Similar to the Buy America Act and Buy American Act, The Berry Amendment is another piece of U.S. legislation that encourages federal procurement of goods from U.S. suppliers. The Berry Amendment specifically applies to the Department of Defense (DoD). But is it actually effective? How well does it support American manufacturing? That’s what we’ll dive into here. First, let’s cover the basics.
What Is The Berry Amendment?
The Berry Amendment (U.S. Code Title 10, Section 2533a) requires the U.S. Department of Defense to give preference to U.S. suppliers for the procurement of food, clothing, fabrics, and hand or measuring tools.
The law was originally passed in 1941 as part of the Fifth Supplemental DoD Appropriations Act to help support American manufacturing during World War II and protect our troops by using domestically-produced goods. The Berry Amendment was included in several subsequent pieces of legislation until it was made permanent in 1994 and finally codified into law on its own in 2002.
Why Is It Called The Berry Amendment?
The Berry Amendment is named after Ellis Yarnal Berry, who served in the U.S. House of Representatives from 1951 to 1971. He was incredibly bullish on legislation that favored American manufacturing and introduced amendments to the Buy American Act to expand the law to cover all clothing, cotton, and wool. Ever since he stepped into his House of Representatives position and championed these initiatives, amendments to Defense Appropriation Acts became known as Berry Amendments.
What’s Included
As mentioned above, The Berry Amendment includes food, clothing, fabrics, and metals. Let’s cover each one.
Food
The food component of this amendment is significant. According to The Defense Logistics Agency (DLA), the DoD spent nearly $700 million on food contracts in 2020 (fiscal year, FY). Tyson Foods, Sara Lee, Kraft Heinz, General Mills, and other large American food corporations were among the biggest suppliers.
Clothing and Fabrics
The textiles, clothing, and footwear budget for DoD is even bigger than food – the DoD spent nearly $1.6 billion in FY2020. However, not all of that budget is going toward the manufacturers you think it is.
One of the biggest military contractors in this portion of DoD spending is the Federal Prison Industries (FPI), which also goes by UNICOR. FPI supplies prison-manufactured apparel, which certainly isn’t favorable to normal American businesses. FPI actually has a mandatory sourcing provision that states if they can supply the product at a reasonable cost and time frame, the DoD has to buy from them. In FY2020, the DoD accounted for 90% of FPI’s entire business. This is an incredible limiter for American textile and footwear manufacturers who could be getting bigger contracts from the DoD, but instead, get pushed out by prison labor.
Footwear has been a bit of a better story, especially since Congress extended The Berry Amendment in 2017 to require the DoD to provide running shoes for new recruits (they previously gave them vouchers). This change has allowed major American manufacturers like San Antonio Shoes, Propper International, and New Balance to supply the DoD with great American made shoes. In total, the DoD spent $130 million in FY 2020 on footwear.
A complete list of all the textile products included in The Berry Amendment can be found here.
Hand or Measuring Tools
This section is the smallest in terms of overall spending for the DoD under The Berry Amendment, totaling $66 million in FY2020. Ideal Industries and Snap-On are two of the largest U.S. suppliers that they work with on hand tools. This is ironic because Snap-On doesn’t make a lot of consumer hand tools in the U.S. anymore.
There are some exceptions to this product category for specialty metals and items that are difficult to procure in the United States. Speaking of exceptions, let’s go through those for The Berry Amendment.
Exceptions
As with any U.S. legislation (especially procurement laws), there are several exceptions to The Berry Amendment that the DoD can use to circumvent American sourcing. Let’s take a look at some of them.
- A waiver or Domestic Non-Availability Determination (DNAD) can be granted if any products are unavailable at sufficient quality, quantity, and U.S. market prices from American manufacturers.
- Items are used in support of combat or contingency operations.
- Products fall below the Simple Acquisition Threshold of $150,000.
- Emergency acquisitions in special cases.
- Items procured specifically for commissary resale.
These exceptions are pretty typical and look similar to those in the Buy America Act and Buy American Act, among others. There will almost always be some loopholes for “sufficient quality” and small batch purchases.
You can find a full list of exceptions here.
Other Important Notes
The Berry Amendment applies to both end products and components. If the DoD buys a piece of clothing, all materials in that piece of clothing must be domestically sourced.
However, that doesn’t apply to all fabric-based products. For example, if the DoD procured a chair, the fabric in that chair falls under The Berry Amendment, but the wood used to make the chair frame does not.
In terms of enforcement, it all comes down to the DoD purchaser, or Acquisition officer. They are responsible for determining whether or not a product is covered by The Berry Amendment and verifying the material sourcing and manufacturing of the subcontractor.
Is It Effective?
The Berry Amendment only applies to a specific subset of products procured by the Department of Defense, so by definition, it is inherently limiting. The wide-reaching exceptions and little regulation on suppliers (Federal Prison Industries being the biggest example) diminish its effectiveness as well. We would love to see some additional reform and expansion of The Berry Amendment to further protect and encourage American manufacturing for these goods. Until then, this legislation does a decent job of supporting American manufacturing.
