As he prepared for a tour in Afghanistan in early 2012, Master Sgt. Steven Adachi found himself in a difficult position. Upon receiving his uniform while in the United States, he saw that his sage green boots were made in China, potentially violating two “buy American” laws: the Buy American Act and the Berry Amendment. Yet, when Adachi requested an American- manufactured tan pair of boots after arriving in Afghanistan, he received Chinese-made boots once again. Upon requesting an American replacement, he says he was dismissed with a “good luck.” He later was reprimanded, and now faces administrative demotion—likely for whistleblowing.
Adachi’s quest for American-made boots has since led to a bipartisan congressional inquiry, an Inspector General (IG) probe into allegations that the Air Force retaliated against Adachi for blowing the whistle, and to media stories such as those in the Honolulu Star Advertiser and the Air Force Times. The Project On Government Oversight (POGO) wants to highlight two important issues that may get lost in all the attention: contracting laws and whistleblower protections.
This case illustrates that the federal government once again is likely ignoring laws or taking advantage of loopholes, this time in laws meant to help American businesses—specifically, the Buy American Act and the Berry Amendment. The Buy American Act, passed in 1933, mandates the government buy American products in most of its purchases. First passed in 1941, the Berry Amendment promotes American goods by requiring the Department of Defense (DoD) to buy only U.S. made products, including clothing. Both the Buy American Act and the Berry Amendment have monetary minimum thresholds for bulk purchases of $3,000 and $150,000, respectively. It is reasonable that our government uses our tax dollars to bolster American manufacturers, particularly when there are laws requiring it and when it is in our national interest to do so.
In a letter to Rep. Colleen Hanabusa (D-Hawaii), the Air Force ultimately admitted that its acquisition of the sage green pair of boots Adachi was given was in violation of the Buy American Act because the boots were issued to be used in the United States and not abroad. But perhaps most revealing is the fact that after Adachi’s complaints were made public, his unit’s Chinese-manufactured boots were “removed from the shelves and returned to the vendor,” according to the Star Advertiser.
Some in the DoD disagree with Adachi’s other claim that the Chinese-made boots violate the Berry Amendment. In the same response letter to Hanabusa, the Air Force denied that either pair of boots violated the Berry Amendment, claiming “neither purchase exceeded” the minimum threshold of $150,000. The Under Secretary of Defense similarly argued that neither pair of boots cost enough and thus did not qualify for the Berry Amendment.
But a bipartisan letter from 52 Members of Congress reasoned that because the Chinese boots had “exact” American alternatives and because the Air Force offered “cash allowances” for boot purchases, the DoD was “circumventing the Berry Amendment.” Regardless of whether the boots were in compliance with the Berry Amendment, it is clear that the Air Force, at the very least, violated the Buy American Act and possibly took advantage of a Berry Amendment loophole. POGO hopes that the Air Force and Congress take Adachi’s claims seriously and enforce “buy American” in future purchases.
POGO is also pushing for a DoD IG audit of the Department’s compliance with the Berry Amendment and Buy American Act to be included in the National Defense Authorization Act for FY 2014. Specifically, POGO hopes to learn whether or not DoD and the military branches are in compliance with those two laws or not, and the extent to which they may be manipulating loopholes to avoid compliance. Past audits have revealed serious violations of both the Berry Amendment and Buy American Act. We hope that current and future procurement practices meet both of these requirements.
Adachi’s case also reveals another potential instance of military whistleblower retaliation. Talking to Congress and the media after failing to get a sufficient response from those in the military, Adachi now faces demotion or termination of his 32-year military career. He alleges that his reprimands are a direct result of his whistleblowing; he told POGO that he “was punished for communicating the illegal use of taxpayer money for the purchase of military uniform items.” Despite a distinguished military career, he received three letters of reprimand shortly after revealing the violation of the Buy American Act to the IG. Oddly, the letters of reprimand did not refer to his whistleblowing, but to a years-old civilian harassment misdemeanor case which Adachi stated he brought to his superiors’ attention at the time of the ruling; the sudden attention to a minor offense from over four years ago seems suspect.
POGO has long fought for increased whistleblower protection, but Adachi’s case highlights that there is still work to be done. POGO is encouraged that enhanced protections for military whistleblowers have been included in both the House and Senate versions of the National Defense Authorization Act of FY 2014. We hope that those reforms will lead to improved protections for all military whistleblowers. Meanwhile, we support Adachi’s fight to ensure the military obeys contracting laws and to promote American manufacturers and contractors.
Image by Master Sgt. Steven Adachi.