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Rule2024-07931

Federal Acquisition Regulation: Sustainable Procurement

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Published

April 22, 2024

Effective

May 22, 2024

Issuing agencies

Defense DepartmentGeneral Services AdministrationNational Aeronautics and Space Administration

Abstract

DoD, GSA, and NASA are issuing a final rule amending the Federal Acquisition Regulation (FAR) to restructure and update the regulations to focus on current environmental and sustainability matters and to implement a requirement for agencies to procure sustainable products and services to the maximum extent practicable.

Full Text

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[Federal Register Volume 89, Number 78 (Monday, April 22, 2024)]
[Rules and Regulations]
[Pages 30212-30250]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-07931]

[[Page 30211]]

Vol. 89

Monday,

No. 78

April 22, 2024

Part VI

Department of Defense

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General Services Administration

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National Aeronautics and Space Administration

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48 CFR Parts 1, 2, 4, 5, 7, 9, 10, 11, 12, 13, 15, 18, 23, 26, 36, 37,
39, 42, and 52

Federal Acquisition Regulation: Sustainable Procurement; Final Rule

Federal Register / Vol. 89, No. 78 / Monday, April 22, 2024 / Rules
and Regulations

[[Page 30212]]

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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1, 2, 4, 5, 7, 9, 10, 11, 12, 13, 15, 18, 23, 26, 36,
37, 39, 42, and 52

[FAC 2024-05; FAR Case 2022-006, Item 1; Docket No. FAR-2022-0006,
Sequence No. 1]
RIN 9000-AO43

Federal Acquisition Regulation: Sustainable Procurement

AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Final rule.

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SUMMARY: DoD, GSA, and NASA are issuing a final rule amending the
Federal Acquisition Regulation (FAR) to restructure and update the
regulations to focus on current environmental and sustainability
matters and to implement a requirement for agencies to procure
sustainable products and services to the maximum extent practicable.

DATES: Effective: May 22, 2024.

FOR FURTHER INFORMATION CONTACT: Ms. Jennifer Hawes, Procurement
Analyst, at 202-255-9194 or by email at <a href="/cdn-cgi/l/email-protection#6d07080303040b081f43050c1a081e2d0a1e0c430a021b">[email&#160;protected]</a>, for
clarification of content. For information pertaining to status,
publication schedules, or alternate instructions for submitting
comments if <a href="https://www.regulations.gov">https://www.regulations.gov</a> cannot be used, contact the
Regulatory Secretariat Division at 202-501-4755 or <a href="/cdn-cgi/l/email-protection#084f5b495a6d6f5b6d6b486f7b69266f677e">[email&#160;protected]</a>.
Please cite FAC 2024-05, FAR Case 2022-006.

SUPPLEMENTARY INFORMATION:

I. Background

On December 8, 2021, the President signed Executive Order (E.O.)
14057, Catalyzing Clean Energy Industries and Jobs Through Federal
Sustainability. Section 208(a) directs agencies to reduce emissions,
promote environmental stewardship, support resilient supply chains,
drive innovation, and incentivize markets for sustainable products and
services by purchasing sustainable products and services in accordance
with relevant statutory requirements, and, to the maximum extent
practicable, as identified or recommended by the Environmental
Protection Agency (EPA). The Executive Office of the President's Office
of Management and Budget (OMB), Council on Environmental Quality (CEQ),
and Climate Policy Office jointly issued Memorandum M-22-06 on the same
date to provide direction for agency compliance with the E.O. Paragraph
G of section I of the memorandum reiterates the requirement to
purchase, to the maximum extent practicable and after meeting statutory
mandates, sustainable products and services identified or recommended
by EPA.
In August 2022, CEQ issued Implementing Instructions for E.O.
14057. Section 4.6 of the instructions further directs agencies to
prioritize multi-attribute products and delineates when it is
considered not practicable to procure sustainable products and
services. The CEQ implementing instructions provide additional
direction as it relates to Federal facility requirements, such as goals
for pollution prevention and waste diversion and requirements for waste
reduction, as well as direction for certain construction and
modernization projects to meet and (where practicable) exceed the CEQ's
Guiding Principles for Sustainable Federal Buildings and Associated
Instructions (Guiding Principles) (available at <a href="https://www.sustainability.gov/pdfs/guiding_principles_for_sustainable_federal_buildings.pdf">https://www.sustainability.gov/pdfs/guiding_principles_for_sustainable_federal_buildings.pdf</a>).
In alignment with E.O. 14057, memorandum M-22-06, and the CEQ
Implementing Instructions, DoD, GSA, and NASA published a proposed rule
at 88 FR 51672 on August 3, 2023, to amend the FAR to restructure and
update FAR part 23 to focus on current environmental and sustainability
matters, implement a requirement for agencies to procure sustainable
products and services to the maximum extent practicable, and update
requirements for construction and architect-contracts. The following
changes are made to the FAR as a result of this final rule:
<bullet> Dedicates FAR part 23 to environmental matters by moving
content related to drug-free workplaces and encouraging contractors to
ban texting while driving to FAR part 26.
<bullet> Adds a definition of ``sustainable products and services''
in FAR 2.101.
<bullet> Consolidates and updates statutory and other environmental
purchasing program requirements in FAR subpart 23.1, Sustainable
Products and Services.
<bullet> Creates a new omnibus contract clause at FAR 52.223-23,
Sustainable Products and Services, to uniformly communicate the
Government's requirements for sustainable products and services.
<bullet> Dedicates FAR subpart 23.2 to energy savings performance
contracts.
<bullet> Consolidates requirements related to hazardous and
radioactive material in FAR subpart 23.3.
<bullet> Consolidates and updates Federal facility and pollution
prevention requirements in FAR subpart 23.4.
<bullet> Redesignates the remaining content at FAR subpart 23.8 as
FAR subpart 23.5.
<bullet> Makes other conforming changes throughout the FAR to align
with the revision in FAR part 23.
<bullet> Updates agency requirements for construction and
architect-engineer contracts at FAR 36.104(b)(1) to align with the
CEQ's Guiding Principles for Sustainable Federal Buildings and
Associated instructions.
<bullet> Removes certain contractor reporting requirements in the
clauses at FAR clauses 52.223-11, Ozone-Depleting Substances and High
Global Warming Potential Hydrofluorocarbons; 52.223-12, Maintenance,
Service, Repair, or Disposal of Refrigeration Equipment and Air
Conditioners; and the alternates to FAR clause 52.223-5, Pollution
Prevention and Right-to-Know Information.
<bullet> Finalizes the interim rule published under FAR Case 2010-
001 (see 76 FR 31395, May 31, 2011).
A presentation illustrating the overarching changes at the FAR
part/subpart level and more detailed distribution and derivation tables
illustrating changes at the section/paragraph level are provided as
supplemental documents to this final rule. To access the presentation
and tables, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, search for ``FAR Case
2022-006,'' click ``Open Docket,'' and view ``Supporting Documents''.

II. Discussion and Analysis

Fifty-two respondents submitted comments on the proposed rule and
twenty-three respondents submitted comments on the interim rule. The
Civilian Agency Acquisition Council and the Defense Acquisition
Regulations Council (the Councils) reviewed the public comments in the
development of the final rule. A discussion of the comments and the
changes made to the rule are provided as follows:

A. Summary of Changes

1. Applicability of Statutory Purchasing Programs
The phrase ``all applicable statutory purchasing program
requirements'' at FAR 23.103(b)(1) and 23.104(c)(1) is changed to
``applicable statutory purchasing program requirements.''

[[Page 30213]]

This change addresses a concern that the word ``all'' suggests
sustainable products and services must meet the requirements of all
four statutory purchasing programs in all cases, which is incorrect.
Sustainable products and services must meet applicable statutory
purchasing program requirements. In some cases, there may be more than
one applicable statutory purchasing program requirement. For example,
roofing-related products are covered under three of the statutory
purchasing programs: recovered content, biobased, and energy efficient.
2. Reasonable Price Considerations
FAR 23.103(a)(2) is revised to clarify that agencies should
consider the life-cycle cost of any sustainable product or service,
when considering whether the sustainable product or service can be
procured at a reasonable price. The paragraph is further revised to
clarify that the life-cycle cost tools referenced in the paragraph are
for ``energy-efficient products.'' FAR 23.103(a)(1)(iii) is revised to
include a cross-reference to FAR 23.103(a)(2). These changes respond to
a public comment suggesting that life-cycle cost considerations should
not be limited to ENERGY STAR[supreg] or Federal Energy Management
Program (FEMP)-designated products.
3. Identification of Applicable Sustainable Products and Services
The instructions at FAR 23.104(b) are revised to require the
contracting officer to ensure that the solicitation and contract
identify the sustainable products and services, including the
purchasing program and type of product or service, that are applicable
to the acquisition, as identified by the requiring activity. This
change aligns with the revisions that were proposed at FAR 11.002(d)(2)
and are implemented in this final rule. FAR 11.002(d)(2)(ii) requires
agencies to incorporate the use of sustainable products and services
when describing Government requirements for products and services. In
other words, the requiring activity is responsible for identifying the
sustainable products and services that are applicable to the
requirement and for justifying when certain sustainable products and
services are not practicable (see 23.104(b)(1)(i) and 23.104(a),
respectively). This facilitates the technical personnel and contracting
officer's ability to determine whether offers are responsive to the
solicitation requirements, as well as the ability of the administrative
contracting officer to ensure compliance during performance of the
contract.
Conforming changes are also made to the clause at FAR 52.223-23.
The previously proposed paragraph (b)(2) is removed and replaced by a
new paragraph (b)(1). The new paragraph states that the Government will
set forth in the statement of work or elsewhere in the contract the
sustainable products and services that apply to the acquisition, as
well as any products or services that are not subject to the clause. In
addition, paragraph (c) regarding prioritization is removed from the
clause, since the decision regarding which sustainable products and
services are applicable to the acquisition resides with the requiring
activity. These changes ensure that potential offerors have access to
the same information on applicable specifications, standards, and
ecolabels when preparing their offers. It also provides an opportunity
for potential offerors to provide feedback to the contracting officer
if they believe that certain sustainable products and services may have
been inadvertently left out of the statement of work or solicitation.
A conforming change is also made to FAR 42.302(a)(68)(ii) to ensure
that the administrative contracting officer is monitoring compliance
with contractual requirements to deliver, use, or furnish sustainable
products and services in accordance with the clause at FAR 52.223-23,
instead of FAR part 23.
4. Updates Related to the Environmental Protection Agency
Recommendations of Specifications, Standards, and Ecolabels
Paragraph (2)(iii) of the definition of ``sustainable products and
services'' at FAR 2.101 and in the clause at FAR 52.223-23 is revised
to specify that products and services must meet the Environmental
Protection Agency (EPA) Recommendations of Specifications, Standards,
and Ecolabels (EPA Recommendations) in effect as of October 2023. The
EPA website at <a href="https://www.epa.gov/greenerproducts/recommendations-specifications-standards-and-ecolabels-federal-purchasing">https://www.epa.gov/greenerproducts/recommendations-specifications-standards-and-ecolabels-federal-purchasing</a> now provides
a search functionality to allow users to search for EPA recommended
specifications, standards, and ecolabels in effect since October 2023.
This change is in response to public comments that stated updates
to the EPA Recommendations should be subject to formal notice and
comment and expressed concern regarding the ability of industry to meet
shifting or unpredictable requirements. If EPA makes updates to its
recommendations in the future, the Federal Acquisition Regulatory
Council (FAR Council) will consider updating this paragraph and will
seek notice and comment on such changes.
5. Applicability to Subcontracts
Paragraph (b)(1) of the clause at FAR 52.223-23 is moved to
paragraph (b)(2) and revised to state that the contractor must
``ensure'' sustainable products and services, as required by the
contract, are delivered, furnished, or incorporated during performance
of the contract. This change is in response to a public comment that
interpreted the clause as not applicable to subcontracts, based solely
on the absence of a paragraph on subcontracts. The change makes clear
that the prime contractor is ultimately responsible for ensuring
sustainable products and services are delivered, furnished, or
incorporated, regardless of whether performance is by the prime
contractor or subcontractors. No subcontract paragraph is necessary.
Prime contractors flow down the clause to their subcontractors as
appropriate or necessary.
6. Applicability to Supplies Versus Services
This rule makes several clarifications regarding applicability to
supplies versus services. Revisions are made to better align the
instructions to agencies at FAR 23.103(c) with the requirements for
contractors in paragraph (b)(2) of FAR clause 52.223-23. The differing
lists in these sections generated some questions regarding
applicability. This rule revises both sections to make clear that
contractors must provide sustainable products and services, including
products that meet the definition of sustainable products and services,
if the products and services are: (1) delivered to the Government; (2)
furnished for Government use; (3) incorporated into the construction of
a public building or public work; or (4) used by the contractor in
performing services under a Government contract where the cost of the
products is a direct cost to the contract.
In addition, the phrase ``including use at Government-owned
contractor-operated facilities'' is removed from paragraph (b)(2)(i) of
the clause. Instead, a new sentence is added at the end of FAR 52.223-
23(b)(2)(iv) to clarify that contractors performing management and
operation of Government-owned facilities are required to use products
that meet the definition of sustainable products and services to the
same extent that an agency would be required to comply if an agency
operated or supported the facility.

[[Page 30214]]

7. Applicability Outside the United States
FAR 23.105(a) is revised to clarify that the requirement to procure
sustainable products and services to the maximum extent practicable
does not apply to contracts performed and supplies delivered outside of
the United States, unless the agency head determines that such
application is in the interest of the United States. This change is
modeled after the exception previously provided at FAR 23.804(a) and
accords with section 601(a) of Executive Order 14057.
8. Removal of Instruction Regarding Conflict With Statute
The language previously proposed at FAR 23.104(c)(4) and 52.223-
23(c)(4) is removed in the final rule. This language stated that
agencies and contractors should procure products and services that meet
the EPA Recommendations, unless doing so would conflict with statute,
Executive orders, or regulations that impose domestic manufacturing and
content requirements. This final rule requires agencies to identify the
standards and ecolabels that are applicable to the acquisitions and
provides a process for agencies to document when the EPA
Recommendations do not meet reasonable performance requirements. Should
a statute, Executive order, or regulation impose any performance
requirement that makes use of any statutory or other EPA purchasing
program requirement impracticable, agencies may document the conflict
and proceed with procuring other than sustainable products and
services.
9. Revision of Procedures for Simplified Acquisitions
The special instructions proposed at FAR 13.302(d)(5) are not
included in this final rule. The proposed paragraph directed
contracting officers to delete FAR 52.223-23 from the clause at FAR
52.213-4, Terms and Conditions--Simplified Acquisitions (Other Than
Commercial Products and Commercial Services), and mark the paragraph as
reserved when there is an authorized exception, exemption, or a written
justification that it is not practicable to procure sustainable
products and services, and the scope of the exception, exemption, or
justification covers the entirety of the acquisition. This final rule
revises 52.213-4 to state that the omnibus clause at 52.223-23 is
applicable when the contract identifies in the statement of work, or
elsewhere in the contract, the types of sustainable products and
services that apply to the acquisition. As a result, the special
instructions proposed at FAR 13.302(d)(5) are no longer necessary.
10. Renumbering FAR Subpart 23.8 as Subpart 23.5
This rule renumbers FAR subpart 23.8 as subpart 23.5 to complete
the streamlining of FAR part 23. A conforming change is made at FAR
52.223-22 to change the cross-reference for the clause prescription
from FAR 23.804(b) to 23.502.

B. Analysis of Public Comments

1. FAR Part 23 Restructuring
Comment: Several respondents expressed support for restructuring,
streamlining, and updating FAR part 23. Two of the respondents
specifically expressed support for the consolidation of purchasing
preference program requirements in FAR subpart 23.1, with one
respondent highlighting the helpful references to statutory authority,
lead agency implementing regulations, and other lead agency information
on particular programs. One of these respondents also expressed support
for removing extraneous items from FAR part 23 and consolidating
Federal facility requirements in FAR subpart 23.4.
Response: Noted.
Comment: One respondent suggested that the FAR subpart on
encouraging contractors to ban texting while driving should be
eliminated altogether, instead of moving the subpart to FAR part 26.
Response: This comment is outside the scope of this FAR rule, which
sought only to relocate the existing content at FAR subpart 23.11 to
FAR subpart 26.6 to dedicate FAR part 23 to environmental and
sustainability matters. This subpart implements Executive Order 13513,
Federal Leadership on Reducing Text Messaging While Driving, which
remains in effect.
2. Sustainable Products and Services
a. General
i. Support
Comment: Many respondents expressed general support for
implementing the requirement to procure sustainable products and
services to the maximum extent practicable. One of these respondents
asserted that by requiring or incentivizing purchasing programs to
consider environmental factors when sourcing products and services, the
Federal Government can standardize the use of sustainable materials and
practices in contracts and, consequently, create demand. Another
respondent suggested that the proposed revisions would ensure that the
environmental benefits of recycling are realized. Another respondent
noted that by consolidating the full list of products and services
identified by EPA, Department of Energy (DOE), and Department of
Agriculture (USDA), the FAR Council would greatly increase the
visibility and usage of a wide array of sustainable products and
services and help agencies and contractors better understand and comply
with existing sustainable procurement requirements.
Response: Noted.
ii. Oppose
Comment: Two respondents expressed concern regarding the proposal
to require sustainable products and services to the maximum extent
practicable with only a few exceptions. The respondents stated that
changing Federal procurement across 34 purchase categories and that
requiring sustainable products and services be procured to the maximum
extent practicable will have far reaching impacts and implications for
both Government suppliers and Federal agency procurement offices. They
further asserted that the proposed rule would have a direct and
damaging impact on companies supplying the Federal Government and on
the Government's readiness and operational capacity; place product
sustainability procurement above national security; and have a
disproportionate impact on small businesses throughout the contracting
supply chain that will be ineligible to participate in Federal
procurement.
Response: The requirement for Government agencies to procure
sustainable products and services is not new. Since 2011, FAR 23.103(a)
has required Federal agencies to advance sustainable acquisition by
ensuring that 95 percent of new contract actions are for products that
are energy-efficient, water-efficient, biobased, environmentally
preferable, non-ozone depleting, or made with recovered materials (see
76 FR 31395, May 31, 2011). In addition, since 2002, FAR 23.703 has
required agencies to employ acquisition strategies that maximize the
utilization of environmentally preferable products and services (based
on EPA-issued guidance) and promote energy-efficiency and water
conservation (see 66 FR 65351, December 18, 2001).
This rule standardizes the procedures across the Federal Government
to ensure sustainable products and services are procured to the maximum
extent practicable. National security and mission readiness are
enduring priorities; this rule retains a process to allow procurement
of other than

[[Page 30215]]

sustainable products and services when mission specifications (i.e.,
reasonable performance requirements) cannot otherwise be met (see FAR
23.103(a)(1)(ii) and 23.104(a)). This rule also continues to include
statutory exceptions and other exemptions related to national security
for certain types of acquisitions in certain product categories (see
FAR 23.105 and 23.106).
To improve transparency, this rule includes amendments that will
require agencies to specify in their solicitations and contracts the
sustainable products and services that apply to the acquisition (see
23.104(b)). This will ensure offerors are proposing solutions against
the same requirements and facilitate the agency's ability to evaluate
the responsiveness of offers in a fair and consistent manner. In
addition, the rule will only require compliance with the EPA
Recommendations in effect as of October 2023. This will provide
industry an opportunity to provide input on future updates to the EPA
Recommendations and ensure adequate time for compliance.
Comment: One respondent expressed concern regarding the basis for
the preference provided to products and services qualified under EPA
programs identified in FAR 23.108-1 through 23.108-3.
Response: A cornerstone of the Pollution Prevention Act (PPA) of
1990 (Pub. L. 101-508, 42 U.S.C. 13101) is the establishment of the
national policy that pollution should be prevented or reduced at the
source whenever feasible. Under the PPA, EPA is specifically charged
with identification of Federal procurement opportunities to encourage
source reduction. Using the EPA programs on a governmentwide basis to
qualify goods and services for a preference enhances efficiency while
reducing costs for both offerors and the Government. Absent
governmentwide standards, offerors would need to qualify products on a
contract-by-contract basis, and it would impair both the offeror and
Government's ability to benefit from economies of scale. In alignment
with the National Technology Transfer and Advancement Act of 1995
(NTTAA) (Pub. L. 104-113) and OMB Circular A-119, this rule relies on
standards and ecolabels that meet voluntary consensus standards or
other private sector standards when they are fit for purpose. While
similar to a qualified products list, acquisition of goods and services
listed under FAR 23.108 are subject to the exceptions in FAR 23.105 and
the exemptions in FAR 23.106 and are only required to be procured to
the maximum extent practicable as described at FAR 23.103(a). While the
PPA is of general applicability, other statutory authority exists for
specific environmental aspects, such as energy pursuant to the
authorities cited at FAR 23.107-3(a). The FAR has provided a preference
for several of these programs for over two decades.
iii. Environmentally Preferable
Comment: One respondent sought clarification regarding the terms
``sustainable products and services'' and ``environmentally preferable
products and services.'' The respondent also asked how the term
``environmentally preferable products and services'' will be applied in
FAR 23.108-3 and how this term will interact with FAR 23.103 and
23.109(a) or 23.107.
Response: Both terms are defined in FAR 2.101. This rule will
require agencies to procure sustainable products and services. One of
the categories of sustainable products and services includes products
and services that meet the EPA Recommendations of Specifications,
Standards, and Ecolabels. The term ``environmentally preferable''
applies when addressing types of products and services that meet the
EPA Recommendations (see FAR 23.108-3(a)).
Comment: One respondent requested clarification regarding how
agencies will be required to source products from the ``sustainable
products and services'' and ``environmentally preferable products and
services'' categories.
Response: There are numerous tools and resources available to
agencies when conducting market research. This rule provides links to
the lead agency websites for information regarding specific purchasing
programs. In addition, the rule highlights at FAR 11.102(d), 23.104(d),
and 52.223-23(d) GSA's Green Procurement Compilation, available at
<a href="https://sftool.gov/greenprocurement">https://sftool.gov/greenprocurement</a>, which provides a comprehensive
list of sustainable products and services and sustainable acquisition
guidance. Agencies are encouraged to review GSA's Green Procurement
Compilation when assessing which purchasing programs apply to a
specific product or service.
iv. Standards
Comment: One respondent encouraged the Government to leverage
existing global sustainability frameworks that reference recognized
standards and ecolabels, rather than creating new, U.S. Government-
specific specifications.
Response: The standards and ecolabels referenced in this rule are
not Government-specific specifications. While some of these ecolabels
are established and maintained by Government agencies, they have been
developed for public use; none were intended for Government use only.
This rule also allows the Government to access and utilize recognized
private sector environmental performance standards and ecolabels that
are recommended by the EPA, in alignment with the NTTAA and OMB
Circular A-119. EPA's Recommendations consider and incorporate private
sector standards and ecolabels that are used across the global
marketplace.
Comment: One respondent suggested that the Government enact
standards for the procurement of sustainable products and services and
transition away from voluntary guidelines. The respondent asserted
that, under a circular economy, sustainable purchasing must become the
default and not just a suggestion.
Response: This rule advances sustainable purchasing by requiring
agencies to procure sustainable products and services to the maximum
extent practicable. Some of the standards and ecolabels referenced in
this rule are statutorily mandated. Others are recommended by the EPA
and are in alignment with the NTTAA and OMB Circular A-119 direction to
agencies to adopt voluntary consensus standards or private sector
standards when fit for purpose.
Comment: Two respondents suggested the FAR Council consider
alternative means for showing that a product or service is
``environmentally preferable'' beyond the directory/registry approach
required in the EPA Framework. One respondent suggested permitting
flexibility in what is required to demonstrate conformance in a manner
that is relevant for a particular requirement or solicitation. The
other respondent encouraged the FAR Council to provide an illustrative
list of standards, rather than an exhaustive one, which could be used
to consider multiple economic impacts over time, such as job creation,
workforce, development, supply chain resilience, or other outcomes.
Response: Nothing in this rule prohibits agencies from pursuing
environmentally preferable products and services in categories not
covered by the EPA Recommendations. This rule leverages the EPA
Recommendations as a means of efficiency for Government acquisition.
Both offerors and the Government benefit from the economies of scale
associated with leveraging EPA's efforts to assess standards and
ecolabels. Absent use of the EPA Recommendations, offerors and the
Government would need to conduct

[[Page 30216]]

their own assessment of standards and ecolabels on a contract-by-
contract basis.
v. Clarify Procedures
Comment: Two respondents requested additional clarity and guidance
on implementing the rule and the new clause. One of the respondents
asked that the FAR Council provide clear instructions to both
Government contracting officials and offerors on how to understand and
appropriately account for sustainability information in the proposal
evaluation and contract award process. This respondent also asked for
additional clarification regarding how agencies will ensure that
statutory purchasing program requirements are met. The other respondent
asked how contracting officers will assess a contractor's compliance
with the requirements of this rule and whether compliance will be
considered in contract award decisions.
Response: This rule is revised to require the Government to
identify the types of sustainable products and services that are
applicable to the acquisition. The procedures at FAR 23.104(b) are
revised to direct the contracting officer to include in the
solicitation the sustainable products and services that are applicable
to the solicitation, as identified by the requiring activity, as well
as any products and services that are not subject to the requirements
of the clause at 52.223-23, based on a written justification from the
requiring activity or an authorized exception or exemption. Paragraph
(b) of the clause at FAR 52.223-23 is also revised to advise offerors
and contractors that the types of sustainable products and services
that are applicable to the clause will be specified in the statement of
work or elsewhere in the contract.
These changes in the final rule align with the changes that were
proposed at FAR 7.103(p) and FAR 11.002(d) and implemented in this
final rule, that agencies incorporate the use of sustainable products
and services when developing specifications and standards and
describing the Government's requirements. This rule also implements
without change the requirement that was proposed at paragraph (b)(3) of
FAR clause 52.223-23 that sustainable products and services must meet
the applicable standards, specifications, or other program requirements
at time of quote or offer submission, except for the EPA
Recommendations, which are now as of October 2023. This language
ensures transparency in the Government's specific requirements for
sustainable products and services and that offerors include in their
offers sustainable products and services that are subject to the same
criteria.
vi. Cost Impact
Comment: Two respondents commented on the cost impact of the rule.
One respondent stated that the proposed rule should contain an estimate
of the added costs of procured products that are required to adhere to
these environmental impact, energy efficiency, and other requirements.
The respondent asserted that product selection that favors products
better meeting these requirements will result in added cost to
taxpayers. The other respondent suggested that the rule raises the cost
of procurement by discouraging nonconforming bids, which could provide
agencies reference points in the form of lower-cost bids that may be
used to determine if the sustainability requirements are impracticable.
This respondent noted that the contracting officer would not know that
a sustainable product or service is more expensive until receipt of
offers.
Response: This rule is not expected to result in added costs for
several reasons. First, the requirement for agencies to procure
sustainable products and services is not new. Since 2002, FAR section
23.703 has required agencies to implement cost-effective contracting
preference programs promoting energy-efficiency, water conservation,
and the acquisition of environmentally preferable products and services
(see 66 FR 65351, December 18, 2001). In addition, since 2011, FAR
23.103(a) has required Federal agencies to advance sustainable
acquisition by ensuring that 95 percent of new contract actions are for
products that are energy-efficient, water-efficient, biobased,
environmentally preferable, non-ozone depleting, or made with recovered
materials (see 76 FR 31395, May 31, 2011). This rule streamlines and
standardizes procedures for accomplishing this goal. Second, products
that display a required ecolabel or meet the required specifications
and standards identified in this rule are not necessarily more
expensive than other products in the market and may result in savings
when considering the life-cycle costs of the item. Third, this rule
allows agencies to justify procuring other than a sustainable product
or service if the item cannot be procured at a reasonable price. A
revision is made in the final rule to ensure that this market research
is conducted by the Government prior to issuance of a solicitation.
b. Applicability
i. Maximum Extent Practicable
Comment: Many respondents supported the proposed rule standard that
agencies procure ``sustainable products and services'' to the maximum
extent practicable. These respondents also expressed support for the
position that procuring such products is practicable, unless the agency
can demonstrate otherwise.
Response: Noted.
Comment: Two respondents commented that the language regarding what
is considered ``practicable'' is too vague or subjective and could
allow for too many exceptions, subverting the rule's effectiveness. One
respondent suggested that the rule provide further guidance to clearly
define the terms ``reasonable'' and ``practicable.'' The other
respondent suggested that agencies should train procurement staff on
the importance of buying products with recovered materials and provide
clear guidelines on ``unreasonable'' parameters that allow for an
exception.
Response: In accordance with FAR 1.108(a), this rule will rely on
the common dictionary meanings of ``practicable'' and ``reasonable.''
FAR 23.103(a) provides an explanation of what is considered
``practicable.'' This basis for what is ``practicable'' is not new and
does not necessitate a standalone definition; this language aligns with
the exceptions for the statutory purchasing programs, which were
already implemented in the FAR prior to this rule. The final rule makes
one clarification regarding the term ``reasonable'' in response to
another public comment. FAR 23.103(a)(2) is revised and a cross-
reference to this paragraph is added at FAR 23.103(a)(1)(iii) to
clarify that agencies must consider whether the sustainable product is
cost-effective over the life of the product when determining whether
the price of the product is reasonable.
Comment: One respondent, while generally supportive of the
requirement to procure sustainable products and services to the maximum
extent practicable, recommended also maintaining the goal for agencies
to have 95 percent of contract actions require products that are
energy-efficient and environmentally preferable, as a measurable goal.
Response: Given that agencies are required to procure sustainable
products and services to the maximum extent practicable, there is no
longer a need for a specific target. The Government tracks alignment
with these and other sustainability requirements through the Federal
Procurement Data System and

[[Page 30217]]

other sustainability reporting submitted to the CEQ. See also response
to comments on measuring and reporting in section II.B.5.b of this rule
preamble.
Comment: One respondent stated that the requirement to procure
sustainable products and services to the maximum extent practicable is
overly limiting and does not provide agencies with sufficient
discretion in selecting alternative products and services where
necessary.
Response: The rule provides agencies with sufficient flexibility to
address these concerns. When sustainable products and services do not
meet an agency's reasonable performance requirements or reasonable
delivery schedule, or cannot be procured at a reasonable price,
agencies may document these circumstances and proceed with procuring
other than sustainable products and services (see FAR 23.104(a)).
ii. Written Justifications
Comment: Two respondents expressed support for the written
justification to be prepared by the requiring activity when it is
determined that the procurement of sustainable products or services is
not practicable. One respondent described this enforcement mechanism as
an improvement from the 95 percent target, since it creates a written
record that facilitates evaluation of performance and corrective
actions at the individual and program levels. The other respondent
noted the benefits of communicating to offerors and contractors in
solicitations and contracts any products and services that are not
subject to the FAR part 23 sustainable acquisition requirements.
Response: Noted.
Comment: One respondent recommended that the rule improve
accountability by crafting a definition of ``requiring activity,'' to
make clear that requiring activities are those individuals who identify
and define requirements for products and services and request
initiation of, and provide funding for, an acquisition. The respondent
asserted that use of this definition would help ensure that the
appropriate agency official takes responsibility for any decision not
to require a sustainable product or service in a solicitation or
contract.
Response: The request to add a definition of ``requiring activity''
for the purposes of this rule is declined. The term ``requiring
activity'' is used throughout the FAR and is well understood by the
acquisition workforce.
Comment: One respondent suggested that the rule require collection
of these written justifications, not only in the contract file, but
centrally at OMB or CEQ, or by the respective program owners at EPA,
USDA, or DOE. The respondent asserted that compiling this type of data
and information could improve program performance.
Response: While it may be helpful to collect this information on a
governmentwide basis, it is impracticable at this time as no central
repository currently exists.
iii. Commercial Products and Services and Micro-Purchases
Comment: Two respondents were supportive of the proposed
application of the rule to the acquisition of commercial products and
services, including purchases below the micro-purchase threshold. One
of these respondents noted that this broad approach demonstrates an
understanding that industry is already embracing approaches to deliver
sustainable products and services commercially.
Response: Noted.
iv. Exceptions and Exemptions
Comment: One respondent expressed appreciation that the rule allows
for exemptions when procuring a sustainable product or services is not
practicable or is not in the interest of the United States.
Response: Noted.
Comment: One respondent noted the exception at FAR 23.105 from the
requirement to procure sustainable products and services for
``contracts performed outside of the United States.'' This respondent
sought clarification regarding how this language applies to contracts
for supplies. The respondent requested that the rule clarify whether
the place of performance is determined by place of delivery for supply
contracts or place of manufacture.
Response: The rule is revised at FAR 23.105(a) to state that
contracts performed or supplies delivered outside of the United States
are excepted from the requirement to procure sustainable products and
services, unless the agency head determines that such application is in
the interest of the United States. This change is modeled after the
exception previously provided at FAR 23.804(a) and accords with section
601(a) of Executive Order 14057.
Comment: Two respondents requested that a categorical exemption for
military equipment (and weapons systems) be eliminated or revised, and
products evaluated on a case-by-case basis. These respondents asserted
that there is no inherent weakness to biobased products as compared to
traditional products and that the burden should be on DoD to exclude
biobased products if shown to perform unequally to other embedded
products.
Response: The USDA is responsible for providing guidelines for the
use of procuring agencies in complying with the requirements of 7
U.S.C. 8102(a)(3). Those guidelines are provided in the USDA
regulations at 7 CFR 3201.3. The categorical exception at FAR 23.105(d)
regarding biobased products to be used in military equipment (products
or systems designed or procured for combat or combat-related missions),
spacecraft systems, or launch support equipment is based on USDA
regulations at 7 CFR 3201.3(e).
Comment: One respondent recommended that any FAR amendments on
sustainable procurement recognize the sole and exclusive authority of
the Federal Aviation Administration (FAA) to regulate aviation,
including aircraft operations, aircraft fuel specification, and
certification of aircraft and other aviation equipment. This respondent
noted the exceptions and exemptions at FAR 23.105 and 23.106 and
suggested that the rule expressly exempt agencies from any requirements
to procure sustainable products and services to the extent they
conflict with FAA safety and operational policies and mandates.
Response: A blanket exception is not required. This FAR rule allows
agencies to procure other than sustainable products and services if the
sustainable products and services do not meet reasonable performance
requirements (see FAR 23.103(a)(1)(ii)). This process aligns with the
existing statutory exceptions for procuring Biobased products meeting
the content requirement of the USDA under the BioPreferred[supreg]
program, products containing recovered material designated by the EPA
under the Comprehensive Procurement Guidelines, and energy- and water-
efficient products that are ENERGY STAR[supreg] certified or Federal
Energy Management Program (FEMP)-designated products. In the event that
the procurement of a sustainable product or service conflicts with FAA
safety or operational policies and mandates, the requiring activity can
provide a written justification to the contracting officer who may
proceed with procuring other than sustainable products and services.
Comment: One respondent recommended requiring agencies to justify
in writing any decisions made

[[Page 30218]]

pursuant to FAR 23.104(c)(4), and that these justifications be
collected.
Response: The paragraph that was proposed at FAR 23.104(c)(4) is
removed in the final rule. That paragraph had sought to highlight that
agencies need to ensure procuring certain sustainable products and
services does not conflict with statutory or regulatory domestic
manufacturing and content requirements. However, the rule already
includes a process by which agencies consider whether sustainable
products and services meet reasonable performance requirements, which
would include those dictated by statute or regulation. As such, no
additional guidance is necessary.
v. Services
Comment: One respondent noted the changes related to defining
applicability to service contracts. The respondent noted that focusing
on products that are a direct cost to the Government contract was a
reasonable and fair method to simplify the cost allocation process and
should expedite the implementation and widespread acceptance of the
rule by contracting officials and contractors bidding on highly complex
and efficiency driven projects.
Response: Noted.
Comment: One respondent asked whether the clause would apply to
firm-fixed-price contracts, given the proposed language that requires
contractors to ``furnish sustainable products and services for use in
performing services under this contract, where the cost of the products
is a direct cost to this contract (versus costs which are normally
applied to the Contractor's general and administrative expenses or
indirect costs).'' The respondent noted that firm-fixed-price contracts
do not identify indirect costs to the Government and, therefore, appear
to be excluded.
Response: The clause at FAR 52.223-23 is prescribed at FAR 23.109
for use in solicitations and contracts, which includes firm-fixed-price
contracts, unless the requiring activity provides a written
justification that it is not practicable to procure sustainable
products and services. FAR 52.223-23(b)(2)(iii) provides direction to
the contractor regarding supplies furnished during the performance of
services contracts. Specifically, where supplies are involved in the
performance of the service, the Contractor must furnish products that
meet the definition of ``sustainable products and services'' when the
cost of such products is a direct cost to the contract. While a firm-
fixed-price contract may not identify indirect or direct costs, it does
not alleviate the requirement for a contractor to ensure that products
that are a direct cost of the service contract are sustainable products
and services.
Comment: Two respondents sought clarification regarding application
of the clause to supply contracts versus service contracts. The
respondents asked whether the proposed language at FAR 52.223-
23(b)(1)(i) was meant to apply only to contracts for goods, or also
contracts for services. That paragraph stated that, in performance of
the contract, the contractor shall ``deliver and furnish sustainable
products and services for Government use, including use at Government-
owned contractor-operated facilities.'' These respondents also asked
whether the proposed language at 52.223-23(b)(1)(iii) was meant to
apply to service contracts that involve goods, products, or hardware as
part of that service. That paragraph had stated that the contractor
shall ``furnish sustainable products and services for use in performing
services under this contract, where the cost of the products is a
direct cost to this contract (versus costs which are normally applied
to the Contractor's general and administrative expenses or indirect
costs).''
Response: Paragraph (b)(2) of the clause is revised to make clear
the Government's requirements for supplies versus services. In the case
of a supply contract, the contractor must deliver or furnish products
that meet the definition of ``sustainable products and services.'' In
the case of a service contract, where supplies are involved in the
performance of the service, the contractor must furnish products that
meet the definition of ``sustainable products and services'' when the
cost of such products is a direct cost to the contract.
vi. Government-Owned, Contractor-Operated Facilities
Comment: One respondent expressed support for language in the rule
that clarifies the policy covers products provided by a contractor
during performance at Government-owned contractor-operated facilities,
as well as certain products used by contractors while performing
services at a Federally-controlled facility.
Response: Noted. However, see revisions to FAR 52.223-23 in
response to other public comments to make clear at paragraph (b)(2)(i)
that the contractor shall deliver or furnish sustainable products and
services generally and clarify at (b)(2)(iv) that the requirement to
furnish sustainable products when performing services under the
contract includes services performed by contractors performing
management and operation of Government-owned facilities to the same
extent that the Government would be required to comply.
c. Prioritization
i. Prioritization of Multi-Attribute Products and Services
Comment: Two respondents expressed support for the focus on
prioritization of multi-attribute products and services that meet at
least one statutory purchasing program and one or more of the non-
statutory EPA programs. One of these respondents noted that businesses
developing products and services that achieve multiple positive
environmental outcomes will be able to move forward knowing that this
kind of innovation will likely be rewarded.
Response: Noted.
Comment: Two respondents expressed support for multi-attribute
products and the purchasing prioritization for such products, as long
as biobased products continue to receive equal (or preferred)
treatment, especially if prioritization of other attributes is not
required in statute. These respondents stated that they have heard of
instances of agencies not buying ``biobased'' based on claims of
prioritization of other types of products, such as those that are
recycled or otherwise mandated, or for other questionable or
illegitimate reasons.
Response: This rule continues to implement the statutory
requirement to procure biobased products meeting the content
requirements of the U.S. Department of Agriculture under the
BioPreferred[supreg] program, unless the agency cannot acquire products
competitively within a reasonable performance schedule, that meet
reasonable performance requirements, or at a reasonable price. Also,
this rule will continue to require, when both an EPA-designated item
and a biobased product in a USDA-designated product category could be
used for the same purposes and both meet the agency's needs, that the
agency procure the EPA-designated item (see FAR 23.104(c)(1) of this
final rule). This requirement is based on the USDA implementing
regulations at 7 CFR 3201.3(b), which provides that the requirements
for biobased products do not apply to the extent that they are
inconsistent with the EPA regulations for the Comprehensive Procurement
Guidelines (see 40 CFR part 247). Questions regarding an agency's
compliance with requirements to procure biobased products, as outlined
in the FAR, should be directed to the contracting

[[Page 30219]]

officer for the specific procurement and/or an agency's affirmative
procurement program.
Comment: Two respondents sought clarification regarding how an
agency will inform vendors and contractors of the agency's intent to
provide a preference for multi-attribute ecolabels over other
sustainable products categories. One of these respondents asked whether
``prioritize'' means that agencies should give preference to these
products during source selection and, if so, how the Government should
weigh sustainability considerations against price and other non-price
factors. The other respondent asked, if the current FAR clauses on
Electronic Product Environmental Assessment Tool (EPEAT[supreg]) are
replaced with the clause at FAR 52.223-23, how vendors and contractors
will be made aware that agencies intend to preference EPEAT[supreg]
ecolabel registered products as recommended by the EPA.
Response: This rule is revised to require the Government to
identify the types of sustainable products and services that are
applicable to the acquisition. The procedures at FAR 23.104(b) are
revised to direct the contracting officer to include in the
solicitation the sustainable products and services, including the
purchasing program and type of product or service, that are applicable
to the solicitation, as identified by the requiring activity, as well
as any products and services that are not subject to the requirements
of the clause at 52.223-23, based on a written justification from the
requiring activity or an authorized exception or exemption. Paragraph
(b) of the clause at FAR 52.223-23 is also revised to advise offerors
and contractors that the types of sustainable products and services
that are applicable to the clause will be specified in the statement of
work or elsewhere in the contract. Given that there are possible
variations in the ways agencies procure sustainable products and
services, agencies are given discretion in determining how to consider
compliance during the evaluation of offers and how to monitor
compliance during performance of the contract. Contractors will need to
offer and deliver products and services that meet applicable
specifications, standards, and ecolabels in accordance with agency
solicitations.
ii. Statutory Programs and Multi-Attributes
Comment: One respondent requested that the rule make clear that
statutory requirements must be met prior to meeting the requirements of
other EPA programs. The respondent noted that many Federal agencies are
still not meeting the requirements for biobased purchasing, which is a
statutory requirement and should be implemented before these additional
non-statutory programs.
Response: No additional clarification is necessary. FAR
23.103(b)(1) and 23.104(c)(1) direct agencies to procure sustainable
products and services that meet statutory purchasing program
requirements. FAR 23.104(c)(3) states that, if no statutory purchasing
program requirements apply, then agencies must procure sustainable
products and services that meet required EPA purchasing program
requirements.
Comment: One respondent requested that the rule clarify that
preference should be given to ecolabels that address one or more, not
all, statutory and EPA program requirements or attributes. The
respondent believes that ecolabels like EPEAT[supreg], which apply
multiple criteria addressing everything from electronic stewardship,
energy and water efficiency, greenhouse gas emission reductions,
pollution prevention, and recovered content should be prioritized by
Federal purchasers over similar products that may only address a single
statutory attribute, such as ENERGY STAR[supreg] or recovered content
or biobased content, which are all covered in EPEAT[supreg] criteria.
Response: FAR 23.103(b)(1), 23.104(c)(1), and 23.104(c)(2) have
been revised to remove the term ``all'' preceding ``applicable
statutory purchasing program requirements.'' This change makes clear
that sustainable products and services must meet ``applicable''
statutory requirements, not ``all'' four statutory purchasing program
requirements. No additional clarification is necessary. FAR
23.104(c)(1) provides direction to ensure that agencies, first and
foremost, comply with the statutory purchasing preference program
requirements. FAR 23.104(c)(2) provides the additional direction the
respondent seeks, which is to prioritize multi-attribute sustainable
products and services, which are those that meet all applicable
statutory purchasing program requirements and one or more required EPA
purchasing programs.
iii. Other Policy Priorities
Comment: Two respondents suggested that the rule clarify the
relationship and prioritization of sustainability requirements versus
other policy requirements, such as cost, quality, availability,
cybersecurity, supply chain risk management, equity, domestic sourcing,
and other requirements, including how to deal with potential trade-offs
or conflicts between sustainability and other procurement objectives.
One of these respondents suggested providing guidance or principles
under which agencies prioritize sustainability over other objectives
when feasible and justified, take a precautionary approach when there
is uncertainty or risk, and seek win-win solutions that optimize
multiple objectives.
Response: This rule seeks to require contractors to deliver
sustainable products and services, as defined in the rule, to the
maximum extent practicable. Agencies are not required to procure
sustainable products and services if an exception or exemption applies,
or if there is a written justification that the agency cannot acquire
products or services competitively within a reasonable performance
schedule; that meet reasonable performance requirements; or at a
reasonable price. The justification provides agencies a mechanism to
document when a reasonable performance requirement conflicts with the
requirement to procure sustainable products and services.
Comment: One of these respondents asked how the Government will
approach situations where a foreign product is more sustainable than a
domestically-produced product, and the acquisition is subject to the
Buy American Act.
Response: This rule directs agencies to procure sustainable
products and services, which are those that meet applicable statutory
and required EPA purchasing program requirements. It establishes the
specifications, standards, and ecolabels that apply to the acquisition,
unless an exception or exemption applies or there is a written
justification. Contractors are to deliver or furnish conforming
supplies and services. Agencies should continue to follow FAR subparts
25.1 and 25.2 regarding the Buy American Act.
Comment: One respondent expressed concern regarding the materials
used in products provided by the Federal Prison Industries (FPI) or
AbilityOne participating nonprofit agencies.
Response: The materials used by FPI or by AbilityOne vendors are
outside the scope of this FAR rule. Per FAR 8.002(a) and 8.004, except
as required by FAR 8.003 or as otherwise provided by law, agencies are
required to satisfy requirements for supplies and services from or
through mandatory Government sources, such as supplies from FPI or
supplies on the Procurement List maintained by the Committee for
Purchase From People Who Are Blind

[[Page 30220]]

or Severely Disabled, before satisfying requirements through non-
mandatory sources.
Comment: One respondent commented that the proposed rule failed to
establish safeguards to prevent EPA and USDA decision-making pursuant
to separately administered programs from interfering with statutorily
mandated divisions of authority among various Federal agencies. The
respondent further suggested that the FAR rule should expressly provide
that EPA and USDA must, at a minimum, confer with the FAA to ensure any
changes to their designations of ``sustainable products and services''
will not conflict with FAA safety or operational mandates.
Response: This FAR rule has appropriate safeguards in place to
ensure the requirement to procure sustainable products and services to
the maximum extent practicable do not supersede reasonable performance
requirements (such as FAA safety or operational policies and mandates).
In the event that procurement of a sustainable product or service
conflicts with FAA safety or operational policies and mandates, the
requiring activity can provide a written justification to the
contracting officer who may proceed with procuring other than
sustainable products and services. Comments on administration of the
purchasing program have been shared with EPA and USDA.
d. Contract Clause
Comment: Two respondents expressed support for the new clause at
FAR 52.223-23, Sustainable Products and Services. One of these
respondents noted that the clause ensures the intent of the regulations
is included in the actual purchase. The other respondent noted that the
clause would strengthen accountability by requiring the contracting
officer to identify in solicitations and contracts any products or
services not covered by the clause due to exceptions or exemptions.
Response: Noted.
Comment: One respondent expressed appreciation that the new clause
at FAR 52.223-23 did not include a mandatory flow-down requirement and,
therefore, applied only to the prime contractor.
Response: While there is no subcontracts paragraph within FAR
clause 52.223-23, the clause includes the Government's requirement for
sustainable products and services. The prime contractor is responsible
for ensuring sustainable products and services are delivered or
furnished under the contract in accordance with FAR 52.223-23.
Paragraph (b)(2) of the clause is revised in the final rule to make
this clear. How the prime contractor communicates this requirement to
its subcontractors is at the discretion of the prime contractor.
Comment: One respondent sought clarification regarding language in
the proposed preamble regarding the mechanics of the clause at FAR
52.212-5, Contract Terms and Conditions Required To Implement Statutes
or Executive Orders--Commercial Products and Commercial Services, and
application of the policy to commercial products and commercial
services. Based on the language in the preamble, the respondent was
unsure whether the omnibus clause would be required for use as a
standard contract term and condition for all commercial products and
commercial services, unless a written justification, exception, or a
specific exemption is provided by the requiring official to the
contracting officer.
Response: The requirements of FAR 52.223-23 apply to acquisitions
of commercial products and services, as well as acquisitions valued at
or below the simplified acquisition threshold, unless an exception or
exemption applies or there is a written justification that it is not
practicable to acquire sustainable products and services (i.e., the
agency cannot acquire sustainable products or services competitively
within a reasonable performance schedule, that meet reasonable
performance requirements, or at a reasonable price). This rule amends
the clause at FAR 52.212-5, Contract Terms and Conditions Required To
Implement Statutes or Executive Orders--Commercial Products and
Commercial Services, to ensure that the clause is included in contracts
for commercial products and services. This rule amends the clause at
FAR 52.213-4, Terms and Conditions--Simplified Acquisitions (Other Than
Commercial Products and Commercial Services), to ensure that the
omnibus clause is also included in simplified acquisitions, when the
acquisition is not for commercial products or commercial services (in
other words, not covered by FAR 52.212-5).
Comment: One respondent expressed support for the removal of
EPEAT[supreg] clauses to streamline the FAR part 23 requirements and
promotion of an omnibus clause, as long as the omnibus clause requires
agencies to procure the EPA recommended ecolabels and could be used by
agencies to preference multi-attribute ecolabels, developed in a
Voluntary Consensus Process, over single-attribute products to ensure
the highest quality and performance for sustainability as required by
Executive Order 14057.
Response: This rule will require agencies to procure sustainable
products and services to the maximum extent practicable. Agencies must
identify in their solicitations and contracts the sustainable products
and services that are applicable to the acquisition, including those
that are covered by the EPA Recommendations for Specifications,
Standards, and Ecolabels. EPA currently recommends EPEAT[supreg] for
electronic products.
e. Program-Specific Comments
i. Energy Star/FEMP
Comment: One respondent asked why price reasonableness was defined
for ENERGY STAR or FEMP-designated products only. The respondent
suggested that FAR 23.103(a)(2) be revised to state, ``For all
designated products, a price is reasonable if it is cost-effective over
the life of the product taking life-cycle costing into account.''
Response: An introductory statement has been added at FAR
23.103(a)(2) to advise agencies that, when considering whether the
price of any sustainable product or service is reasonable, the agency
should consider whether it is cost-effective over the life of the
product.
ii. Recovered Materials
Comment: Several respondents expressed support for including within
the definition of ``sustainable products and services'' those products
listed under the EPA Comprehensive Procurement Guidelines (CPG). Some
of these respondents noted the benefits of the Guidelines for specific
products such as landscaping products and compost, recycled paper
products, and tires. Another respondent expressed support for the EPA
CPG distinction between post-consumer and post-industrial recycled
plastics.
Response: Noted. Paragraph (1)(i) of the definition in the proposed
rule is implemented without change in the final rule.
Comment: Several respondents commented that the EPA CPG and its
product listing should be updated more frequently to better reflect the
market, technology, and product changes, with some noting that the
Program's last update was in 2007. One of these respondents noted that
technology to process and use recovered materials is rapidly improving.
Two respondents, who were supportive of the rule, encouraged EPA to
update the designated paperboard and packaging products list and revise
its recovered

[[Page 30221]]

material content levels for paperboard and packaging products. Another
respondent expressed concern regarding the EPA guidelines and recovered
material content levels for products containing steel or steelmaking.
Another respondent, while supportive of the EPA CPG distinction between
post-consumer recycled content and overall recycled content, suggested
rates of post-consumer recycled content should be updated to reflect
best practices to achieve greater environmental benefits.
Response: This rule continues to implement the statutory
requirement for agencies to procure products that meet the minimum
recovered material content standards established by the EPA, in
accordance with 42 U.S.C. 6962 and as implemented at 40 CFR part 347.
This comment is on EPA's administration of the CPG Program and is,
therefore, outside the scope of this FAR rule; however, these comments
have been shared with the EPA.
Comment: Two respondents suggested that the FAR require
independent, third-party certification of post-consumer recycled
content. One respondent made this comment specifically in relation to
plastic items containing recovered materials, suggesting that such
items be certified as Postconsumer Recycled Content based on the ISO
14021 standard, to ensure that materials the Federal Government is
using have met the end of their previously intended life. The other
respondent stated that certification programs have largely been
voluntary to date but noted that California and Oregon now require
certified postconsumer recycled content in some products, while several
other states give authority to their state agencies to consider
requiring third party post-consumer recycled plastics certification
through future rulemaking.
Response: This comment is outside the scope of this FAR rule, which
continues to implement the statutory requirement for agencies to
procure products that meet the minimum recovered material content
standards established by the EPA, in accordance with 42 U.S.C. 6962 and
as implemented at 40 CFR part 347. However, these comments have been
shared with the EPA.
Comment: Two respondents commented on the definition of ``recovered
material'' in the proposed rule. One respondent noted that the
definition is identical to the statutory definition in the Resource
Conservation and Recovery Act, (RCRA) and expressed support for minor
revisions in the proposed rule to add the statutory citation (42 U.S.C.
6903) for the definition and reflect the proposed removal of special
paper requirements from FAR subpart 4.3 and FAR 11.303. The other
respondent recommended that the final rule not rely on the definition
of ``recovered material'' designated in the EPA CPG, expressing
concerns about the impact on the steelmaking industry.
Response: No changes are made to the definition of ``recovered
material.'' This rule continues to implement the statutory requirement
for agencies to procure products that meet the minimum recovered
material content standards established by the EPA, in accordance with
42 U.S.C. 6962 and as implemented at 40 CFR part 347. As noted by one
of the respondents, the definition of the term ``recovered material''
comes directly from statute being implemented in the FAR.
Comment: One respondent, in expressing support for the EPA CPG
Program, commented that EPA's National Recycling Strategy should
incorporate increasingly aggressive preferences for environmentally
sustainable products.
Response: This comment on EPA's National Recycling Strategy and is,
therefore, outside the scope of this FAR rule.
iii. Biobased Products
Comment: A few respondents expressed support for the requirement to
purchase biobased products that meet the content requirement of the
USDA under the BioPreferred[supreg] program to the maximum extent
practicable. Two respondents expressed strong support for the rule to
ensure full compliance with applicable statutory purchasing preference
programs and, in particular, section 9002 of the Farm Bill.
Response: Noted.
Comment: One respondent provided several recommendations for the
USDA BioPreferred[supreg] Program, to include the following: extend
incentives that already exist for biofuels to biomaterials as well;
provide incentives for use of biobased feedstocks to be manufactured
into bioplastics in addition to the existing incentives for biofuels;
and formally recognize the biogenic component of biobased polymers in
lifecycle cost assessment methodology.
Response: This comment is on USDA's administration of the
BioPreferred[supreg] Program and is, therefore, outside the scope of
this FAR rule. However, these comments have been shared with USDA.
Comment: One respondent recommended that the rule further elaborate
on the phrase at FAR 23.107-2(e)(2), ``highest percentage of biobased
material practical.'' The respondent suggested that agency contracts
that specify having the ``highest percentage of biobased material
practical'' also comply with biobased testing requirements in
accordance with the USDA BioPreferred[supreg] Program, specifically
ASTM D6866 method B.
Response: The FAR specifies that contracts include language
requiring compliance with the regulations implementing the Biobased
Markets Program (the BioPreferred[supreg] Program). The
BioPreferred[supreg] Program has established ``minimum'' biobased
content requirements for qualifying biobased products. These minimum
biobased contents are determined by examining the biobased content of
the various manufacturer's products offered within each designated
product category. The BioPreferred[supreg] Program recognizes that
within a given product category the available products may vary
significantly in biobased content as a result of varying performance
needs and features required of the product. It is the intent of the
BioPreferred[supreg] Program that purchasers of biobased products
choose to purchase the products with the highest biobased content that
meets their performance needs. The BioPreferred[supreg] Program
specifies that demonstration of a product's compliance with the
required minimum biobased content must be verified using ASTM D6866.
USDA believes it would be redundant for the FAR to specify the use of
ASTM D6866 as this method is already specified in the
BioPreferred[supreg] Program's regulations and the FAR specifies
compliance with those regulations.
Comment: One respondent suggested that the rule include a new
contract clause to specify that the USDA BioPreferred[supreg] Program
requires a minimum of 25 percent biobased carbon content, which varies
depending on the product category. This respondent also suggested that
whenever biobased product procurement is mentioned in the FAR, it
should clearly state that the biobased product must be third-party
tested by an ISO 17025 accredited laboratory and contain a verified
biobased carbon content percentage that meets or exceeds the ``highest
percentage of biobased material practical.''
Response: The specific requirements included in the comment are
already contained in the BioPreferred[supreg] Program's regulations. As
stated in the previous response, USDA believes that, as long as the FAR
requires compliance with the BioPreferred[supreg] Program's
regulations, it would be redundant to list selected requirements in the
FAR. Singling out specific requirements for

[[Page 30222]]

inclusion in the FAR, but not including others, could also be confusing
to the agencies.
Comment: Several respondents commented on the definition of
``biobased products.'' One respondent expressed support for the revised
definition included in the proposed rule. The other respondents
recommended updating the biobased products definition to fully reflect
the exact language of Public Law 115-334. The respondents noted that
the statute refers to ``renewable chemicals,'' terminology that is
missing in the proposed rule.
Response: The definition of ``biobased product'' in section FAR
2.101(b)(2) aligns with the definition of ``biobased product'' in the
USDA's implementing regulations at 7 CFR 3201.2. However, these
comments have been shared with USDA. If the USDA's definition in its
implementing regulations is updated to include ``renewable chemicals,''
a conforming change will be made to the FAR.
Comment: One respondent commented that the rule should include the
requirements in section 9002 of the Farm Security and Rural Investment
Act of 2002, as amended (see 7 U.S.C. 8102(a)(2)(A)(i)(III)), for
agencies to ``establish a targeted biobased-only procurement
requirement under which the procuring agency shall issue a certain
number of biobased-only contracts when the procuring agency is
purchasing products, or purchasing services that include the use of
products, that are included in a biobased product category designated
by the Secretary [of Agriculture]'' and to ``report quantities and
types of biobased products purchased by procuring agencies.''
Response: The comment on targeted biobased-only procurement
requirements is outside the scope of this rule, which continues to
implement the statutory requirement for agencies to establish
affirmative procurement programs to promote a preference for biobased
products (see content at FAR 23.107-2 of this rule, which was
previously implemented at FAR subpart 23.4). Executive Order 14081,
Advancing Biotechnology and Biomanufacturing Innovation for a
Sustainable, Safe, and Secure American Bioeconomy, addresses
implementation of biobased products procurement, including agency
efforts for biobased-only contracts. Efforts to monitor targets and
reporting can be achieved through internal efforts outside the
regulatory process.
Comment: One respondent, who supports usage of biobased materials
when appropriate or necessary, strongly urged the Federal Government to
only use biobased products that have been responsibly sourced.
Response: This comment is outside the scope of this rule, which
continues to implement the statutory requirement for agencies to
procure biobased products that meet the content requirement of the USDA
under the BioPreferred[supreg] program in accordance with 7 U.S.C. 8102
and the USDA implementing regulations at 7 CFR part 3201. The USDA's
implementing regulations at 7 CFR 3201.3(c) direct agencies to procure
qualified biobased products composed of the highest percentage of
biobased content practicable or such products that meet the minimum
standards issued by the USDA. The direction to agencies at FAR 23.107-2
is in alignment with these USDA regulations.
Comment: One respondent commented that reliance on the biobased
products in categories designated by USDA for crop and other biobased
purchasing options under this rule works contrary to the overall
objective to procure sustainable products and services to the maximum
extent practicable. The respondent suggested that biobased products
must demonstrate they have not contributed to deforestation or
conversion of critical habitats/ecosystems such as grasslands; (2) the
Government should ensure that the program is not causing environmental
harm, such as no deforestation or grassland conversion; (3) prioritize
and give preference to those products that demonstrate more sustainable
production methods; and (4) create ways to incentivize environmental
benefit, such as participation in sustainable agriculture/regenerative
agriculture programs or use of metrics/models that document
sustainability outcomes.
Response: This rule continues to implement the statutory
requirement for agencies to procure biobased products that meet the
content requirement of the USDA under the BioPreferred[supreg] program
in accordance with 7 U.S.C. 8102 and the USDA implementing regulations
at 7 CFR part 3201. This comment is on the USDA's administration of the
BioPreferred[supreg] Program and is, therefore, outside the scope of
this case. However, the comment has been shared with the USDA.
Comment: One respondent recommended that GSA consider integration
of the BioPreferred[supreg] Products Catalog available at <a href="https://www.biopreferred.gov/BioPreferred/faces/catalog/Catalog.xhtml">https://www.biopreferred.gov/BioPreferred/faces/catalog/Catalog.xhtml</a> into its
procurement system along with links to approved suppliers who stock the
products to ensure contracting officers can easily access information
about biobased options when making purchasing decisions and that
training be offered to contracting officers. This respondent also noted
that DoD and NASA would have interest in new sustainable technologies
and their resulting biobased products, some of which are displayed in
the BioPreferred[supreg] Catalog but are not receiving the attention
they should be since there is no connection with the
BioPreferred[supreg] Catalog and the Federal agencies.
Response: The BioPreferred[supreg] Program is currently integrated
into several GSA procurement tools and databases, including the
following:
<bullet> GSAAdvantage: GSA's online shopping and ordering system
provides access to thousands of contractors and millions of products
and services and Federal buyers can use filters to locate
BioPreferred[supreg] compliant products. See <a href="https://www.gsaadvantage.gov/advantage/ws/search/special_category_search?cat=ADV.ENV">https://www.gsaadvantage.gov/advantage/ws/search/special_category_search?cat=ADV.ENV</a>.
<bullet> GSA's Green Procurement Compilation: GSA's comprehensive
green purchasing resource designed for Federal contracting personnel
and program managers, as well as vendors working with Federal agencies.
It helps identify applicable green purchasing requirements by
consolidating and organizing information from Federal environmental
programs in one place. The BioPreferred[supreg] categories are included
in GSA's Green Procurement Compilation. See <a href="https://sftool.gov/gpcsearch?query=BioPreferred">https://sftool.gov/gpcsearch?query=BioPreferred</a>.
<bullet> GSA's SFTool Product Search: A product database aimed at
simplifying procurement, documentation, and reporting by creating
digital catalogs of commercially available, environmentally preferable
products that align with Federal requirements. GSA's SFTool Product
Search is the largest curated database of environmentally preferable,
high-performance products in the marketplace, including over 150
categories and subcategories that represent over 5,700 brands and more
than 300,000 products. The BioPreferred[supreg] product catalog is
included in GSA's SFTool Product Search; see <a href="https://sftool.ecomedes.com">https://sftool.ecomedes.com</a>.
iv. WaterSense[supreg]
Comment: One respondent requested clarification regarding how
WaterSense[supreg] would be applied to services, since the
WaterSense[supreg] site only describes its applicability to products.

[[Page 30223]]

Response: As a result of this rule, when performing on a service
contract, contractors will be expected to provide products that meet
the definition of sustainable products and services, which includes
WaterSense[supreg] products, during performance of the contract if such
products are a direct cost to the contract. See paragraph (b)(2)(iii)
of the clause at FAR 52.223-23.
v. SaferChoice
Comment: One respondent noted that FAR subpart 23.7, which is
superseded by FAR subpart 23.1 as a result of this rule, directed
agencies to give preference to the procurement of acceptable
alternative chemicals and products that reduce the overall risks to
human health. The respondent suggested that this rule acknowledge and/
or promote the viability of all relevant ecolabels, so as not to create
an unfair position in the marketplace.
Response: This rule seeks to implement statutory and other EPA
purchasing program requirements. Federal agencies benefit from the
efforts of EPA under the SaferChoice program in that they can easily
and efficiently identify products that contain safer chemicals for
procurement versus duplicating the effort of assessing viable
specifications, standards, and ecolabels on a contract-by-contract or
agency-by-agency basis. However, nothing in this rule prohibits an
agency from considering other factors when procuring other products and
services that meet their mission needs.
vi. EPA Recommendations of Specifications, Standards, and Ecolabels
Comment: Several respondents expressed support for the inclusion of
EPA Recommendations of Specifications, Standards, and Ecolabels in its
definition of sustainable products and services. One respondent noted
that the EPA Recommendations give preference to multi-attribute or life
cycle-based standards and ecolabels that address key environmental and
human health impact areas, and where product conformance is determined
by a competent third-party certification body. Several respondents
noted that including this resource will ensure that, should a third-
party certification for products and services that reduce food waste be
added to the EPA Recommendations, Federal purchasers would have access
to that information. One of the respondents expressed appreciation for
EPA's evaluation of labels and standards, and extension of the
Recommendations to cover uniforms and clothing.
Response: Noted.
Comment: Several respondents supported the replacement of the
requirement for agencies to procure products that have the
EPEAT[supreg] ecolabel with the requirement to procure products and
services that meet EPA Recommendations of Specifications, Standards,
and Ecolabels. One respondent noted that it had formally petitioned the
FAR Council to initiate rulemaking that would amend FAR part 23 to
address sole reliance on EPEAT[supreg]. This respondent and others
commented that this change will allow multiple voluntary consensus
standards and labels to be added to the EPA Recommendations and make
them available to the Government when purchasing electronic products.
One respondent noted that this change will increase competition and
remove barriers to doing business with the Government, without
penalizing companies that have voluntarily invested in similar efforts.
Another respondent strongly advocated for the independent, qualified
third-party conformance assessments for standards and ecolabels used by
the Federal Government, as well as the transparency of products or
services that meet these standards or ecolabels. This respondent noted
that independent third-party assessments ensure that the Federal
Government procures products and services that conform to the
recommended standard or ecolabel and saves Federal resources as agency
staff do not have to conduct their own evaluations of products and
services or hire third parties to conduct necessary research and
separate evaluations.
Response: Noted. As highlighted by the respondents, this rule
removes the EPEAT[supreg]-specific requirements at FAR 23.704 and the
associated contract clauses at FAR 52.223-13, 52.223-14, 52.223-16.
These clauses are replaced by the omnibus clause at FAR 52.223-23,
which directs contractors to deliver or furnish sustainable products
and services, including those that meet EPA Recommendations of
Specifications, Standards, and Ecolabels. The EPEAT[supreg] ecolabel
remains an EPA Recommendation for the electronic products category;
however, this product category could be expanded to cover additional
ecolabels in the future.
Comment: A few of the respondents who expressed support for the
removal of EPEAT[supreg], also urged EPA to commit to revising the EPA
Recommendations of Specifications, Standards and Ecolabels for Federal
Purchasing to allow eligibility for additional ecolabels for electronic
products. One respondent described this as an important step toward
compliance with the principles of fair competition in contracting and
the rigor of EPA Recommendations as a required resource in the FAR and
would align the electronics category with other product categories in
the EPA Recommendations.
Response: These comments are on EPA's application of their
Framework for the Assessment of Environmental Performance Standards and
Ecolabels for Federal Purchasing and expansion of their Recommendations
of Specifications, Standards, and Ecolabels for Federal Purchasing for
certain product categories (primarily the electronic product category),
which are outside the scope of this rulemaking. However, these comments
have been shared with the EPA.
Comment: A few respondents commented that the EPA should establish
a clear and transparent process for the identification, evaluation, and
selection of standards, specifications, and ecolabels for the EPA
Recommendations of Specifications, Standards, and Ecolabels. One of the
respondents asserted that this must be done in close coordination with
all stakeholders to ensure harmonization with established global
standards and ecolabels. The other respondent suggested EPA establish a
formal timeline, application, and review process to facilitate approval
and/or endorsement of new ecolabels and expressed support for an
adjudicative process for ecolabel review that is fair and can be used
to provide scientifically valid sustainability standards.
Response: This rule is revised to incorporate the EPA
Recommendations as of October 2023. Future updates to the EPA
Recommendations will be incorporated in the FAR via notice and comment
to ensure industry has an opportunity to provide inputs on the
incorporation of new standards, specifications, and ecolabels in the
FAR and enough time to comply with the Recommendations.
EPA advises that it has a formal application and review process for
the assessment of new standards and ecolabels for consideration for
inclusion in the EPA Recommendations. EPA conducts assessments against
EPA's Framework for the Assessment of Environmental Performance
Standards and Ecolabels for Federal Purchasing, which was developed
using a consensus-based process and went through several public comment
periods. EPA also issues Federal Register notices inviting standards
and ecolabels to apply for assessment. The Federal Register notice also
included timeline targets for the current assessment process.

[[Page 30224]]

Public input regarding plans to assess and potentially add new
standards and ecolabels to EPA's Recommendations are sought via
issuance of a notice in the Federal Register (see 87 FR 66176, November
2, 2022). EPA recently issued a notice to seek input on possible
product and/or service categories to add to the Recommendations and
invited standards and ecolabel owners addressing these product and/or
service categories to apply to be considered for assessment.
Comment: Several respondents stated that any environmental
standards or ecolabels that are evaluated by EPA must have a public
notice and opportunity for public comment. One of these respondents
stated that the references to externally administered programs and
recommendations subject contractors to shifting and unpredictable
requirements. This respondent suggested that, given the lack of
opportunity for companies whose products and services are subject to
the EPA Recommendations to inform or challenge the EPA's decisions, the
definition of sustainable products and services in this rule should be
limited to those categories addressed in the designated statutory
programs and the EPA Recommendations at the time of the rule's
adoption, and that the FAR be amended through formal notice and comment
to incorporate any subsequent changes. One respondent asked what the
FAR Council will do to ensure that contracting officers and contractors
are made aware that ecolabels have been added to the EPA
Recommendations of Specifications, Standards, and Ecolabels for Federal
Purchasing list. The respondent noted that contractors may not be aware
that ecolabels that apply to their products and services are in the EPA
Recommendations.
Response: Paragraph (2)(iii) of the definition of ``sustainable
products and services'' at FAR 2.101 and in the clause at FAR 52.223-23
is revised to specify that products and services must meet the EPA
Recommendations of Specifications, Standards, and Ecolabels in effect
as of October 2023. The EPA website at <a href="https://www.epa.gov/greenerproducts/recommendations-specifications-standards-and-ecolabels-federal-purchasing">https://www.epa.gov/greenerproducts/recommendations-specifications-standards-and-ecolabels-federal-purchasing</a> now provides a search functionality to allow users
to search for EPA recommended specifications, standards, and ecolabels
in effect since October 2023. If EPA makes updates to its
Recommendations in the future, the FAR will consider updating this
paragraph and will seek notice and comment on such changes.
Comment: One respondent noted that the EPA Recommendations include
endorsed third-party certifications for product end-of-life (such as
the Biobased Products Institute certification for compostable products)
and full product life cycle (such as Cradle to Cradle certification)
and recommended that a third-party certification for products and
services that reduce food waste be added to the EPA's Recommendations.
Response: This comment suggests expanding the EPA Recommendations
of Specifications, Standards, and Ecolabels for Federal Purchasing,
which are outside the scope of this rulemaking; however, these comments
have been shared with the EPA.
Comment: One respondent stated that any environmental standards or
ecolabels that are evaluated by EPA must be consensus standards as
described by OMB Circular A-119, Federal Participation in the
Development and Use of Voluntary Consensus Standards and in Conformity
Assessment Activities.
Response: OMB Circular A-119 gives a preference for using voluntary
consensus standards. Agencies are also directed to use private sector
standards that are fit for purpose. If there are voluntary consensus
standards, which are not fit for purpose, agencies have the authority
to utilize non-consensus-based standards. EPA indicates on the
Recommendations website which standards are voluntary consensus
standards.
Comment: One respondent recommended that the EPA add a compost
certification program to its Recommendations, such as the U.S.
Composting Council's Seal of Testing Assurance, or recommend a compost
testing protocol to site users, such as the Test Method for the
Examination of Composting and Compost.
Response: This comment suggests expanding the EPA Recommendations
of Specifications, Standards, and Ecolabels for Federal Purchasing,
which are outside the scope of this rulemaking; however, these comments
have been shared with the EPA.
Comment: One respondent requested clarification regarding which
Federal agencies are involved in the administration and/or
implementation of the EPA Recommendations, including the development of
criteria for how products are included, and whether lead agencies will
be required to coordinate with GSA and/or DoD.
Response: Paragraph (2)(iii) of the definition of ``sustainable
products and services'' at FAR 2.101 and in the clause at FAR 52.223-23
is revised to specify that products and services must meet the EPA
Recommendations of Specifications, Standards, and Ecolabels in effect
as of October 2023. If EPA makes updates to its Recommendations in the
future, DoD, GSA, and NASA will consider updating this paragraph and
will seek notice and comment on such changes.
Comment: One respondent encouraged GSA, EPA, and other Federal
agencies to prioritize working together to minimize any information
gaps in identifying environmentally preferable products for sustainable
acquisition.
Response: Noted.
f. Training and Outreach
Comment: Two respondents recommended that the Government allocate
additional resources to training and technical assistance for the
acquisition workforce to drive adoption of and successfully implement
the rule in Government contracts. One of these respondents suggested
drawing from state and local procurement efforts.
Response: These comments have been shared with the Federal
Acquisition Institute (FAI) and the Defense Acquisition University
(DAU). FAI and DAU are responsible for determining training
requirements and identifying, creating, or updating training for the
acquisition workforce to ensure understanding of the FAR requirements.
Federal agencies also take steps necessary to educate their workforce
regarding new or revised FAR requirements and provide additional
guidance as appropriate for their specific mission and needs.
Comment: Two respondents supported Government training, assistance,
education, and outreach to Federal suppliers to help them understand
and successfully implement sustainable procurement requirements. One of
these respondents suggested DoD, GSA, and NASA identify ways to improve
education and outreach, with the objectives of expanding markets and
advancing fairness and equity. The respondent noted that the education
and outreach should be heavily focused on assisting small and medium-
sized businesses as well as low-income communities, communities of
color, and other vulnerable communities. The respondent also suggested
the Administration announce an education and outreach plan with clear
strategies, metrics, and timelines for helping disadvantaged businesses
and communities fully participate in the transition to a more
sustainable, clean energy economy that is underway, as well as actions
to ensure meaningful participation from nongovernmental organizations
and other representatives

[[Page 30225]]

from disadvantaged businesses and vulnerable communities.
Response: Establishing an education and outreach plan or providing
Government assistance and training to Federal suppliers is outside the
scope of this rule. However, industry will benefit from the
restructuring of FAR part 23 and consolidation of the purchasing
preference programs requirements and procedures in FAR subpart 23.1,
which lends itself to a better understanding of the Government's
requirements for sustainable products and services. FAR 23.107 and
23.108 include links to lead agency websites where additional
information on the specific program and, in some cases, additional
training material is available. Paragraph (d) of clause at FAR 52.223-
23 also includes a link to GSA's Green Procurement Compilation
available at <a href="https://sftool.gov/greenprocurement">https://sftool.gov/greenprocurement</a>, which is a publicly
available research tool that may be used to better understand which
programs apply to products and services procured by the Government.
Also, FAR sections 23.107-1 and 23.107-2 require agencies to, as part
of their affirmative procurement programs, promote recovered materials
and biobased product preference programs. Finally, it is anticipated
that industry may also benefit from any new or updated training
developed by FAI or DAU in response to this FAR rule.
3. Special Requirements for Paper
Comment: One respondent expressed support for the proposed changes
to remove special requirements for paper on the basis that e-commerce
is now the primary means of conducting acquisition-related activities,
printing double-sided on recycled paper is a common practice, and
agencies will be required to procure products (including paper) that
meet the minimum recovered material content standards established by
EPA's CPG Program.
Response: Noted.
Comment: One respondent commented that increased recycled content
mandates beyond those set in the U.S. Environmental Protection Agency's
Comprehensive Procurement Guidelines, especially 100 percent recycled
content in products, should be avoided for paper and paper packaging.
The respondent asserted that such mandates ignore performance
requirements and are not necessary given the circular nature of paper
and paper packaging.
Response: This rule does not increase recycled content mandates
beyond those set by EPA's CPG Program.
Comment: One respondent expressed concern about the proposed
removal of the clause at FAR 52.204-4, Printed or Copied Double-Sided
on Postconsumer Fiber Content Paper, which addresses contractor-
submitted paper document requirements. The respondent questioned
whether removal of the clause would result in less double-sided
printing and copying on recycled paper when paper documents are used.
The respondent suggested adjusting the definition of ``contract
action'' to address paper requirements, as an alternative to retaining
the clause.
Response: The requirement to print or copy double-sided on
postconsumer fiber content paper was based on direction provided in
E.O. 13423, Strengthening Federal Environmental, Energy, and
Transportation Management, and E.O. 13514, Federal Leadership in
Environmental, Energy, and Economic Performance, both of which have
been rescinded. In addition, electronic commerce is the predominant
mechanism for conducting acquisitions since agencies are required to
use electronic commerce in contracting whenever practicable or cost-
effective in accordance with FAR 4.502.
4. Construction
Comment: One respondent expressed support for the proposed changes
to FAR part 36 to ensure that Federal construction and modernization
projects meet or, wherever practicable, exceed CEQ's Guiding
Principles. The respondent noted several benefits to incorporating
CEQ's Guiding Principles, to include increasing efficiency, optimizing
performance, eliminating unnecessary use of resources, ensuring the
health of occupants, protecting the environment, generating cost
savings, and mitigating risks to assets.
Response: Noted.
Comment: Another respondent suggested incentivizing the use and
incorporation of whole building life-cycle assessments in procurement
to understand the overall impacts of a particular building and the
project's products by utilizing GSA's Facilities Standards for the
Public Buildings Service (P100) section 1.9.2.9 on Decarbonization. The
respondent noted that taking a holistic view enables buildings to be
designed with significantly lower carbon footprints through smart
material selection across multiple product categories throughout the
project. In particular, the respondent noted the potential benefits of
wood products.
Response: GSA's Facilities Standards for the Public Buildings
Service (P100) establishes mandatory performance-based standards and
prescriptive requirements that design and construction professionals
must use in the programming, design, and documentation of GSA
buildings. While other Federal agencies and the commercial construction
industry look to the P100 as a leadership design standard, it applies
only to buildings under GSA's jurisdiction, custody, and control and
lease construction facilities that GSA intends to own or has an option
to purchase.
FAR 36.104(b) directs agencies to ensure compliance with the
Guiding Principles for Sustainable Federal Buildings (Guiding
Principles), available at <a href="https://www.sustainability.gov/pdfs/guiding_principles_for_sustainable_federal_buildings.pdf">https://www.sustainability.gov/pdfs/guiding_principles_for_sustainable_federal_buildings.pdf</a>. The Guiding
Principles provide a consistent governmentwide portfolio approach for
Federal agencies to design, mitigate, and measure the impact of their
buildings. The Guiding Principles incentivize use of holistic
sustainable design practices in material selection through several
sections:
<bullet> New Construction and Modernization (NC&M) Criteria 5.1 and
Existing Building (EB) Criteria 5.1 require that agencies use Resource
Conservation and Recovery Act (RCRA) section 6002 compliant products
that meet or exceed EPA's Comprehensive Procurement Guideline Program.
<bullet> NC&M Criteria 5.2 and EB Criteria 5.2 require that
agencies implement a policy and verify procedures are in place to
procure and use USDA BioPreferred[supreg] products, which are
designated products with the highest biobased content level per USDA's
recommendations.
<bullet> NC&M Criteria 5.3 and EB Criteria 5.3 require that
agencies verify that a policy or procedures are in place to procure and
use products recommended under EPA's Recommendations of Specifications,
Standards, and Ecolabels for Federal Purchasing, as appropriate and
applicable. Option 2 of this same criterion also allows agencies with
renovation projects to meet this guiding principle by conforming to
2018 International Green Construction Code (IgCC) Section 901.4.1.4
(9.4.1.4) Multiple-Attribute Product Declaration or Certification.
5. Other Approaches
a. General
Comment: Two respondents commented generally on the Government's
approach to sustainable procurement. One respondent suggested that the
rule define sustainability and provide criteria for determining the
sustainability of a product or service that agencies should consider.
The

[[Page 30226]]

respondent suggested that, when evaluating the sustainability of a
product or service, agencies should consider factors such as the
results of a life-cycle assessment, environmental impact, social
responsibility, circular economy, etc. The other respondent urged the
FAR Council and the EPA to allow contractors to identify the most
efficient and effective pathways to show compliance with the
sustainability provisions of the FAR and avoid adopting a ``one size
fits all'' approach for assessing contractors' compliance with Federal
sustainability requirements through the rulemaking process.
Response: This rule seeks to implement statutory and other EPA
purchasing program requirements. Federal agencies benefit from the
efforts of DOE, USDA, and EPA in that they can easily and efficiently
identify sustainable products and services for procurement versus
duplicating these efforts by assessing viable specifications,
standards, and ecolabels on a contract-by-contract or agency-by-agency
basis. However, nothing in this rule prohibits an agency from
considering other factors when procuring products and services that
meet their mission needs.
Comment: Several respondents recommended expanding the rule to
encourage the Federal Government to promote circular economy approaches
by its vendors, which keeps products and materials in circulation
through processes like maintenance, reuse, refurbishment,
remanufacture, recycling, and composting. One respondent emphasized
that the sustainability of a product depends on not only how the
product is manufactured, but also how it is disposed of and whether it
brings benefits (e.g., diversion from landfill, compost, recyclability,
reuse) or causes harm.
Response: These comments are outside the scope of the current
rulemaking but have been shared with the CEQ.
Comment: One respondent stated that the definition of
``diversion,'' which relies on CEQ instructions, fails to specify
composting of organic waste that is not recoverable. This respondent
recommended that the definition of ``diversion'' be revised to include
composting and that the rule more clearly specify how Government
purchasing decisions can support these end-of-life benefits.
Response: FAR 36.001 provides a definition of ``diverting,'' which
is developed based on CEQ's Implementing Instructions. Adjustment of
this definition is not appropriate since this definition is provided
for the purposes of construction. However, the respondent's suggestion
regarding adjustment of the definition has been shared with CEQ.
b. Measure and Report on Progress
Comment: Several respondents recommended or supported specifying
how agencies should measure and report their progress and performance
in procuring sustainable products and services. Some of these
respondents asserted that the lack of measurement and reporting
mechanisms could limit the accountability, transparency, and
effectiveness of the rule. These respondents suggested that the rule
should require agencies to establish and report on specific goals,
objectives, benchmarks, and metrics for sustainable procurement, such
as percentage of spending, number of contracts, and greenhouse gas
emissions.
Response: The respondents' comments are noted and will be taken
into consideration for future efforts as the Government seeks to
advance sustainable acquisition objectives. Internal Government
measuring, benchmarking, goaling, and other efforts are frequently
addressed via internal procedures rather via regulatory language.
Comment: One respondent encouraged GSA to develop and implement a
plan to establish stronger Federal data standards and protocols for
ecolabel certifications. This respondent acknowledged that such an
effort is outside the purview of the FAR Council but emphasized the
importance of creating a Federal green data standard and data
collection protocol.
Response: As the respondent noted, such activities are outside the
scope of this FAR rule; however, the comments will be taken into
consideration for future efforts as the Government seeks to advance
sustainable acquisition objectives.
Comment: Two respondents suggested that the rule should have
stronger verification and enforcement mechanisms. One of these
respondents stated that the current framework, including the
requirement for agency affirmative procurement programs, is not
working. Both respondents suggested that there should be regular audits
and assessments of agencies' adherence to and contractor performance in
sustainable procurement requirements.
Response: The respondents' comments are noted and will be taken
into consideration for future efforts as the Government seeks to
advance sustainable acquisition objectives. This rule continues to
implement the statutory requirement for agencies to establish
affirmative procurement programs to promote a preference for biobased
products (see content at FAR 23.107-2 of this rule, which was
previously implemented at FAR subpart 23.4). Internal Government
tracking can be done external to the regulation, such as in Executive
Order 14081, Advancing Biotechnology and Biomanufacturing Innovation
for a Sustainable, Safe, and Secure American Bioeconomy, which
reinforces the requirements for agency affirmative procurement
programs, and addresses implementation of biobased products
procurement, including agency efforts for biobased-only contracts.
Comment: Two respondents supported stronger transparency
requirements. One respondent suggested that there should be an annual
public announcement of sustainable procurement performance metrics by
Federal agencies. Another respondent suggested that written decisions
to not procure sustainable products and services, and other data should
be stored in an easily searchable, publicly accessible website. This
respondent further suggested that GSA should prepare and publish a
biannual evaluation and analysis of decision documents and related
materials and recommend improvements to Federal sustainable procurement
policies and procedures.
Response: The respondents' comments are noted and will be taken
into consideration for future efforts as the Government seeks to
advance sustainable acquisition objectives. Internal Government
measuring, benchmarking, goaling, and other efforts are frequently
addressed with internal procedures rather than regulatory language.
Comment: Several respondents recommended that FAR clause 52.223-2,
Reporting of Biobased Products Under Service and Construction
Contracts, be updated to include supply contracts. Two of these
respondents also recommended that agencies should be required to report
the types and dollar amounts of biobased products purchased to obtain
information necessary to assess uptake and gaps, or to improve
innovation.
Response: This is outside the scope of this FAR rule, which does
not seek to modify existing biobased requirements.
Comment: One respondent suggested that suppliers should be expected
to report in pounds the amount of recovered material used in the
products acquired by the Government. This respondent also suggested
that, when there are supply gaps, suppliers should

[[Page 30227]]

be required to show proof of how they will procure recovered materials,
instead of just resorting to virgin materials. The respondent further
advocated for a supplier feedback or scorecard program, as well as
incentives to encourage suppliers to innovate to use higher percentages
of recovered materials and to secure future supply to meet those higher
thresholds.
Response: Nothing in this rule prohibits agencies from pursuing
other environmentally preferable products and services beyond those
specified in the definition of ``sustainable products and services.''
Agencies also have flexibility to determine what incentives and
evaluation criteria to use when evaluating offerors' proposals.
c. Other Environmentally Preferable Products and Services
Comment: One respondent suggested the requirement to procure
sustainable products and services, as defined, to the maximum extent
practicable, should be the basic requirement. The respondent stated
that the rule should clarify that agencies and contracting officers are
permitted to or should procure environmentally preferable products and
services beyond those subject to statutory or other EPA purchasing
program requirements to promote the policy objectives of E.O. 14057.
Response: Nothing in this rule prohibits agencies from pursuing
other environmentally preferable products and services beyond those
specified in the definition of ``sustainable products and services.''
Comment: Several respondents submitted comments related to
promoting reuse programs over single use. Comments from two respondents
focused on increasing reusable products or packaging, which may be more
environmentally impactful than using recovered materials. These
respondents suggested that the FAR identify where reusable products
should be prioritized, such as pallets, conference supplies, food
service items, office products, composite railroad ties and decking,
storage containers, crates, and other durable goods. The other
respondent requested that the FAR explicitly discourage the purchasing
of single-use plastic products to the maximum extent practicable and
prioritize and refillable alternatives.
Response: These comments are outside the scope of the current
rulemaking but have been shared with the CEQ.
Comment: Several respondents requested that the definition of
sustainable products and services be expanded to cover sustainable food
procurement. Some of these respondents suggested requiring agencies to
hire food service contractors that follow the principles of EPA's Food
Recovery Hierarchy to prevent food waste. The respondents generally
acknowledged that the FAR contains at subpart 26.4 a requirement to
donate any wholesome, surplus food; however, the respondents expressed
concern about nondonatable food being diverted from going to landfills.
Another respondent suggested that the EPA Recommendations for
Specifications, Standards, and Ecolabels should be expanded to cover
climate-friendly food and food services. Another respondent offered
recommendations for ways in which GSA should look to structure its
procurement of food and food service contracts.
Response: These comments are outside the scope of the current
rulemaking but have been shared with the CEQ, EPA, and GSA.
Comment: Several respondents also made comments related to
composting. Two respondents stated that agencies should prioritize
purchasing finished compost products, noting that purchasing compost
has a direct environmental benefit, as well as positive downstream
effects by supporting compost end markets. Another respondent suggested
that food scraps should be recycled at organics recycling processing
facilities, such as composting facilities or anaerobic digestion
facilities that produce digestate that is then composted and noted the
benefits of such soil amendments when added to the land. Several
respondents suggested that the EPA add a compost certification program
to its Recommendations of Specifications, Standards, and Ecolabels,
such as the U.S. Composting Council's Seal of Testing Assurance Program
(STA) or recommend a compost testing protocol to site users such as the
Test Method for the Examination of Composting and Compost.
Response: These comments are outside the scope of the current
rulemaking but have been shared with the EPA. EPA has designated the
landscaping products, including compost, under the CPG Program to
promote the use of materials recovered from municipal solid waste. See
the EPA web page at <a href="https://www.epa.gov/smm/comprehensive-procurement-guidelines-landscaping-products">https://www.epa.gov/smm/comprehensive-procurement-guidelines-landscaping-products</a>.
Comment: One respondent noted that there are opportunities beyond
the referenced purchasing programs to address the materials
manufacture, production, and waste management stages of product life.
The respondent suggested expanding sustainable products to include
products that have the following attributes: manufactured with
renewable energy; sourced with upstream agricultural interventions or
from deforestation-free supply chains; reuse systems; or end-of-life
and waste management, including whether products are recyclable and
compostable.
Response: These comments are outside the scope of the current
rulemaking but have been shared with the CEQ, EPA, and GSA. Nothing in
this rule prohibits agencies from pursuing other environmentally
preferable products and services beyond those specified in the
definition of ``sustainable products and services.''
d. Impact Assessments
Comment: Several respondents made recommendations to expand the
rule to require agencies to consider environmental and social benefits
and costs of their procurement decision. One respondent suggested that
the FAR encourage inclusion of the social costs of carbon and,
eventually, plastic in decision making, particularly regarding any
guidance to reduce single-use plastics. Another respondent suggested
that agencies could go further to consider indirect social equity and
justice issues (such as risks of labor exploitation, deforestation, or
other harmful practices) throughout the supply chain that impact
sustainability beyond the direct purchase.
Response: These comments are outside the scope of the current
rulemaking. This rule is focused on requiring agencies to procure
sustainable products and services, as defined in the rule, to the
maximum extent practicable. The respondents' suggestions are similar to
inputs received in response to the advance notice of proposed
rulemaking published under FAR Case 2021-016, Minimizing the Risk of
Climate Change in Federal Acquisitions (see 86 FR 57404, October 15,
2021). The FAR Council is currently considering those public inputs as
it develops a proposed rule under that FAR Case. The FAR Council notes
that nothing in this final rule prohibits agencies from pursuing other
goals beyond those specified in the definition of ``sustainable
products and services.''
Comment: Two respondents cautioned against incorporating rigid
life-cycle assessment (LCA) methodologies. One of these respondents
emphasized the need for agencies to have flexibility and remain
adaptive to newer techniques as they

[[Page 30228]]

become available. Another respondent noted that the assessment of
greenhouse gas emissions under LCAs should be supplemented with other
analyses regarding reduced packaging, alternative delivery systems, and
alternative materials to understand the performance of these
alternatives in the context of broader energy system decarbonization.
Response: These comments are outside the scope of the current
rulemaking. This final rule does not implement a requirement for
agencies to conduct life-cycle assessments (LCA) or mandate specific
LCA methodologies. Rather, this final rule advises agencies, when
considering whether the price of a sustainable product is reasonable,
that they should consider whether the product is cost-effective over
the life of the product (see FAR 23.103(a)(2)). The respondents'
comments are similar to inputs received in response to the advance
notice of proposed rulemaking published under FAR Case 2021-016,
Minimizing the Risk of Climate Change in Federal Acquisitions (see 86
FR 57404, October 15, 2021). The FAR Council is currently considering
those public inputs as it develops a proposed rule under that FAR Case.
6. Comments on Interim Rule
The following is a summary of public comments received on the
interim rule published in 2011, which is finalized by this rule.
a. General
Comment: Some respondents were supportive of the interim rule and
the Government's leadership in advancing sustainable acquisition goals,
while others were unsupportive of the use of an interim rule for this
purpose.
Response: Support for the overarching policy objective is noted.
The decision to use an interim rule for initial implementation of the
requirements for sustainable acquisition were justified in the interim
rule. Given that the requirements of the interim rule have been in
place since 2011, DoD, GSA, and NASA sought public comments on making
further changes to the interim rule prior to finalizing the interim
rule.
b. Applicability
Comment: Two respondents expressed concerns regarding the previous
95 percent target at FAR 23.103. One respondent recommended a phased
approach in implementation of the objective to allow for development of
intermediate steps that include educating the acquisition workforce on
sustainable acquisition, identification of sustainable products and
services, and development of supporting agency processes. Another
respondent believed that each agency should be given the flexibility to
determine how to impose the requirements on its acquisitions.
Response: Implementation of the interim rule in 2011 was
supplemented with training for the acquisition workforce and efforts to
ensure that agencies are identifying sustainable products and services.
This final rule achieves governmentwide efficiencies by pointing
agencies to specifications, standards, and ecolabels that are required
by statute or recommended by the EPA. The alternative would require
each agency or procurement office to conduct such market research on a
contract-by-contract basis. The rule also includes procedures to
provide flexibility to agencies when sustainable products and services
do not meet the agency's performance requirements or cannot be procured
in a timely manner at a reasonable price.
Comment: Several respondents requested clarifications regarding
applicability of the sustainable procurement requirements to multiple-
award contracts, such as the GSA Multiple Award Schedule, and
questioned whether compliance with the 95 percent target would be
measured at the contract-level or the order-level.
Response: This rule replaces the 95 percent target with the
requirement for agencies to procure sustainable products and services
to the maximum extent practicable. The sustainable products and
services that apply to the acquisition will be incorporated into the
statement of work or other requirement document and incorporated into
the solicitation and contract. For multiple-award contracts or
governmentwide acquisition contracts, the contracting officer for the
contract will need to ensure all potential sustainable products and
services that may be ordered under the contract are listed in the
solicitation and resulting contract, while ordering agencies will need
to specify in their statement of work or other requirement document the
sustainable products and services that apply to their task order or
delivery order under the contract.
Comment: Two respondents requested that the rule be revised to
require the Government advance sustainable acquisition ``where such
products and services meet agency performance requirements.''
Response: This rule provides procedures and FAR 23.104(a) when
sustainable products and services do not meet the agency's reasonable
performance requirements.
Comment: One respondent commented that the language at FAR 12.102
is unclear and inconsistent. The respondent stated that FAR part 12
should govern the acquisition of commercial items and that Government-
unique acquisition requirements should be prohibited when acquiring
commercial items.
Response: FAR part 12, Acquisition of Commercial Products and
Commercial Services, implements the Federal Government's preference for
the acquisition of commercial products and commercial services. FAR
12.102(c) states that contracts for the acquisition of commercial
products or commercial services are subject to the policies in other
parts of the FAR; however, FAR part 12 takes precedence for the
acquisition of commercial products or commercial services, when other
parts are inconsistent with FAR part 12. The requirements in FAR
subpart 23.1 do not conflict with FAR part 12. This rule applies to the
acquisition of commercial products and commercial services to the
extent that sustainable products and services are available to meet the
Government's needs.
Comment: A respondent recommended adding exceptions in the rule for
repair of existing building infrastructure, systems, and components
that are not designated as sustainable and still have a useful life and
products for which no formal environmental label is available.
Response: The exceptions and exemptions cited in FAR 23.105 and
23.106 are based on law or provided by Executive order. This rule does
not prohibit agencies from procuring products where no formal
environmental label is available.
Comment: One respondent expressed concern that the rule lacks
flexibility for approving new technologies, such as emerging
technologies that may not qualify as providing a ``renewable''
resource, despite the obvious nature of the energy product being
renewable.
Response: This rule revises FAR subpart 23.1 to focus on procedures
for procuring sustainable products and services, which include those
that are ENERGY STAR[supreg] or FEMP-designated products and services,
a statutory requirement. Language regarding renewable technologies is
removed.
Comment: Two respondents recommend reconsideration of applicability
of the requirements for energy efficiency, water efficiency, and
renewable energy below the micro-purchase threshold. One of these
respondents suggested that the policy only apply above the simplified
acquisition threshold.
Response: The requirement to procure energy- and water-efficient
products that are ENERGY STAR[supreg] certified or

[[Page 30229]]

FEMP-designated products is based in statute (see 42 U.S.C. 8259b and
the implementing regulations at 10 CFR part 436 subpart C). This rule
continues to apply these requirements to acquisitions valued at or
below the simplified acquisition threshold and micro-purchases to
ensure agencies are achieving energy savings, while also protecting the
environment.
Comment: One respondent requested clarification regarding how the
rule will apply to service contracts. The respondent requested advice
as to how the rule will impact the selection of service providers and
by what metrics service providers will be measured during performance.
Response: Applicability to service contracts is described at FAR
23.103(c) and in the clause at FAR 52.223-23. Under service contracts,
the contractor is required to provide products that meet the definition
of sustainable products and services, if the products are delivered to
the Government, furnished for use by the Government, incorporated into
the construction of a public building or public work, or acquired by
the contractor for use in performing services under a Government
contract where the cost of the products is a direct cost to a
Government contract. Agencies have discretion on how to monitor a
contractor's compliance with this term and condition during performance
of the contract.
Comment: One respondent stated that a preference for
``environmentally friendly'' products will require a phase-in period to
develop agency processes, identify products, develop technologies,
address availability, and educate the acquisition workforce.
Response: The FAR has addressed environmental programs (use of
biobased, energy-efficient, environmentally preferable, and recycled
products) in FAR subpart 23.2, Energy and Water Efficiency and
Renewable Energy, subpart 23.4, Use of Recovered Materials and Biobased
Products, subpart 23.7, Contracting for Environmentally Preferable
Products and Services, and subpart 23.8, Ozone-Depleting Substances,
for many years at this point.
Agencies will need to monitor updates to specifications, standards,
and ecolabels covered by the definition of sustainable products and
services as they define their requirements. Per paragraph (b)(3) of the
clause at FAR 52.223-23, offerors will need to ensure that their offers
comply with the specifications, standards, and ecolabels in effect at
the time of quote or offer submission, except for the EPA
Recommendations of Specifications, Standards, and Ecolabels, which are
those in effect as of October 2023. Future updates to the EPA
Recommendations will be incorporated into the FAR via formal rulemaking
to obtain notice and comments on the recommended specifications,
standards, and ecolabels, and to allow enough time for industry to come
into compliance.
c. Definitions
Comment: One respondent requested that a definition be added for
``reasonable price'' and ``cost-effective,'' as addressed in FAR
23.403. The respondent was concerned that contracting officers will
purchase a cheaper product based on initial price and suggested adding
policy to allow the purchase of products which are environmentally
preferable but have a price up to 10 percent higher than a product that
is not environmentally preferable.
Response: Applying a price premium does not align with some of the
statutory requirements to consider life-cycle costs. Instead, FAR
23.103(a) is revised to clarify that, when considering whether the
price of a sustainable product is reasonable, agencies should consider
whether the product is cost-effective over the life of the product.
Comment: Two respondents requested revisions to the definition of
``environmentally preferable'' at FAR subpart 23.7. One respondent
suggested adding more suggestions of environmentally preferable items.
Another respondent recommended deleting EPEAT[supreg] from the list of
examples in the definition of ``environmentally preferable.''
Response: The definition of ``environmentally preferable'' in FAR
2.101 is updated to provide a reference to the source of the
definition, which is based in statute (section 314 of Pub. L. 107-314,
10 U.S.C. Chapter 223 note). As used in FAR subpart 23.1, this term
refers to environmentally preferable products and services that meet
EPA Recommendations for Specifications, Standards, and Ecolabels (see
FAR 23.108-3). EPEAT[supreg] is no longer referenced by name, but
remains an EPA recommendation, and therefore required, for electronic
products.
Comment: Several respondents commented on definitions related to
renewable energy and use of those terms. One respondent noted that the
definition of ``renewable energy'' does not include hydroelectric
energy, new pumped hydro storage, or energy storage technologies. Two
respondents also found the definition of ``biomass'' to be inadequate.
One respondent suggested revisions to align 7.103(p)(2) with 11.002(d)
regarding use of products and services that utilize ``renewable energy
technologies.''
Response: This rule revises the FAR in a manner that no longer uses
the terms ``renewable energy'' and ``renewable energy technology.'' As
such these definitions are removed from FAR 2.101. This rule also
revises FAR 7.103(p) and 11.002(d) to now refer more generally to the
requirements for sustainable products and services in FAR subpart 23.1.
Comment: One respondent suggested that the FAR rule should make
clear that the policy applies to ``construction,'' in addition to the
acquisition of supplies and services. The respondent suggested, for
example, that the definition of ``sustainable acquisition'' at FAR
2.101 should be revised to state ``acquiring . . . and services,
including construction.''
Response: Adjustment to the definition of ``sustainable
procurement'' is not necessary. The new omnibus clause at FAR 52.223-
23, Sustainable Products and Services, is prescribed for use at FAR
23.109(a) in all solicitations and contracts, unless there is a written
justification from the requiring activity or an authorized exception or
exemption. The clause directs contractors to incorporate sustainable
products and services, as specified in the contract, into the
construction of a public building or public work.
Comment: Several respondents commented on the definition of
``contract action.'' Two respondents expressed concerns about a
separate definition for FAR part 23. One of these respondents objected
to the inclusion of ``oral action.'' Another respondent noted that
``contract action'' is defined, but also described in another section
for the purposes of achieving the 95 percent target; the respondent
noted that the definition includes micro-purchases, but the description
does not.
Response: This definition previously mirrored the definition of
``contract action'' at FAR 4.601, except to clarify that it includes
``oral or written actions'' valued at or below the micro-purchase
threshold. It is necessary to retain a definition of ``contract
action'' for the purposes of specifying applicability of the
requirement to procure sustainable products and services under contract
actions for services. However, the definition is revised to remove the
reference to ``micro-purchases'' and other information that is not
necessary for the purposes of the subpart. FAR 13.201(f) clarifies that
the requirements of FAR subpart 23.1 apply to micro-purchases.

[[Page 30230]]

Comment: Two respondents found the definition of ``sustainable
acquisition'' at FAR 2.101(b)(2) overly broad and thought it may lead
to misinterpretation. The respondent expressed special concern about
the phrase ``social, economic and other requirements'' because,
according to the respondent, this phrase ``is not commonly used in the
context of federal procurement.''
Response: No changes to the definition are necessary. The term
aligns with one of the FAR guiding principles at FAR 1.102(d) to
fulfill public policy objectives. The term is also used as an
overarching term; specific requirements related to ``sustainable
acquisition'' are found in the streamlined subparts of FAR part 23.
d. Compliance
Comment: Several respondents expressed concerns about the use of
EPEAT[supreg] standards. One of these respondents recommended that
references to EPEAT[supreg] should be replaced with individual
standards. Others suggested that the Government rely on the underlying
technical standards used by EPEAT[supreg]. Another respondent believed
the embedded references to EPEAT[supreg] could result in time-to-market
delays and additional costs that could reduce the competitiveness of
U.S. products.
Response: This rule removes specific references to EPEAT[supreg]
from the FAR and instead references the EPA Recommendations of
Specifications, Standards, and Ecolabels as of October 2023. EPA
continues to recommend EPEAT[supreg] for electronic products; however,
the Recommendations could be expanded to cover additional ecolabels in
this space.
Comment: Two respondents expressed support for utilizing Federal
Procurement Data System (FPDS) data to measure and assess the effect of
Federal contracting to promote sustainable acquisition.
Response: Noted.
Comment: One respondent noted that there are FAR clauses addressing
recycled, biobased, and energy-efficient products, and recommended
additional FAR clauses to address water-efficient, non-ozone depleting,
and environmentally preferable products.
Response: As a result of this rule, the requirements for procuring
sustainable products and services, to include those that meet statutory
purchasing program requirements and those that meet other EPA
purchasing programs, are consolidated into a single omnibus clause at
FAR 52.223-23.
Comment: One respondent requested a new contract clause to require
contractors to report all types of green products purchased under
construction and service contracts, similar to the reporting
requirement under FAR clause 52.223-2, now titled ``Reporting of
Biobased Products Under Service and Construction Contracts.''
Response: The Government will continue to leverage information
reported to the FPDS, the System for Award Management (SAM), or
directly to the agency, such as the reports under FAR clause 52.223-2
and 52.223-9, Estimate of Percentage of Recovered Material Content for
EPA-designated Items, in lieu of including new contractor reporting
requirements at this time.
Comment: One respondent recommended that FAR 11.002(d)(2), which
requires documentation of an exception when acquiring sustainable
products and services, specify the responsible approving official and
state whether the documentation should be included in the contract
file.
Response: FAR 11.002(d)(2) requires that agencies incorporate
sustainable products and services when describing agency needs unless
it is not practicable. FAR 23.104(a) allows the contracting officer to
consider it not practicable to procure sustainable products and
services if the requiring activity submits a written justification
addressing the reasons it is not practicable as described at FAR
23.103(a). FAR 23.104(a) also requires the contracting officer to
maintain the written justification in the contract file.
e. Other Comments
Comment: Two respondents commented on the overarching policy
statement at FAR 23.002. One respondent expressed concern regarding the
overarching policy statement at FAR 23.002, which did not include or
reference Environmental Management Systems (EMS) requirements. Another
respondent recommended using the introductory policy statement at FAR
23.202 as the introduction for the part.
Response: The overarching policy statement for FAR part 23,
continues to be located at FAR 23.002, but has been revised to align
with the current direction provided in E.O. 14057. It is not necessary
to restate the specific policy objective of each subpart in this
section.
Comment: Several respondents commented on the requirements for EMS.
Two respondents believed that EMS plans will vary from agency to agency
and may contradict one another or create overly burdensome
requirements. Two respondents suggested that the rule should require
the contracting officer to incorporate the EMS requirements into the
contract so that the contractor is aware of these requirements prior to
award. One of these respondents suggested that the rule state that EMS
requirements are provided by the requiring activity.
Response: The requirements for EMS previously at FAR subpart 23.9
have been consolidated with other Federal facility requirements in FAR
subpart 23.4. FAR section 23.404 now states that agencies may implement
an EMS when it aligns with and supports its agency's mission needs and
facilitates implementation and progress toward E.O. 14057 goals. When
doing so, the rule requires that EMS requirements be included in the
contract to ensure proper implementation and execution of EMS roles and
responsibilities. How agencies incorporate specific EMS requirements
remains at the discretion of the agency.
Comment: One respondent requested that the web address for the
Guiding Principles for Federal Leadership in High-Performance and
Sustainable Buildings (``Guiding Principles'') at FAR 7.103(p)(3) be
replaced with the text of the guiding principles.
Response: This final rule revises FAR 7.103(p)(3) and 36.104(b)(1)
to replace the reference to the Guiding Principles for Federal
Leadership in High-Performance and Sustainable Buildings with a
reference to the current Guiding Principles for Sustainable Federal
Buildings and Associated Instructions. It is standard practice in the
FAR to provide a link to a referenced guidance document in lieu of
summarizing or repeating the content in the FAR.
Comment: Several respondents requested clarification regarding
changes to the paper content requirements in FAR 11.303 and the clause
at FAR 52.204-4.
Response: Both FAR 11.303 and the clause at FAR 52.204-4 are
removed as a result of this rule.
Comment: One respondent asked whether it was clear that contractors
are to submit documents electronically whenever possible.
Response: The policy at FAR 4.502(a) to use electronic commerce
``whenever practicable or cost-effective'' has been in effect since
October 30, 1998 (see 63 FR 58590) and was not impacted by the interim
rule or proposed rule.
Comment: One respondent suggested that information should be
disseminated about the availability of resources and procurement-based
tools for biobased products. The respondent listed a few web-based
training videos and templates created by the USDA.

[[Page 30231]]

Response: FAR subpart 23.1, Sustainable Products and Services, now
includes links to each purchasing program website where resources,
training, and information for both buyers and sellers is available. A
link to <a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a> and an instruction to consult an
agency's affirmative procurement program are provided at FAR 23.107-
2(f). This rule also encourages requiring activities, contracting
officers, and contractors to consult GSA's Green Procurement
Compilation available at <a href="https://sftool.gov/greenprocurement">https://sftool.gov/greenprocurement</a>, when
determining which purchasing programs apply to a specific product or
service (see FAR 11.002, 23.104(d), and 52.223-23(d)). This tool
provides a comprehensive list of sustainable products and services and
other related sustainable acquisition guidance.
Comment: One respondent expressed concerns regarding the disposal
of spent batteries generated by operations funded by, or conducted for,
the Federal Government.
Response: This comment is outside the scope of both the 2011
interim rule and this final rule.
Comment: One respondent requested that the phrase ``availability of
competition'' in the first sentence of FAR 23.403 be revised to state
``availability'' only. The respondent stated that the phrase
``availability of competition'' is not used in section 6002 of the
Resource Conservation and Recovery Act of 1976 and that
``availability'' and ``competition'' are separate concepts that should
not be merged.
Response: As a result of this rule, the content of FAR 23.403 is
removed. Requirements for procuring sustainable products and services,
including products containing recovered material and biobased products,
to the maximum extent practicable are now located in FAR subpart 23.1.
Per the policy at FAR 23.103(a)(1)(i), procuring sustainable products
and services is considered practicable, unless the agency cannot
acquire the products or services competitively within a reasonable
performance schedule. This new language addresses the respondent's
concern by not confusing availability of a product or services with
availability of competition.
Comment: One respondent suggested that, at FAR 23.803(b)(2), the
word ``safe'' be replaced by the word ``acceptable'' to align with the
EPA SNAP web page, and because the term ``safe,'' according to the
respondent, seemed ambiguous and undefined.
Response: The respondent's suggestion was already addressed by the
final rule for FAR Case 2014-026, High Global Warming Potential
Hydrofluorocarbons, published at 81 FR 30429 on May 16, 2016. As a
result of this rule, the content of FAR 23.803 has been transferred to
FAR 23.108-4; the section continues to use the term ``acceptable.''
Comment: One respondent requested removal of FAR 23.205(a)
directing agencies to maximize the use of energy savings performance
contracts, when life-cycle cost-effective to reduce energy use and cost
in the agency's facilities and operations. The respondent stated that
the E.O. that supported such a statement had been revoked.
Response: As a result of this rule, FAR 23.205(a) has been
transferred to FAR 23.202(a). This content is not removed; the
authority for agencies to use energy savings performance contracts is
based on the National Energy Conservation Policy Act (42 U.S.C. 8287).
Comment: One respondent suggested adding FAR subpart 23.8 to the
list of subparts that apply to micro-purchases.
Response: As a result of this rule, the purchasing program
requirements in FAR subpart 23.8 have been consolidated with the other
purchasing programs in FAR subpart 23.1 (see FAR 23.107-4 of this
rule). Based on this consolidation, it is no longer necessary to
separately cite the subparts for each purchasing program at FAR
13.201(f). As a result of this rule, FAR 13.201(f) now states that the
procurement requirements in FAR subpart 23.1 apply to purchases at or
below the micro-purchase threshold.
7. Greenhouse Gas Emissions
Comment: One respondent expressed support for the Government's goal
of doing business with the most sustainable suppliers; however, the
respondent recommended, if the Government intends to consider corporate
sustainability (for example through a responsibility determination as
contemplated by FAR Case 2021-015), then the Government should consider
existing corporate investments in sustainability performance, rather
than adopting new or U.S. Government-specific corporate requirements.
Another respondent suggested that the Government should allow
contractors to utilize business-to-business cloud-based collaboration
platforms and business networks accessible via public websites or
mobile applications to satisfy the requirement in FAR 23.801(c) for
certain contractors to provide the websites.
Response: This comment is outside of the scope of this rule, which
does not make any substantive changes to the existing disclosure
requirements.
Comment: One respondent supported the inclusion of FAR subpart 23.8
requiring the attestation of whether an offeror registered within SAM
publicly discloses greenhouse gas emissions and whether the offeror
publicly discloses greenhouse gas emissions reduction goals, as well as
providing websites for such public disclosures. The respondent
recommended that the rule be revised to, over time, require disclosure
from all offerors outside of the current threshold of $7.5 million to
encompass a more comprehensive supplier base.
Response: This comment is outside of the scope of this rule, which
does not make any substantive changes to the existing disclosure
requirements.
Comment: A suggestion was made by one respondent to remove the
existing greenhouse gas emissions disclosure requirements at FAR
subpart 23.8 and the provision at FAR 52.223-22 based on the revocation
of E.O. 13693, Planning for Federal Sustainability in the Next Decade.
Response: This comment is outside the scope of this rulemaking,
which is not creating a new disclosure requirement or making any
substantive changes to the current disclosure requirements at FAR
subpart 23.8 and the associated provision. In any event, while E.O.
13693 has been revoked, subsequent Executive orders continue the policy
direction regarding greenhouse gas emissions. For example, E.O. 13990,
Protecting Public Health and the Environment and Restoring Science To
Tackle the Climate Crisis, discusses bolstering resilience to climate
change. E.O. 14008, Tackling the Climate Crisis at Home and Abroad,
provided direction to move quickly to build resilience, both at home
and abroad, against the impacts of climate change that are already
manifest and will continue to intensify according to current
trajectories. E.O. 14057, Catalyzing Clean Energy Industries and Jobs
Through Federal Sustainability, provides direction to improve the
Nation's preparedness and resilience to the effects of a changing
climate and establishes the target of net-zero emissions from Federal
procurement by 2050. The existing FAR disclosure provisions, while not
within the scope of this rule, are also well-grounded in statutory
authority (see, for example, 41 U.S.C. 1303(d); 40 U.S.C. 121(c); 10
U.S.C. chapter 4 and 10 U.S.C. chapter 137 legacy provisions (see 10
U.S.C. 3016); and 51 U.S.C. 20113).
Comment: One respondent highlighted that EPA is reevaluating
aspects of its Greenhouse Gas Reporting Program to improve the accuracy
of greenhouse gas emissions data. The

[[Page 30232]]

respondent noted that it submitted comments to EPA to express concern
should EPA continue to use scientific approaches to ensure reported
methane emission from landfills is accurate.
Response: This comment is outside the scope of this FAR rule.
8. Other Out of Scope
Comment: One respondent suggested that GSA employees should be
allowed to bid on GSA auctions.
Response: This comment is outside the scope of this FAR rule.

III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT), for Commercial Products (Including Commercially
Available Off-the-Shelf (COTS) Items), and for Commercial Services

The new clause at FAR 52.223-23, Sustainable Products and Services,
is prescribed at FAR 23.109(a) for use in all solicitations and
contracts, unless a justification, exception, or exemption applies to
all potential sustainable products and services in an acquisition. The
new omnibus clause is required to be included in covered solicitations
and contracts valued at or below the simplified acquisition threshold
and for commercial products, including COTS items, or commercial
services. It is necessary to apply the requirements of this clause to
these types of acquisition to achieve the intended policy outcome,
which is for the Government to meet statutory purchasing program
requirements and to procure sustainable products and services under
required EPA purchasing programs to the maximum extent practicable.
The following FAR clauses are removed by this final rule and will
no longer be listed in FAR clause 52.212-5, Contract Terms and
Conditions Required To Implement Statutes or Executive Orders--
Commercial Products and Commercial Services, as applicable to
acquisitions of commercial products or commercial services:
<bullet> FAR 52.223-13, Acquisition of EPEAT[supreg]-Registered
Imaging Equipment, and its Alternate I.
<bullet> FAR 52.223-14, Acquisition of EPEAT[supreg]-Registered
Televisions, and its Alternate I.
<bullet> FAR 52.223-15, Energy Efficiency in Energy-Consuming
Products.
<bullet> 52.223-16, Acquisition of EPEAT[supreg]-Registered
Personal Computer Products, and its Alternate I.
Since it is being removed, FAR clause 52.223-15 will also no longer
be listed in 52.213-4, Terms and Conditions--Simplified Acquisitions
(Other Than Commercial Products and Commercial Services), as applicable
to simplified acquisitions. Though these clauses are removed from the
FAR the requirement to procure energy-efficient products and produces
that meet EPA Recommendations of Specifications, Standards, and
Ecolabels, such as EPEAT[supreg], remains; these requirements continue
to be implemented via the omnibus clause at FAR 52.223-23.
This rule does not include any changes to the existing
prescriptions for other FAR part 23 solicitation provisions or contract
clauses, except to renumber the section or paragraph where content has
been relocated to a new FAR part or subpart.

IV. Severability

If any portion (e.g., section, clause, sentence) of this rule is
held to be invalid or unenforceable facially, or as applied to any
entity or circumstance, it shall be severable from the remainder of
this rule, and shall not affect the remainder thereof, or its
application to entities not similarly situated or to other dissimilar
circumstances. The various portions of this rule are independent and
serve distinct purposes. Even if one aspect were rendered invalid, the
other benefits of the rule would still be applicable. As an
illustrative but not exhaustive example, were a court to stay or
invalidate the changes to FAR subpart 23.1 regarding sustainable
products and services, the agencies would intend the broader
restructuring of FAR part 23 to remain effective.

V. Expected Impact of the Rule

A. FAR Part 23 Restructuring

The revisions to FAR part 23 establish a clear and simplified
framework for the Government to communicate current requirements
related to environmental matters and sustainable acquisition. First,
non-environmental matters, such as drug-free workplace and banning
texting while driving, are transferred to FAR part 26. Then, existing
content on similar topics, such as requirements for sustainable
products and services, hazardous and radioactive materials, and
pollution prevention at Federal facilities, are consolidated into
single subparts. These changes more clearly communicate current
policies and procedures and are expected to improve agency compliance
with requirements in each of these areas.

B. Sustainable Products and Services

In addition to consolidating existing statutory and other EPA
purchasing program requirements in FAR subpart 23.1, this rule directs
agencies to procure sustainable products and services to the maximum
extent practicable. As stated in the proposed rule, the requirement to
procure sustainable products and services is not new; agencies have
been required to ensure that most of their contract actions meet
statutory and other EPA purchasing program requirements for over a
decade. This rule consolidates, streamlines, and updates the procedures
for procuring sustainable products and services to ensure more
effective communication and implementation of these requirements.
For example, agencies were previously required to include in 95
percent of new contract actions requirements for products that are
energy-efficient; water-efficient; biobased; environmentally
preferable, or non- or less toxic alternatives; non-ozone depleting; or
made with recovered materials. They were also directed to maximize the
use of environmentally preferable products and services based on EPA-
issued guidance, promote water conservation, and give preference to the
procurement of acceptable alternative chemicals and products that
reduce overall risks to human health. This rule removes the 95 percent
target and other generic directions and makes procuring sustainable
products and services the default position. The process that allows
agencies to explain why purchasing a sustainable product or service is
not practicable in terms of performance requirements, availability, and
price remains, but is expanded to all categories of sustainable
products and services for uniformity and ease of implementation. The
exceptions, such as those for acquisitions performed outside the United
States, weapon systems, and space systems, and exemptions also remain,
though the emergency response exemption previously at FAR 23.105(a)(3)
is expanded at FAR 23.106(c).
This rule also provides a definition of ``sustainable products and
services'' that helps Government agencies and suppliers better
understand how to identify sustainable products and services. As
illustrated in the following table, generic terms are supplemented with
references to the applicable statutory or other EPA purchasing program
requirements, standards, or ecolabels:

[[Page 30233]]

------------------------------------------------------------------------
Product or service Program/standard/ecolabel
------------------------------------------------------------------------
Made with recovered materials... Products containing recovered material
designated by the U.S. Environmental
Protection Agency (EPA) under the
Comprehensive Procurement Guidelines.
Energy-efficient and water- Energy- and water-efficient products
efficient. that are ENERGY STAR[supreg]
certified or Federal Energy
Management Program (FEMP)-designated
products.
Biobased........................ Biobased products meeting the content
requirement of the U.S. Department of
Agriculture under the
BioPreferred[supreg] program.
Non-ozone depleting............. Acceptable chemicals, products, and
manufacturing processes listed under
EPA's Significant New Alternatives
Policy (SNAP) program, which ensures
a safe and smooth transition away
from substances that contribute to
the depletion of stratospheric ozone.
Water-efficient................. WaterSense[supreg] labeled (water
efficient) products and services.
Non-/less toxic alternatives.... Safer Choice-certified products
(products that contain safer chemical
ingredients).
Environmentally preferable...... Products and services that meet EPA
Recommendations of Specifications,
Standards, and Ecolabels.
------------------------------------------------------------------------

Other information on statutory purchasing program requirements
previously implemented at FAR subparts 23.2, 23.4, and 23.8 is
consolidated at FAR 23.107. Agencies are required to continue ensuring
that products and services meet statutory purchasing program
requirements. Agencies are also directed to prioritize multi-attribute
products and services, which are products and services that meet both
statutory purchasing program and other EPA purchasing programs, to
maximize environmental benefits.
Finally, this rule standardizes the way in which agencies
communicate their requirements for sustainable products and services to
contractors. This rule makes clear in FAR 11.002(d)(2) and 23.104(b)
that agencies are required to identify in their requirement documents,
such as the statement of work, the sustainable products and services
that apply to the acquisition. A new omnibus clause at FAR 52.223-23,
Sustainable Products and Services, notifies offerors and contractors
that they are expected to ensure that the sustainable products and
services required under the contract are delivered; furnished for
Government use; incorporated into the construction of a public building
or public work; and furnished for use in performing services, where the
cost of the products is a direct cost to the contract. These changes
will help the Government ensure it is meeting its goal to procure
sustainable products and services to the maximum extent practicable to
reduce emissions, save natural resources, and protect individuals,
communities, and the environment.
According to data available in the Federal Procurement Data System
for fiscal years 2019 through 2021, on average approximately 85,826
contractors are awarded Federal contracts each year, of which
approximately 61,797 contractors are small businesses. These
contractors should be familiar with the purchasing program requirements
identified in this rule since agencies have been directed to procure
these types of products and services for many years. However,
contractors will no longer be required to review the stand-alone
provisions and clauses at FAR 52.223-13, 52.223-14, 52.223-15, 52.223-
16, and 52.223-17 removed under this rule, all of which provide varying
instructions to contractors on the requirements for existing purchasing
programs, such as ENERGY STAR[supreg], FEMP, products containing
recovered material, and EPEAT[supreg]-registered electronic products.
This information is consolidated in the omnibus clause at FAR 52.223-
23. For example, EPEAT[supreg] is no longer referenced by name in the
FAR. Contractors will no longer see standalone FAR clauses on
EPEAT[supreg]-registered electronic products (formerly FAR clause
52.223-13, 52.223-14, and 52.223-15) in solicitations and contracts.
However, EPEAT[supreg] is one of EPA's Recommendations of
Specifications, Standards, and Ecolabels, which means it is required
for electronic products unless it is not practicable to procure such
items (see 23.103(a)). The Government will now specify in the
solicitation the sustainable products and services that apply to the
acquisition. For electronic products, this would include the EPA
Recommendation of EPEAT[supreg] and other statutory ecolabels for
energy-efficient products, such as ENERGY STAR[supreg]. Contractors
will be required to provide sustainable products and services as
specified in the contract in accordance with the new omnibus clause at
FAR 52.223-23.
Contractors that do not currently prioritize or propose sustainable
products and services when developing offers in response to Government
solicitations may need to adjust their internal processes and supply
chains, as necessary, to ensure that they are in fact delivering
sustainable products and services under Government contracts.
Contractors not familiar with the specific programs will need to review
the definition of ``sustainable products and services,'' the
information available on the lead agency purchasing program website,
and GSA's Green Procurement Compilation available at <a href="https://sftool.gov/greenprocurement">https://sftool.gov/greenprocurement</a> to identify conforming products and
services. While this effort for some contractors is acknowledged, it is
not viewed as imposing additional burden. Prior to this final rule,
contractors were already required to ensure products included in their
offers met the Government's requirements for environmentally preferable
products and other sustainable requirements.
Two respondents commented on the potential cost impact of the rule.
One respondent stated that the proposed rule should contain an estimate
of the added costs of procured products that are required to adhere to
these environmental impact, energy efficiency, and other requirements.
The respondent asserted that product selection that favors products
better meeting these requirements will result in added cost to
taxpayers. The other respondent suggested that the rule raises the cost
of procurement by discouraging nonconforming bids, which will likely
deprive agencies of lower-cost bids that can be used to determine if
the sustainability requirements are impracticable. This respondent
noted that the contracting officer would not know that a sustainable
product or service is more expensive until receipt of offers.
The Government does not agree that this will necessarily result in
added costs for several reasons. As illustrated in this section, the
requirement for agencies to procure sustainable products and services
is not new. Since 2002, FAR section 23.703 has required agencies to
implement cost-effective contracting preference programs promoting
energy efficiency, water conservation, and the acquisition of
environmentally preferable products and services (see 66 FR 65351,
December 18, 2001). In addition, since

[[Page 30234]]

2011, FAR 23.103(a) has required Federal agencies to advance
sustainable acquisition by ensuring that 95 percent of new contract
actions are for products that are energy-efficient, water-efficient,
biobased, environmentally preferable, non-ozone depleting, or made with
recovered materials (see 76 FR 31395, May 31, 2011). This rule
streamlines and standardizes procedures for accomplishing this goal.
Also, products that display a required ecolabel or meet the required
specifications and standards identified in this rule are not
necessarily more expensive than other products in the market and may
result in savings when considering the life-cycle costs of the item.
Finally, this rule allows agencies to justify procuring other than a
sustainable product or service if the item cannot be procured at a
reasonable price. A revision is made in the final rule to ensure that
this market research is conducted by the Government prior to issuance
of a solicitation.

C. Other Changes

While the clause at FAR 52.204-4 to require printing and copying
double-sided on postconsumer fiber content paper is removed, the impact
is not considered significant, since most acquisitions are conducted
electronically. Contractors are also no longer be required to report
information on hydrofluorocarbons under contracts that contain FAR
clause 52.223-11, Ozone-Depleting Substances and High Global Warming
Potential Hydrofluorocarbons, and 52.223-12, Maintenance, Service,
Repair, or Disposal of Refrigeration Equipment and Air Conditioners, a
reduction in burden for contractors. The alternates to FAR clause
52.223-5, Pollution Prevention and Right-to-Know Information, and
associated reporting requirements related to agency EMS are also
removed; however, per FAR 52.223-19, contractors will still be required
to comply with any agency-specific requirements for EMS.

VI. Executive Orders 12866 and 13563

Executive Orders (E.O.s) 12866 (as amended by E.O. 14094) and 13563
direct agencies to assess costs and benefits of available regulatory
alternatives and, if regulation is necessary, to select regulatory
approaches that maximize net benefits (including potential economic,
environmental, public health and safety effects, distributive impacts,
and equity). E.O. 13563 emphasizes the importance of quantifying both
costs and benefits, of reducing costs, of harmonizing rules, and of
promoting flexibility. This is a significant regulatory action and,
therefore, was subject to review under Section 6(b) of E.O. 12866,
Regulatory Planning and Review, dated September 30, 1993.

VII. Congressional Review Act

Pursuant to the Congressional Review Act, DoD, GSA, and NASA will
send this rule to each House of the Congress and to the Comptroller
General of the United States. The Office of Information and Regulatory
Affairs (OIRA) in the Office of Management and Budget has determined
that this rule does not meet the definition in 5 U.S.C. 804(2).

VIII. Regulatory Flexibility Act

DoD, GSA, and NASA have prepared a Final Regulatory Flexibility
Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5
U.S.C. 601-612. The FRFA is summarized as follows:

Executive Order (E.O.) 14057, Catalyzing Clean Energy Industries
and Jobs Through Federal Sustainability, signed December 8, 2021,
directs agencies to reduce emissions, promote environmental
stewardship, support resilient supply chains, drive innovation, and
incentivize markets for sustainable products and services. As part
of this effort, and pursuant to memorandum M-22-06 issued jointly by
the Office of Management and Budget (OMB), Council on Environmental
Quality (CEQ), and the Climate Policy Office and pursuant to the CEQ
Implementing Instructions for E.O. 14057, agencies are required to
purchase, to the maximum extent practicable and after meeting
statutory mandates, sustainable products and services identified or
recommended by the U.S. Environmental Protection Agency (EPA). This
rule is in alignment with the direction in E.O. 14057, Memorandum M-
22-06, and the CEQ Implementing Instructions.
The rule streamlines FAR part 23 by consolidating similar
content into specific subparts and providing uniform procedures to
ensure agencies procure sustainable products and services to the
maximum extent practicable. Consolidated in FAR subpart 23.1 are the
existing requirements for agencies to procure products that meet the
statutory environmental purchasing program requirements previously
implemented in FAR subparts 23.2, 23.4, and 23.8, and the
requirement to procure environmentally preferable products and
services previously implemented in FAR subpart 23.7. FAR subpart
23.1 now directs agencies to specify in the statement of work, or
elsewhere in the contract, which sustainable products and services
are applicable to the acquisition. The new omnibus contract clause
at FAR 52.223-23, Sustainable Products and Services, requires the
contractor to ensure the sustainable products and services
identified in the contract are delivered, incorporated, or furnished
under the contract.
As part of the FAR part 23 streamlining effort, content on
energy savings performance contracts, hazardous materials, pollution
prevention at Federal facilities, and greenhouse gases are
consolidated into single subparts at FAR 23.2, 23.3, 23.4, and 23.5,
respectively. Non-environmental matters, to include requirements for
a drug-free workplace and encouraging contractors to ban texting
while driving, are moved to FAR part 26 (see FAR subparts 26.5 and
26.6, respectively). This rule also removes several reporting
requirements, including those under FAR clauses 52.223-11, Ozone-
Depleting Substances and High Global Warming Potential
Hydrofluorocarbons, and 52.223-12, Maintenance, Service, Repair, or
Disposal of Refrigeration Equipment and Air Conditioners. Reporting
requirements associated with agency environmental management systems
in the alternates to FAR clause 52.223-5, Pollution Prevention and
Right-to-Know Information, are also removed, though compliance with
agency-specific requirements for their environmental management
systems is still required.
There were no significant issues raised by the public in
response to the initial regulatory flexibility analysis (IRFA).
While not a comment on the IRFA, one respondent suggested that the
rule will have a disproportionate impact on small businesses
throughout the contracting supply chain that will be ineligible to
participate in Federal procurement. Nothing in this rule is viewed
as rendering a small business as ineligible for Government
contracts. As another respondent noted, the efforts to streamline
and consolidate sustainability purchasing requirements throughout
the FAR reduce implementation burdens--especially for small
businesses that may be new to demonstrating sustainability in
Government purchasing. Agencies have been directed to procure
sustainable products and services, including those mandated by
statute and environmentally preferable products and services per
EPA-issued guidance, for over a decade. This rule continues this
policy by providing clear and uniform procedures for agencies
regarding requirements for specifying sustainable products and
services in their solicitations and contracts and improves
communication to industry of the Government's requirements through
use of an omnibus clause. This rule also continues to maintain the
statutory exceptions, provides other exemptions, and includes a
process for justifying when it is not practicable.
Any small business competing on Federal contracts for products
or services will need to become familiar with this rule. According
to data available in the Federal Procurement Data System for Fiscal
Years 2019 through 2021, on average approximately 85,826 contractors
are awarded Federal contracts each year, of which approximately
61,797 contractors (72 percent) are small businesses.
These small businesses will need to ensure they are including in
their offers sustainable products and services as specified in the
solicitation and delivering, incorporating, or furnishing
sustainable products and services, as specified in the resulting
contract. Sustainable products and services include the following:
<bullet> Products containing recovered material designated by
the EPA under the Comprehensive Procurement Guidelines (CPG) (see
<a href="https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program#products">https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program#products</a>).

[[Page 30235]]

<bullet> Energy- and water-efficient products that are ENERGY
STAR[supreg] certified or Federal Energy Management Program (FEMP)-
designated products (see <a href="https://www.energy.gov/eere/femp/search-energy-efficient-products">https://www.energy.gov/eere/femp/search-energy-efficient-products</a> and <a href="https://www.energystar.gov/products">https://www.energystar.gov/products</a>?s=mega).
<bullet> Biobased products meeting the content requirement of
the U.S. Department of Agriculture under the BioPreferred[supreg]
program (see <a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>).
<bullet> Acceptable chemicals, products, and manufacturing
processes listed under EPA's Significant New Alternatives Policy
(SNAP) program, which ensures a safe and smooth transition away from
substances that contribute to the depletion of stratospheric ozone
(see <a href="https://www.epa.gov/snap">https://www.epa.gov/snap</a>).
<bullet> WaterSense[supreg] labeled (water efficient) products
and services (see <a href="https://www.epa.gov/watersense/watersense-products">https://www.epa.gov/watersense/watersense-products</a>).
<bullet> Safer Choice-certified products (products that contain
safer chemical ingredients) (see <a href="https://www.epa.gov/saferchoice/products">https://www.epa.gov/saferchoice/products</a>).
<bullet> Products and services that meet EPA Recommendations of
Specifications, Standards, and Ecolabels as of October 2023 (see
<a href="https://www.epa.gov/greenerproducts/recommendations-specifications-standards-and-ecolabels-federal-purchasing">https://www.epa.gov/greenerproducts/recommendations-specifications-standards-and-ecolabels-federal-purchasing</a>).
As shown above, the definition of sustainable products and
services at FAR 2.101 and in the omnibus clause at FAR 52.223-23
includes links to each lead agency's purchasing program website,
where information on conforming products and services is provided
for both buyers and sellers. In addition, FAR 11.002(d)(3),
23.104(d), and the clause reference as a resource GSA's Green
Procurement Compilation available at <a href="https://sftool.gov/greenprocurement">https://sftool.gov/greenprocurement</a>. GSA's Green Procurement Compilation provides a
comprehensive list of required sustainable products and services and
other related sustainability guidance and may be used by small
businesses to identify and source sustainable products and services.
Two changes are adopted in this final rule that will minimize
the impact on small businesses. First, the final rule will require
the Government to specify which sustainable products and services
are applicable to the acquisition. This change from the proposed
rule in the final rule eliminates the need for small businesses to
determine which purchasing programs apply to a specific acquisition
and ensures all offerors have access to the same information about
the Government's requirements. Second, this rule will require
compliance only with the EPA Recommendations for Specifications,
Standards, and Ecolabels in effect as of October 2023. The FAR
Council will consider incorporating future updates to the EPA
Recommendations through rulemaking to ensure that businesses are
afforded an opportunity to provide inputs on any expansions of the
EPA Recommendations and have adequate time to implement new
standards, specifications, and ecolabels.

Interested parties may obtain a copy of the FRFA from the
Regulatory Secretariat Division. The Regulatory Secretariat Division
has submitted a copy of the FRFA to the Chief Counsel for Advocacy of
the Small Business Administration.

IX. Paperwork Reduction Act

The Paperwork Reduction Act (44 U.S.C. 3501-3521) applies. The rule
contains information collection requirements. The Regulatory
Secretariat Division has submitted to the Office of Management and
Budget (OMB) a request to review and approve revisions to previously
approved information collection requirements in FAR part 23 and the
transfer of a previously approved information collection requirement to
a new OMB Control Number for FAR part 26.

A. OMB Control Number, Title, and Any Associated Form(s)

OMB Control Number 9000-0107, Federal Acquisition Regulation Part
23 Requirements, and OMB Control Number 9000-0207, Federal Acquisition
Regulation Part 26 Requirements.

B. Need and Uses

The rule renumbers FAR clause 52.223-6, Drug-Free Workplace, as
52.226-7. As such the associated information collection requirements
are being transferred from OMB Control Number 9000-0107 to the new OMB
Control Number 9000-0207 for FAR part 26. The rule also proposes to
remove previously approved information collection requirements under
OMB Control Number 9000-0107, to include the contractor environmental
management system and facility compliance audit reporting requirements
under FAR clause 52.223-5, Pollution Prevention and Right-to-Know
Information, and the contractor hydrofluorocarbon reporting
requirements under FAR clauses 52.223-11, Ozone-Depleting Substances
and High Global Warming Potential Hydrofluorocarbons, and 52.223-12,
Maintenance, Service, Repair, or Disposal of Refrigeration Equipment
and Air Conditioners.

C. Annual Burden

Public reporting burden for this collection of information includes
the time for reviewing instructions, searching existing data sources,
gathering, and maintaining the data needed, and completing and
reviewing the collection of information.
1. OMB Control Number 9000-0207, Federal Acquisition Regulation Part 26
Requirements
Respondents: 228.
Total Annual Responses: 228.
Total Burden Hours: 114.
2. OMB Control Number 9000-0107, Federal Acquisition Regulation Part 23
Requirements
Respondents: 34,527.
Total Annual Responses: 160,600.
Total Burden Hours: 706,089.

D. Public Comment to OMB on Information Collections

A 60-day notice was published in the Federal Register at 88 FR
51672, on August 3, 2023. No comments were received. Written comments
and recommendations for these information collections should be sent
within 30 days of publication of this rule to <a href="http://www.reginfo.gov/public/do/PRAMain">www.reginfo.gov/public/do/PRAMain</a>. Find these information collections by selecting ``Currently
under Review--Open for Public Comments'' or by using the search
function.

E. Obtaining Copies

Requesters may obtain a copy of the information collection
documents from the GSA Regulatory Secretariat Division, by calling 202-
501-4755 or emailing <a href="/cdn-cgi/l/email-protection#397e6a786b5c5e6a5c5a795e4a58175e564f">[email&#160;protected]</a>. Please cite OMB Control Number
``9000-0107, Federal Acquisition Regulation Part 23 Requirements'' or
``9000-0207, Federal Acquisition Regulation Part 26 Requirements.''

List of Subjects in 48 CFR Parts 1, 2, 4, 5, 7, 9, 10, 11, 12, 13,
15, 18, 23, 26, 36, 37, 39, 42, and 52

Government procurement.

William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of
Acquisition Policy, Office of Government-wide Policy.

Accordingly, the interim rule amending 48 CFR parts 1, 2, 4, 5, 7,
11, 12, 13, 23, 36, 37, 39, and 52, which published in the Federal
Register at 76 FR 31395 on May 31, 2011, is adopted as a final rule
with the following changes:

0
1. The authority citation for 48 CFR parts 1, 2, 4, 5, 7, 9, 10, 11,
12, 13, 15, 18, 23, 26, 36, 37, 39, 42, and 52 continues to read as
follows:

Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 4 and 10 U.S.C.
chapter 137 legacy provisions (see 10 U.S.C. 3016); and 51 U.S.C.
20113.

PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM

0
2. In section 1.106, amend the table by--
0
a. Removing the entry for FAR segment ``52.223-6(b)(5); and
0
b. Adding in numerical order an entry for ``52.226-7''.
The addition reads as follows:

[[Page 30236]]

1.106 OMB approval under the Paperwork Reduction Act.

* * * * *

------------------------------------------------------------------------
OMB control
FAR segment No.
------------------------------------------------------------------------

* * * * *
52.226-7................................................ 9000-0207

* * * * *
------------------------------------------------------------------------

PART 2--DEFINITIONS OF WORDS AND TERMS

0
3. Amend section 2.101 by--
0
a. Revising the definition of ``Biobased product'';
0
b. In the definition of ``Conviction'', removing ``23.5'' and
``23.503'' and adding ``26.5'' and ``26.503'' in their place,
respectively;
0
c. Removing the definition of ``Energy-savings performance contract''
and adding the definition of ``Energy savings performance contract'' in
its place;
0
d. Revising the definition of ``Environmentally preferable'';
0
e. Removing the definitions of ``Global warming potential'', ``High
global warming potential hydrofluorocarbons'', and
``Hydrofluorocarbons'';
0
f. Revising the definition of ``Recovered material'';
0
g. Removing the definitions of ``Renewable energy'' and ``Renewable
energy technology'';
0
h. In the definition of ``Sustainable acquisition'', removing from the
introductory text ``acquiring goods'' and adding ``acquiring products''
in its place;
0
i. Adding in alphabetic order the definition of ``Sustainable products
and services'';
0
j. In the definition of ``United States'', revising paragraph (9); and
0
k. Removing the definition ``Water consumption intensity''.
The revisions and additions read as follows:

2.101 Definitions.

* * * * *
Biobased product means a product determined by the U.S. Department
of Agriculture to be a commercial product or industrial product (other
than food or feed) that is composed, in whole or in significant part,
of biological products, including renewable domestic agricultural
materials and forestry materials, or that is an intermediate ingredient
or feedstock. The term includes, with respect to forestry materials,
forest products that meet biobased content requirements,
notwithstanding the market share the product holds, the age of the
product, or whether the market for the product is new or emerging. (7
U.S.C. 8101) (7 CFR 3201.2).
* * * * *
Energy savings performance contract, pursuant to 42 U.S.C. 8287 and
10 CFR 436.31, means a contract that requires the contractor to--
(1) Perform services for the design, acquisition, financing,
installation, testing, operation, and where appropriate, maintenance
and repair, of an identified energy conservation measure or series of
measures at one or more locations;
(2) Incur the costs of implementing the energy savings measures,
including at least the cost (if any) incurred in making energy audits,
acquiring and installing equipment, and training personnel in exchange
for a predetermined share of the value of the energy savings directly
resulting from implementation of such measures during the term of the
contract; and
(3) Guarantee future energy and cost savings to the Government.
Environmentally preferable means, in the case of a product or
service, having a lesser or reduced effect on human health and the
environment when compared with competing products or services that
serve the same purpose. This comparison may consider raw materials
acquisition, production, manufacturing, packaging, distribution, reuse,
operation, maintenance, or disposal of the product or service. (Section
314 of Pub. L. 107-314, 10 U.S.C. chapter 223 note)
* * * * *
Recovered material means waste materials and by-products recovered
or diverted from solid waste, but the term does not include those
materials and by-products generated from, and commonly reused within,
an original manufacturing process. (42 U.S.C. 6903)
* * * * *
Sustainable products and services means products and services that
are subject to and meet the following applicable statutory mandates and
directives for purchasing:
(1) Statutory purchasing programs. (i) Products containing
recovered material designated by the U.S. Environmental Protection
Agency (EPA) under the Comprehensive Procurement Guidelines (42 U.S.C.
6962) (40 CFR part 247) (<a href="https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program#products">https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program#products</a>).
(ii) Energy- and water-efficient products that are ENERGY
STAR[supreg] certified or Federal Energy Management Program (FEMP)-
designated products (42 U.S.C. 8259b) (10 CFR part 436, subpart C)
(<a href="https://www.energy.gov/eere/femp/search-energy-efficient-products">https://www.energy.gov/eere/femp/search-energy-efficient-products</a> and
<a href="https://www.energystar.gov/products">https://www.energystar.gov/products</a>?s=mega).
(iii) Biobased products meeting the content requirement of the U.S.
Department of Agriculture under the BioPreferred[supreg] program (7
U.S.C. 8102) (7 CFR part 3201) (<a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>).
(iv) Acceptable chemicals, products, and manufacturing processes
listed under EPA's Significant New Alternatives Policy (SNAP) program,
which ensures a safe and smooth transition away from substances that
contribute to the depletion of stratospheric ozone (42 U.S.C. 7671l)
(40 CFR part 82, subpart G) (<a href="https://www.epa.gov/snap">https://www.epa.gov/snap</a>).
(2) Required EPA purchasing programs. (i) WaterSense[supreg]
labeled (water efficient) products and services (<a href="https://www.epa.gov/watersense/watersense-products">https://www.epa.gov/watersense/watersense-products</a>).
(ii) Safer Choice-certified products (products that contain safer
chemical ingredients) (<a href="https://www.epa.gov/saferchoice/products">https://www.epa.gov/saferchoice/products</a>).
(iii) Products and services that meet EPA Recommendations of
Specifications, Standards, and Ecolabels in effect as of October 2023
(<a href="https://www.epa.gov/greenerproducts/recommendations-specifications-standards-and-ecolabels-federal-purchasing">https://www.epa.gov/greenerproducts/recommendations-specifications-standards-and-ecolabels-federal-purchasing</a>).
* * * * *
United States * * *
(9) For use in subpart 23.1, see definition at 23.101.
* * * * *

PART 4--ADMINISTRATIVE AND INFORMATION MATTERS

Subpart 4.3 [Removed and Reserved]

0
4. Remove and reserve subpart 4.3.

4.602 [Amended]

0
5. Amend section 4.602 by removing from paragraph (a)(3) the words
``products, and high-performance'' and adding the words ``products,
services, and high-performance'' in its place.

4.1202 [Amended]

0
6. Amend section 4.1202 by removing paragraph (a)(25) and redesignating
paragraphs (a)(26) through (34) as paragraphs (a)(25) through (33).

PART 5--PUBLICIZING CONTRACT ACTIONS

0
7. Amend section 5.207 by revising paragraph (c)(11) to read as
follows:

[[Page 30237]]

5.207 Preparation and transmittal of synopses.

* * * * *
(c) * * *
(11) Sustainable acquisition requirements, such as a description of
high-performance sustainable building practices required, if for
design, construction, renovation, repair, or deconstruction (see part
23 and 36.104).
* * * * *

PART 7--ACQUISITION PLANNING

0
8. Amend section 7.103 by revising paragraph (p) to read as follows:

7.103 Agency-head responsibilities.

* * * * *
(p) Ensuring that agency planners--
(1) Comply with the policy in 11.002(d) regarding procurement of
sustainable products and services (as defined in 2.101) in accordance
with subpart 23.1;
(2) Comply with the Guiding Principles for Sustainable Federal
Buildings and Associated Instructions (Guiding Principles), for the
design, construction, renovation, repair, or deconstruction of Federal
buildings (see 36.104). The Guiding Principles can be accessed at
<a href="https://www.sustainability.gov/pdfs/guiding_principles_for_sustainable_federal_buildings.pdf">https://www.sustainability.gov/pdfs/guiding_principles_for_sustainable_federal_buildings.pdf</a>; and
(3) Require contractor compliance with Federal environmental
requirements, when the contractor is operating Government-owned
facilities or vehicles, to the same extent as the agency would be
required to comply if the agency operated the facilities or vehicles.
* * * * *

0
9. Amend section 7.105 by revising paragraph (b)(17) to read as
follows:

7.105 Contents of written acquisition plans.

* * * * *
(b) * * *
(17) Environmental and energy conservation objectives. Discuss--
(i) All applicable environmental and energy conservation objectives
associated with the acquisition (see part 23);
(ii) The applicability of an environmental assessment or
environmental impact statement (see 40 CFR part 1502);
(iii) The proposed resolution of environmental issues; and
(iv) Any sustainable acquisition requirements to be included in the
solicitation and contract (see 11.002 and part 23).
* * * * *

PART 9--CONTRACTOR QUALIFICATIONS

9.405 [Amended]

0
10. Amend section 9.405 by removing from paragraph (a) ``23.506(e)''
and adding ``26.505(e)'' in its place.

9.406-1 [Amended]

0
11. Amend section 9.406-1 by removing from paragraph (c) ``23.506(e)''
and adding ``26.505(e)'' in its place.

9.406-2 [Amended]

0
12. Amend section 9.406-2 by--
0
a. In paragraph (b)(1)(ii)(A), removing ``52.223-6'' and adding
``52.226-7'' in its place; and
0
b. In paragraph (b)(1)(ii)(B), removing ``23.504'' and adding
``26.504'' in its place.

9.406-4 [Amended]

0
13. Amend section 9.406-4 by removing from paragraph (a)(1)(i)
``23.506'' and adding ``26.505'' in its place.

9.407-1 [Amended]

0
14. Amend section 9.407-1 by removing from paragraph (d) ``23.506(e)''
and adding ``26.505(e)'' in its place.

9.407-2 [Amended]

0
15. Amend section 9.407-2 by--
0
a. In paragraph (a)(4)(i), removing ``52.223-6'' and adding ``52.226-
7'' in its place; and
0
b. In paragraph (a)(4)(ii) ``23.504'' and adding ``26.504'' in its
place.

PART 10--MARKET RESEARCH

0
16. Amend section 10.001 by revising paragraph (a)(3)(v) to read as
follows:

10.001 Policy.

(a) * * *
(3) * * *
(v) Ensure maximum practicable use of sustainable products and
services (as defined in 2.101) in accordance with subpart 23.1;
* * * * *

PART 11--DESCRIBING AGENCY NEEDS

0
17. Amend section 11.002 by revising paragraphs (d)(1) and (d)(2)
introductory text and adding paragraph (d)(3) to read as follows:

11.002 Policy.

* * * * *
(d)(1) Agencies shall procure sustainable products and services (as
defined in 2.101) in accordance with subpart 23.1.
(2) Unless it is not practicable (see 23.104(a)) or an exception or
exemption applies (see 23.105 and 23.106, respectively), agencies shall
incorporate the use of sustainable products and services when--
* * * * *
(3) The Green Procurement Compilation (GPC) available at <a href="https://sftool.gov/greenprocurement">https://sftool.gov/greenprocurement</a> provides a comprehensive list of
sustainable products and services and other related sustainable
acquisition guidance. Agencies should--
(i) Consult the GPC when determining which purchasing programs
apply to a specific product or service; and
(ii) Incorporate into agency requirements any required standards,
specifications, or ecolabels identified in the GPC for a specific
product or service.
* * * * *

11.301 [Removed]

0
18. Remove section 11.301.

11.302 [Redesignated as 11.301]

0
19. Redesignate section 11.302 as section 11.301.

11.303 [Removed]

0
20. Remove section 11.303.

11.304 [Redesignated as 11.302]

0
21. Redesignate section 11.304 as section 11.302.

PART 12--ACQUISITION OF COMMERCIAL PRODUCTS AND COMMERCIAL SERVICES

12.503 [Amended]

0
22. Amend section 12.503 by removing from paragraph (a)(8) ``23.501''
and adding ``26.501'' in its place.

12.504 [Amended]

0
23. Amend section 12.504 by removing from paragraph (a)(10) ``23.5''
and adding ``26.5'' in its place.

PART 13--SIMPLIFIED ACQUISITION PROCEDURES

13.006 [Amended]

0
24. Amend section 13.006 by removing from paragraph (f) ``52.223-6''
and adding ``52.226-7'' in its place.

13.201 [Amended]

0
25. Amend section 13.201 by removing from paragraph (f) ``subparts
23.1, 23.2, 23.4, and 23.7'' and adding ``subpart 23.1'' in its place.

[[Page 30238]]

PART 15--CONTRACTING BY NEGOTIATION

15.603 [Amended]

0
26. Amend section 15.603 by removing from paragraph (e) the words
``energy-savings'' and adding the words ``energy savings'' in its
place.

PART 18--EMERGENCY ACQUISITIONS

0
27. Amend section 18.202 by adding paragraph (e) to read as follows:

18.202 Defense or recovery from certain events.

* * * * *
(e) Sustainable products and services. Contracting officers are
encouraged, but not required, to procure sustainable products and
services if the head of the agency determines the supplies or services
are 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 (see 23.106(c)).

PART 23--ENVIRONMENT, SUSTAINABLE ACQUISITION, AND MATERIAL SAFETY

0
28. Revise the heading for part 23 to read as set forth above.

0
29. Revise section 23.000 to read as follows:

23.000 Scope of part.

This part prescribes acquisition policies and procedures supporting
the Government's program to protect and improve the quality of the
environment, to foster markets for sustainable products and services,
and to ensure proper handling and notification of hazardous materials.

0
30. Amend section 23.001 by--
0
a. Removing the definition of ``Greenhouse gases'' and adding the
definition of ``Greenhouse gas'' in its place; and
0
b. Removing the definition of ``United States''.
The addition reads as follows:

23.001 Definitions.

* * * * *
Greenhouse gas means carbon dioxide, methane, nitrous oxide,
hydrofluorocarbons, perfluorocarbons, nitrogen trifluoride, or sulfur
hexafluoride.
* * * * *

0
31. Revise section 23.002 to read as follows:

23.002 Policy.

In accordance with section 208(a) of Executive Order 14057,
Catalyzing Clean Energy Industries and Jobs Through Federal
Sustainability, agencies shall reduce emissions, including greenhouse
gas emissions; promote environmental stewardship; support resilient
supply chains; drive innovation; and incentivize markets for
sustainable products and services.

0
32. Revise subpart 23.1 to read as follows:
Subpart 23.1--Sustainable Products and Services
Sec.
23.100 Scope of subpart.
23.101 Definitions.
23.102 Authorities.
23.103 Policy.
23.104 General procedures.
23.105 Exceptions.
23.106 Exemptions.
23.107 Statutory purchasing programs.
23.107-1 Products containing recovered materials.
23.107-2 Biobased products.
23.107-3 Energy-consuming products and water-consuming products.
23.107-4 Products that contain, use, or are manufactured with ozone-
depleting substances or products that contain or use high global
warming potential hydrofluorocarbons.
23.108 Required Environmental Protection Agency purchasing programs.
23.108-1 Water-efficient products.
23.108-2 Chemically-intensive products.
23.108-3 Products and services that are subject to EPA
Recommendations of Specifications, Standards, and Ecolabels.
23.109 Solicitation provisions and contract clauses.

Subpart 23.1--Sustainable Products and Services

23.100 Scope of subpart.

This subpart provides policies and procedures for procuring
sustainable products and services. This subpart applies to all contract
actions, including those using 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.

23.101 Definitions.

As used in this subpart--
Contract action means any oral or written action that results in
the purchase, rent, or lease of supplies or equipment, services, or
construction.
Environmental Protection Agency (EPA)-designated item means a
product that is or can be made with recovered material--
(1) That is listed by EPA in a procurement guideline (40 CFR part
247); and
(2) For which EPA has provided recommended recovered material
content levels and other purchasing recommendations in a related
Recovered Materials Advisory Notice (RMAN) (available at <a href="https://www.epa.gov/smm/regulatory-background-comprehensive-procurement-guideline-program-cpg#rman">https://www.epa.gov/smm/regulatory-background-comprehensive-procurement-guideline-program-cpg#rman</a>).
Global warming potential means how much a given mass of a chemical
contributes to global warming over a given time period compared to the
same mass of carbon dioxide. Carbon dioxide's global warming potential
is defined as 1.0.
High global warming potential hydrofluorocarbons means any
hydrofluorocarbons in a particular end use for which EPA's Significant
New Alternatives Policy (SNAP) program has identified other acceptable
alternatives that have lower global warming potential. The SNAP list of
alternatives is found at 40 CFR part 82, subpart G, with supplemental
tables of alternatives available at <a href="https://www.epa.gov/snap/">https://www.epa.gov/snap/</a>.
Hydrofluorocarbons means compounds that only contain hydrogen,
fluorine, and carbon.
Ozone-depleting substance means any substance the EPA designates in
40 CFR part 82 as--
(1) Class I, including, but not limited to, chlorofluorocarbons,
halons, carbon tetrachloride, and methyl chloroform; or
(2) Class II, including, but not limited to,
hydrochlorofluorocarbons.
United States, as defined in the Executive Office of the
President's Office of Management and Budget, Council on Environmental
Quality, and Climate Policy Office Memorandum M-22-06, when used in a
geographical sense means--
(1) The fifty States;
(2) The District of Columbia;
(3) The commonwealths of Puerto Rico and the Northern Mariana
Islands;
(4) The territories of Guam, American Samoa, and the U

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