Federal Acquisition Regulation: Sustainable Procurement, 30212-30250 [2024-07931]

Agencies

• DEPARTMENT OF DEFENSE
• General Services Administration
• National Aeronautics and Space Administration

[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 [www.gpo.gov]
[FR Doc No: 2024-07931]



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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

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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 [email protected], for 
clarification of content. For information pertaining to status, 
publication schedules, or alternate instructions for submitting 
comments if https://www.regulations.gov cannot be used, contact the 
Regulatory Secretariat Division at 202-501-4755 or [email protected]. 
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 https://www.sustainability.gov/pdfs/guiding_principles_for_sustainable_federal_buildings.pdf).
    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:
     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.
     Adds a definition of ``sustainable products and services'' 
in FAR 2.101.
     Consolidates and updates statutory and other environmental 
purchasing program requirements in FAR subpart 23.1, Sustainable 
Products and Services.
     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.
     Dedicates FAR subpart 23.2 to energy savings performance 
contracts.
     Consolidates requirements related to hazardous and 
radioactive material in FAR subpart 23.3.
     Consolidates and updates Federal facility and pollution 
prevention requirements in FAR subpart 23.4.
     Redesignates the remaining content at FAR subpart 23.8 as 
FAR subpart 23.5.
     Makes other conforming changes throughout the FAR to align 
with the revision in FAR part 23.
     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.
     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.
     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 https://www.regulations.gov, 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.''

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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 https://www.epa.gov/greenerproducts/recommendations-specifications-standards-and-ecolabels-federal-purchasing 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.

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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

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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 
https://sftool.gov/greenprocurement, 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 https://www.biopreferred.gov/BioPreferred/faces/catalog/Catalog.xhtml 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:
     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 https://www.gsaadvantage.gov/advantage/ws/search/special_category_search?cat=ADV.ENV.
     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 https://sftool.gov/gpcsearch?query=BioPreferred.
     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 https://sftool.ecomedes.com.
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 https://www.epa.gov/greenerproducts/recommendations-specifications-standards-and-ecolabels-federal-purchasing 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 https://sftool.gov/greenprocurement, 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 https://www.sustainability.gov/pdfs/guiding_principles_for_sustainable_federal_buildings.pdf. 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:
     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.
     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.
     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 https://www.epa.gov/smm/comprehensive-procurement-guidelines-landscaping-products.
    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 https://www.biopreferred.gov 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 https://sftool.gov/greenprocurement, 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:
     FAR 52.223-13, Acquisition of EPEAT[supreg]-Registered 
Imaging Equipment, and its Alternate I.
     FAR 52.223-14, Acquisition of EPEAT[supreg]-Registered 
Televisions, and its Alternate I.
     FAR 52.223-15, Energy Efficiency in Energy-Consuming 
Products.
     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 https://sftool.gov/greenprocurement 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:
     Products containing recovered material designated by 
the EPA under the Comprehensive Procurement Guidelines (CPG) (see 
https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program#products).

[[Page 30235]]

     Energy- and water-efficient products that are ENERGY 
STAR[supreg] certified or Federal Energy Management Program (FEMP)-
designated products (see https://www.energy.gov/eere/femp/search-energy-efficient-products and https://www.energystar.gov/products?s=mega).
     Biobased products meeting the content requirement of 
the U.S. Department of Agriculture under the BioPreferred[supreg] 
program (see https://www.biopreferred.gov).
     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 https://www.epa.gov/snap).
     WaterSense[supreg] labeled (water efficient) products 
and services (see https://www.epa.gov/watersense/watersense-products).
     Safer Choice-certified products (products that contain 
safer chemical ingredients) (see https://www.epa.gov/saferchoice/products).
     Products and services that meet EPA Recommendations of 
Specifications, Standards, and Ecolabels as of October 2023 (see 
https://www.epa.gov/greenerproducts/recommendations-specifications-standards-and-ecolabels-federal-purchasing).
    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 https://sftool.gov/greenprocurement. 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 www.reginfo.gov/public/do/PRAMain. 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 [email protected]. 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) (https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program#products).
    (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) 
(https://www.energy.gov/eere/femp/search-energy-efficient-products and 
https://www.energystar.gov/products?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) (https://www.biopreferred.gov).
    (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) (https://www.epa.gov/snap).
    (2) Required EPA purchasing programs. (i) WaterSense[supreg] 
labeled (water efficient) products and services (https://www.epa.gov/watersense/watersense-products).
    (ii) Safer Choice-certified products (products that contain safer 
chemical ingredients) (https://www.epa.gov/saferchoice/products).
    (iii) Products and services that meet EPA Recommendations of 
Specifications, Standards, and Ecolabels in effect as of October 2023 
(https://www.epa.gov/greenerproducts/recommendations-specifications-standards-and-ecolabels-federal-purchasing).
* * * * *
    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 
https://www.sustainability.gov/pdfs/guiding_principles_for_sustainable_federal_buildings.pdf; 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 https://sftool.gov/greenprocurement 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 https://www.epa.gov/smm/regulatory-background-comprehensive-procurement-guideline-program-cpg#rman).
    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 https://www.epa.gov/snap/.
    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 United States 
Virgin Islands; and
    (5) Associated territorial waters and airspace.
    U.S. Department of Agriculture (USDA)-designated product category 
means a generic grouping of products that are or can be made with 
biobased materials--
    (1) That are listed by USDA in a procurement guideline (7 CFR part 
3201, subpart B); and
    (2) For which USDA has provided purchasing recommendations 
(available at https://www.biopreferred.gov).


23.102  Authorities.

    (a) Section 208 of Executive Order 14057, Catalyzing Clean Energy

[[Page 30239]]

Industries and Jobs Through Federal Sustainability, dated December 8, 
2021.
    (b) Paragraph G of section I of the Executive Office of the 
President's Office of Management and Budget, Council on Environmental 
Quality, and Climate Policy Office Memorandum M-22-06, Catalyzing Clean 
Energy Industries and Jobs Through Federal Sustainability, dated 
December 8, 2021.
    (c) Implementing instructions for Executive Order 14057, Catalyzing 
Clean Energy Industries and Jobs Through Federal Sustainability, dated 
August 2022.
    (d) The authorities referenced in 23.107 for statutory purchasing 
programs.


23.103  Policy.

    (a) Agencies shall procure sustainable products and services (as 
defined in 2.101) to the maximum extent practicable.
    (1) Procuring sustainable products and services is considered 
practicable, unless the agency cannot acquire products or services--
    (i) Competitively within a reasonable performance schedule;
    (ii) That meet reasonable performance requirements; or
    (iii) At a reasonable price (see 23.103(a)(2)).
    (2) 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. For ENERGY STAR[supreg] or 
Federal Energy Management Program (FEMP)-designated products, a price 
is reasonable if it is cost-effective over the life of the product 
taking energy cost savings into account (42 U.S.C. 8259b(b)(2)). Life-
cycle cost savings tools for energy-efficient products are available at 
https://www.energystar.gov/buildings/save_energy_commercial_buildings/ways_save/energy_efficient_products and https://www.nrel.gov/analysis/tech-lcoe.html.
    (b) When procuring sustainable products and services, agencies 
shall--
    (1) Ensure compliance with applicable statutory purchasing program 
requirements (see 23.107); and
    (2) Prioritize multi-attribute sustainable products and services 
(see 23.104(c)(2)).
    (c) Regarding products under contract actions for services or 
construction, the contractor is required to provide products that meet 
the definition of sustainable products and services at 2.101, if the 
products are--
    (1) Delivered to the Government;
    (2) Furnished by the contractor for use by the Government;
    (3) Incorporated into the construction of a public building or 
public work; or
    (4) 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 (versus costs which are normally applied to a 
contractor's general and administrative expenses or indirect costs).


23.104  General procedures.

    (a) Maximum extent practicable. If the requiring activity submits a 
written justification addressing the reasons described in 23.103(a)(1), 
the contracting officer may consider it not practicable to procure 
sustainable products or services. A written justification may be for a 
specific product or service or at the line item or contract level. The 
contracting officer shall maintain the written justification in the 
contract file.
    (b) Identification. (1) Except as provided in paragraph (b)(2) of 
this section, the contracting officer shall ensure the solicitation and 
contract identifies--
    (i) 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; and
    (ii) Any products and services that are not subject to the 
requirements of this subpart and the clause at 52.223-23, Sustainable 
Products and Services, based on the written justification under 
paragraph (a) of this section, an exception at 23.105, or an exemption 
at 23.106.
    (2) The requirement in paragraph (b)(1) of this section does not 
apply if the justification, exception, or exemption covers the entirety 
of the contract action requirements.
    (c) Prioritization. Agencies shall prioritize sustainable products 
and services as follows:
    (1) Procure products and services that meet applicable statutory 
purchasing program requirements (see 23.107). When both an EPA-
designated item (see 23.107-1) and a biobased product in a USDA-
designated product category (see 23.107-2) could be used for the same 
purposes, and there is not an EPA-designated item that is also a 
biobased product in a USDA-designated product category that meets the 
agency's needs, procure the EPA-designated item.
    (2) Consistent with other statutory procurement requirements, 
prioritize multi-attribute sustainable products and services, which are 
those that meet applicable statutory purchasing program requirements 
(see 23.107) and one or more required EPA purchasing programs (see 
23.108).
    (3) If no statutory purchasing program requirements apply, procure 
sustainable products and services that meet required EPA purchasing 
program requirements (see 23.108).
    (d) Resource. The Green Procurement Compilation (GPC) available at 
https://sftool.gov/greenprocurement provides a comprehensive list of 
sustainable products and services and other related sustainable 
acquisition guidance. In addition to the resources identified for each 
purchasing program listed in 23.107 and 23.108, agencies should consult 
the GPC when determining which purchasing programs apply to a specific 
product or service.


23.105  Exceptions.

    The following are excepted from the requirement to procure 
sustainable products and services:
    (a) Contracts performed or supplies delivered outside of the United 
States, unless the agency head determines that such application is in 
the interest of the United States.
    (b) Weapon systems; however, compliance with applicable agency 
affirmative procurement programs is required for recovered materials 
per 23.107-1 (see 23.109(b)) (42 U.S.C. 6962) and for alternatives for 
ozone depleting substances per 23.107-4 (see 23.109(d)) (42 U.S.C. 
7671l), unless a written justification exists as described at 23.104(a) 
(42 U.S.C. 6962(c)(1) and 7 U.S.C. 8102(a)(1)(B)).
    (c) Energy-consuming products or systems designed or procured for 
combat or combat-related missions are not subject to the requirements 
in 23.107-3 (42 U.S.C. 8259b(a)(5)).
    (d) 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 are not subject to the 
requirements in 23.107-2 (7 CFR 3201.3(e)).


23.106  Exemptions.

    (a) The Director of National Intelligence may exempt an 
intelligence activity of the United States and related personnel, 
resources, and facilities to the extent the Director determines 
necessary to protect intelligence sources and methods from unauthorized 
disclosure.
    (b) The head of an agency may exempt the following:
    (1) Particular agency activities and related personnel, resources, 
and facilities when it is in the interest of national security, to 
protect intelligence sources and methods from unauthorized

[[Page 30240]]

disclosure, or where necessary to protect undercover law enforcement 
operations from unauthorized disclosure. The agency shall notify the 
Chair of the Council on Environmental Quality (CEQ) in writing within 
30 days of issuance of the exemption under this paragraph (b)(1).
    (2) On an individual or class basis, any manned and unmanned 
vehicle, vessel, aircraft, or non-road equipment that is used in combat 
support, combat service support, military tactical or relief 
operations, or training for such operations or spaceflight vehicles, 
including associated ground-support equipment.
    (c) 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.
    (d) The head of the agency may submit to the President, through the 
Chair of CEQ, a request for an exemption of an agency activity, and 
related personnel, resources, and facilities from this subpart for any 
reason not otherwise addressed in this section.


23.107  Statutory purchasing programs.

    Agencies shall ensure compliance with statutory purchasing program 
requirements described in 23.107-1 through 23.107-4.


23.107-1  Products containing recovered materials.

    (a) Authorities. The Resource Conservation and Recovery Act of 1976 
(RCRA), 42 U.S.C. 6962, as implemented at 40 CFR part 247.
    (b) EPA Comprehensive Procurement Guidelines (CPG) Program. Under 
RCRA, EPA must designate items that are or can be made with recovered 
materials and must also recommend practices to assist procuring 
agencies in meeting their obligations.
    (c) Applicability. (1) This section applies to contract actions 
involving an EPA-designated item, if--
    (i) The price of the EPA-designated item exceeds $10,000; or
    (ii) The aggregate amount paid for multiple purchases of the EPA-
designated item, or a functionally equivalent item, 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 as described in paragraph (d) of this section in 
the following fiscal year.
    (d) Agency affirmative procurement program. An agency shall 
establish an affirmative procurement program for EPA-designated items 
if the agency's purchases of EPA-designated items exceed the threshold 
set forth in paragraph (c)(1) of this section.
    (1) Agency affirmative procurement programs must include--
    (i) A recovered materials preference program;
    (ii) A program to promote the recovered materials preference 
program;
    (iii) A program for requiring reasonable estimates and 
certification of recovered material used in the performance of 
contracts, including a preaward certification that products will meet 
EPA recommendations (see 52.223-4, Recovered Material Certification), 
and either an estimate or a certification at contract completion (see 
52.223-9, Estimate of Percentage of Recovered Material Content for EPA-
Designated Items, and its Alternate), as well as agency procedures for 
verification of estimates and certifications;
    (iv) Annual review and monitoring of the effectiveness of the 
affirmative procurement program; and
    (v) Guidance for purchases of EPA-designated items at or below the 
micro-purchase threshold.
    (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 affirmative 
procurement program(s) after the designation of any new item by EPA.
    (e) Procedures. The following procedures apply when the thresholds 
set forth in paragraph (c)(1) of this section are exceeded.
    (1) Once an item has been designated by EPA, 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 products containing recovered materials; 
however, the contract should specify that the product is composed of 
the--
    (i) Highest percentage of recovered materials practicable; or
    (ii) Minimum content standards in accordance with EPA's RMANs.
    (3) When acquiring products with recovered material, the 
contracting officer may request information or data on such products, 
including recycled content or related product standards (see 
11.301(c)).
    (f) Resources. (1) For information on EPA-designated items and 
associated minimum content standards, see https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program#products.
    (2) Contracting officers should also consult their agency's 
affirmative procurement program for agency-specific guidance.


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[supreg] 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--

[[Page 30241]]

    (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.


23.107-3  Energy-consuming products and water-consuming products.

    (a) Authorities. (1) Energy Policy and Conservation Act (42 U.S.C. 
6361(a)(1)).
    (2) National Energy Conservation Policy Act (42 U.S.C. 8253, 8259b, 
and 8262g).
    (3) Executive Order 11912 of April 13, 1976, Delegations of 
Authority under the Energy Policy and Conservation Act.
    (4) Executive Order 13221 of July 31, 2001, Energy-Efficient 
Standby Power Devices.
    (b) Programs--(1) ENERGY STAR[supreg] Program. The ENERGY 
STAR[supreg] program is a voluntary product-labeling initiative that 
identifies and promotes energy and water efficiency and the reduction 
of greenhouse gas emissions. This joint U.S. EPA and Department of 
Energy program helps buyers save money and protect the environment 
through energy- and water-efficient products and practices.
    (2) Federal Energy Management Program (FEMP). FEMP publishes 
acquisition guidance to help Federal buyers meet requirements for 
purchasing energy-efficient and water-efficient products. In addition, 
in product categories not covered by the ENERGY STAR[supreg] program, 
FEMP sets efficiency requirements for product categories that have the 
potential to generate significant Federal energy savings.
    (c) Procedures. 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)--
    (1) When acquiring energy- and water-consuming products listed in 
the ENERGY STAR[supreg] Program or FEMP--
    (i) Agencies shall purchase ENERGY STAR[supreg] certified or FEMP-
designated products; and
    (ii) For products that consume power in a standby mode and are 
listed on FEMP's Low Standby Power Devices product listing at https://www.energy.gov/eere/femp/low-standby-power-product-list, agencies 
shall--
    (A) Purchase items that meet FEMP's standby power wattage 
recommendation or document the reason for not purchasing such items; or
    (B) If FEMP has listed a product without a corresponding wattage 
recommendation, purchase items that use no more than one watt in their 
standby power consuming mode. When it is impracticable to meet the one-
watt requirement, agencies shall purchase items with the lowest standby 
wattage practicable; and
    (2) When contracting for services or construction that will include 
the provision of energy- and water-consuming products, agencies shall 
specify products that comply with the applicable requirements in 
paragraph (c)(1) of this section.
    (d) Resources. (1) For information on products under the ENERGY 
STAR[supreg] Program, go to https://www.energystar.gov/products.
    (2) For information on energy-efficient products, go to https://www.energy.gov/eere/femp/search-energy-efficient-products.
    (3) For information on low standby power products, go to https://www.energy.gov/eere/femp/low-standby-power-product-purchasing-requirements-and-compliance-resources.


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.

    (a) Authorities. (1) Title VI of the Clean Air Act (42 U.S.C. 7671, 
et seq.).
    (2) Section 706 of Division D, title VII of the Omnibus 
Appropriations Act, 2009 (Pub. L. 111-8).
    (3) EPA regulations, Protection of Stratospheric Ozone (40 CFR part 
82).
    (b) Program. The EPA SNAP Program.
    (c) Agency programs. Agencies shall implement cost-effective 
programs to minimize the procurement of materials and substances that 
contribute to the depletion of stratospheric ozone and/or result in the 
use, release, or emission of high global warming potential 
hydrofluorocarbons.
    (d) Procedures. Agencies shall--
    (1) Give preference to the procurement of acceptable alternative 
chemicals, products, and manufacturing processes that reduce overall 
risks to human health and the environment by minimizing--
    (i) The depletion of ozone in the upper atmosphere; and
    (ii) The potential use, release, or emission of high global warming 
potential hydrofluorocarbons; and
    (2) In preparing specifications and purchase descriptions and in 
the acquisition of products and services--
    (i) Comply with the requirements of title VI of the Clean Air Act; 
section 706 of division D, title VII of Public Law 111-8; and 40 CFR 
82.84(a)(2) through (5);

[[Page 30242]]

    (ii) Substitute acceptable alternatives to ozone-depleting 
substances, as identified under 42 U.S.C. 7671k, to the maximum extent 
practicable, as provided in 40 CFR 82.84(a)(1), except in the case of 
Class I substances being used for specified essential uses, as 
identified under 40 CFR 82.4(n); and
    (iii) Unless a particular contract requires otherwise, specify 
that, when feasible, contractors shall use another acceptable 
alternative in lieu of a high global warming potential 
hydrofluorocarbon in products and services in a particular end use for 
which EPA's SNAP program has identified other acceptable alternatives 
that have lower global warming potential.
    (e) Resource. Refer to EPA's SNAP program website at https://www.epa.gov/snap for the list of alternatives found at 40 CFR part 82, 
subpart G, as well as supplemental tables of alternatives.


23.108  Required Environmental Protection Agency purchasing programs.

    In accordance with 23.104(c), contracting officers shall, after 
meeting statutory purchasing program requirements in 23.107, purchase 
to the maximum extent practicable products and services that meet EPA 
purchasing program requirements described in 23.108-1 through 23.108-3.


23.108-1  Water-efficient products.

    (a) Program. EPA's WaterSense[supreg] Program makes it easy to find 
and select water-efficient products that can save water, energy, and 
money. WaterSense[supreg]-labeled products are backed by independent, 
third-party certification and meet EPA's specifications for water 
efficiency and performance.
    (b) Resource. For additional information on WaterSense[supreg] 
products, see https://www.epa.gov/watersense/watersense-products.


23.108-2  Chemically-intensive products.

    (a) Program. Safer Choice is EPA's label for products that contain 
safer chemicals. Every chemical, regardless of percentage, in a Safer 
Choice-certified product is evaluated through EPA's rigorous scientific 
process and only the safest ingredients are allowed.
    (b) Resource. For information on Safer Choice-certified products, 
see https://www.epa.gov/saferchoice.


23.108-3  Products and services that are subject to EPA Recommendations 
of Specifications, Standards, and Ecolabels.

    (a) Program. The EPA Environmentally Preferable Purchasing (EPP) 
Program helps Federal agencies identify and procure environmentally 
preferable products and services to meet zero emissions and other 
sustainable procurement goals by providing Recommendations of 
Specifications, Standards, and Ecolabels. The EPP 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.
    (b) Resource. For additional information on EPA Recommendations of 
Specifications, Standards, and Ecolabels, see https://www.epa.gov/greenerproducts/recommendations-specifications-standards-and-ecolabels-federal-purchasing.


23.109  Solicitation provisions and contract clauses.

    (a) General. Insert the clause at 52.223-23, Sustainable Products 
and Services, in solicitations and contracts--
    (1) Unless--
    (i) The requiring activity has provided a written justification 
that it is not practicable to procure sustainable products and services 
(see 23.104(a));
    (ii) An exception under 23.105 applies; or
    (iii) An exemption under 23.106 applies; and
    (2) The scope of the written justification, exception, or exemption 
covers the entirety of the contract action requirements.
    (b) EPA-designated items. Except for the acquisition of COTS 
items--
    (1) Insert the provision at 52.223-4, Recovered Material 
Certification, in solicitations that require the delivery or specify 
the use of EPA-designated items; and
    (2) Insert the clause at 52.223-9, Estimate of Percentage of 
Recovered Material Content for EPA-designated Items, in solicitations 
and contracts exceeding $150,000 that are for, or specify the use of, 
EPA-designated items containing recovered materials. If technical 
personnel advise that estimates can be verified, use the clause with 
its Alternate I.
    (c) Biobased products in USDA-designated product categories. (1) 
Insert the provision at 52.223-1, Biobased Product Certification, in 
solicitations, other than for acquisitions described at 23.105(d), 
that--
    (i) Require the delivery or specify the use of biobased products in 
USDA-designated product categories; or
    (ii) Include the clause at 52.223-2.
    (2) Insert the clause at 52.223-2, Reporting of Biobased Products 
Under Service and Construction Contracts, in service and construction 
solicitations and contracts, unless the contract will not involve the 
use of biobased products in USDA-designated product categories at 
https://www.biopreferred.gov or 7 CFR part 3201.
    (d) Products containing ozone-depleting substances and 
hydrofluorocarbons. Except for contracts for supplies that will be 
delivered outside the United States and its outlying areas, or 
contracts for services that will be performed outside the United States 
and its outlying areas, insert the following clauses:
    (1) 52.223-11, Ozone-Depleting Substances and High Global Warming 
Potential Hydrofluorocarbons, in solicitations and contracts for-
    (i) Refrigeration equipment (in product or service code (PSC) 
4110);
    (ii) Air conditioning equipment (PSC 4120);
    (iii) Clean agent fire suppression systems/equipment (e.g., 
installed room flooding systems, portable fire extinguishers, aircraft/
tactical vehicle fire/explosion suppression systems) (in PSC 4210);
    (iv) Bulk refrigerants and fire suppressants (in PSC 6830);
    (v) Solvents, dusters, freezing compounds, mold release agents, and 
any other miscellaneous chemical specialty that may contain ozone-
depleting substances or high global warming potential 
hydrofluorocarbons (in PSC 6850);
    (vi) Corrosion prevention compounds, foam sealants, aerosol mold 
release agents, and any other preservative or sealing compound that may 
contain ozone-depleting substances or high global warming potential 
hydrofluorocarbons (in PSC 8030);
    (vii) Fluorocarbon lubricants (primarily aerosols) (in PSC 9150); 
and
    (viii) Any other manufactured end products that may contain or be 
manufactured with ozone-depleting substances.
    (2) 52.223-12, Maintenance, Service, Repair, or Disposal of 
Refrigeration Equipment and Air Conditioners, in solicitations and 
contracts that include the maintenance, service, repair, or disposal 
of-
    (i) Refrigeration equipment, such as refrigerators, chillers, or 
freezers; or
    (ii) Air conditioners, including air conditioning systems in motor 
vehicles.
    (3) 52.223-20, Aerosols, in solicitations and contracts--
    (i) For products that may contain high global warming potential 
hydrofluorocarbons as a propellant, or as a solvent; or

[[Page 30243]]

    (ii) That involve maintenance or repair of electronic or mechanical 
devices.
    (4) 52.223-21, Foams, in solicitations and contracts for--
    (i) Products that may contain high global warming potential 
hydrofluorocarbons or refrigerant blends containing hydrofluorocarbons 
as a foam blowing agent, such as building foam insulation or appliance 
foam insulation; or
    (ii) Construction of buildings or facilities.

0
33. Revise subpart 23.2 to read as follows:
Subpart 23.2--Energy Savings Performance Contracts
Sec.
23.200 Scope.
23.201 Authorities.
23.202 Policy.

Subpart 23.2--Energy Savings Performance Contracts


23.200  Scope.

    (a) This subpart prescribes policies and procedures for using an 
energy savings performance contract to obtain energy-efficient 
technologies at Government facilities without Government capital 
expense.
    (b) This subpart applies to acquisitions in the United States and 
its outlying areas. Agencies conducting acquisitions outside of these 
areas must use their best efforts to comply with this subpart.


23.201  Authorities.

    This subpart implements the National Energy Conservation Policy Act 
(42 U.S.C. 8287).


23.202  Policy.

    (a) Agencies should make maximum use of the authority provided in 
the National Energy Conservation Policy Act (42 U.S.C. 8287) to use an 
energy savings performance contract (ESPC), when life-cycle cost-
effective to reduce energy use and cost in the agency's facilities and 
operations.
    (b)(1) Under an ESPC, an agency can contract with an energy service 
company for a period not to exceed 25 years to improve energy 
efficiency in one or more agency facilities at no direct capital cost 
to the United States Treasury. The energy service company finances the 
capital costs of implementing energy conservation measures and 
receives, in return, a contractually determined share of the cost 
savings that result.
    (2) Except as provided in 10 CFR 436.34, ESPC's are subject to 
subpart 17.1.
    (c) To solicit and award an ESPC, the contracting officer--
    (1) Must use the procedures, selection method, and terms and 
conditions provided in 10 CFR part 436, subpart B; and
    (2) May use the ``Qualified List'' of energy service companies 
established by the Department of Energy and other agencies.
    (d) For procedures related to unsolicited proposals for energy 
savings performance contracts, see 15.603(e).
    (e) For more information see https://energy.gov/eere/femp/energy-savings-performance-contracts-federal-agencies.

0
34. Revise the heading for subpart 23.3 to read as follows:

Subpart 23.3--Hazardous Material Identification, Material Safety 
Data, and Notice of Radioactive Materials

0
35. Revising section 23.300 to read as follows:


23.300  Scope of subpart.

    This subpart prescribes policies and procedures for the following:
    (a) Acquiring deliverable items, other than ammunition and 
explosives, that require the furnishing of data involving hazardous 
materials. Agencies may prescribe special procedures for ammunition and 
explosives.
    (b) Providing notification of radioactive materials prior to 
delivery.

0
36. Revise the heading of section 23.302 to read as follows:


23.302  Hazardous material identification and notice of material safety 
data.

* * * * *


23.303  [Redesignate as 23.304]

0
37. Redesignate section 23.303 as section 23.304.

0
38. Add a new section 23.303 to read as follows:


23.303  Notice of radioactive materials.

    (a) The clause at 52.223-7, Notice of Radioactive Materials, 
requires the contractor to notify the contracting officer prior to 
delivery of radioactive material.
    (b) Upon receipt of the notice, the contracting officer shall 
notify receiving activities so that appropriate safeguards can be 
taken.
    (c) The clause permits the contracting officer to waive the 
notification if the contractor states that the notification on prior 
deliveries is still current. The contracting officer may waive the 
notice only after consultation with cognizant technical 
representatives.
    (d) The contracting officer is required to specify in the clause at 
52.223-7, the number of days in advance of delivery that the contractor 
will provide notification. The determination of the number of days 
should be done in coordination with the installation/facility radiation 
protection officer (RPO). The RPO is responsible for ensuring the 
proper license, authorization, or permit is obtained prior to receipt 
of the radioactive material.

0
39. Revise newly redesignated section 23.304 to read as follows:


23.304  Contract clauses.

    (a)(1) The contracting officer shall insert the clause at 52.223-3, 
Hazardous Material Identification and Material Safety Data, in 
solicitations and contracts if the contract will require the delivery 
of hazardous materials as defined in 23.301.
    (2) If the contract is awarded by an agency other than the 
Department of Defense, the contracting officer shall use the clause at 
52.223-3 with its Alternate I.
    (b) The contracting officer shall insert the clause at 52.223-7, 
Notice of Radioactive Materials, in solicitations and contracts for 
supplies that are or that contain--
    (1) Radioactive material requiring specific licensing under 
regulations issued pursuant to the Atomic Energy Act of 1954; or
    (2) Radioactive material not requiring specific licensing in which 
the specific activity is greater than 0.002 microcuries per gram or the 
activity per item equals or exceeds 0.01 microcuries. Such supplies 
include, but are not limited to, aircraft, ammunition, missiles, 
vehicles, electronic tubes, instrument panel gauges, compasses, and 
identification markers.

0
40. Revise subpart 23.4 to read as follows:
Subpart 23.4--Pollution Prevention, Environmental Management Systems, 
and Waste Reduction
Sec.
23.400 Scope of subpart.
23.401 Definitions.
23.402 Authorities.
23.403 Emergency planning and toxic release reporting.
23.404 Environmental management systems.
23.405 Waste reduction program.
23.406 Contract clauses.

Subpart 23.4--Pollution Prevention, Environmental Management 
Systems, and Waste Reduction


23.400  Scope of subpart.

    This subpart prescribes policies and procedures for--

[[Page 30244]]

    (a) Obtaining information needed for Government compliance with 
right-to-know laws and pollution prevention requirements;
    (b) Contractor compliance with environmental management systems; 
and
    (c) Ensuring waste reduction at Federal facilities.


23.401  Definitions.

    As used in this subpart--
    Federal agency means an executive agency (see 2.101).
    Federal facility means a facility owned or operated by a Federal 
agency in the customs territory of the United States.


23.402  Authorities.

    (a) Emergency Planning and Community Right-to-Know Act of 1986, 42 
U.S.C. 11001-11050 (EPCRA).
    (b) Pollution Prevention Act of 1990, 42 U.S.C. 13101-13109 (PPA).
    (c) Executive Order 14057, Catalyzing Clean Energy Industries and 
Jobs Through Federal Sustainability, dated December 8, 2021.


23.403  Emergency planning and toxic release reporting.

    (a) Federal facilities are required to comply with the emergency 
planning and toxic release reporting requirements in EPCRA and PPA.
    (b) Pursuant to EPCRA, PPA, and any agency implementing procedures, 
every contract that provides for performance on a Federal facility 
shall require the contractor to provide information necessary for the 
Federal agency to comply with paragraph (a) of this section.


23.404  Environmental management systems.

    Agencies may implement an environmental management system (EMS) 
when it aligns with and supports its agency's mission needs and 
facilitates implementation and progress toward E.O. 14057 goals. If an 
agency uses an EMS for contractor operation of Government-owned or -
leased facilities or vehicles, and contractor activities affect the 
agency's environmental management aspects--
    (a) EMS requirements shall be included in contracts to ensure 
proper implementation and execution of EMS roles and responsibilities; 
and
    (b) The contracting officer shall--
    (1) Specify the EMS directives with which the contractor must 
comply; and
    (2) Ensure contractor compliance to the same extent as the agency 
would be required to comply if the agency operated the facilities or 
vehicles.


23.405  Waste reduction program.

    To support pollution prevention and agency efforts to minimize 
waste in accordance with E.O. 14057, contracts for contractor operation 
of Government-owned or -leased facilities or for support services at 
Government-owned or -operated facilities shall require the contractor 
to promote cost-effective waste reduction in all operations and 
facilities covered by the contract.


23.406  Contract clauses.

    (a) Insert the clause at 52.223-5, Pollution Prevention and Right-
to-Know Information, in solicitations and contracts that provide for 
performance, in whole or in part, on a Federal facility.
    (b) Insert the clause at 52.223-19, Compliance With Environmental 
Management Systems, in solicitations and contracts for contractor 
operation of Government-owned or -leased facilities or vehicles located 
in the United States if an agency uses an EMS and contractor activities 
affect aspects of the agency's environmental management. For facilities 
located outside the United States, the agency head may determine that 
use of the clause is in the best interest of the Government.
    (c) Insert the clause at 52.223-10, Waste Reduction Program, in 
solicitations and contracts for contractor operation of Government-
owned or -leased facilities and all solicitations and contracts for 
support services at Government-owned or -operated facilities.

Subpart 23.5 [Transferred to Part 26]

0
41. Transfer subpart 23.5, consisting of sections 23.500 through 
23.506, to part 26.

0
42. Add a new subpart 23.5 to read as follows:
Subpart 23.5--Greenhouse Gas Emissions
Sec.
23.500 Scope of subpart.
23.501 Policy.
23.502 Solicitation provision.

Subpart 23.5--Greenhouse Gas Emissions


23.500  Scope of subpart.

    This subpart addresses public disclosure of greenhouse gas 
emissions and reduction goals.


23.501  Policy.

    In order to better understand both direct and indirect greenhouse 
gas emissions that result from Federal activities, offerors that are 
registered in the System for Award Management (SAM) and received $7.5 
million or more in Federal contract awards in the prior Federal fiscal 
year are required to--
    (a) Represent whether they publicly disclose greenhouse gas 
emissions;
    (b) Represent whether they publicly disclose a quantitative 
greenhouse gas emissions reduction goal; and
    (c) Provide the website for any such disclosures.


23.502  Solicitation provision.

    The provision at 52.223-22, Public Disclosure of Greenhouse Gas 
Emissions and Reduction Goals--Representation, is required only when 
52.204-7, System for Award Management, is included in the solicitation 
(see 52.204-8, Annual Representations and Certifications).

Subpart 23.6 [Removed and Reserved]

0
43. Remove and reserve subpart 23.6, consisting of sections 23.601 and 
23.602.

Subpart 23.7 [Removed and Reserved]

0
44. Remove and reserve subpart 23.7, consisting of sections 23.700 
through 23.705.

Subpart 23.8 [Removed and Reserved]

0
45. Remove and reserve subpart 23.8, consisting of sections 23.800 
through 23.804.

Subpart 23.9 [Removed and Reserved]

0
46. Remove and reserve subpart 23.9, consisting of sections 23.900 
through 23.903.

Subpart 23.10 [Removed and Reserved]

0
47. Remove and reserve subpart 23.10 consisting of sections 23.1000 
through 23.1005.

Subpart 23.11 [Transferred to Part 26]

0
48. Transfer subpart 23.11, consisting of sections 23.1101 through 
23.1105, to part 26.

PART 26--OTHER SOCIOECONOMIC PROGRAMS

Subpart 23.5 [Redesignated as Subpart 26.5]

0
49. Redesignate newly transferred subpart 23.5, consisting of sections 
23.500 through 23.506, as subpart 26.5 as indicated in the table below:

------------------------------------------------------------------------
                       Old section                          New section
------------------------------------------------------------------------
23.500..................................................          26.500
23.501..................................................          26.501
23.502..................................................          26.502

[[Page 30245]]

 
23.503..................................................          26.503
23.504..................................................          26.504
23.505..................................................          26.506
23.506..................................................          26.505
------------------------------------------------------------------------

26.504  [Amended]

0
50. Amend newly redesignated section 26.504 by--
0
a. Removing from the last sentence of paragraph (a)(5) the words ``the 
postion title'' and adding the words ``the position title'' in its 
place; and
0
b. Removing from the end of paragraph (a)(6)(i) ``; or'' and adding a 
period in its place.


26.505  [Amended]

0
51. Amend newly redesignated section 26.505 by removing from paragraph 
(d)(1) ``52.223-6'' and adding ``52.226-7'' in its place.


26.506  [Amended]

0
52. Amend newly redesignated section 26.506 by removing ``23.501'' and 
``52.223-6'' and adding ``26.501'' and ``52.226-7'' in their place, 
respectively.

Subpart 23.11 [Redesignated as Subpart 26.6]

0
53. Redesignate newly transferred subpart 23.11, consisting of sections 
23.1101 through 23.1105, as subpart 26.6 as indicated in the table 
below:

------------------------------------------------------------------------
                       Old section                          New section
------------------------------------------------------------------------
23.1101.................................................          26.601
23.1102.................................................          26.602
23.1103.................................................          26.603
23.1104.................................................          26.604
23.1105.................................................          26.605
------------------------------------------------------------------------

26.605  [Amended]

0
54. Amend newly redesignated section 26.605 by removing ``52.223-18'' 
and adding ``52.226-8'' in its place.

PART 36--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS


36.001  [Amended]

0
55. Amend section 36.001 by--
0
a. Removing from the definition of ``Construction and demolition 
materials and debris'' the phrase ``means materials and debris 
generated'' and adding the phrase ``means waste materials and debris 
generated'' in its place;
0
b. Revising the definition of ``Diverting''; and
0
c. Adding the definition of ``Modernization project'' in alphabetical 
order.
    The revision and addition read as follows:


36.001  Definitions.

* * * * *
    Diverting means redirecting materials from disposal in landfills or 
incinerators to recycling or recovery, excluding diversion to waste-to-
energy facilities.
    Modernization project means a project that includes the 
comprehensive replacement or restoration of virtually all major 
systems, interior finishes (such as ceilings, partitions, doors, and 
floor finishes), and building features.

0
56. Amend section 36.104 by revising paragraph (b) to read as follows:


36.104  Policy.

* * * * *
    (b) Agencies shall implement high-performance sustainable building 
design, construction, renovation, repair, commissioning, operation and 
maintenance, management, and deconstruction practices so as to--
    (1) Ensure that--
    (i) All new construction and modernization projects greater than 
25,000 gross square feet are designed, constructed, and maintained to 
meet and, wherever practicable, exceed Federal sustainable design and 
operations principles for new construction and modernization projects 
in accordance with the Council on Environmental Quality's Guiding 
Principles for Sustainable Federal Buildings and Associated 
Instructions (Guiding Principles) (available at https://www.sustainability.gov/pdfs/guiding_principles_for_sustainable_federal_buildings.pdf); and
    (ii) All renovation projects of existing Federal buildings must 
use, to the greatest extent technically feasible and practicable, 
Federal sustainable design and operations principles for existing 
buildings in accordance with the Guiding Principles;
    (2) Identify alternatives to renovation that reduce existing 
assets' deferred maintenance costs;
    (3) Ensure that rehabilitation of Federally-owned historic 
buildings utilizes best practices and technologies in retrofitting to 
promote long-term viability of the buildings; and
    (4) Ensure pollution prevention and eliminate waste by diverting at 
least 50 percent of non-hazardous construction and demolition materials 
and debris.
* * * * *


36.601-3  [Amended]

0
57. Amend section 36.601-3 by removing from paragraph (a)(2) ``subpart 
23.2'' and adding ``23.107-3'' in its place.

PART 37--SERVICE CONTRACTING


37.102  [Amended]

0
58. Amend section 37.102 by removing from paragraph (i) ``part 23'' and 
adding ``subpart 23.1 (see 23.103(c))'' in its place.

PART 39--ACQUISITION OF INFORMATION TECHNOLOGY

0
59. Amend section 39.101 by revising paragraphs (a)(1)(ii) and (iii) to 
read as follows:


39.101  Policy.

    (a)(1) * * *
    (ii) The requirements for sustainable products and services (as 
defined in 2.101) in accordance with subpart 23.1;
    (iii) Policies to enable power management and other energy-
efficient or environmentally preferable features on all agency 
electronic products; and
* * * * *

PART 42--CONTRACT ADMINISTRATION AND AUDIT SERVICES

0
60. Amend section 42.302 by--
0
a. In paragraph (a)(66), removing ``23.5'' and adding ``26.5'' in its 
place; and
0
b. Revising paragraphs (a)(68)(ii) and (iii).
    The revision reads as follows:


42.302  Contract administration functions.

    (a) * * *
    (68) * * *
    (ii) Monitoring contractor compliance with specifications or other 
contractual requirements requiring the delivery, use, or furnishing of 
sustainable products and services (as defined in 2.101) in accordance 
with the clause at 52.223-23. This must occur as part of the quality 
assurance procedures set forth in part 46; and
    (iii) As required in the contract, ensuring that the contractor 
complies with the reporting requirements relating to recovered material 
content (see 52.223-9) and biobased products (see 52.223-2) utilized in 
contract performance.
* * * * *

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES


52.204-4  [Removed and Reserved]

0
61. Remove and reserve section 52.204-4.

0
62. Amend section 52.204-8 by--
0
a. Revising the date of the provision and paragraph (c)(1)(xvii);
0
b. Removing from the end of paragraph (c)(1)(xix) the parenthesis;

[[Page 30246]]

0
c. Removing paragraph (c)(2)(vi); and
0
d. Redesignating paragraphs (c)(2)(vii) and (viii) as paragraphs 
(c)(2)(vi) and (vii), respectively.
    The revisions read as follows:


52.204-8  Annual Representations and Certifications.

* * * * *

Annual Representations and Certifications (MAY 2024)

    (xvii) 52.223-1, Biobased Product Certification. This provision 
applies to solicitations that require the delivery or specify the 
use of biobased products in USDA-designated product categories; or 
include the clause at 52.223-2, Reporting of Biobased Products Under 
Service and Construction Contracts.
* * * * *


52.211-5  [Amended]

0
63. Amend section 52.211-5 by removing from the introductory text 
``11.304'' and adding ``11.302'' in its place.

0
64. Amend section 52.212-5 by--
0
a. Revising the date of the clause; and
0
b. Revise and republish paragraph(b).
    The revisions read as follows:


52.212-5  Contract Terms and Conditions Required To Implement Statutes 
or Executive Orders--Commercial Products and Commercial Services.

* * * * *

Contract Terms and Conditions Required To Implement Statutes or 
Executive Orders--Commercial Products and Commercial Services (MAY 
2024)

* * * * *
    (b) The Contractor shall comply with the FAR clauses in this 
paragraph (b) that the Contracting Officer has indicated as being 
incorporated in this contract by reference to implement provisions 
of law or Executive orders applicable to acquisitions of commercial 
products and commercial services: [Contracting Officer check as 
appropriate.]
    __(1) 52.203-6, Restrictions on Subcontractor Sales to the 
Government (JUN 2020), with Alternate I (NOV 2021) (41 U.S.C. 4704 
and 10 U.S.C. 4655).
    __(2) 52.203-13, Contractor Code of Business Ethics and Conduct 
(NOV 2021) (41 U.S.C. 3509).
    __(3) 52.203-15, Whistleblower Protections under the American 
Recovery and Reinvestment Act of 2009 (JUN 2010) (Section 1553 of 
Pub. L. 111-5). (Applies to contracts funded by the American 
Recovery and Reinvestment Act of 2009.)
    __(4) 52.203-17, Contractor Employee Whistleblower Rights (NOV 
2023) (41 U.S.C. 4712); this clause does not apply to contracts of 
DoD, NASA, the Coast Guard, or applicable elements of the 
intelligence community--see FAR 3.900(a).
    __(5) 52.204-10, Reporting Executive Compensation and First-Tier 
Subcontract Awards (JUN 2020) (Pub. L. 109-282) (31 U.S.C. 6101 
note).
    __(6) [Reserved]
    __(7) 52.204-14, Service Contract Reporting Requirements (OCT 
2016) (Pub. L. 111-117, section 743 of Div. C).
    __(8) 52.204-15, Service Contract Reporting Requirements for 
Indefinite-Delivery Contracts (OCT 2016) (Pub. L. 111-117, section 
743 of Div. C).
    __(9) 52.204-27, Prohibition on a ByteDance Covered Application 
(JUN 2023) (Section 102 of Division R of Pub. L. 117-328).
    __(10) 52.204-28, Federal Acquisition Supply Chain Security Act 
Orders--Federal Supply Schedules, Governmentwide Acquisition 
Contracts, and Multi-Agency Contracts. (DEC 2023) (Pub. L. 115-390, 
title II).
    __(11)(i) 52.204-30, Federal Acquisition Supply Chain Security 
Act Orders--Prohibition. (DEC 2023) (Pub. L. 115-390, title II).
    __(ii) Alternate I (DEC 2023) of 52.204-30.
    __(12) 52.209-6, Protecting the Government's Interest When 
Subcontracting with Contractors Debarred, Suspended, or Proposed for 
Debarment. (NOV 2021) (31 U.S.C. 6101 note).
    __(13) 52.209-9, Updates of Publicly Available Information 
Regarding Responsibility Matters (OCT 2018) (41 U.S.C. 2313).
    __(14) [Reserved]
    __(15) 52.219-3, Notice of HUBZone Set-Aside or Sole-Source 
Award (OCT 2022) (15 U.S.C. 657a).
    __(16) 52.219-4, Notice of Price Evaluation Preference for 
HUBZone Small Business Concerns (OCT 2022) (if the offeror elects to 
waive the preference, it shall so indicate in its offer) (15 U.S.C. 
657a).
    __(17) [Reserved]
    __(18)(i) 52.219-6, Notice of Total Small Business Set-Aside 
(NOV 2020) (15 U.S.C. 644).
    __(ii) Alternate I (MAR 2020) of 52.219-6.
    __(19)(i) 52.219-7, Notice of Partial Small Business Set-Aside 
(NOV 2020) (15 U.S.C. 644).
    __(ii) Alternate I (MAR 2020) of 52.219-7.
    __(20) 52.219-8, Utilization of Small Business Concerns (FEB 
2024) (15 U.S.C. 637(d)(2) and (3)).
    __(21)(i) 52.219-9, Small Business Subcontracting Plan (SEP 
2023) (15 U.S.C. 637(d)(4)).
    __(ii) Alternate I (NOV 2016) of 52.219-9.
    __(iii) Alternate II (NOV 2016) of 52.219-9.
    __(iv) Alternate III (JUN 2020) of 52.219-9.
    __(v) Alternate IV (SEP 2023) of 52.219-9.
    __(22)(i) 52.219-13, Notice of Set-Aside of Orders (MAR 2020) 
(15 U.S.C. 644(r)).
    __(ii) Alternate I (MAR 2020) of 52.219-13.
    __(23) 52.219-14, Limitations on Subcontracting (OCT 2022) (15 
U.S.C. 657s).
    __(24) 52.219-16, Liquidated Damages--Subcontracting Plan (SEP 
2021) (15 U.S.C. 637(d)(4)(F)(i)).
    __(25) 52.219-27, Notice of Set-Aside for, or Sole-Source Award 
to, Service-Disabled Veteran-Owned Small Business (SDVOSB) Concerns 
Eligible Under the SDVOSB Program (FEB 2024) (15 U.S.C. 657f).
    __(26)(i) 52.219-28, Post-Award Small Business Program 
Rerepresentation (FEB 2024) (15 U.S.C. 632(a)(2)).
    __(ii) Alternate I (MAR 2020) of 52.219-28.
    __(27) 52.219-29, Notice of Set-Aside for, or Sole-Source Award 
to, Economically Disadvantaged Women-Owned Small Business Concerns 
(OCT 2022) (15 U.S.C. 637(m)).
    __(28) 52.219-30, Notice of Set-Aside for, or Sole-Source Award 
to, Women-Owned Small Business Concerns Eligible Under the Women-
Owned Small Business Program (OCT 2022) (15 U.S.C. 637(m)).
    __(29) 52.219-32, Orders Issued Directly Under Small Business 
Reserves (MAR 2020) (15 U.S.C. 644(r)).
    __(30) 52.219-33, Nonmanufacturer Rule (SEP 2021) (15 U.S.C. 
657s).
    __(31) 52.222-3, Convict Labor (JUN 2003) (E.O. 11755).
    __(32) 52.222-19, Child Labor--Cooperation with Authorities and 
Remedies (FEB 2024) (E.O. 13126).
    __(33) 52.222-21, Prohibition of Segregated Facilities (APR 
2015).
    __(34)(i) 52.222-26, Equal Opportunity (SEPT 2016) (E.O. 11246).
    __(ii) Alternate I (FEB 1999) of 52.222-26.
    __(35)(i) 52.222-35, Equal Opportunity for Veterans (JUN 2020) 
(38 U.S.C. 4212).
    __(ii) Alternate I (JULY 2014) of 52.222-35.
    __(36)(i) 52.222-36, Equal Opportunity for Workers with 
Disabilities (JUN 2020) (29 U.S.C. 793).
    __(ii) Alternate I (JULY 2014) of 52.222-36.
    __(37) 52.222-37, Employment Reports on Veterans (JUN 2020) (38 
U.S.C. 4212).
    __(38) 52.222-40, Notification of Employee Rights Under the 
National Labor Relations Act (DEC 2010) (E.O. 13496).
    __(39)(i) 52.222-50, Combating Trafficking in Persons (NOV 2021) 
(22 U.S.C. chapter 78 and E.O. 13627).
    __(ii) Alternate I (MAR 2015) of 52.222-50 (22 U.S.C. chapter 78 
and E.O. 13627).
    __(40) 52.222-54, Employment Eligibility Verification (MAY 
2022). (E. O. 12989). (Not applicable to the acquisition of 
commercially available off-the-shelf items or certain other types of 
commercial products or commercial services as prescribed in FAR 
22.1803.)
    __(41)(i) 52.223-9, Estimate of Percentage of Recovered Material 
Content for EPA-Designated Items (MAY 2008) (42 U.S.C. 
6962(c)(3)(A)(ii)). (Not applicable to the acquisition of 
commercially available off-the-shelf items.)
    __(ii) Alternate I (MAY 2008) of 52.223-9 (42 U.S.C. 
6962(i)(2)(C)). (Not applicable to the acquisition of commercially 
available off-the-shelf items.)
    __(42) 52.223-11, Ozone-Depleting Substances and High Global 
Warming Potential Hydrofluorocarbons (MAY 2024) (42 U.S.C. 7671, et 
seq.).

[[Page 30247]]

    __(43) 52.223-12, Maintenance, Service, Repair, or Disposal of 
Refrigeration Equipment and Air Conditioners (MAY 2024) (42 U.S.C. 
7671, et seq.).
    __(44) 52.223-20, Aerosols (MAY 2024) (42 U.S.C. 7671, et seq.).
    __(45) 52.223-21, Foams (MAY 2024) (42 U.S.C. 7671, et seq.).
    __(46) 52.223-23, Sustainable Products and Services (MAY 2024) 
(E.O. 14057, 7 U.S.C. 8102, 42 U.S.C. 6962, 42 U.S.C. 8259b, and 42 
U.S.C. 7671l).
    __ (47)(i) 52.224-3, Privacy Training (JAN 2017) (5 U.S.C. 
552a).
    __ (ii) Alternate I (JAN 2017) of 52.224-3.
    __ (48)(i) 52.225-1, Buy American--Supplies (OCT 2022)) (41 
U.S.C. chapter 83).
    __ (ii) Alternate I (OCT 2022) of 52.225-1.
    __ (49)(i) 52.225-3, Buy American--Free Trade Agreements--
Israeli Trade Act (NOV 2023) (19 U.S.C. 3301 note, 19 U.S.C. 2112 
note, 19 U.S.C. 3805 note, 19 U.S.C. 4001 note, 19 U.S.C. chapter 29 
(sections 4501-4732), Public Law 103-182, 108-77, 108-78, 108-286, 
108-302, 109-53, 109-169, 109-283, 110-138, 112-41, 112-42, and 112-
43.
    __ (ii) Alternate I [Reserved].
    __ (iii) Alternate II (DEC 2022) of 52.225-3.
    __ (iv) Alternate III (FEB 2024) of 52.225-3.
    __ (v) Alternate IV (OCT 2022) of 52.225-3.
    __ (50) 52.225-5, Trade Agreements (NOV 2023) (19 U.S.C. 2501, 
et seq., 19 U.S.C. 3301 note).
    __ (51) 52.225-13, Restrictions on Certain Foreign Purchases 
(FEB 2021) (E.O.'s, proclamations, and statutes administered by the 
Office of Foreign Assets Control of the Department of the Treasury).
    __ (52) 52.225-26, Contractors Performing Private Security 
Functions Outside the United States (OCT 2016) (Section 862, as 
amended, of the National Defense Authorization Act for Fiscal Year 
2008; 10 U.S.C. Subtitle A, Part V, Subpart G Note).
    __ (53) 52.226-4, Notice of Disaster or Emergency Area Set-Aside 
(NOV 2007) (42 U.S.C. 5150).
    __ (54) 52.226-5, Restrictions on Subcontracting Outside 
Disaster or Emergency Area (NOV 2007) (42 U.S.C. 5150).
    __ (55) 52.226-8, Encouraging Contractor Policies to Ban Text 
Messaging While Driving (May 2024) (E.O. 13513).
    __ (56) 52.229-12, Tax on Certain Foreign Procurements (FEB 
2021).
    __ (57) 52.232-29, Terms for Financing of Purchases of 
Commercial Products and Commercial Services (NOV 2021) (41 
U.S.C.4505, 10 U.S.C. 3805).
    __ (58) 52.232-30, Installment Payments for Commercial Products 
and Commercial Services (NOV 2021) (41 U.S.C. 4505, 10 U.S.C. 3805).
    __ (59) 52.232-33, Payment by Electronic Funds Transfer--System 
for Award Management (OCT 2018) (31 U.S.C. 3332).
    __ (60) 52.232-34, Payment by Electronic Funds Transfer--Other 
than System for Award Management (JUL 2013) (31 U.S.C. 3332).
    __ (61) 52.232-36, Payment by Third Party (MAY 2014) (31 U.S.C. 
3332).
    __ (62) 52.239-1, Privacy or Security Safeguards (AUG 1996) (5 
U.S.C. 552a).
    __ (63) 52.242-5, Payments to Small Business Subcontractors (JAN 
2017)(15 U.S.C. 637(d)(13)).
    __ (64)(i) 52.247-64, Preference for Privately Owned U.S.-Flag 
Commercial Vessels (NOV 2021) (46 U.S.C. 55305 and 10 U.S.C. 2631).
    __ (ii) Alternate I (Apr 2003) of 52.247-64.
    __ (iii) Alternate II (NOV 2021) of 52.247-64.
* * * * *

0
65. Amend section 52.213-4 by--
0
a. Revising the date of the clause; and
0
b. Revise and republish paragraph (b)(1).
    The revisions and addition read as follows:


52.213-4  Terms and Conditions--Simplified Acquisitions (Other Than 
Commercial Products and Commercial Services).

* * * * *

Terms and Conditions--Simplified Acquisitions (Other Than Commercial 
Products and Commercial Services) (MAY 2024)

* * * * *
    (b) * * *
    (1) The clauses listed below implement provisions of law or 
Executive order:
    (i) 52.203-17, Contractor Employee Whistleblower Rights (NOV 
2023) (41 U.S.C. 4712); this clause does not apply to contracts of 
DoD, NASA, the Coast Guard, or applicable elements of the 
intelligence community--see FAR 3.900(a).
    (ii) 52.204-10, Reporting Executive Compensation and First-Tier 
Subcontract Awards (JUN 2020) (Pub. L. 109-282) (31 U.S.C. 6101 
note) (Applies to contracts valued at or above the threshold 
specified in FAR 4.1403(a) on the date of award of this contract).
    (iii) 52.222-19, Child Labor--Cooperation with Authorities and 
Remedies (FEB 2024) (E.O. 13126) (Applies to contracts for supplies 
exceeding the micro-purchase threshold, as defined in 2.101 on the 
date of award of this contract).
    (iv) 52.222-20, Contracts for Materials, Supplies, Articles, and 
Equipment (JUN 2020) (41 U.S.C. chapter 65) (Applies to supply 
contracts over the threshold specified in FAR 22.602 on the date of 
award of this contract, in the United States, Puerto Rico, or the 
U.S. Virgin Islands).
    (v) 52.222-35, Equal Opportunity for Veterans (JUN 2020) (38 
U.S.C. 4212) (Applies to contracts valued at or above the threshold 
specified in FAR 22.1303(a) on the date of award of this contract).
    (vi) 52.222-36, Equal Employment for Workers with Disabilities 
(JUN 2020) (29 U.S.C. 793) (Applies to contracts over the threshold 
specified in FAR 22.1408(a) on the date of award of this contract, 
unless the work is to be performed outside the United States by 
employees recruited outside the United States). (For purposes of 
this clause, ``United States'' includes the 50 States, the District 
of Columbia, Puerto Rico, the Northern Mariana Islands, American 
Samoa, Guam, the U.S. Virgin Islands, and Wake Island.)
    (vii) 52.222-37, Employment Reports on Veterans (JUN 2020) (38 
U.S.C. 4212) (Applies to contracts valued at or above the threshold 
specified in FAR 22.1303(a) on the date of award of this contract).
    (viii) 52.222-41, Service Contract Labor Standards (AUG 2018) 
(41 U.S.C. chapter 67) (Applies to service contracts over $2,500 
that are subject to the Service Contract Labor Standards statute and 
will be performed in the United States, District of Columbia, Puerto 
Rico, the Northern Mariana Islands, American Samoa, Guam, the U.S. 
Virgin Islands, Johnston Island, Wake Island, or the outer 
Continental Shelf).
    (ix)(A) 52.222-50, Combating Trafficking in Persons (NOV 2021) 
(22 U.S.C. chapter 78 and E.O. 13627) (Applies to all solicitations 
and contracts).
    (B) Alternate I (MAR 2015) (Applies if the Contracting Officer 
has filled in the following information with regard to applicable 
directives or notices: Document title(s), source for obtaining 
document(s), and contract performance location outside the United 
States to which the document applies).
    (x) 52.222-55, Minimum Wages for Contractor Workers Under 
Executive Order 14026 (JAN 2022) (Applies when 52.222-6 or 52.222-41 
are in the contract and performance in whole or in part is in the 
United States (the 50 States, the District of Columbia, Puerto Rico, 
the Northern Mariana Islands, American Samoa, Guam, the U.S. Virgin 
Islands, Johnston Island, Wake Island, and the outer Continental 
Shelf as defined in the Outer Continental Shelf Lands Act (43 U.S.C. 
1331, et seq.))).
    (xi) 52.222-62, Paid Sick Leave Under Executive Order 13706 (JAN 
2022) (E.O. 13706) (Applies when 52.222-6 or 52.222-41 are in the 
contract and performance in whole or in part is in the United States 
(the 50 States and the District of Columbia.))
    (xii) 52.223-5, Pollution Prevention and Right-to-Know 
Information (MAY 2024) (42 U.S.C. 11001-11050 and 13101-13109) 
(Applies to services performed on Federal facilities).
    (xiii) 52.223-11, Ozone-Depleting Substances and High Global 
Warming Potential Hydrofluorocarbons (MAY 2024) (42 U.S.C. 7671, et 
seq.) (Applies to contracts for products as prescribed at FAR 
23.109(d)(1)).
    (xiv) 52.223-12, Maintenance, Service, Repair, or Disposal of 
Refrigeration Equipment and Air Conditioners (MAY 2024) (42 U.S.C. 
7671, et seq.) (Applies to maintenance, service, repair, or disposal 
of refrigeration equipment and air conditioners).
    (xv) 52.223-20, Aerosols (MAY 2024) (42 U.S.C. 7671, et seq.) 
(Applies to contracts for products that may contain high global 
warming potential hydrofluorocarbons as a propellant or as a 
solvent; or contracts for maintenance or repair of electronic or 
mechanical devices).

[[Page 30248]]

    (xvi) 52.223-21, Foams (MAY 2024) (42 U.S.C. 7671, et seq.) 
(Applies to contracts for products that may contain high global 
warming potential hydrofluorocarbons or refrigerant blends 
containing hydrofluorocarbons as a foam blowing agent; or contracts 
for construction of buildings or facilities.
    (xvii) 52.223-23, Sustainable Products and Services (MAY 2024) 
(E.O. 14057, 7 U.S.C. 8102, 42 U.S.C. 6962, 42 U.S.C. 8259b, and 42 
U.S.C. 7671l) (Applies to contracts when the agency identifies in 
the statement of work, or elsewhere in the contract, the sustainable 
products and services that apply to the acquisition).
    (xviii)(A) 52.225-1, Buy American--Supplies (OCT 2022) (41 
U.S.C. chapter 67) (Applies to contracts for supplies, and to 
contracts for services involving the furnishing of supplies, for use 
in the United States or its outlying areas, if the value of the 
supply contract or supply portion of a service contract exceeds the 
micro-purchase threshold, as defined in 2.101 on the date of award 
of this contract, and the acquisition--
    (1) Is set aside for small business concerns; or
    (2) Cannot be set aside for small business concerns (see 19.502-
2), and does not exceed $50,000).
    (B) Alternate I (OCT 2022) (Applies if the Contracting Officer 
has filled in the domestic content threshold below, which will apply 
to the entire contract period of performance. Substitute the 
following sentence for the first sentence of paragraph (1)(ii)(A) of 
the definition of domestic end product in paragraph (a) of 52.225-1:
    (A) The cost of its components mined, produced, or manufactured 
in the United States exceeds __ percent of the cost of all its 
components. [Contracting officer to insert the percentage per 
instructions at 13.302-5(d)(4).])
    (xix) 52.226-6, Promoting Excess Food Donation to Nonprofit 
Organizations (JUN 2020) (42 U.S.C. 1792) (Applies to contracts 
greater than the threshold specified in FAR 26.404 on the date of 
award of this contract, that provide for the provision, the service, 
or the sale of food in the United States).
    (xx) 52.232-33, Payment by Electronic Funds Transfer--System for 
Award Management (OCT 2018) (Applies when the payment will be made 
by electronic funds transfer (EFT) and the payment office uses the 
System for Award Management (SAM) as its source of EFT information).
    (xxi) 52.232-34, Payment by Electronic Funds Transfer--Other 
than System for Award Management (JUL 2013) (Applies when the 
payment will be made by EFT and the payment office does not use the 
SAM database as its source of EFT information.)
    (xxii) 52.247-64, Preference for Privately Owned U.S.-Flag 
Commercial Vessels (NOV 2021) (46 U.S.C. 55305) (Applies to supplies 
transported by ocean vessels (except for the types of subcontracts 
listed at 47.504(d).)
* * * * *

0
66. Revise section 52.223-1 to read as follows:


52.223-1  Biobased Product Certification.

    As prescribed in 23.109(c)(1), insert the following provision:

Biobased Product Certification (MAY 2024)

    As required by the Farm Security and Rural Investment Act of 
2002 (7 U.S.C. 8101(4)) and the Energy Policy Act of 2005 (7 U.S.C. 
8102(a)(2)(F)), the offeror certifies, by signing this offer, that 
biobased products (within categories of products listed by the 
United States Department of Agriculture in 7 CFR part 3201, subpart 
B) to be used or delivered in the performance of the contract, other 
than biobased products that are not purchased by the offeror as a 
direct result of this contract, will comply with the applicable 
specifications or other contractual requirements.
(End of provision)

0
67. Revise section 52.223-2 to read as follows:


52.223-2  Reporting of Biobased Products Under Service and Construction 
Contracts.

    As prescribed in 23.109(c)(2), insert the following clause:

Reporting of Biobased Products Under Service and Construction Contracts 
(MAY 2024)

    (a) Definitions. As used in this clause--
    Biobased product means a product determined by the U.S. 
Department of Agriculture (USDA) 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).
    USDA-designated product category means a generic grouping of 
products that are or can be made with biobased materials--
    (1) That are listed by USDA in a procurement guideline (7 CFR 
part 3201, subpart B); and
    (2) For which USDA has provided purchasing recommendations 
(available at https://www.biopreferred.gov).
    (b) The Contractor shall report to https://www.sam.gov, with a 
copy to the Contracting Officer, on the product types and dollar 
value of any biobased products in USDA-designated product categories 
purchased by the Contractor during the previous Government fiscal 
year, between October 1 and September 30; and
    (c) Submit this report no later than--
    (1) October 31 of each year during contract performance; and
    (2) At the end of contract performance.

0
68. Amend section 52.223-3 by revising the introductory text of the 
clause and the introductory text of Alternate I to read as follows:


52.223-3  Hazardous Material Identification and Material Safety Data.

    As prescribed in 23.304(a)(1), insert the following clause:
* * * * *
    Alternate I (JUL 1995). As prescribed in 23.304(a)(2), add the 
following paragraph (i) to the basic clause:


52.223-4  [Amended]

0
69. Amend section 52.223-4 by removing from the introductory text 
``23.406(c)'' and adding ``23.109(b)(1)'' in its place.

0
70. Amend section 52.223-5 by--
0
a. Revising the introductory text and the date of the clause;
0
b. Removing paragraph (c)(6), Alternate I, and Alternate II.
    The revision reads as follows:


52.223-5  Pollution Prevention and Right-to-Know Information.

    As prescribed in 23.406(a), insert the following clause:

Pollution Prevention and Right-to-Know Information (MAY 2024)

* * * * *


52.223-6  [Redesignated as 52.226-7]

0
71. Redesignate section 52.223-6 as section 52.226-7.

0
72. Amend section 52.223-7 by:
0
a. Revising the section heading; and
0
b. Removing from the introductory text ``23.602'' and adding 
``23.304(b)'' in its place.
    The revision reads as follows:


52.223-7  Notice of Radioactive Materials.

* * * * *


52.223-9  [Amended]

0
73. Amend section 52.223-9 by removing from the introductory text and 
the introductory text of Alternate I ``23.406(d)'' and adding 
``23.109(b)(2)'' in its place.

0
74. Amend section 52.223-10 by--
0
a. Revising the introductory text and the date of the clause; and
0
b. Removing from paragraph (b) the text ``3(e) of Executive Order 
13423'' and adding the text ``207 of Executive Order 14057'' in its 
place.
    The revisions read as follows:


52.223-10  Waste Reduction Program.

    As prescribed in 23.406(c), insert the following clause:

Waste Reduction Program (MAY 2024)

* * * * *

0
75. Amend section 52.223-11 by--
0
a. Revising the introductory text and the date of the clause;
0
b. In paragraph (a), in the definition of ``High global warming 
potential hydrofluorocarbons'', removing ``https://

[[Page 30249]]

www.epa.gov/snap/'' and adding ``https://www.epa.gov/snap/'' in its 
place.
0
c. Removing paragraph (c);
0
d. Redesignating paragraph (d) as paragraph (c); and
0
e. Revising newly redesignated paragraph (c).
    The revisions read as follows:


52.223-11  Ozone-Depleting Substances and High Global Warming Potential 
Hydrofluorocarbons.

    As prescribed in in 23.109(d)(1), insert the following clause:

Ozone-Depleting Substances and High Global Warming Potential 
Hydrofluorocarbons (MAY 2024)

* * * * *
    (c) The Contractor shall refer to EPA's SNAP program to identify 
alternatives. The SNAP list of alternatives is found at 40 CFR part 
82, subpart G, with supplemental tables available at https://www.epa.gov/snap/.
* * * * *

0
76. Amend section 52.223-12 by--
0
a. Revising the introductory text and the date of the clause;
0
b. In paragraph (a), in the definition of ``High global warming 
potential hydrofluorocarbons'', removing ``https://www.epa.gov/snap/'' 
and adding ``https://www.epa.gov/snap/'' in its place.
0
c. Revising paragraph (c)(4);
0
d. Removing paragraph (d);
0
e. Redesignating paragraph (e) as paragraph (d); and
0
f. In newly redesignated paragraph (d), removing ``https://www.epa.gov/snap/'' and adding ``https://www.epa.gov/snap/'' in its place.
    The revisions read as follows:


52.223-12  Maintenance, Service, Repair, or Disposal of Refrigeration 
Equipment and Air Conditioners.

    As prescribed in 23.109(d)(2), insert the following clause:

Maintenance, Service, Repair, or Disposal of Refrigeration Equipment 
and Air Conditioners (MAY 2024)

* * * * *
    (c) * * *
    (4) Using reclaimed hydrofluorocarbons to service and repair 
refrigeration and air conditioning equipment, where feasible.
* * * * *


52.223-13 through 52.223-17  [Removed and Reserved]

0
77. Remove and reserve sections 52.223-13 through 52.223-17.


52.223-18  [Redesignated as 52.226-8]

0
78. Redesignate section 52.223-18 as section 52.226-8.


52.223-19  [Amended]

0
79. Amend section 52.223-19 in the introductory text by removing 
``23.903'' and adding ``23.406(b)'' in its place.

0
80. Amend section 52.223-20 by--
0
a. Revising the introductory text and the date of the clause; and
0
b. In paragraph (a), in the definition of ``High global warming 
potential hydrofluorocarbons'', and in paragraph (c), removing ``https://www.epa.gov/snap/'' and adding ``https://www.epa.gov/snap/'' in both 
places.
    The revisions read as follows:


52.223-20  Aerosols.

    As prescribed in 23.109(d)(3), insert the following clause:

Aerosols (MAY 2024)

* * * * *

0
81. Amend section 52.223-21 by--
0
a. Revising the introductory text and the date of the clause; and
0
b. In paragraph (a), in definition of ``High global warming potential 
hydrofluorocarbons'', and in paragraph (c), removing ``https://www.epa.gov/snap/'' and adding ``https://www.epa.gov/snap/'' in both 
places.
    The revisions read as follows:


52.223-21  Foams.

    As prescribed in in 23.109(d)(4), insert the following clause:

Foams (MAY 2024)

* * * * *


52.223-22  [Amended]

0
82. Amend section 52.223-22 in the introductory text by removing 
``23.804(b)'' and adding ``23.502'' in its place.

0
83. Add section 52.223-23 to read as follows:


52.223-23  Sustainable Products and Services.

    As prescribed in 23.109(a), insert the following clause:

Sustainable Products and Services (MAY 2024)

    (a) Definitions. As used in this clause--
    Biobased product means a product determined by the U.S. 
Department of Agriculture (USDA) 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).
    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) (https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program#products).
    (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) 
(https://www.energy.gov/eere/femp/search-energy-efficient-products 
and https://www.energystar.gov/products?s=mega).
    (iii) Biobased products meeting the content requirement of the 
USDA under the BioPreferred[supreg] program (7 U.S.C. 8102) (7 CFR 
part 3201) (https://www.biopreferred.gov).
    (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) (https://www.epa.gov/snap).
    (2) Required EPA purchasing programs.
    (i) WaterSense[supreg] labeled (water efficient) products and 
services (https://www.epa.gov/watersense/watersense-products).
    (ii) Safer Choice-certified products (products that contain 
safer chemical ingredients) (https://www.epa.gov/saferchoice/products).
    (iii) Product and services that meet EPA Recommendations of 
Specifications, Standards, and Ecolabels in effect as of October 
2023 (https://www.epa.gov/greenerproducts/recommendations-specifications-standards-and-ecolabels-federal-purchasing).
    (b) Requirements.
    (1) The sustainable products and services, including the 
purchasing program and type of product or service, that are 
applicable to this contract, and any products or services that are 
not subject to this clause, will be set forth in the statement of 
work or elsewhere in the contract.
    (2) The Contractor shall ensure that the sustainable products 
and services required by this contract are--
    (i) Delivered to the Government;
    (ii) Furnished for use by the Government;
    (iii) Incorporated into the construction of a public building or 
public work; and
    (iv) Furnished 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

[[Page 30250]]

expenses or indirect costs). This includes services performed by 
contractors performing management and operation of Government-owned 
facilities to the same extent that, at the time of award, an agency 
would be required to comply if an agency operated or supported the 
facility.
    (3)(i) Except as provided in paragraph (b)(3)(ii) of this 
clause, sustainable products and services must meet the applicable 
standards, specifications, or other program requirements at time of 
quote or offer submission; and
    (ii) Sustainable products and services must meet the EPA 
Recommendations of Specifications, Standards, and Ecolabels in 
effect as of October 2023.
    (c) Resource. The Green Procurement Compilation (GPC) available 
at https://sftool.gov/greenprocurement provides a comprehensive list 
of sustainable products and services and sustainable acquisition 
guidance. The Contractor should review the GPC when determining 
which purchasing programs apply to a specific product or service.
(End of clause)

0
84. Amend newly redesignated section 52.226-7 by--
0
a. Revising the introductory text and the date of the clause; and
0
b. Removing from paragraph (d) ``23.506'' and adding ``26.505'' in its 
place.
    The revisions read as follows:


52.226-7  Drug-Free Workplace.

    As prescribed in 26.506, insert the following clause:

Drug-Free Workplace (MAY 2024)

* * * * *

0
85. Amend newly redesignated section 52.226-8 by revising the 
introductory text and the date of the clause to read as follows:


52.226-8  Encouraging Contractor Policies To Ban Text Messaging While 
Driving.

    As prescribed in 26.605, insert the following clause:

Encouraging Contractor Policies To Ban Text Messaging While Driving 
(MAY 2024)

[FR Doc. 2024-07931 Filed 4-19-24; 8:45 am]
BILLING CODE 6820-EP-P