NCTO and WPRC File Comments on Reduction of Berry Amendment Threshold from $250,000 to $150,000

On behalf of the Warrior Protection and Readiness Coalition (WPRC) and the National Council of Textile Organizations (NCTO), we welcome the opportunity to submit comments supporting DFARS Case 2021-D010, Modification of Small Purchase Threshold Exceptions. Our member companies are committed to providing Berry Amendment compliant materials and finished goods to the U.S. Department of Defense and comprise an important sector within the domestic defense industrial base (DIB). As made clearly evident by the Covid-19 pandemic response, the federal government has been challenged to source critical safety and personal protective equipment (PPE) from domestic manufacturers. Expanding the requirement for domestic purchasing will strengthen the Department’s ability to support the DIB and increase the number of available domestically manufactured items.

The WPRC is the voice of advocacy for the individual and equipment needs of the warfighter and peacekeeper. Our membership includes 50 companies located throughout the United States, including manufacturers of tactical equipment, chemical, biological, radioactive, nuclear, and explosive (CBRNE) protective equipment, apparel, materials, and technology companies. Our members are committed to ensuring that American service members, including National Guard and Reserve units, serve the American public with superior gear now and in the future. The WPRC provides a unified industry voice working to sustain the new standard of innovation and capability born from the ongoing conflicts around the world. Our members stand ready to support efforts by the Federal government to increase domestic production of critical items.

NCTO is a unique association representing the entire spectrum of the textile sector. From fibers to finished products, from machinery manufacturers to power suppliers, NCTO is the voice of the U.S. textile industry. Our mission is focused on creating powerful national and international alliances to advance the interests of the U.S. textile sector. NCTO acts as the point of contact for the textile industry with DLA and other important offices and groups within DoD to ensure that we are coordinating swiftly and efficiently to meet the Department’s textile needs. NCTO members work with the military’s product development teams far in advance of solicitations developing the next generation of warfighter textile products. NCTO members deliver in excess of 90% of the Berry compliant textiles needed annually by the military—all high quality products delivered at spec and on the timeline demanded by our warfighters.

Domestically focused to ensure a prosperous future for critical mission work, WPRC and NCTO’s collective memberships are on the front lines meeting the challenges of the 21st Century.

DFARS Case 2021-010 is a positive step forward by the Department of Defense to support the Berry Amendment compliant companies with the DIB. WPRC and NCTO member companies are employers and manufacturers committed to domestic manufacturing and maintaining good paying, high skilled jobs in the United States. WPRC and NCTO worked together to ensure that congressional language authorizing this policy improvement was included in the FY2020 National Defense Authorization Act (NDAA), demonstrating broad support among members of Congress for this policy. Section 817 of the FY2021 NDAA demonstrates clear congressional intent to support the Berry Amendment compliant DIB and strengthen 10 USC 2533a (Berry Amendment).

The Simplified Acquisition Threshold (SAT) was designed to allow the U.S. government to avoid many acquisition regulations when purchasing items smaller than major systems. Increasing the SAT to keep up with inflation was viewed as simplifying government acquisitions. However, before Section 817 made necessary corrections, SAT and the Berry Amendment were regrettably linked, meaning that increases to the SAT have had the serious, unintended consequence of increasing foreign acquisition of textiles and other critical items related to personal protective equipment (PPE) and organizational clothing and individual equipment (OCIE).

The FY2018 NDAA raised the SAT from $150,000 to $250,000 which had a serious impact on domestic manufacturers of these products. Unless the SAT and the Berry Amendment requirements are decoupled by regulation, this change poses a substantial threat to the U.S. industrial base and our national security. In FY2017, DoD contracts for textiles and apparel that would no longer be subject to the Berry Amendment totaled approximately $50 million meaning these U.S. taxpayer dollars that otherwise would be used to strengthen the U.S. industrial base to protect our warfighter instead flowed to foreign nations at the expense of American workers and manufacturers. In addition, this change led to unintended confusion with Buy American and Federal Acquisition Regulations.

Of particular note, Section 817 prevents dividing larger contracts into several purchases or contracts for lesser amounts. For too long contracts that could have been executed by domestic firms were divided into smaller contracts under the SAT to eliminate the need for domestic sourcing. This key provision within Section 817 should be maintained by DFARS in the final rulemaking to ensure that domestic sourcing goals are achieved and that the final rule accurately reflects congressional intent.

Section 817 of the FY2021 NDAA and DFARS Case 2021-D010 address this unintended consequence of raising the SAT by decoupling the Berry Amendment from SAT increases, applying Berry Amendment requirements to all DoD purchases over $150,000, and allowing this threshold to be adjusted based on changes to the Consumer Price Index.

WPRC and NCTO are supportive of this rulemaking and are prepared to assist the Department of Defense and OUSD(A&S) with final implementation. Please contact WPRC Executive Director David Costello at david.costello@warriorprotection.net or NCTO President and Chief Executive Officer Kim Glas at kglas@ncto.org.

Thank you for the opportunity to provide comments on this important provision for the domestic industrial base and American manufacturing. We look forward to working with you and your team to implement the rule when complete.