In these cold winter months, gloves with touchscreen capabilities are all but essential. Recently, the Army sought to procure touchscreen-compatible combat gloves, but required that all goatskin leather used for the gloves be “100% Domestic” in accordance with the Berry Amendment.
In Mechanix Wear, Inc., B-416704 (Nov. 19, 2018), however, GAO sustained a protest against this requirement because the item being procured was subject to a Berry Amendment exception.
In its initial RFP, the Defense Logistics Agency (“DLA”) included DFARS clause 252.225-7012, “Preference for Certain Domestic Commodities,” which implements the Berry Amendment. The Berry Amendment was originally passed in the early days of World War II to promote DoD’s purchase of U.S. goods. As we’ve previously discussed on this blog, basic products covered by the Berry Amendment include clothing and handwear, or more specifically, gloves.
Preparing leather products for use in wearable clothing contains several steps, including skinning the animal, salting or pickling and soaking the skin, removing hair or fur, tanning, and other processes. The original RFP stated “that while pickled-state goat/kidskin from foreign sources could be used, all tanning and processing of the goat/kidskin must be done domestically.”
After issuing the original RFP, DLA conducted “market research” about whether skins of this kind, produced from start to finish in the United States, were available. When two sources indicated such skins existed in quantities necessary to meet DLA’s needs, DLA updated its RFP to state that “‘[a]ll Goat/Kidskin ‘MUST’ be 100% Domestic to include all tanning process.’”
In response, Mechanix Wear, Inc., a glove manufacturer, protested when it was only able to locate one source for the leather requested, arguing that an exception to the Betty Amendment applied. This exception references a list, located at FAR 25.104(a), a part of the Buy American Act. The exception indicates that Berry Amendment requirements do not apply to this specific list of materials not traditionally available in the U.S. in the quantities demanded by the Government, including, among many others, cobra venom, platinum, olive oil, and most notable here, goat and kidskins.
In contrast, the DLA responded market research was required to prove, or disprove, whether an item on the list was truly unavailable in the U.S., based on the list’s context within the Buy American Act. If found to be available based on the market research, DLA argued, the exception should not apply.
Ultimately, GAO concluded that the Buy American market research requirements and DFARS Berry Amendment exceptions were pieces of “two similar, but distinct schemes” and that neither the plain language of the relevant FAR and DFAR provisions, nor relevant history of either “demonstrate[d] a clear intention for the market research requirements . . . applicable to the Buy American Act, to apply to Berry Amendment restrictions.” Thus, GAO “recommend[ed] that the agency either (1) provide further reasonable support for its decision to require that these gloves be made with domestic leather, consistent with the applicable regulations; or (2) amend the solicitation’s restriction on goat/kidskins consistent with this decision and the applicable regulations.”
In cases like this, requirements can get confusing, especially when certain regulatory requirements incorporate other bodies of regulatory law by reference, as they did in this case. When complex regulatory schemes like these have got your goat, contact Koprince Law; we’re happy to help!