(Revised July 29, 2009)

 

 

 

 

  (a)(2)(A)  The following are examples, not all-inclusive, of Federal Supply Classes that contain items of clothing:

 

                    (1)  Clothing apparel (such as outerwear, headwear, underwear, nightwear, footwear, hosiery, or handwear) listed in Federal Supply Class 8405, 8410, 8415, 8420, 8425, 8450, or 8475.

 

                    (2)  Footwear listed in Federal Supply Class 8430 or 8435.

 

                    (3)  Hosiery, handwear, or other items of clothing apparel, such as belts and suspenders, listed in Federal Supply Class 8440 or 8445.

 

                    (4)  Badges or insignia listed in Federal Supply Class 8455.

 

         (B)  The Federal Supply Classes listed in paragraph (a)(2)(A) of this subsection also contain items that are not clothing, such as—

 

                    (1)  Visors;

 

                    (2)  Kevlar helmets;

 

                    (3)  Handbags; and

 

                    (4)  Plastic identification tags.

 

         (C)  Each item should be individually analyzed to determine if it is clothing, rather than relying on the Federal Supply Class alone to make that determination.

 

         (D)  The fact that an item is excluded from the foreign source restriction of the Berry Amendment applicable to clothing does not preclude application of another Berry Amendment restriction in DFARS 225.7002-1 to the components of the item.          

 

         (E)  Small arms protective inserts (SAPI plates) are an example of items added to, and not normally associated with, clothing.  Therefore, SAPI plates are not covered under the Berry Amendment as clothing.   However, fabrics used in the SAPI plate are still subject to the foreign source restrictions of the Berry Amendment.  If the fabric used in the SAPI plate is a synthetic fabric or a coated synthetic fabric, the fibers and yarns used in the fabric are not covered by the Berry Amendment, because the fabric is a component of an end product that is not a textile product (see DFARS 225.7002-2(o)).

      Example:  A SAPI plate is compliant with the Berry Amendment if the synthetic fiber or yarn is obtained from foreign country X and woven into synthetic fabric in the United States, which is then incorporated into a SAPI plate manufactured in foreign country Y.

                

 

      (b)  Domestic nonavailability determinations.

 

              (3)  Defense agencies other than the Defense Logistics Agency.

 

                    (A) A defense agency requesting a domestic nonavailability determination must submit the request, including the proposed determination, to—

 

                            Director, Defense Procurement and Acquisition Policy

                            ATTN: OUSD(AT&L)DPAP(CPIC)

                            3060 Defense Pentagon

                            Washington, DC 20301-3060.

 

                    (B) The Director, Defense Procurement and Acquisition Policy, will forward the request to the Under Secretary of Defense (Acquisition, Technology, and Logistics) (USD(AT&L)) as appropriate.  

 

             (4)  Reciprocal use of domestic nonavailability determinations (DNADs).  

 

                    (A)  The military departments and the Defense Logistics Agency should establish approval authority, policies, and procedures for the reciprocal use of DNADs. General requirements for broad application of DNADs are as follows:

 

                            (1)  A class DNAD approved by the USD(AT&L), the Secretary of a military department, or the Director of the Defense Logistics Agency may be used by USD(AT&L), another military department, or the Defense Logistics Agency, provided the same rationale applies and similar circumstances are involved.

 

                            (2)  DNADs should clearly establish—

 

                                    (i)  Whether the determination is limited or unlimited in duration; and

 

                                    (ii)  If application outside the approving military department is

 

                            (3)  Upon approval of a DNAD, if application outside the approving military department is appropriate, the approving department shall provide a copy of the DNAD, with information about the items covered and the duration of the determination, to—

Director, Defense Procurement and Acquisition Policy
ATTN: OUSD(AT&L)DPAP(CPIC)
3060 Defense Pentagon
Washington, DC 20301-3060.

                             (4)  Before relying on an existing DNAD, contact the approving office for current guidance as follows:

 

                                    (i)  USD(AT&L):  DPAP/CPIC, 703-697-9352.

 

                                    (ii)  Army:  ASA/ALT, 703-604-7006.

 

                                    (iii)  Navy:  DASN (Acquisition and Logistics Management), 703-614-9600.

 

                                    (iv)  Air Force:  AQCK, 703-588-7040. 

 

                                    (v)  Defense Logistics Agency: J-71, Acquisition Policy Division, 703-767-1461.

 

                    (B) DNADs approved by USD(AT&L), that are currently available for reciprocal use, are listed at http://www.acq.osd.mil/dpap/cpic/ic/. To access the list: Under “Topics,” click on “Read More” in the “Berry Amendment” bar; then click on “Read More” at the bottom of the page under “DNADs.”

 

PGI 225.7003 Restrictions on acquisition of specialty metals.

 

 

(a)(i) This restriction applies to the item containing the specialty metal, not just the specialty metal, as was true when the restriction was part of 10 U.S.C. 2533a. The previous practice of withholding payment while conditionally accepting noncompliant items is not permissible for—

(A) Contracts entered into on or after November 16, 2006; or

(B) New procurements or out-of-scope changes accomplished on or after November 16, 2006, through the use of bilateral modifications to contracts originally awarded prior to November 16, 2006.

(ii) Consistent with the definition of “component” in the clause at DFARS 252.225-7009, a component is any item supplied to the Government as part of an end item or of another component. Items that are not incorporated into any of the items listed in DFARS 225.7003-2(a) are not components of those items. For example, test equipment, ground support equipment, or shipping containers are not components of the missile system.

PGI 225.7003-3 Exceptions.

A department or agency requesting a determination or approval from USD(AT&L) in accordance with DFARS 225.7003-3(b)(5), (c), or (d) shall submit the request, including the proposed determination, to—

Director, Defense Procurement and Acquisition Policy
ATTN: OUSD(AT&L)DPAP(CPIC)
3060 Defense Pentagon
Washington, DC 20301-3060.

The Director, Defense Procurement and Acquisition Policy, will forward the request to USD(AT&L) as appropriate.

(b)(2) Report of COTS items.

If a department or agency uses the exception at DFARS 225.7003-3(b)(2) for an acquisition of COTS end items valued at $5 million or more per item, the department or agency shall address use of the exception in a year-end report, to be prepared and submitted as follows:

(A) Entitle the report “COTS Specialty Metal Exceptions Granted During Fiscal Year ____.”

(B) For each excepted COTS item purchased during the fiscal year, include in the report, at a minimum, the applicable—

(1) Contract number and any applicable delivery order number;

(2) Dollar value; and

(3) Item description.

(C) Submit the report by October 31 of each year to:

Director, Defense Procurement and Acquisition Policy
ATTN: OUSD(AT&L)DPAP(CPIC)
3060 Defense Pentagon
Washington, DC 20301-3060.

(b)(5) Domestic specialty metals nonavailable as and when needed.

(A) Determining availability.

(1) FAR 15.402 requires that contracting officers purchase supplies and services at fair and reasonable prices. Thus, contracting officers must determine whether any increase in contract price that results from providing compliant specialty metal is fair and reasonable, given the circumstances of the particular situation. In those cases where the contracting officer determines that the price would not be fair and reasonable, the Secretary of the military department concerned may use that information in determining whether the unreasonable price causes the compliant metal to be effectively “nonavailable.” Where these “reasonableness” limits should be drawn is a case-by-case decision.

(2) A similar approach may be used to determine whether delays associated with incorporating compliant specialty metals into items being acquired results in the metals being effectively nonavailable.

(B) Class domestic nonavailability determinations (DNADS). Class DNADS approved by USD(AT&L), that are available for reciprocal use in contracts issued before July 26, 2008, can be found at http://www.dcma.mil/dnad/. These determinations are not authorized for use in contracts issued on or after July 26, 2008.

(b)(6) Application of specialty metals restrictions to magnets.

HPM = High performance magnet
COTS = Commercially available off-the-shelf

Magnet made of specialty metal is:	Commercially available, HPM	NOT Commercially available, HPM	COTS, NOT HPM	NOT COTS, NOT HPM
Incorporated into COTS assembly or COTS end item	NOT restricted	*	NOT restricted	*
NOT incorporated into COTS assembly or COTS end item	Restricted	Restricted	NOT restricted	Restricted
Included in 2 percent minimum content?	Cannot be included in 2 percent minimum	Cannot be included in 2 percent minimum	NOT restricted	Can be included in 2 percent minimum
	content	content		content

* By definition, COTS assemblies and COTS end items will not include a HPM that is
not commercially available or any other magnet that is not COTS.

PGI 225.7017 Restriction on Ballistic Missile Defense research, development, test, and evaluation.

PGI 225.7017-3 Exceptions.

(b) Before awarding a contract to a foreign entity for conduct of ballistic missile defense research, development, test, and evaluation (RDT&E), the head of the contracting activity must certify, in writing, that a U.S. firm cannot competently perform a contract for RDT&E at a price equal to or less than the price at which a foreign government or firm would perform the RDT&E. The contracting officer or source selection authority must make a determination that will be the basis for that certification, using the following procedures:

(i) The determination shall—

(A) Describe the contract effort;

(B) State the number of proposals solicited and received from both U.S. and foreign firms;

(C) Identify the proposed awardee and the amount of the contract;

(D) State that selection of the contractor was based on the evaluation factors contained in the solicitation, or the criteria contained in the broad agency announcement; and

(E) State that a U.S. firm cannot competently perform the effort at a price equal to, or less than, the price at which the foreign awardee would perform it.

(ii) When either a broad agency announcement or program research and development announcement is used, or when the determination is otherwise not based on direct competition between foreign and domestic proposals, use one of the following approaches:

(A) The determination shall specifically explain its basis, include a description of the method used to determine the competency of U.S. firms, and describe the cost or price analysis performed.

(B) Alternately, the determination may contain—

(1) A finding, including the basis for such finding, that the proposal was submitted solely in response to the terms of a broad agency announcement, program research and development announcement, or other solicitation document without any technical guidance from the program office; and

(2) A finding, including the basis for such finding, that disclosure of the information in the proposal for the purpose of conducting a competitive acquisition is prohibited.

(iii) Within 30 days after contract award, forward a copy of the certification and supporting documentation to the Missile Defense Agency, ATTN: MDA/DRI, 7100 Defense Pentagon, Washington, DC 20301-7100.