Did you know that the legislation named after Congressman E.Y. Berry in 1941, requires the Department of Defense (DoD) to use appropriated funds to procure items made only with domestic materials? The other restrictive agreements often confused with Berry are the Buy American Act, Trade Agreements Act, General Agreement on Tariffs and Trade, Free Trade Agreements, and Defense Authorization Acts and Appropriations Acts. However, the Berry Amendment is the most restrictive when it comes to clothing and textiles.
The original intent of the Berry legislation, as expected, was to protect the domestic clothing and textile industry. The concern today is that other Federal agencies fall only under the Buy American Act which is not as encompassing. Departments such as the Department of Homeland Security (DHS) are not specifically required by the Federal Acquisition Regulation to follow the Berry Amendment, even though this agency is as involved in national defense as the DoD. It gets more confusing because other agencies such as the GSA who procure for the DoD must adhere to the Berry Amendment – so if the DoD procures for DHS the amendment applies but not the reverse.
The question is “why is the Department of Homeland Security (DHS) excluded from following Berry Amendment acquisition guidelines?” As reported by James A. Morrissey, Washington Correspondent for Textile World, DHS has adopted as final their interim rule established last August 2009 which rejects the objections from the clothing and textile industry. The reason the industry objected to the ruling is that DHS has included the North American Free Trade Agreement (NAFTA) countries Mexico and Canada and for some reason Chile, as eligible for Federal contracts. Even though DHS said it received comments from 26 organizations and individuals and members of Congress suggesting that DHS comply with the Berry amendment, the DHS response was that the Homeland Security legislation “is not an extension of the Berry Amendment.” http://edocket.access.gpo.gov/2010/pdf/2010-13804.pdf
However, apparently not all DHS procurement officers are aware of this final ruling because according to United States Industrial Fabrics Institute (USIFI), the Transportation Security Administration (TSA) and the U. S. Coast Guard (both DHS organizations) procurement officials do include Berry Amendment requirements for purchases.
Again, according to Textile World, Representative Larry Kissell (D-N.C.), who guided the textile response to DHS, said that “any rule allowing unnecessary use of non-domestic parts will substantially undermine the job-creating capability.” Rep. Kissell is obviously concerned with the erosion of the Berry Amendment and the negative consequences for American workers and the industry itself.
Until such time as legislation can be introduced to bring DHS into the same compliance DoD follows with the Berry Amendment, companies in the clothing and textiles industry must be prepared to support ongoing efforts such as the Kissell amendment. Further, companies must invest in the time and effort required to understand the acquisition policies and procedures of the Federal government and especially the Department of Homeland Security.