[Federal Register Volume 62, Number 163 (Friday, August 22, 1997)]
[Rules and Regulations]
[Pages 44809-44813]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-21490]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 1, 10, 11, 13, 15, 23, 36, 42, and 52
[FAC 97-01; FAR Case 92-054A; Item V]
RIN 9000-AG40
Federal Acquisition Regulation; Environmentally Sound Products
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule adopted as final with changes.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed to adopt as final, with
changes, the interim rule published as Item II of Federal Acquisition
Circular 90-27 on May 31, 1995. The rule amends the Federal Acquisition
Regulation (FAR) to incorporate policies for the acquisition of
environmentally preferable and energy-efficient products and services.
This regulatory action was not subject to Office of Management and
Budget review under Executive Order 12866, dated September 30, 1993,
and is not a major rule under 5 U.S.C. 804.
DATE: Effective October 21, 1997.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS
Building, Washington, DC 20405 (202) 501-4755 for information
pertaining to status or publication schedules. For clarification of
content, contact Mr. Ralph De Stefano, Procurement Analyst, at (202)
501-1758. Please cite FAC 97-01, FAR case 92-054A.
SUPPLEMENTARY INFORMATION:
A. Background
An interim rule was published in the Federal Register at 60 FR
28494, May 31, 1995. Ninety comments were received from 18 respondents.
The Councils' analysis of those comments resulted in revisions to
the rule to: revise the definitions of ``new'' and ``reconditioned'' at
11.001 and in the clause at 52.211-5; delete the definitions of
``material'' and ``other than new'' at 11.001 and in the clause at
52.211-5; add Executive Order No. 12909 of March 8, 1994, to the list
of statutory authorities at 11.002; clarify the policy on acceptability
of used, reconditioned, or remanufactured supplies, and former
Government surplus property proposed for use under a contract; delete
the definition of ``source reduction'' at 15.601; delete all
requirements related to ``agency designated items'' in Subpart 23.4;
add a definition of ``pollution prevention'' at 23.703; streamline the
clauses at 52.211-5 through 52.211-7 by combining their requirements
into the clause at 52.211-5; eliminate the solicitation provision at
52.223-8; and streamline the clause at 52.223-9.
B. Regulatory Flexibility Act
A Final Regulatory Flexibility Analysis (FRFA) has been performed.
A copy of the FRFA may be obtained from the FAR Secretariat. The FRFA
is summarized as follows:
This action is being taken to implement the Resource
Conservation and Recovery Act (RCRA) (42 U.S.C. 6901, et seq.), as
amended; Executive Order 12873, Federal Acquisition, Recycling, and
Waste Prevention; Executive Order 12902, Energy Efficiency and Water
Conservation at Federal Facilities; and Office of Federal
Procurement Policy (OFPP) Policy Letter 92-4, Procurement of
Environmentally-Sound and Energy-Efficient Products and Services.
The objective of this rule is to amend the FAR to clearly
reflect the Government's preference for the acquisition of
environmentally-sound and energy-efficient products and services and
to establish an affirmative procurement program favoring items
containing the maximum practicable content of recovered materials.
The rule also implements policies for procurement of items for which
the Environmental Protection Agency (EPA) has designated minimum
recovered material content.
We received no public comments which specifically addressed the
Initial Regulatory Flexibility Analysis.
The final rule's policies regarding acceptable new and used
materials apply to all small and large entities that perform or
propose to perform Government contracts. No statistics are
maintained on the number of offerors that propose used,
reconditioned, or remanufactured materials for use under Government
contracts.
The requirements for minimum recovered material content for EPA-
designated items apply to all entities that supply such items, with
a value exceeding $10,000 per year, to the Government. However, the
final rule exempts procurements under the simplified acquisition
threshold of $100,000 from recovered material content reporting
requirements. Based on Fiscal Year 1995 Governmentwide procurement
statistics for Federal Supply/Service Codes which comprise EPA-
designated items, we estimate that the Federal Government receives
approximately 20,875 covered proposals per year from small entities,
and awards approximately 2,280 covered contracts per year to small
entities.
Several reporting requirements were streamlined or eliminated in
this final rule. Certifications of recovered material content are
now required only in response to solicitations which are for, or
which specify the use of, EPA-designated items. Such certifications
are no longer required on an annual basis and are required only
under contracts which exceed the simplified acquisition threshold.
Reporting requirements related to agency-designated items have
been eliminated.
We considered elimination of the requirement that an offeror
notify the contracting officer when the offeror proposes the use of
used, remanufactured, or reconditioned supplies. However, we
determined that use of such supplies under many contracts might be
unacceptable. The notification requirement will allow contracting
officers to continue to decide on a case-by-case basis whether to
permit use of such supplies.
[[Page 44810]]
C. Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. 3501, et seq.) is deemed to
apply because the final rule contains information collection
requirements. The final rule reduces the information collection
requirements contained in the interim rule and approved by the Office
of Management and Budget (OMB) under OMB Control Number 9000-0134.
List of Subjects in 48 CFR Parts 1, 10, 11, 13, 15, 23, 36, 42, and
52
Government procurement.
Dated: August 7, 1997.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Interim Rule Adopted as Final With Changes
Accordingly, the interim rule amending 48 CFR Parts 1, 7, 10, 11,
13, 15, 23, 36, 42, and 52, which was published at 60 FR 28494, May 31,
1995, is hereby adopted as final with the following changes:
1. The authority citation for 48 CFR Parts 1, 7, 10, 11, 13, 15,
23, 36, 42, and 52 continues to read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM
1.106 [Amended]
2. Section 1.106 is amended in the list following the introductory
paragraph by removing the entries ``52.210-5'' and ``52.210-6'' and the
corresponding OMB control numbers ``9000-0030'' in both places; and by
adding the following entries in numerical order:
------------------------------------------------------------------------
OMB
FAR segment control No.
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* * * * *
52.211-5................................................... 9000-0030
* * * * *
52.223-4................................................... 9000-0134
* * * * *
52.223-8................................................... 9000-0134
* * * * *
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PART 11--DESCRIBING AGENCY NEEDS
3.-4. Section 11.001 is revised to read as follows:
11.001 Definitions.
As used in this part--
New means composed of previously unused components, whether
manufactured from virgin material, recovered material in the form of
raw material, or materials and by-products generated from, and reused
within, an original manufacturing process; provided that the supplies
meet contract requirements, including, but not limited to, performance,
reliability, and life expectancy.
Reconditioned means restored to the original normal operating
condition by readjustments and material replacement.
Recovered material has the meaning provided such term in 23.402.
Remanufactured means factory rebuilt to original specifications.
Virgin material means previously unused raw material, including
previously unused copper, aluminum, lead, zinc, iron, other metal or
metal ore, or any undeveloped resource that is, or with new technology
will become, a source of raw materials.
5. Section 11.002 is amended in paragraph (d) by revising the first
sentence to read as follows:
11.002 Policy.
* * * * *
(d) The Resource Conservation and Recovery Act of 1976 (42 U.S.C.
6901, et seq.), as amended, Executive Order 12873, dated October 20,
1993, and Executive Order 12902, dated March 8, 1994, establish
requirements for the procurement of products containing recovered
materials, and environmentally preferable and energy-efficient products
and services. * * *
* * * * *
6. Section 11.101 is amended by revising paragraph (b) to read as
follows:
11.101 Order of precedence for requirements documents.
* * * * *
(b) Agencies should prepare product descriptions to achieve maximum
practicable use of recovered material, other materials that are
environmentally preferable, and products that are energy-efficient (see
subparts 23.4 and 23.7).
7. Subpart 11.3, consisting of sections 11.301 and 11.302, is
revised to read as follows:
Subpart 11.3--Acceptable Material
11.301 Policy.
(a) Agencies shall not require virgin material or supplies composed
of or manufactured using virgin material unless compelled by law or
regulation or unless virgin material is vital for safety or meeting
performance requirements of the contract.
(b) Except when acquiring commercial items, agencies shall require
offerors to identify used, reconditioned, or remanufactured supplies,
or unused former Government surplus property, proposed for use under
the contract. Such supplies or property may not be used in contract
performance unless authorized by the contracting officer.
(c) When acquiring commercial items, the contracting officer shall
consider the customary practices in the industry for the item being
acquired. The contracting officer may require offerors to provide
information on used, reconditioned, or remanufactured supplies, or
unused former Government surplus property, proposed for use under the
contract. The request for such information shall be included in the
solicitation and shall, to the maximum practicable extent, be limited
to information provided pursuant to normal commercial practices.
11.302 Contract clause.
Except when acquiring commercial items, the contracting officer
shall insert the clause at 52.211-5, Material Requirements, in
solicitations and contracts for supplies.
PART 13--SIMPLIFIED ACQUISITION PROCEDURES
8. Section 13.111 is amended by revising paragraph (h) to read as
follows:
13.111 Inapplicable provisions and clauses.
* * * * *
(h) 52.223-9, Certification and Estimate of Percentage of Recovered
Material Content for EPA Designated Items.
PART 15--CONTRACTING BY NEGOTIATION
15.601 [Amended]
9. Section 15.601 is amended by removing the definition ``Source
reduction''.
10. Section 15.605 is amended by revising paragraph (b)(1)(iv) to
read as follows:
15.605 Evaluation factors and subfactors.
* * * * *
(b) * * *
(1) * * *
(iv) Environmental objectives, such as promoting waste reduction
and energy efficiency (see part 23), also shall be considered in every
source selection, when appropriate. These considerations may be
expressed in terms such as resource or energy conservation, pollution
prevention, waste minimization, and recovered material content.
* * * * *
[[Page 44811]]
PART 23--ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND DRUG-
FREE WORKPLACE
11. Section 23.400 is revised to read as follows:
23.400 Scope of subpart.
This subpart prescribes policies and procedures for acquisition
of--
(a) Environmental Protection Agency (EPA) designated items for
which agencies must develop and implement affirmative procurement
programs pursuant to 42 U.S.C. 6901, et seq., and Executive Order
12873; and
(b) Other products when preference is given to offers of products
containing recovered material.
23.401 [Amended]
12. Section 23.401 is amended in the first sentence of paragraph
(c) by inserting ``as amended,'' following ``October 20, 1993,''.
13. Section 23.402 is amended by adding an introductory sentence
and revising the definitions ``EPA designated item'' and ``Postconsumer
material'' to read as follows:
23.402 Definitions.
As used in this subpart--
EPA designated item means an item--
(1) That is or can be made with recovered material;
(2) That is listed by EPA in a procurement guideline (40 CFR part
247); and
(3) For which EPA has provided purchasing recommendations in a
related Recovered Materials Advisory Notice (RMAN).
Postconsumer material means a material or finished product that has
served its intended use and has been diverted or recovered from waste
destined for disposal, having completed its life as a consumer item.
Postconsumer material is a part of the broader category of ``recovered
material.''
* * * * *
14. Sections 23.404 and 23.405 are revised to read as follows:
23.404 Procedures.
(a) Applicability. These procedures apply to all agency
acquisitions of EPA designated items when--
(1) The price of the item exceeds $10,000; or
(2) The aggregate amount paid for items, or for functionally
equivalent items, in the preceding fiscal year was $10,000 or more.
(b) EPA designated items. (1) EPA designates items that are or can
be made with recovered materials in 40 CFR part 247 and accompanying
RMAN's. The RMAN cites the applications for which the EPA items have
been designated and the percentages of recovered material content.
(2) For EPA designated items, agencies shall establish an
affirmative procurement program. The responsibilities for preparation,
implementation, and monitoring of affirmative procurement programs
shall be shared between technical or requirements personnel and
procurement personnel. As a minimum, such programs shall include--
(i) A recovered materials preference program;
(ii) An agency promotion program;
(iii) A program for requiring reasonable estimates, certification,
and verification of recovered material used in the performance of
contracts; and
(iv) Annual review and monitoring of the effectiveness of the
program.
(3) Acquisition of EPA designated items that do not meet the EPA
minimum recovered material standards shall be approved by an official
designated by the agency head based on a written determination that the
items--
(i) Are not available within a reasonable period of time;
(ii) Are available only at unreasonable prices;
(iii) Are not available from a sufficient number of sources to
maintain a satisfactory level of competition; or
(iv) Based on technical verification, fail to meet performance
standards in the specifications. Technical or requirements personnel
shall provide a written statement when this determination is used
partially or totally as a basis for an exemption. This determination
shall be made on the basis of National Institute of Standards and
Technology guidelines in any case in which the material is covered by
these guidelines.
(4) Contractor certifications required by the clause at 52.223-9
shall be consolidated and reported in accordance with agency
procedures.
23.405 Solicitation provision and contract clause.
(a) The contracting officer shall insert the provision at 52.223-4,
Recovered Material Certification, in solicitations that are for, or
specify the use of, recovered materials.
(b) The contracting officer shall insert the clause at 52.223-9,
Certification and Estimate of Percentage of Recovered Material Content
for EPA Designated Items, in contracts exceeding the simplified
acquisition threshold that are for, or specify the use of, an EPA
designated item.
15. Section 23.703 is amended by adding an introductory sentence
and, in alphabetical order, the definition ``Pollution prevention'';
and by revising the definition ``Waste prevention'' to read as follows:
23.703 Definitions.
As used in this subpart--
* * * * *
Pollution prevention means any practice that--
(1) Reduces the amount of any hazardous substance, pollutant, or
contaminant entering any waste stream or otherwise released into the
environment (including fugitive emissions) prior to recycling,
treatment, or disposal, and reduces the hazards to public health and
the environment associated with the release of such substances,
pollutants, and contaminants; or
(2) Reduces or eliminates the creation of pollutants through
increased efficiency in the use of raw materials, energy, water, or
other resources.
* * * * *
Waste prevention means any change in the design, manufacturing,
purchase, or use of materials or products (including packaging) to
reduce their amount or toxicity before they become municipal solid
waste. Waste prevention also refers to the reuse of products or
materials.
* * * * *
16. Section 23.704 is revised to read as follows:
23.704 Policy.
(a) Agencies shall implement cost-effective contracting preference
programs favoring the acquisition of environmentally preferable and
energy-efficient products and services, and shall employ acquisition
strategies that affirmatively implement the objectives in paragraph (b)
of this section.
(b) The following environmental objectives shall be addressed
throughout the acquisition process:
(1) Obtaining products and services considered to be
environmentally preferable (based on EPA-issued guidance).
(2) Obtaining products considered to be energy-efficient; i.e.,
products that are in the upper 25 percent of energy-efficiency for all
similar products, or products that are at least 10 percent more
efficient than the minimum level that meets Federal standards (see
Executive Order 12902, Section 507).
(3) Eliminating or reducing the generation of hazardous waste and
the need for special material processing (including special handling,
storage, treatment, and disposal).
[[Page 44812]]
(4) Promoting the use of nonhazardous and recovered materials.
(5) Realizing life-cycle cost savings.
(6) Promoting cost-effective waste reduction when creating plans,
drawings, specifications, standards, and other product descriptions
authorizing material substitutions, extensions of shelf-life, and
process improvements.
PART 36--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
17. Section 36.601-3 is amended by revising paragraph (a) to read
as follows:
36.601-3 Applicable contracting procedures.
(a) For facility design contracts, the statement of work shall
require that the architect-engineer specify, in the construction design
specifications, use of the maximum practicable amount of recovered
materials consistent with the performance requirements, availability,
price reasonableness, and cost-effectiveness. Where appropriate, the
statement of work also shall require the architect-engineer to consider
energy conservation, pollution prevention, and waste reduction to the
maximum extent practicable in developing the construction design
specifications.
* * * * *
18. Section 36.602-1 is amended by revising paragraph (a)(2) to
read as follows:
36.602-1 Selection criteria.
(a) * * *
(2) Specialized experience and technical competence in the type of
work required, including, where appropriate, experience in energy
conservation, pollution prevention, waste reduction, and the use of
recovered materials;
* * * * *
19. Section 36.602-3 is amended by revising paragraph (c) to read
as follows:
36.602-3 Evaluation board functions.
* * * * *
(c) Hold discussions with at least three of the most highly
qualified firms regarding concepts and the relative utility of
alternative methods of furnishing the required services.
* * * * *
PART 42--CONTRACT ADMINISTRATION
20. Section 42.302 is amended by revising paragraph (a)(68)
introductory text and (a)(68)(i) to read as follows:
42.302 Contract administration functions.
(a) * * *
(68) Evaluate the contractor's environmental practices to determine
whether they adversely impact contract performance or contract cost,
and ensure contractor compliance with environmental requirements
specified in the contract. Contracting officer responsibilities
include, but are not limited to--
(i) Ensuring compliance with specifications requiring the use of
environmentally preferable and energy-efficient materials and the use
of materials or delivery of end items with the specified recovered
material content. This shall occur as part of the quality assurance
procedures set forth in part 46.
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
21. Section 52.211-5 is revised to read as follows:
52.211-5 Material Requirements.
As prescribed in 11.302, insert the following clause:
Material Requirements (Oct 1997)
(a) Definitions.
As used in this clause--
New means composed of previously unused components, whether
manufactured from virgin material, recovered material in the form of
raw material, or materials and by-products generated from, and
reused within, an original manufacturing process; provided that the
supplies meet contract requirements, including but not limited to,
performance, reliability, and life expectancy.
Reconditioned means restored to the original normal operating
condition by readjustments and material replacement.
Recovered material means waste materials and by-products that
have been recovered or diverted from solid waste including
postconsumer material, but such term does not include those
materials and by-products generated from, and commonly reused
within, an original manufacturing process.
Remanufactured means factory rebuilt to original specifications.
Virgin material means previously unused raw material, including
previously unused copper, aluminum, lead, zinc, iron, other metal or
metal ore, or any undeveloped resource that is, or with new
technology will become, a source of raw materials.
(b) Unless this contract otherwise requires virgin material or
supplies composed of or manufactured from virgin material, the
Contractor shall provide supplies that are new, as defined in this
clause.
(c) A proposal to provide unused former Government surplus
property shall include a complete description of the material, the
quantity, the name of the Government agency from which acquired, and
the date of acquisition.
(d) A proposal to provide used, reconditioned, or remanufactured
supplies shall include a detailed description of such supplies and
shall be submitted to the Contracting Officer for approval.
(e) Used, reconditioned, or remanufactured supplies, or unused
former Government surplus property, shall not be used unless the
Contractor has proposed the use of such supplies, and the
Contracting Officer has authorized their use.
(End of clause)
52.211-6 and 52.211-7 [Removed and Reserved]
22. Sections 52.211-6 and 52.211-7 are removed and reserved.
23. Section 52.223-4 is revised to read as follows:
52.223-4 Recovered Material Certification.
As prescribed in 23.405(a), insert the following provision:
Recovered Material Certification (Oct 1997)
As required by the Resource Conservation and Recovery Act of
1976 (42 U.S.C. 6962(c)(3)(A)(i)), the offeror certifies, by signing
this offer, that the percentage of recovered materials to be used in
the performance of the contract will be at least the amount required
by the applicable contract specifications.
(End of provision)
52.223-8 [Removed and reserved]
24. Section 52.223-8 is removed and reserved.
25. Section 52.223-9 is revised to read as follows:
52.223-9 Certification and Estimate of Percentage of Recovered
Material Content for EPA Designated Items.
As prescribed in 23.405(b), insert the following clause:
Certification and Estimate of Percentage of Recovered Material Content
For EPA Designated Items (Oct 1997)
(a) As required by the Resource Conservation and Recovery Act of
1976 (42 U.S.C. 6962(j)(2)(C)), the Contractor shall execute the
following certification:
Certification
I,________ (name of certifier), am an officer or employee
responsible for the performance of this contract and hereby certify
that the percentage of recovered material content for EPA Designated
Items was at least the amount required by the applicable contract
specifications.
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[Signature of the Officer or Employee]
----------------------------------------------------------------------
[Typed Name of the Officer or Employee]
----------------------------------------------------------------------
[Title]
----------------------------------------------------------------------
[Name of Company, Firm, or Organization]
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[Date]
(End of certification)
(b) The Contractor also shall estimate the percentage of
recovered materials actually used in the performance of this
contract. The estimate is in addition to the certification in
paragraph (a) of this clause.
[[Page 44813]]
Estimate
------------------------------------------------------------------------
Total
dollar Percentage
value of of
EPA designated item EPA recovered
designated material
item content *
------------------------------------------------------------------------
........... ...........
........... ...........
........... ...........
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* Where applicable, also include the percentage of postconsumer material
content.
(c) The Contractor shall submit this certification and estimate
upon completion of the contract to
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*To be completed in accordance with agency procedures.
(End of clause)
26. Section 52.223-10 is amended by revising the clause date and
paragraph (b) to read as follows:
52.223-10 Waste Reduction Program.
* * * * *
Waste Reduction Program (Oct 1997)
* * * * *
(b) Consistent with the requirements of Section 701 of Executive
Order 12873, the Contractor shall establish a program to promote
cost-effective waste reduction in all operations and facilities
covered by this contract. Any such program shall comply with
applicable Federal, State, and local requirements, specifically
including Section 6002 of the Resource Conservation and Recovery Act
(42 U.S.C. 6901, et seq.) and implementing regulations.
(End of clause)
[FR Doc. 97-21490 Filed 8-21-97; 8:45 am]
BILLING CODE 6820-EP-P
