Overview
FAR 23.109 prescribes specific solicitation provisions and contract clauses that implement federal environmental policies regarding sustainable procurement, recovered materials, biobased products, and the management of ozone-depleting substances. It establishes the default requirement for sustainable products and services while providing specific triggers for reporting and certification based on dollar thresholds, product categories, and geographic location.
Key Rules
- Mandatory Sustainability Clause: The clause at 52.223-23 (Sustainable Products and Services) is required in all solicitations and contracts unless a written justification, exception, or exemption covers the entire scope of the requirement.
- EPA-Designated Items:
- Certification: Provision 52.223-4 is required for items designated by the EPA, except for Commercially Available Off-the-Shelf (COTS) items.
- Estimation: For contracts exceeding $200,000, Clause 52.223-9 requires contractors to estimate the percentage of recovered material used.
- USDA Biobased Products:
- Provision 52.223-1 (Certification) and Clause 52.223-2 (Reporting) are mandatory for service and construction contracts that involve USDA-designated biobased product categories.
- Ozone-Depleting Substances (ODS) and HFCs:
- Specific clauses (52.223-11, 52.223-12, 52.223-20, and 52.223-21) must be inserted based on specific Product Service Codes (PSCs) related to refrigeration, aerosols, foams, and fire suppression.
- These requirements generally apply only to supplies delivered or services performed within the United States and its outlying areas.
Practical Implications
- Compliance Burden: Contractors must be prepared to track and report the content of recovered materials and biobased products, particularly in construction and service contracts, to meet federal reporting obligations.
- Acquisition Planning: Contracting Officers must conduct a detailed PSC analysis and verify the "Biopreferred" status of items during the requirements definition phase to ensure the correct environmental clauses are included.
- Justification Requirements: If an agency intends to bypass sustainable procurement requirements, the "written justification" must be comprehensive; a partial exemption for only a portion of the contract is insufficient to omit the general sustainable products clause.