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  • Question

    Does the Berry Amendment apply to rented uniforms? DAU CLC125, Berry Amendment, says "most likely applies to approved working capital funds" but doesn't give a definite answer. Training also says the amendment applies to procurement. We're debating whether rental falls under the procurement category. We aren't buying the uniforms.


    Answer

    The FAR part 2 definition of "Procurement" states "see Acquisition".  Now reading under Acquisition it states "the acquiring by contract with appropriated funds of supplies or services (including construction) by and for the use of the Federal Government through purchase or lease, whether the supplies or services are already in existence or must be created, developed, demonstrated, and evaluated. Acquisition begins at the point when agency needs are established and includes the description of requirements to satisfy agency needs, solicitation and selection of sources, award of contracts, contract financing, contract performance, contract administration, and those technical and management functions directly related to the process of fulfilling agency needs by contract." 

    Based on these definitions, rental would be the equivalent of a lease so I believe that the Berry Amendment would apply.  And since the Berry Amendment applies to acquisitions using funds appropriated or otherwise available to the Department of Defense the fact that you are using working capital would not make the acquisition exempt, so long as the original funds were appropriated funds.  Overall the Berry Amendment (along with the Buy American Act and Trade Agreements) is a very complicated regulation and since it appears to apply, based on the limited facts provided, we recommend that you consult your program attorney to assist in this complex journey.


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