The Specialty Metal Provision and the Berry Amendment: Issues for Congress

Congress took action in the FY2007 National Defense Authorization Act P.L. 109-364 to move the specialty metal provision from the Berry Amendment Title 10, United States Code U.S.C. 2533a into a separate section of Title 10 10 U.S.C. 2533b. Section 843 of P.L. 109-364 directed the Secretary of Defense to establish a Strategic Materials Protection Board to determine, analyze, and recommend strategies to ensure the domestic availability of materials designated as critical to national security. The Board met in July 2007 and issued a report in September 2007. In July 2008, the Department of Defense DOD proposed to amend the Defense Federal Acquisition Regulation Supplement DFARS to implement Section 842 of the FY2007 National Defense Authorization Act and Sections 804 and 884 of the FY2008 National Defense Authorization Act, P.L. 110-181. The FY2008 National Defense Authorization Act P.L. 110-181 contained several provisions which may impact the procurement of specialty metal. Section 803 required the Strategic Materials Protection Board to perform an assessment of the viability of domestic producers of strategic materials Section 804 changed the requirement that DOD procure all specialty metal from domestic sources. This provision does not apply to contracts or subcontracts for the acquisition of commercially available off-the-shelf items with certain exceptions, as defined in the Office of Federal Procurement Policy Act, Section 35c and Section 884 requires DOD to publish a notice on the Federal Business Opportunities website before making any nonavailability determinations that would apply to multiple contracts.