The Berry Amendment is a statutory requirement that restricts the Department of Defense (DoD) from using procurement funds for food, clothing, fabrics, fibers, yarns, other made-up textiles, and hand or measuring tools that are not grown, reprocessed, reused, or produced in the United States. With respect to textiles, the Berry Amendment has been critical to the viability of the textile and clothing production base in the US (source: Department of Commerce Website).
The Army issued a solicitation to supply approximately 225 thousand baseball caps specifying that the award was to be made to the responsive, responsible bidder offering the lowest price. The solicitation emphasized that the selected contractor must comply with the requirements of the Berry Amendment.
Ultimately the Army awarded the contract to Lag Sports and in furtherance of the enforcement of the Berry Amendment requirements, the contracting officer requested additional information and confirmation from Lag Sports. Lay confirmed that all materials, assembly, and embroidery would be performed in the US and identified the mills that would be supplying the fabric it would use.
An unsuccessful bidder, Inspire International protested the award arguing that the awarded contract price was so low that it could only be based on an intent to furnish non-domestic products in violation of the Berry Amendment.
The Comptroller General (CG) denied the protest. The CG found that the Army reasonably relied on the representations made in Lag Sport's quotation, and also sought additional reassurances regarding the domestic manufacture of the caps. The CG ruled that price alone did not prove an intent to violate the Berry Amendment. A firm, in its business judgment, properly may decide to submit a price that is extremely low, or even below the cost of performance.
In short, Inspire was unable to show any reasonable basis to conclude the awardee will furnish noncompliant products.
You can read the full Conptroller General decision here.
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