10 U.S.C. § 4862: Requirement to buy certain articles from American sources; exceptions

Except as provided in subsections (c) through (h), funds appropriated or otherwise available to the Department of Defense may not be used for the procurement of an item described in subsection (b) if the item is not grown, reprocessed, reused, or produced in the United States. food; clothing and the materials and components thereof, other than sensors, electronics, or other items added to, and not normally associated with, clothing (and the materials and components thereof); tents (and the structural components thereof), tarpaulins, or covers; cotton and other natural fiber products, woven silk or woven silk blends, spun silk yarn for cartridge cloth, synthetic fabric or coated synthetic fabric (including all textile fibers and yarns that are for use in such fabrics), canvas products, or wool (whether in the form of fiber or yarn or contained in fabrics, materials, or manufactured articles); or any item of individual equipment manufactured from or containing such fibers, yarns, fabrics, or materials. Hand or measuring tools. Stainless steel flatware. Dinnerware. A flag of the United States. Subsection (a) does not apply to the extent that the Secretary of Defense or the Secretary of the military department concerned determines that satisfactory quality and sufficient quantity of any such article or item described in subsection (b) grown, reprocessed, reused, or produced in the United States cannot be procured as and when needed at United States market prices. Procurements outside the United States in support of combat operations or procurements of any item listed in subsection (b)(1)(A) or (b)(2) in support of contingency operations. Procurements by, or for, vessels in foreign waters. Emergency procurements or procurements of perishable foods by, or for, an establishment located outside the United States for the personnel attached to such establishment. Procurements of any item listed in subsection (b)(1)(A) or (b)(2) for which the use of procedures other than competitive procedures has been approved on the basis of section 3204(a)(2) of this title , relating to unusual and compelling urgency of need. to comply with agreements with foreign governments requiring the United States to purchase supplies from foreign sources for the purposes of offsetting sales made by the United States Government or United States firms under approved programs serving defense requirements; or in furtherance of agreements with foreign governments in which both such governments agree to remove barriers to purchases of supplies produced in the other country or services performed by sources of the other country; and any such agreement with a foreign government complies, where applicable, with the requirements of section 36 of the Arms Export Control Act ( 22 U.S.C. 2776 ) and with section 2457 of this title . Foods manufactured or processed in the United States. Waste and byproducts of cotton and wool fiber for use in the production of propellants and explosives. Except as provided in paragraph (2), subsection (a) does not apply to items purchased for resale purposes in commissaries, exchanges, or nonappropriated fund instrumentalities operated by the Department of Defense. Paragraph (1) shall not apply with respect to the procurement of seafood originating in a covered foreign country, including procurement for use in military dining facilities, galleys aboard United States naval vessels, and procurement for resale in commissary stores, notwithstanding the source of funds used for such procurement. The Secretary of Defense may waive the requirements of subparagraph (A) if such procurement would cause undue burden to a naval vessel while at sea or in port at a foreign port, a dining facility in a foreign country, a commissary, an exchange, or a nonappropriated fund instrumentality located on a military installation located outside the United States. In this paragraph, the term “covered foreign country” means The People’s Republic of China, the Russian Federation, the Islamic Republic of Iran, or the Democratic People’s Republic of Korea. Except with respect to purchases of flags of the United States, subsection (a) does not apply to purchases for amounts not greater than $150,000. A proposed procurement of an item in an amount greater than $150,000 may not be divided into several purchases or contracts for lesser amounts in order to qualify for this exception. Except as provided by subparagraph (B), subsection (a) does not apply to purchases of flags of the United States for amounts not greater than $10,000. A proposed procurement in an amount greater than $10,000 may not be divided into several purchases or contracts for lesser amounts in order to qualify for the exception under clause (i). The Secretary of Defense may waive subsection (a) with respect to a purchase of flags of the United States in an amount greater than $10,000 if the Secretary of Defense determines such waiver appropriate. This section is applicable to contracts and subcontracts for the procurement of flags of the United States. On October 1 of each year that is evenly divisible by five, the Secretary of Defense may adjust the dollar threshold in this subsection based on changes in the Consumer Price Index. Any such adjustment shall take effect on the date on which the Secretary publishes notice of such adjustment in the Federal Register. This section is applicable to contracts and subcontracts for the procurement of commercial products notwithstanding section 1906 of title 41 . In this section, the term “United States” includes the possessions of the United States. In the case of any contract for the procurement of an item described in subparagraph (B), (C), (D), or (E) of subsection (b)(1), if the Secretary of Defense or of the military department concerned applies an exception set forth in subsection (c) or (e) with respect to that contract, the Secretary shall, not later than 7 days after the award of the contract, post a notification that the exception has been applied on the Internet site maintained by the General Services Administration known as FedBizOpps.gov (or any successor site). Not later than 180 days after the date of the enactment of this Act [ Dec. 23, 2024 ], the Under Secretary of Defense for Acquisition and Sustainment shall develop and maintain a list of all domestic nonavailability determinations. Not later than 30 days after the Under Secretary for Acquisition and Sustainment develops the list required under subsection (a), and annually thereafter, the Under Secretary for Acquisition and Sustainment shall submit to Congress a list of all domestic nonavailability determinations made during the one year period ending on the date on which the Under Secretary for Acquisition and Sustainment submits such list. Not later than 30 days after the Under Secretary of Defense for Acquisition and Sustainment develops the list required under subsection (a), the Under Secretary for Acquisition and Sustainment shall develop a plan for sharing such list with industry partners. In this section, the term ‘domestic nonavailability determination’ means a determination made for purposes of providing an availability exception pursuant to section 4862(c) of title 10 , United States Code.” The Inspector General of the Department of Defense shall conduct periodic audits of contracting practices and policies related to procurement under section 2533a of title 10 , United States Code [now 10 U.S.C. 4862 ]. The Inspector General of the Department of Defense shall ensure that findings and other information resulting from audits conducted pursuant to subsection (a) are included in the semiannual report transmitted to congressional committees under section 408(f)(1) of title 5 , United States Code.” That fire resistant rayon fiber for the production of uniforms is not available from sources within the national technology and industrial base. procuring fire resistant rayon fiber manufactured from suppliers within the national technology and industrial base would result in sole-source contracts or subcontracts for the supply of fire resistant rayon fiber; and such sole-source contracts or subcontracts would not be in the best interests of the Government or consistent with the objectives of section 2304 of title 10 , United States Code [see 10 U.S.C. 3201 et seq.]. Not later than 30 days after making a determination under subsection (a), the Secretary shall submit to Congress a copy of the determination. The authority under subsection (a) applies with respect to subcontracts under Department of Defense contracts as well as to such contracts. is a party to a defense memorandum of understanding entered into under section 2531 of title 10 , United States Code [now 10 U.S.C. 4851 ]; and does not discriminate against defense items produced in the United States to a greater degree than the United States discriminates against defense items produced in that country. In this section, the term ‘national technology and industrial base’ has the meaning given that term in section 2500 of title 10 , United States Code [now 10 U.S.C. 4801 ].” The Secretary of Defense shall ensure that each member of the defense acquisition workforce who participates personally and substantially in the acquisition of textiles on a regular basis receives training during fiscal year 2006 on the requirements of section 2533a of title 10 , United States Code [now 10 U.S.C. 4862 ] (commonly referred to as the ‘Berry Amendment’), and the regulations implementing that section. The Secretary shall ensure that any training program developed or implemented after the date of the enactment of this Act [ Jan. 6, 2006 ] for members of the defense acquisition workforce who participate personally and substantially in the acquisition of textiles on a regular basis includes comprehensive information on the requirements described in subsection (a).”