On August 1, 2023, the Biden Administration announced a new proposed Federal Acquisition (FAR) rule aimed at ensuring that the federal government prioritizes the procurement of sustainable products and services. Interested parties have until October 2, 2023 to submit comments.
The FAR Council has issued the proposed Sustainable Products and Services procurement rule to restructure and streamline FAR Part 23, which addresses protecting and improving the quality of the environment and fostering markets for sustainable technologies, materials, products, and services, and to provide a cohesive and clear policy for requirements relating to environmental matters and sustainable acquisition.
While the proposed rule will standardize procedures for purchasing sustainable products and services, it largely consolidates existing requirements for federal agencies and government contractors. By proposing a new contract clause at FAR 52.223-XX, Sustainable Products and Services, however, the proposed rule may enable contracting officers to better enforce the requirement to procure sustainable products and services in government contracts.
The proposed rule requires that federal agencies procure sustainable products and services to the maximum extent practicable. Procuring sustainable products and services will be considered practicable unless an agency cannot (1) competitively acquire a product or service within a reasonable performance schedule; (2) acquire a product or service that meets reasonable performance requirements; or (3) acquire a product or service at a reasonable price. Current regulations already provide that federal agencies must advance sustainable acquisition by ensuring that 95 percent of new contract actions for products and for the acquisition of services are for products that are energy-efficient, water-efficient, bio-based, environmentally preferable, non-ozone depleting, or made with recovered materials.
The proposed rule makes clear that federal agencies would have to ensure compliance with all applicable FAR part 23 statutory purchasing programs and prioritize programs that meet the requirements of both a statutory purchasing program (such as programs for products containing recovered materials, bio-based products, and energy-consuming and water-consuming products) and a required EPA purchasing program. Contracting officers are not required to procure products and services that meet the required EPA purchasing programs when doing so would conflict with statutes, Executive Orders, or regulations that impose domestic manufacturing and content requirements.
The proposed rule also directs agencies to follow EPA's Recommendations of Specifications, Standards, and Ecolabels for Federal Purchasing, which assist federal purchasers in identifying and procuring environmentally preferable products and services. The Recommendations include over 40 private sector standards/ecolabels in more than 30 purchase categories, and EPA announced on August 1 that it would expand the Recommendations by considering additional product and service categories. EPA's Recommendations specifically address perfluoroalkyl and polyfluoroalkyl substances (PFAS) and restrict the purchase of PFAS-containing items.
The requirements of the revised FAR subpart 23.1 would apply to all contract actions, including those using FAR part 12 procedures for the acquisition of commercial products, including commercially available off-the-shelf (COTS) items, and commercial services and acquisitions valued at or below the micro-purchase threshold. It would also preserve certain exceptions, such as for weapon systems and contracts performed outside of the United States, unless the agency head determines that such application is in the interest of the United States and other existing exceptions provided by statute. Other exceptions include supplies or services to be used to facilitate defense against or recovery from cyber, nuclear, biological, chemical, or radiological attack, to facilitate provision of international disaster assistance, or to support response to an emergency or major disaster.
Finally, the proposed rule provides for a new FAR clause, FAR 52.223-XX, Sustainable Products and Services, for use in all solicitations and contracts unless there is a written justification that it is not practicable to procure sustainable products and services, or an authorized exception or exemption applies which covers all potential sustainable products or services under the contract. This clause will permit contracting officers to enforce the requirement to procure sustainable products and services in government contracts and will also require contracting officers to identify in solicitations and contracts any products or services that are subject to exceptions or exemptions.
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