§ 23.107-2 - Biobased products.

23.107-2 Biobased products.

(a) Authorities.

(1) The Farm Security and Rural Investment Act of 2002 (FSRIA), 7 U.S.C. 8102, as implemented at 7 CFR part 3201.

(2) The Energy Policy Act of 2005, Public Law 109-58.

(b) USDA BioPreferred ® Program. The BioPreferred Program was created in the 2002 Farm Bill and is managed by the USDA. The goal of the BioPreferred Program is to increase the purchase and use of biobased products (as defined in 2.101) by agencies.

(c) Applicability.

(1) This section applies to contract actions involving a biobased product in a USDA-designated product category if—

(i) The price of the biobased product exceeds $10,000; or

(ii) The aggregate amount paid for multiple purchases of the biobased product, or for a functionally equivalent product, in the preceding fiscal year was $10,000 or more.

(2) While micro-purchases are included in determining the aggregate amount paid under paragraph (c)(1) of this section, it is not necessary for an agency to track micro-purchases when—

(i) The agency anticipates the aggregate amount paid will exceed $10,000; or

(ii) The agency intends to establish or continue an affirmative procurement program in the following fiscal year.

(d) Agency affirmative procurement program. An agency shall establish an affirmative procurement program for biobased products in USDA-designated product categories if the agency's purchases of such products exceed the threshold set forth in paragraph (c)(1) of this section.

(1) Agency affirmative procurement programs must include—

(i) A biobased products preference program;

(ii) A program to promote the biobased products preference program;

(iii) A program for requiring preaward certification that products meet USDA recommendations (see 52.223-1, Biobased Product Certification) and reporting on biobased products used in performance of contracts (see 52.223-2, Reporting of Biobased Products Under Service and Construction Contracts); and

(iv) Annual review and monitoring of the effectiveness of the program.

(2) Technical or requirements personnel and procurement personnel are responsible for the preparation, implementation, and monitoring of affirmative procurement programs.

(3) Agencies have a period of 1 year to revise their procurement program(s) after USDA updates any USDA-designated product categories.

(e) Procedures. The following procedures apply when the thresholds set forth in paragraph (c)(1) of this section are exceeded.

(1) Once a biobased product is included in a USDA-designated product category, agencies shall purchase conforming products to the maximum extent practicable in accordance with 23.104(a), unless a justification, exception, or exemption applies (see 23.104(a), 23.105, and 23.106, respectively).

(2) Agencies may use their own specifications or commercial product descriptions when procuring biobased products; however, the contract should specify that the biobased product is composed of the—

(i) Highest percentage of biobased material practicable; or

(ii) USDA's recommended minimum contents standards.

(3) When acquiring biobased products, the contracting officer may request information or data on such products, including biobased content or related standards of the products (see 11.301(c)).

(4) Agencies shall treat as eligible for the preference for biobased products, products from designated countries, as defined in 25.003, provided that those products—

(i) Meet the criteria for the definition of biobased product, except that the products need not meet the requirement that renewable agricultural materials or forestry materials in such product must be domestic; and

(ii) Otherwise meet all requirements for participation in the preference program.

(f) Resources.

(1) For information on USDA-designated product categories and minimum content standards for biobased products, see https://www.biopreferred.gov.

(2) Contracting officers should also consult their agency's affirmative procurement program for agency-specific guidance.