Subpart 23.1 - Sustainable Products and Services

Overview

FAR Subpart 23.1 establishes policies and procedures requiring federal agencies to purchase sustainable products and services to the maximum extent practicable. It applies to all contract actions, including commercial acquisitions (COTS), services, construction, and purchases at or below the micro-purchase threshold, aimed at reducing environmental impact and promoting resource efficiency.

Key Rules

• "Maximum Extent Practicable" Standard: Agencies must procure sustainable products unless they cannot be acquired competitively within a reasonable timeframe, fail to meet reasonable performance requirements, or are available only at an unreasonable price.
• Price Reasonableness & Life-Cycle Cost: When evaluating price, agencies must consider the cost-effectiveness over the life of the product. For ENERGY STAR or FEMP-designated products, price is considered reasonable if energy savings offset costs over time.
• Statutory Purchasing Programs: Mandatory compliance is required for four specific programs (when thresholds are met):
  1. EPA-designated items (products containing recovered materials).
  2. USDA-designated product categories (biobased products).
  3. ENERGY STAR and FEMP-designated products (energy and water-efficient).
  4. EPA SNAP program (alternatives to ozone-depleting substances and high global warming potential hydrofluorocarbons).
• Thresholds for Recovered/Biobased Materials: Requirements apply if the item's price exceeds $10,000 or if the aggregate amount purchased by the agency in the preceding fiscal year was $10,000 or more.
• Prioritization Hierarchy:
  1. Statutory purchasing programs (EPA-designated items take precedence over USDA-designated items if a conflict exists).
  2. Multi-attribute sustainable products (those meeting both statutory and EPA purchasing program requirements).
  3. EPA purchasing programs (WaterSense, Safer Choice, etc.).
• Written Justification: If a sustainable product is not procured, the requiring activity must provide a written justification for the contract file explaining why it was not "practicable."

Responsibilities

• Contracting Officers (COs):
  • Ensure solicitations and contracts identify applicable sustainable products.
  • Maintain written justifications in the contract file when sustainable requirements are waived.
  • Verify contractor certifications for recovered and biobased materials.
• Requiring Activities / Technical Personnel:
  • Identify which sustainable programs apply to a specific acquisition.
  • Draft written justifications if sustainable products do not meet performance or price needs.
  • Prepare and monitor "Affirmative Procurement Programs" for recovered and biobased materials.
• Contractors:
  • Deliver sustainable products to the government or incorporate them into public works/construction.
  • Provide pre-award certifications and post-award reports/estimates for recovered and biobased material content.
• Agency Heads / Director of National Intelligence:
  • Authorize exemptions for national security, intelligence methods, or emergency response.

Practical Implications

• Market Research Shift: Procurement teams must use tools like the Green Procurement Compilation (GPC) at SFTool.gov early in the acquisition planning phase to identify mandatory green requirements.
• Service and Construction Impact: Sustainability rules are not just for supply contracts; they apply to products "furnished by the contractor for use by the Government" or "incorporated into construction," meaning janitorial, landscaping, and building contractors must use compliant chemicals and materials.
• Compliance Documentation: Even for small purchases, if an agency anticipates spending over $10,000 annually on a category (like office paper or lubricants), every individual purchase must favor the sustainable option or be justified in writing, creating a significant administrative trail for compliance.
• Vendor Requirements: Contractors must be prepared to certify the "biobased" or "recycled" content of their products, as the FAR clauses (e.g., 52.223-2, 52.223-4, 52.223-9) require formal reporting that can be audited.