On November 8, 2007, the Department of Defense (DoD) published a final rule amending the DD Federal Acquisition Regulation Supplement (DFARS) to waive application of the "Berry Amendment," 10 U.S.C. § 2533b, for acquisitions of commercially available off-the-shelf (COTS) items.
In 10 U.S.C. § 2553b, Congress established a new specialty metals domestic source restriction. The restriction prevents the DoD from purchasing "[the] following types of end items, or components thereof, containing a specialty metal not melted or produced in the United States: aircraft, missile and space systems, ships, tank and automotive items, weapon systems, or ammunition" and "specialty metal that is not melted or produced in the United States and that is to be purchased directly by the Department of Defense or a prime contractor of the Department." For purposes of this restriction, a "specialty metal" is defined as any of the following:
- Steel with a maximum alloy content exceeding one or more of the following limits: manganese, 1.65 percent; silicon, 0.60 percent; or copper, 0.60 percent;
- Steel containing more than 0.25 percent of any of the following elements: aluminum, chromium, cobalt, columbium, molybdenum, nickel, titanium, tungsten, or vanadium;
- Metal alloys consisting of nickel, iron-nickel, and cobalt base alloys containing a total of other alloying metals (except iron) in excess of 10 percent;
- Titanium and titanium alloys; or
- Zirconium and zirconium base alloys.
The DoD's new rule, implemented under § 35 of the Office of Federal Procurement Policy Act, 41 U.S.C. § 431, waives the specialty metals restrictions for acquisition of COTS items. The rule, published at 72 Fed. Reg. 63114, amends the DFARS to define a COTS item as an item of supply that is:
- A commercial item (as defined in FAR 2.101);
- Sold in substantial quantities in the commercial marketplace; and
- Offered to the Government, without modification, in the same form in which it is sold in the commercial marketplace.
As a result of the rule's implementation, government contractors now have more flexibility in purchasing commercially available off-the-shelf items for use in fulfilling DoD contract requirements.