(b) (1) (i) All determinations to waive the Berry Amendment (10 U.S.C. 2533a) require prior approval by the Secretary of the Army. The authority to make such determinations may not be redelegated.
(ii) All requests for waiver under the Berry Amendment shall be submitted through procurement channels to the Deputy Assistant Secretary of the Army (Procurement), (DASA (P)), Attn: SAAL-PP. Requests shall be submitted so as to be received by the DASA (P) no later than 60 business days prior to the planned release of the solicitation. All requests shall fully explain why the item(s) in question cannot be procured as and when needed in a satisfactory quality and sufficient quantity at U.S. market prices. The request shall include information on whether item(s) in question are managed by the Defense Logistics Agency (DLA) and written confirmation from the DLA that said item(s) are not available from the DLA in the time needed to meet Army requirements. In addition, all requests shall include a written certification signed by the General Officer/Senior Executive Service-level head of the requiring activity that addresses, with specificity, why alternatives that would not require a waiver under the Berry Amendment are unacceptable.
(2) See 5153.9003 for a Sample Memorandum for Waiver of the Berry Amendment.
(5) (A) Army contracting officers are authorized reciprocal use of any Domestic Non-Availability Determinations (DNAD) listed in DFARS PGI 225.7002-2(b)(5)(B).
(4) The contracting officer shall coordinate with the point of contact listed in the DFARS PGI 225.7003-2(b)(5)(A)(4(i) through (iv) to ensure the original determination circumstances are unchanged and that the same rationale and circumstances apply to the instant contract as apply to the approved Determination. The contracting officer shall document the contract file in writing with the results of the coordination. [AFARS Revision #25, Item XIV, dated April 1, 2010]
(S-90) Army Program Executive Offices and Program Management Offices and other requiring activities that utilize a non-Army contracting activity to fulfill a requirement for a covered item are responsible for ensuring compliance with the above prior approval requirement. [AFARS Revision #14, dated January 6, 2005] [AFARS Revision #21, dated May 22, 2007]
