Military Tent Components and Berry Amendment Compliance
Reinterpretation of Berry Amendment; Non-Textile Component Parts of Military Shelters May be Sourced Off-Shore
Issue:
USIFI has long supported the Berry Amendment’s application to textile products purchased by the U.S. Department of Defense (DoD). The codified regulation (10 U.S.C. 2533a)1 as it pertains to textile products, including tents tarpaulins or covers says, “The Contractor shall deliver under this contract only such of the following items, either as end products or components, that have been grown, reprocessed, reused, or produced in the United States.”
Background:
Both textile and non-textile components of military shelters purchased by DoD used to have Berry domestic sourcing requirements. In April 2009, however, DLA reinterpreted Berry to cover only the textile components of the shelters. This ruling was based on strict reading of the regulation which uses only the term tents, not tents and their components nor end products, and is interpreted as referring only to textiles, not end products which may be made of non-textile parts. Because some tent components are not made from textiles, the DLA legal team ruled that they did not need to be sourced domestically.
Status Update:
USIFI, with the assistance of AMTAC, has worked with Rep. Rob Bishop (R-UT) to craft legislative language to correct DLA’s mistaken interpretation and identify essential tent components and specifies domestic sourcing for these components. Rep. Bishop, following the counsel of the staff of the House Armed Services Committee (HASC), was able to have the following language added to the DoD Authorization bill, H.R. 5136:
“The committee is aware that the Director, Defense Logistics Agency has chosen to interpret the requirement to buy certain articles from domestic sources per subsection (b) of section 2533(a) of title 10 United States Code in such a manner that it applies expressly to tents, tarpaulins, or covers, but not to the materials and components of tents, tarpaulins, or covers. The committee is concerned that this narrow interpretation of the statute is inconsistent with the law. Therefore, the committee directs the Director, Defense Logistics Agency to review the interpretation of the current statute to ensure that they are compliant with both the law and with congressional intent and submit a report to the Congressional defense committees not later than October 1, 2011, explaining how the committee’s concerns were addressed.”
The HASC staff did not feel it was wise to attempt to amend the existing statutory language as that could open avenues of attack for opponents of the Berry Amendment. This statement is a pretty strong statement that Congress’ intent was that the components be covered. Further this is what is called “Directive report language” and is viewed by DoD as being mandatory. If DLA persists in their interpretation, then the legislative foundation has been laid for attempting a statutory fix next year, with the backing of the HASC.
There is one change that USIFI and AMTAC requested to the language, and that is to change the date of the report from 10/1/2011 to 3/1/2011. This was suggested in order to give Rep. Bishop and the HASC time to effect a statutory change (should one be necessary) before any new contracts are let. Rep. Bishop’s office concurred with that judgment and will work with the HASC staff to have the date changed as a part of a “Statement of Managers” during the conference process.
