); or (E) any item of individual equipment manufactured from or containing such fibers, yarns, fabrics, or materials. (2) Hand or measuring tools. 40 Volume 49, Number 3 The Procurement Lawyer 5

4 The GAO Perspective While the Berry Amendment seems to make clear that funds may not be used for the procurement of certain items unless those items are grown or reprocessed or reused or produced in the United States, the Government Accountability Office, in contrast, incorrectly interprets the Berry Amendment to integrate grown and reprocessed and reused and produced into one manufacturing process that must occur in the United States. The seminal 1970 bid protest on this issue involved National Graphics Inc., a producer of cotton products. In National Graphics, the GAO incorrectly concluded that the Berry Amendment requires that the origin of the raw fiber as well as each successive stage of manufacturing grown, reprocessed, reused, and produced be domestic. 41 In response to a Defense Construction Supply Center (DCSC) and Defense Supply Agency (DSA) invitation for bids for cotton lithographic wiping pads, National Graphics bid included domestically sourced cotton for integration into cotton pads produced in Japan. 42 The bid was rejected on the grounds that while the cotton was grown in the United States, the cotton was later exported to Japan where the cotton pad was manufactured. 43 DCSC and DSA argued that this violated the 1969 DoD Appropriation Act 44 requiring that items procured be grown, reprocessed, reused, or produced in the United States. In its protest, National Graphics argued that because the cotton was grown in the United States, the end product was compliant, no matter where the production of the cotton pad took place. 45 The GAO pointed to Congressman Berry s 1952 Amendment in explaining that while there was a time when agencies considered an end product to be Made in the USA regardless of the origin of the thread, yarn, or fibers from which the cloth was made, the 1952 legislative history made clear the congressional intent that the term reprocess indicated that the production of the raw material as well as each successive step in the manufacturing process must occur in the United States. 46 Therefore, not only must the cotton be grown in the United States, but the end product, the cotton pad, must also be produced in the United States. 47 Over a decade later, in Penthouse Manufacturing Co. 48 the GAO again held that the Berry Amendment requires that the origin of the raw material as well as each successive stage of manufacturing must be domestic, affirming its decision in National Graphics. Penthouse, a manufacturer of combat coats with a woodland camouflage pattern, disclosed that labor amounting to 12 percent of its total cost of production would be performed by a small business in Haiti. 49 The remainder of the work would be performed in New York. 50 The Defense Logistics Agency (DLA) rejected Penthouse s bid as nonresponsive, stating that the clothing in question was not wholly manufactured in the United States. 51 In response, Penthouse argued that its coat met the definition of end product as defined by the BAA. For support, Penthouse cited DoD Federal Acquisition Regulation Supplement (DFARS) (1)(ii), which states that with regard to the Berry Amendment, contracting officers are to apply the policies and procedures of the Buy American Act. 52 The GAO rejected this argument, stating that instead of being subjected to the domestic end product definition of the BAA, clothing, such as the combat coats produced by Penthouse, is subject to the far more restrictive terms of the Berry Amendment. 53 This determination by the GAO means that the coats must be wholly manufactured and produced in the United States. 54 As a result, the GAO found Penthouse s coats to be Berry Amendment noncompliant because each successive step in the manufacturing process did not take place in the United States. 55 In further reliance on National Graphics and Penthouse, the GAO explained in F.J. O Hara that even when the item procured is wholly processed in the United States, it is not Berry Amendment compliant if the raw material is not domestically sourced. 56 Though the F.J. O Hara decision addresses food, the case is easily likened to textiles. F.J. O Hara bid on a Defense Personnel Support Center procurement and argued that foreign-caught fish that were processed in the United States were compliant with the Berry Amendment. 57 The GAO disagreed, relying on National Graphics to explain that fish must be caught by US fishermen and processed in the United States in order to be compliant. 58 Pointing to the 1951 Berry Amendment legislative history, the GAO distinguished multicomponent end products, such as jelly, where certain components are simply not produced or are scarce in the United States, from single component end products that may be produced offshore but are also available in the United States. 59 The GAO explained that it is not the scarcity of the raw material, but the multi-component nature of the end product that decides whether the end product is Berry Amendment compliant. 60 The GAO s perspective is far from definitive given the controversy and confusion that continues to exist in the interpretation of the Berry Amendment. For example, in 1996, the DoD was at the center of a foreign source controversy when a US Air Force sergeant complained to Congressman James A. Traficant, Jr. that members of an Air Force Reserve unit were issued boots made in China. 61 In denying the sergeant s allegations, the Pentagon stated that it awarded four contracts to American companies. 62 A subsequent Air Force review made in response to an inquiry from Congressman Traficant found that 12 Air Force organizations procured 4,157 pairs of boots, valued at $182,511, that were made in China. 63 An additional tasking was then included in the following year s appropriation act. The resulting National Defense Authorization Act for FY included a provision mandating audits of FY 1996 and FY 1997 procurements: SEC AUDIT OF PROCUREMENT OF MILITARY CLOTHING AND CLOTHING RELATED ITEMS 6 The Procurement Lawyer Spring 2014

5 BY MILITARY INSTALLATIONS IN THE UNITED STATES. (a) AUDIT REQUIREMENT. Not later than September 30, 1998, the Inspector General of the Department of Defense shall perform an audit of purchases of military clothing and clothing-related items in excess of the micro-purchase threshold by military installations during fiscal years 1996 and 1997 to determine the extent to which such installations procured military clothing and clothing-related items in violation of the Buy American Act (41 U.S.C. 10a et seq.) during those fiscal years. 65 The DoD Office of Inspector General (OIG) expanded the audit tasking to include the Berry Amendment. 66 The OIG audit findings revealed that DoD contracting officers were not including the proper contract provision in 60 percent of contracts to which the BAA and the Berry Amendment applied. The OIG concluded that contracting officers either were not familiar with, or did not understand, the Berry Amendment. 67 Both congressional testimony regarding the boots made in China and the resulting OIG audits recognized that contracting officers, when faced with the expense of complying with confusing guidance, often failed to attempt to comply at all. 68 In another controversy involving the acquisition of berets by the US Army, the Berry Amendment presented more practical obstacles to compliance for contracting agencies. In 2000, the Army decided to transition from patrol caps for its active duty and reserve forces to black berets. 69 There were two problems with the sourcing: first, there were no US producers capable of fulfilling the large order by the deadline that was imposed; and second, the sole producer with the ability to fulfill the order, though located in the United States, used foreignmade and sourced yarn in its production. 70 To compensate, the DLA granted two waivers permitting the DoD to purchase military uniforms from foreign sources and allowing the sole domestic producer to retain the contract despite the use of foreign materials in its products. 71 When news outlets discovered that soldiers in the US Army would wear berets made in China, the fallout was significant. 72 Eventually, the DLA placed China-made berets in storage while it renegotiated contracts in hopes of obtaining American-made berets. Because many observers did not understand the procurement requirements and the waiver process, the controversy was seen as an ordering glitch 73 when in fact the beret debacle exposed the practical issues associated with acquiring an item scarcely available in the United States for use in a Berry Amendment compliant end product. Indeed, the beret controversy revealed the Army s inability to find sufficient US sources to provide berets that could be manufactured in successive stages consistent with the GAO s perspective on Berry Amendment compliance. A New Perspective: Common Usage In National Graphics, Penthouse, and F.J. O Hara, the GAO made clear that successive steps in a manufacturing process that would be Berry Amendment compliant must include products that are grown, reprocessed, reused, and produced in the United States. In Department of Defense Purchase of Fuel Cells 74 the GAO, in response to inquiries from a number of members of Congress, reviewed the applicability of Berry Amendment provisions to purchases of fuel cells for installation in H-53 and H-3 helicopters. 75 Among other things, the GAO began to look more closely at the meaning of reprocessed. As a consequence, the GAO found that fuel cells consisting of synthetic fabric and nitrile were not Berry Amendment compliant because even though the fabric was purchased from an American firm, the synthetic material was reprocessed in Italy. 76 The GAO explained: The question of Berry Amendment applicability to fuel cells arose in May 1991 when the Air Force awarded a contract to Sekur S.p.A.-Pirelli Group (Sekur-Pirelli), an Italian company, for a number of crash resistant, self-sealing, fuel tank assemblies for use in H-53 helicopters.... Sekur- Pirelli apparently buys nylon fabric from an American firm, but then coats the nylon fabric with nitrile using a process known as calendaring at its plant in Italy. The resulting material (consisting of alternating layers of nylon and nitrile) is further processed by bonding numerous layers of it to each other, vulcanizing the multi-layered material, and molding the material about a solid form. Clearly, the nylon fabric undergoes several manufacturing processes, including calendaring and vulcanizing, outside of the United States. Moreover, there is no dispute that, once the nylon and nitrile are calendared and several layers of this material are joined together, the material undergoes several more manufacturing processes, including attaching couplings and sealing seams, before it is assembled into the finished fuel cell. All of these processes apparently take place outside of the United States. In view of the clear legislative intent that the scope of Berry Amendment s prohibition be read broadly, we find that the cells are items of individual equipment manufactured from or containing synthetic fibers within the Berry Amendment restriction. 77 This case illustrates the GAO s most expansive discussion regarding reprocessing to date, and more importantly takes a step forward in defining the word reprocessing for the purpose of determining whether an imported item is Berry Amendment compliant. It is important to note, however, that today s contractor operates in a global economy and requires guidance that not only acknowledges the complicated process of making a textile or fabric but also explicitly addresses and defines the term reprocess in the context of the Berry Amendment language. While Fuel Cells provides some insight into the types of processes that point to reprocessing, in reality, there is no tangible agency guidance on Volume 49, Number 3 The Procurement Lawyer 7

6 the definition of reprocessed. Both the statute and the implementing regulations are devoid of useful definitions, or, at times, any definition or guidance at all. Defense Procurement and Acquisition Policy (DPAP) offers general guidance regarding Berry Amendment compliance, but fails to offer clarification on the meaning of key terms. 78 DLA similarly provides no definitional guidance. Thus the meaning of reprocessed is left to, at best, the most reasonable contracting officer s interpretation in concert with the perspective provided by the GAO in Fuel Cells. The lack of definitional guidance, coupled with confusion regarding which parts of the production process must take place in the United States, has left contractors like Client unsure of whether their bids or end products comply with the Berry Amendment. New guidance should recognize that reprocess does not refer, as National Graphics indicates, to each successive step in the manufacturing process, but to the reprocessing process itself, which must take place in the United States. The GAO s National Graphics interpretation that the Berry Amendment requires each successive manufacturing or production step to take place in the United States is simply incorrect. Not only is it contrary to the text of the Berry Amendment, which uses the word or and not and in the context of grown, reprocessed, reused, or produced, but it is also contrary to the very process of making fabric and textiles, which often incorporates multiple processing steps. In fact, fiber is often subjected to a number of reprocessing processes, including beaming and re-beaming, heat-setting, dyeing, and other chemical treatments before there is a finished product. To be Berry Amendment compliant, this type of reprocessing must be completed in the United States notwithstanding the fact that the fabric was foreign sourced. A focus on reprocessing necessitates an analysis of the meaning of the term. The Merriam-Webster Dictionary defines reprocess as a special process or treatment in preparation for reuse. 79 Similarly, the Oxford Dictionary defines reprocess as to process again or differently, typically in order to reuse it. 80 These definitions indicate that reprocess may involve recycling or retreating wool, cotton, or other fibers in order to make a new item for use. Based on these definitions, reprocess addresses the final action required to create an end product, a process in which any one action of reprocessing will suffice, as long as it is the final manufacturing step and it occurs within the United States. Conclusion The Berry Amendment in its current form does not provide definitional guidance as it relates to each element grown, reprocessed, reused, or produced for which compliance is necessary. With this definitional void, guidance is necessary to aid the contracting community in the proper application of the Berry Amendment. While the GAO was the first decision maker to provide an interpretation on the elements of the Berry Amendment, its perspective is neither definitive nor supportable. In today s environment, it is not unusual to purchase products in the United States that are made from product components and raw materials sourced in other countries. To the extent that these items can be viewed as being made in the United States, we need to understand the definition of reprocess and what it means in the context of Berry Amendment compliance. To that end, a commonsense approach seems to provide guidance that could minimize uncertainty and ensure compliance with the Berry Amendment requirements. The dictionary meanings of reprocess, which represent more common usage, indicate that reprocessing in the context of the Berry Amendment could include situations where imported materials are taken through a process that represents the final manufacturing step and creates a new end product or component. That item, then, has been reprocessed in a manner that brings it into compliance with the Berry Amendment. Such a definition allows Client, or other similarly situated manufacturers, to bid with knowledge that their products are compliant with the Berry Amendment. It also allows Client to take advantage of the market realities when making its business decisions, ultimately offering the DoD military products which are not only compliant, but are also efficiently made and priced. PL Endnotes U.S.C. 2533a U.S.C. 10a-10d. 3. FAR (2013). 4. Valerie Bailey Grasso, Cong. Research Serv., RL31236, The Berry Amendment: Requiring Defense Procurement to Come from Domestic Sources (2012) [hereinafter Grasso, The Berry Amendment]. 5. Fiscal Year 1941 Fifth Supplemental National Defense Appropriations Act, Pub. L. No , 10 U.S.C note. 6. See DFARS , (2013). 7. FAR (2013). 8. FAR (2013) Cong. Rec , (daily ed. Mar. 31, 1941) Cong. Rec (daily ed. Mar. 31, 1941). 11. Id Cong. Rec (daily ed. Mar. 31, 1941). 13. Id. 14. John R. Luckey, Cong. Research Serv., RL42501, Domestic Content Legislation: The Buy American Act and Complementary Little Buy American Provisions (2012) [hereinafter Domestic Content Legislation] (citing Pub. L. No , Title VII; 102 Stat. 1545, 100th Congress, 2nd Session (1988), Pub. L. No , 108 Stat , 103rd Congress, 2nd Session (1994), Pub. L. No , 827, 110 Stat th Congress, 2nd Session (1996), and Pub. L. No , Title VIII, 8306, 121 Stat. 112, 211, 110th Congress, 1st Session (2007)). 15. Domestic Content Legislation, supra note 14, at Id. 17. Id. 18. Grasso, The Berry Amendment, supra note 4, at Id. 20. Sean P. Bamford, The Persistence of Time: A Brief History 8 The Procurement Lawyer Spring 2014

7 and Analysis of the Berry Amendment, 32 Pub. Cont. L.J. 577, 579 (Spring 2003) [hereinafter Persistence of Time] (citing Nav. App. Act of 1940, Pub. L. No. 90, at 12 (1939) (cited in Acting Comp. Gen. Elliott to the Sec. of the Navy, B-4249, 18 Comp. Gen. 957 (1939))). 21. Fiscal Year 1941 Fifth Supplemental National Defense Appropriations Act, Pub. L. No , 10 U.S.C note. 22. See generally Department of Defense Appropriation Act, 1999, Pub. L. No , 112 Stat (1998); Department of Defense Appropriation Act, 1985, Pub. L. No , 98 Stat (1984); Department of Defense Appropriation Act, 1969, Pub. L. No , 82 Stat (1969); Defense Appropriation Act, 1956, Pub. L. No (1955); Department of Defense Appropriation Act, 1953, Pub. L. No , 66 Stat. 517 (1952). 23. Persistence of Time, supra note 20, at Fiscal Year 1941 Fifth Supplemental National Defense Appropriations Act, Pub. L. No , 10 U.S.C note. 25. Persistence of Time, supra note 20, at 582 (citing General Appropriation Act of 1951, H.R. Rep. No S-B (1950), microfiched on CIS No. 50-H (Cong. Info. Serv.)). 26. Persistence of Time, supra note 20, at 582 (citing General Appropriation Act of 1951, Pub. L. No (1950)). 27. General Appropriation Act of 1951, Pub. L. No (1950). 28. Persistence of Time, supra note 20, at Cong. Rec (Apr. 9, 1952) (statement of Rep. Berry). 30. Cong. Rec (Apr. 9, 1952) (statement of Rep. Berry) ( Wool is a raw material, and the Berry Amendment will serve to clarify the intention of the Congress in that regard. Mr. Chairman, the term wool includes mohair from Angora goats... it was so defined in the Wool Products Labeling Act where the definition of wool is given thus: The term wool means the fiber from the fleece of the sheep or lamb, or hair of the Angora goat.... Therefore, the wool referred to in the Berry Amendment is intended to include mohair in connection with any interpretation of the Berry Amendment. ). 31. Persistence of Time, supra note 20, at 583 ( Based on Representative Berry s proposed change and the floor debates, the 1953 Department of Defense Appropriation Act was amended to include language that prohibited using appropriated funds to procure any article of food, clothing, cotton or wool (whether in the form of fiber or yarn or contained in fabrics, materials, or manufactured articles), not grown, reprocessed, reused, or produced in the United States or its possessions, unless determined that sufficient quantities of any such domestic articles could not be acquired as needed at United States market prices ) Stat. 517, 521, Pub. L. No. 488 (1952) (emphasis added). 33. Defense Appropriation Act, 1956, Pub. L. No (1955). 34. Pub. L. No , 81 Stat. 231 (1967). 35. Defense Appropriation Act of 1973, Pub. L. No , 724, 86 Stat (1972). 36. Department of Defense Appropriation Act of 1988, Pub. L. No , 8011 (1987) U.S.C note (1992). 38. Id. 39. One of the seminal events that questioned agencies ability to procure goods during time of war was the black beret controversy. This controversy centered on former Army Chief of Staff, General Eric Shinseki s decision to provide all army personnel with a new item of headgear the black beret. The berets were sourced from foreign manufacturers versus American textile manufacturers. See note 69, infra, for a full treatment of the black beret controversy and the political issues associated with the acquisition. 40. FY 2002 National Defense Authorization Act Pub. L. No recodified the amendment in 10 U.S.C. 2533a; Grasso, The Berry Amendment, supra note National Graphics, Inc., B , 49 Comp. Gen. 606 (Mar. 19, 1970). 42. Id. at Id. 44. Pub. L. No , 82 Stat. 1120, 1133 (1969); National Graphics, supra note 41, at National Graphics, supra note 41, at National Graphics, supra note 41, at Id. 48. B , 85-1 CPD 487 (Apr. 30, 1985). 49. Id. at Id. 51. Penthouse, supra note 48, at Penthouse, supra note 48; Persistence of Time, supra note 20 (explaining the background of the bid protest and FAR provisions upon which Penthouse relied). 53. Penthouse, supra note 48, at Penthouse, supra note 48, at Id. 56. F.J. O Hara & Sons, Inc., B , 90-1 CPD 197 (Feb. 21, 1990). 57. Id. at Id. 59. F.J. O Hara, supra note 56, at Id. 61. Inspector General, U.S. Dep t of Defense, Report No , Audit Report: Procurement of Military Clothing and Related Items by Military Organizations 2 (1998) [hereinafter IG Audit] Cong. Rec. H1048 (daily ed. Mar. 18, 1997) (statement of Rep. Traficant). 63. IG Audit, supra note 61, at Pub. L. No ; IG Audit, supra note 61, at Id. 66. IG Audit, supra note 61, at IG Audit, supra note 61, at See generally IG Audit, supra note 61, at 2; 143 Cong. Rec. H1048 (daily ed. Mar. 18, 1997) (statement of Rep. Traficant). 69. Col. William E. Zeller, Black Berets and The Berry Amendment: Politics, Parochialism, and the Press, 4 US Army War College (2006) [hereinafter Black Berets]. 70. Id. at Grasso, The Berry Amendment, supra note Black Berets, supra note 69, at Black Berets, supra note 69, at Department of Defense Purchase of Fuel Cells, B , B (July 31, 1992). 75. Id. at Id. at Id. at 1, Defense Procurement and Acquisition Policy, Berry Amendment FAQ (2011) available at Merriam-Webster Dictionary, available at com/pj6w39m. 80. Oxford Dictionary, available at qd5tunm. Volume 49, Number 3 The Procurement Lawyer 9