An official website of the United States Government
97-009
 |
OFFICE OF THE SECRETARY OF DEFENSE3000 DEFENSE PENTAGON |
 |
|---|
ACQUISITION AND TECHNOLOGY
DP(DAR)
In reply refer to
DFARS Case: 96-D333
D. L. 97-009
MEMORANDUM FOR DIRECTORS OF DEFENSE AGENCIES
DEPUTY FOR ACQUISITION AND BUSINESS MANAGEMENT,
ASN(RD&A)/ABM
DEPUTY ASSISTANT SECRETARY OF THE AIR FORCE
(CONTRACTING), SAF/AQC
DIRECTOR, PROCUREMENT POLICY, ASA(RD&A)/SARD-PP
DEPUTY DIRECTOR (ACQUISITION), DEFENSE LOGISTICS
AGENCY
SUBJECT: Application of Berry Amendment
We have amended the Defense Federal Acquisition Regulation
Supplement (DFARS) to implement Section 8109 of the National
Defense Appropriations Act for Fiscal Year 1997 (Pub. L. 104-208).
Section 8109 provides that in applying the Berry Amendment
(10 U.S.C. 2241 note), the term "synthetic fabric and coated
synthetic fabric" shall be deemed to include all textile fibers
and yarns that are for use in such fabrics; and that the
restrictions of the Berry Amendment shall apply to contracts and
subcontracts for the procurement of commercial items.
The attached interim DFARS rule is effective immediately and
will be included in a future Defense Acquisition Circular.
/s/
Eleanor R. Spector
Director, Defense Procurement
Attachment
cc: DSMC, Ft. Belvoir
DFARS Case 96-D333,
PART 212 - ACQUISITION OF COMMERCIAL ITEMS
* * * * *
* * * * *
212.504 Applicability of certain laws to subcontracts for the acquisition of commercial
items.
Application of Berry Amendment
Interim Rule
- (a) The following laws are not applicable to subcontracts at any tier
for the acquisition of commercial items or commercial components:
- (i) [Reserved].
* * * * *
PART 225--FOREIGN ACQUISITION
* * * * *
* * * * *
225.7002 Restrictions on food, clothing, fabrics, specialty metals,
and hand or measuring tools.
225.7002-1 Restrictions.
- (a) In accordance with Section [9005] of Pub. L.
[102-396, as amended (10 U.S.C. 2241 note, Limitations on Food,
Clothing, and Specialty Metals Not Produced in the United States), and
Section 8109 of Pub. L. 104-208], do not acquire supplies
consisting in whole or in part of any of the following, that have not
been grown or produced in the United States or its possessions -
* * * * *
- (7) Synthetic fabric or coated synthetic fabric[, including
all textile fibers and yarns that are for use in such fabrics];
* * * * * .
(9) Any item of individual equipment [(Federal Supply Classification 8465)] manufactured from or containing any of the listed fibers, yarns, fabrics, or materials.
* * * * *
225.7002-2 Exceptions.
Acquisitions in the following categories are not subject to the
restrictions in 225.7002-1 -
* * * * *
- (e) Acquisitions [not exceeding the] simplified
acquisition [threshold].
* * * * *
(j) [Purchases of fibers and yarns that are for use in synthetic fabric or coated synthetic fabric, if such fabric is to be used as a component of an end item not classified in Federal Supply Group 83, Textile/ leather/ furs/ apparel/ findings/ tents/ flags, or Federal Supply Group 84, Clothing, Individual Equipment and Insignia.]
* * * * *
PART 244 - SUBCONTRACTING POLICIES AND PROCEDURES
* * * * *
[SUBPART 244.4 - SUBCONTRACTS FOR COMMERCIAL ITEMS AND COMMERCIAL COMPONENTS
244.403 Contract clause.
* * * * *
PART 252 - SOLICITATION PROVISIONS AND CONTRACT CLAUSES
* * * * *
252.212-7001 Contract Terms and Conditions Required to Implement
Statutes or Executive Orders Applicable to Defense Acquisitions of
Commercial Items.
Use the clause at 252.244-7000, Subcontracts for Commercial Items and
Commercial Components (DoD Contracts), in solicitations and contracts
for supplies or services other than commercial items, that contain the
clause at 252.225-7014, Preference for Domestic Specialty Metals,
Alternate I.]
As prescribed in 212.301(f)(iii), use the following clause:
* * * * *
252.225-7014, Preference for Domestic Specialty Metals, Alternate I
(10 U.S.C. 2241 note).]
* * * * *
252.225-7012 Preference for Certain Domestic Commodities.[(c) In addition to the clauses listed in paragraph (e) of the
Contract Terms and Conditions Required to Implement Statutes or Executive
Orders-Commercial Items clause of this contract, the Contractor shall
include the terms of the following clause, if applicable, in
subcontracts for commercial items or commercial components, awarded at
any tier under this contract:
As prescribed in 225.7002-3(a), use the following clause:
- (a) The Contractor agrees to deliver under this contract only such
of the following articles that have been grown, reprocessed, reused, or
produced in the United States, its possessions, or Puerto Rico-
* * * * *
- (7) Synthetic fabric, and coated synthetic fabric[,
including all textile fibers and yarns that are for use in such
fabrics];
* * * * *
. (10) Any item of individual equipment [(Federal Supply Classification 8465)] manufactured from or containing such fibers, yarns, fabrics, or materials.
(b) This clause does not apply -
* * * * *
- (4) To[purchases of fibers and yarns that are for
use in synthetic fabric or coated synthetic fabric, if such fabric
is to be used as a component of an end item not classified in
Federal Supply Group 83, Textile/ leather/ furs/ apparel/ findings/
tents/ flags, or Federal Supply Group 84, Clothing, Individual
Equipment and Insignia.]
* * * * *
252.225-7014 Preference for Domestic Specialty Metals.
As prescribed in 225.7002-3(b), use the following clause:
* * * * *
- (c) This clause does not apply to the extent that-
* * * * *
- (4) The specialty metal is [purchased
by a subcontractor at any tier].
ALTERNATE I ([FEB 1997])
As prescribed in 225.7002-3(b), [substitute
the following paragraph (c) for paragraph (c) of the basic clause, and
add] the following paragraph (d) [to the basic clause]:
- [(c) This clause does not apply to the extent that-
- (1) The Secretary or designee determines that a satisfactory
quality and sufficient quantity of such articles cannot be acquired
when needed at U.S. market prices;
(2) The acquisition is for an end product of a country listed in subsection 225.872-1 of the Defense Federal Acquisition Regulation Supplement; or
(3) The acquisition is necessary to comply with agreements with foreign governments requiring the United States to purchase supplies from foreign sources to offset sales made by the U.S. Government or U.S. firms under approved programs.]
(d) The Contractor agrees to include [the terms of] this clause, including this paragraph (d), in every subcontract or purchase order [awarded under this contract] unless the item being purchased contains no specialty metals.
* * * * *
[252.244-7000 Subcontracts for Commercial Items and Commercial Components (DoD Contracts).
As prescribed in 244.403, use the following clause:
SUBCONTRACTS FOR COMMERCIAL ITEMS AND COMMERCIAL COMPONENTS (DOD CONTRACTS) (FEB 1997)
In addition to the clauses listed in paragraph (c) of the Subcontracts for Commercial Items and Commercial Components clause of this contract, the Contractor shall include the terms of the following clause, if applicable, in subcontracts for commercial items or commercial components, awarded at any tier under this contract:
252.225-7014, Preference for Domestic Specialty Metals, Alternate I (10 U.S.C. 2241 note).
