RESPONSES TO QUESTIONS-Berets.doc

RESPONSES TO QUESTIONS

QSDACEB-T3-08-8405-N (BERETS)

11/18/2008

Q.1 The berets that have been requested, may have a Large “best value” discrepancy issue, which by definition in the FAR, could be a concern. If the berets requested are produced in countries overseas, the Berry Amendment requirements will not be met, by definition and legal precedence. This also means that their will be higher costs, which are 25-40% difference, depending on quality. The “Berry Amendment requirement” within this procurement request assures that the government will be paying more for the berets to be “Berry

Amendment Compliant.” Why for only 25,000 units, for a foreign army, is the Berry Amendment a requirement?

A.1 The Berry amendment is a requirement in this procurement because the Department of Defense (DOD) is required to give preference in procurement to certain domestically produced, manufactured, or home grown products. The Berry Amendment is part of the United States Code, Title 10, Section 2533a. Since it is a law, the Berry Amendment applies to DOD procurements in excess of the Simplified Acquisition Threshold. Reference DFAR 225.7002 Q.2 By definition the Berry Amendment was supposed to be for stimulating small business, yet the issue of the Berry Amendment actually cost an Arkansas business many jobs and finances due to this stringent requirement. Why, is it still a requirement in this bid? The Buy American Act would be an easier compliance option for this bid, why was this not identified?

A.2 The Berry Amendment is required by law and supersedes the Buy American Act. Reference DFAR 225.7002.

Q.3 Why was this smaller bid not identified for a small business concern? Specifically, Service Disabled Veteran Owned Business? (Please be very specific, identify enclosures please)

A.3 This requirement was not set-aside for small business concerns because it did not meet the FAR criteria to set-aside, including a set-aside for Service Disabled Veteran Owned Business. Reference FAR 19.5

Q.4 It has been determined via legal counsel, that it is almost impossible to determine with 100% certainty the actual product material compliance, for manufactured material components, for the berets, via the Berry Amendment, which was a problem for this product procurement in the past. Are Berry Amendment waivers, with very specific requirements available for small business concerns and under what specific guidelines and procedures? Please be very specific.

A.4 Berry Amendment waivers can only be granted by the Under Secretary of Defense who is the only person authorized to make a domestic non-availability determination if items cannot be grown, reprocessed, reused or produced in the United States and cannot be acquired as and when needed in a satisfactory quality and sufficient quantity at U.S. market prices.

Contractors cannot request waivers to the Berry Amendment. Waiver procedures are spelled out a DFAR 225.7002-2 Exceptions and AFARS 5125.7002.

Q.5 The requirement for a sample product was not requested, that I could identify in the bid, would this not be a wise requirement for the government to include as a part of this bid, in order to avoid major problems at delivery? Why is this not a requirement?

A.5 Samples are not requested because it is the responsibility of the contractor to provide a product that meets the requirements listed in the solicitation. The Government did not determine it necessary for a sample.

Q.6 Could you please ask the customer if they would be willing to consider a Buy American Item rather than Specify Berry Amendment articles.

A.6 The Berry amendment is a requirement in this procurement because the Department of Defense (DOD) is required to give preference in procurement to certain domestically produced, manufactured, or home grown products. The Berry Amendment is part of the United States Code, Title 10, Section 2533a. Since it is a law, the Berry Amendment applies to DOD procurements in excess of the Simplified Acquisition Threshold. Reference DFAR 225.7002