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B-246304.2,B-246304.3,B-246304.4,B-246304.5 1 (1992-07-31)

handle is hein.gao/gaobadpwx0001 and id is 1 raw text is: Comptroller General of the United States Washington, D.C. 20548 Decision Matter of: Department of Defense Purchase of Fuel Cells File: B-246304.2; B-246304.3; B-246304.4; B-246304.5 Date: July 31, 1992 DIGEST Under the so-called Berry Amendment provisions of the Department of Defense (DOD) Appropriations acts, DOD is prohibited from spending appropriated funds to purchase foreign-manufactured fuel cells where the fuel cells contain layers of synthetic fabric, an American product protected under the Buy American restriction of the Berry Amendment. DECISION This decision is in response to inquiries from a number of congressmen concerning applicability of the so-called Berry Amendment provisions to purchases of fuel cells for installation in H-53 and H-3 helicopters. The Berry Amendment, which has been included in various forms in Department of Defense (DOD) appropriations acts every year since 1941, generally restricts DOD's expenditure of funds for certain articles and items to American goods. Synthetic fabric and coated synthetic fabric were added to the Berry Amendment's list of protected articles by the DOD Appropriations Act, 1968. The issue raised is whether these fuel cells, which contain synthetic fabric, are covered by the Berry Amendment and, therefore, its restrictions. In our view, the Berry Amendment applies to DOD's purchases of the fuel cells. The question of Berry Amendment applicability to fuel cells arose in May 1991 when the Air Force awarded a contract to Sekur S.p.A.-Pirelli Group (Sekur-Pirelli), an Italian company, for a number of crash resistant, self-sealing, fuel tank assemblies for use in H-53 helicopters.' Documents 'The record shows that total price of the Sekur-Pirel1i contract for all line items including options was $2,073,723; the total offered price from the only American firm that submitted a proposal was $5,783,915.

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