[Federal Register Volume 72, Number 215 (Wednesday, November 7, 2007)]
[Rules and Regulations]
[Pages 63040-63045]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-5478]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 4, 7, 11, 12, 13, 23, 42, 45, and 52
[FAC 2005-21; FAR Case 2004-032; Item II; Docket 2006-020; Sequence 13]
RIN 9000-AK65
Federal Acquisition Regulation; FAR Case 2004-032, Biobased
Products Preference Program
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) have agreed on a final rule
amending the Federal Acquisition Regulation (FAR) to implement 7 U.S.C.
8102, as enacted by section 9002 of the Farm Security and Rural
Investment Act of 2002 (FSRIA) (Pub. L. 107-171), and amended by
sections 205 and 943 of the Energy Policy Act of 2005 (Pub. L. 109-58).
Entitled ``Federal Procurement of Biobased Products,'' 7 U.S.C. 8102
requires that a procurement preference be afforded biobased products
within items designated by the Secretary of Agriculture.
DATES: Effective Date: December 7, 2007.
FOR FURTHER INFORMATION CONTACT: Mr. William Clark, Procurement
Analyst, at (202) 219-1813 for clarification of content. For
information pertaining to status or publication schedules, contact the
FAR Secretariat at (202) 501-4755. Please cite FAC 2005-21, FAR case
2004-032.
SUPPLEMENTARY INFORMATION:
A. Background
The United States Department of Agriculture (USDA) published
regulations at 7 CFR 2902: 70 FR 1792, January 11, 2005; 71 FR 13686,
March 16, 2006; 71 FR 42572, July 27, 2006; and 71 FR 67031, November
20, 2006.
DoD, GSA, and NASA published a proposed rule in the Federal
Register at 71 FR 77360, December 26, 2006. The comment period closed
on February 26, 2007. Six respondents submitted comments on the
proposed rule. The comments are available at http://www.regulations.gov. A discussion of the comments and the changes made
to the rule are provided below.
Public Comments
Provide coverage for products that use biobased products.
Comment: One respondent recommends that the FAR should include a
preference for products that use biobased products. The example
proffered was diesel engine generator sets that perform with biobased
fuels.
Response: Extending coverage as suggested would exceed the
congressional mandate, codified at 7 U.S.C. 8102, to procure designated
biobased items. The comment is therefore beyond the scope of this case.
It applies to the scope of the biobased product program, which was
established by Congress.
Interface between the proposed contract clause and the order of
precedence clause.
Comment: One respondent expresses concern with the interface
between the contract clause and the order of precedence clause (FAR
52.215-8). The subject proposed rule includes a requirement to use a
contract clause, specifically FAR 52.223-XX (now FAR 52.223-2), to make
maximum use of biobased products in contracts for services, rather than
the normal needs analysis and specification process embodied in Part
11, Describing Agency Needs. The subject clause is proposed to go into
all service contracts (as well as construction), unless the contract
will not involve the use of USDA-designated items. The respondent
believes this unusual approach to describing contractual requirements
is inappropriate in contracts for services because it creates a
potential ambiguity. The respondent is concerned that in the order of
precedence clause, contract clauses take precedence over
specifications. As stated by the respondent, ``It is not clear that the
exemption in the clause regarding `meeting contract performance
requirements' in paragraph (a)(2) applies to named products such as
those on qualified product lists (QPLs), because of the order of
precedence clause, 52.215-8, that already goes into all negotiated
contracts. '' The respondent is concerned that, according to this rule
of interpretation, the clause requirement to use a designated biobased
hydraulic fluid or lubricant, for example, might be required over a QPL
or other contractually specified product. This is a matter of concern
to the respondent when acquiring services in support of complex
systems, engineering services, and other contracts for services when
multi-tiered subcontracting is involved.
The respondent suggests two alternatives--
Include the requirement for biobased products in FAR Part
11 rather than in a contract clause; or
Exempt products on QPLs.
Response: Review of the proposed contract clause and FAR 52.215-8
reveals that the two clauses can be harmonized in a manner that
furthers the Congressional objective when read together. In accordance
with the proposed contract clause and the provisions of 7 U.S.C. 8102,
any entity contracting with any Federal agency is required to use
designated biobased items (absent one of the statutory exemptions) in
performance of the contract. As mandated in 7 U.S.C. 8102(d), Federal
agencies have one year after designation of a product to modify
specifications which they have the responsibility for drafting or
reviewing, in order to ensure that such specifications require the use
of biobased products unless an exemption applies. The proposed
alternatives are addressed as follows:
Put the requirement in Part 11. Regardless of where the
requirement is incorporated into the FAR, the requirement must be
incorporated into the contract to bind a contractor. The statute
mandates: ``Except as provided in subsection (c), each procuring agency
shall comply with the requirements set forth in this section and any
regulations issued under this section[hellip]'' (7 U.S.C. 8102(a)).
``Procuring agency'' is defined in 7 U.S.C. 8101(4) as--
--Any Federal agency that is using Federal funds for procurement;
or
--Any person contracting with any Federal agency with respect to
work performed under the contract.
To implement 7 U.S.C. 8102, a contract clause is required. Absent a
contract clause, the contractor is not bound to follow the mandates of
7
[[Page 63041]]
U.S.C. 8102. For a performance-based contract, there may be no
specifications.
Exemption for Products on QPLs. The exemptions are listed
in the proposed and final rules at FAR 23.404(b), 23.405(b), and in the
clause at 52.223-2(a). There is an exemption that covers situations in
which the product fails to meet performance requirements. If there is a
qualification requirement applicable to an acquisition, it will be
unknown whether a product meets performance requirements until it has
been evaluated for addition to the QPL. Either the product will meet
the requirements and be added to the QPL, or the product will not meet
the requirements, and need not be purchased. In any case, the QPL will
control until the product is tested. Federal agencies should, however,
expedite the qualification process. Congress has directed Federal
agencies to revise specifications which they are responsible for
drafting or reviewing within one year after the date of publication of
the guidelines on designated products. Therefore, such exclusion for
all products on QPLs would be inconsistent with 7 U.S.C. 8102(d).
Include a categorical exemption for spacecraft or combat systems in
the clause.
Comment: One respondent expressed concern that
``[hellip]fabricators and operators working under large mission support
services contracts, especially at the component subcontract level,
might not be aware that spacecraft are exempt from some biobased
requirements unless that specific exception is added to paragraph (a)
of the clause[uml].''
Response: The USDA designation of some items (e.g., mobile
equipment hydraulic fluids, diesel fuel additives, and penetrating
lubricants, see 7 CFR 2902.10 et seq.) provides exemption from the
preferred procurement requirement for the application of the designated
item to one or both of the following:
(i) Spacecraft system and launch support equipment.
(ii) Military equipment: Product or system designed or procured for
combat or combat-related missions.
These exemptions were initiated in response to public comments on
the USDA proposed rule designating the first 6 biobased items for
Federal procurement (70 FR 38612, July 5, 2005 and 71 FR 13685, March
16, 2006). USDA believed that the situations described were of
sufficient concern that it was appropriate to provide specific
exemptions for certain designated items when used in military equipment
in combat or combat-related missions and spacecraft and their launch
support equipment where failures could have catastrophic consequences.
The Councils have included these exemptions with the other
exemptions at FAR 23.404(b) and in the clause at FAR 52.223-2, because
these exemptions may impact more than just one agency. The clause
prescription has not been modified, because an exemption may apply to
one USDA-designated item to be used in the performance of the contract,
but not other USDA-designated items, or even the same item with a
different application.
Inconsistent with performance-based service contracting policy.
Comment: One respondent comments that the proposed contract clause
approach is unnecessary and inconsistent with performance-based service
contracting policy.
Response: Requiring a preference for biobased products does not
impinge upon a contractor's discretion of determining work processes.
Rather, once a contractor delineates a process, the contract clause
only requires that if the process selected by the contractor involves
the use of USDA-designated products, the contractor shall use biobased
products, absent an applicable exception. The contractor may select
another process that does not involve the use of any USDA-designated
products.
Limit the use of the clause to contracts for commercial services
with an estimated value in excess of $100,000.
Comment: One respondent recommends that the purpose of the new
clause can still be achieved if the prescription were not as inclusive.
Having a narrower prescription would balance the needs of USDA with the
requirements of the rest of the procurement community. The respondent
recommends limiting the use of the clause to contracts for commercial
type services with an estimated value above $100,000.
Response: Such action would be inconsistent with 7 U.S.C. 8102(a).
That statutory provision requires compliance where the purchase price
of the item exceeds $10,000 or ``where the quantity of such items or of
functionally equivalent items purchased or acquired in the course of
the preceding fiscal year was $10,000 or more.''
Delete coverage for micro-purchases.
Comment: One respondent suggests deletion of coverage for micro-
purchases at FAR 13.201(f). Justification for this recommendation is to
enhance the simplicity of awarding micro-purchases, reduce the burden
on agencies for training individuals executing such purchases, and the
decreased time for processing associated paperwork.
Response: The requirements of 7 U.S.C. 8102 are specifically
applicable to any purchase once the statutory threshold has been met
(i.e., the quantity of such items purchased by the agency the preceding
year was $10,000 or more).
Continue to meet contract performance requirements.
Comment: One respondent suggests a change to proposed FAR clause
52.223-XX (now 52.223-2). The respondent suggests that (a)(2) of the
proposed clause be changed from ``meeting contract performance
requirements; or'' to ``and continue to meet contract performance
requirements; or.''
Response: Absent a change in specification, a product that meets
contract specifications at time of award will continue to meet such
specifications subsequent to contract award. Therefore, no change to
the proposed clause is required.
Include the certification in ORCA.
Comment: Include the certification in Online Representations and
Certifications Application (ORCA).
Response: The Councils agree with this comment and have added the
FAR clause 52.223-1 to the list of clauses at FAR 4.1202.
Objection to requirement for minimum biobased contents for
lubricants.
Comment: One respondent objects ``to the USDA's proposal requiring
minimum biobased contents in order for lubricants to qualify for
Federal agency procurement preference.'' A variety of reasons are
provided, including cost and performance.
Response: With respect to the comments involving cost or
performance, Federal agencies are not required to procure such products
if the product cannot be procured at a reasonable price or it does not
meet requirements. The remaining comments relating to USDA's
designation of products are beyond the scope of this case and need to
be directed to the USDA.
Project officers will need to be trained.
Comment: One respondent comments that contracting officer technical
representatives (project officers) will need to be trained.
Response: Program training will need to be conducted on an
individual Federal agency basis, since preference programs are Federal
agency specific. Therefore, training is most appropriately
[[Page 63042]]
addressed in conjunction with each Federal agency's procurement
program.
Life-cycle cost information will be prohibitive for small
businesses.
Comment: One respondent states that Life-cycle cost information
will be prohibitive for many small businesses and should not be
routinely requested from vendors since price, availability and
functionality are generally the most important factors in most
acquisition.
Response: The rule does not require routine collection of this data
from vendors. It is permissive (``may request''), and is necessary to
implement 7 CFR 2902.8, which requires that manufacturers and vendors
must provide information on life cycle costs and environmental and
health benefit tests, when requested by Federal agencies.
Need for Budget Object Code.
Comment: The respondent also comments that it will be difficult for
agencies to capture data regarding affected procurements and a Budget
Object Code is needed.
Response:This comment is outside the scope of this case.
Other Revisions to the Proposed Rule.
Definitions. The proposed rule cited the statutory
definition of ``Biobased product'' (7 U.S.C. 8101(2)), however, the
definition conflicts with the intent of the rule that biobased products
from certain designated countries must be treated by procuring agencies
as eligible for the procurement preference under FSRIA. The revised
definition deletes the statutory reference and encompasses biobased
products composed of renewable agricultural materials or forestry
materials from ``designated countries,'' as defined in FAR 25.003.
Therefore, provided that those products otherwise meet all requirements
for participation in the preference program, they will be entitled to
receive the procurement preference.
Certification. The Councils concluded that the
certification in the proposed rule was unnecessarily burdensome,
requiring submission of a separate signed certification. This
certification was erroneously patterned after FAR clause 52.223-9,
Estimate of Recovered Material Content for EPA-Designated Products,
Alternate I, which is a requirement for a certification at the end of
the contract performance. The more appropriate model is the pre-award
Recovered Material Certification at FAR 52.223-4, in which the offeror
provides certification by signing the offer. In this way, the estimated
paperwork burden associated with the proposed rule is eliminated. In
addition, the wording ``other than biobased products that are not
purchased by the offeror as a direct result of this contract'' has been
included in the certification to implement 7 CFR 2902.3(c), as amended
by the USDA interim final rule of 71 FR 42572, July 27, 2006, which
clarified the USDA intent to exclude from the preferred procurement
program biobased products that are merely incidental to Federal
funding. This clarification was necessary after the definition of
``procuring agency'' was expanded to include contractors.
Duplication of exemptions. The proposed rule duplicated
the statement of exemptions at FAR 23.404(b) and 23.405(b). The
Councils provide a cross-reference at FAR 23.405(b) to 23.404(b),
rather than a restatement of the exemptions.
Title of 52.223-9. The Councils corrected the title of FAR
52.223-9 in the clause prescription at FAR 23.406(d) in the final rule.
This is not a significant regulatory action and, therefore, was not
subject to review under Section 6(b) of Executive Order 12866,
Regulatory Planning and Review, dated September 30, 1993. This rule is
not a major rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not have a significant economic impact on a substantial
number of small entities within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq., because it implements in the
FAR the USDA rule at 7 CFR Part 2902. Furthermore, USDA has certified
that its designation of biobased items will not have a significant
economic impact on a substantial number of small entities (71 FR 13685
at 13704, March 16, 2006). In support of this certification, USDA
stated in the Federal Register that it anticipates that this program
will affect entities, both large and small, that manufacture or sell
biobased products. For example, the designation of items for preferred
procurement will provide additional opportunities for businesses to
manufacture and sell biobased products to Federal agencies and their
contractors. Similar opportunities will be provided for entities that
supply biobased materials to manufacturers. Conversely, the biobased
procurement program may decrease opportunities for businesses that
manufacture or sell non-biobased products or provide components for the
manufacturing of such products. However, this rule will not affect
existing purchase orders and it will not preclude procuring agencies
from continuing to purchase non-biobased items under certain conditions
relating to the availability, performance, or cost of biobased items.
This rule will also not preclude businesses from modifying their
product lines to meet new specifications or solicitation requirements
for these products containing biobased materials. Because biobased
products represent a small emerging market, only a small percentage of
all manufacturers, large or small, are expected to develop and market
biobased products. Thus, the number of small businesses affected is not
expected to be substantial. The only comment received with regard to
impact of the proposed rule on small business is addressed in the
response to public comments.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose information collection requirements that require
the approval of the Office of Management and Budget under 44 U.S.C.
3501, et seq. The estimated burden of 18,000 hours per year associated
with the proposed rule provision at FAR 52.223-1, has been eliminated
in the final rule.
List of Subjects in 48 CFR Parts 2, 4, 7, 11, 12, 13, 23, 42, 45,
and 52
Government procurement.
Dated: October 31, 2007.
Al Matera,
Director, Office of Acquisition Policy.
0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 2, 4, 7, 11, 12, 13,
23, 42, 45, and 52 as set forth below:
0
1. The authority citation for 48 CFR parts 2, 4, 7, 11, 12, 13, 23, 42,
45, and 52 continues to read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 2--DEFINITIONS OF WORDS AND TERMS
0
2. Amend section 2.101 in paragraph (b)(2) by adding, in alphabetical
order, the definition ``Biobased product'' to read as follows:
2.101 Definitions.
* * * * *
(b) * * *
(2) * * *
Biobased product means a product determined by the U.S. Department
of Agriculture to be a commercial 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 (including plant,
[[Page 63043]]
animal, and marine materials) or forestry materials.
* * * * *
PART 4--ADMINISTRATIVE MATTERS
0
3. Amend section 4.1202 by redesignating paragraphs (r) through (z) as
(s) through (aa) respectively, and adding a new paragraph (r) to read
as follows:
4.1202 Solicitation provision and contract clause.
* * * * *
(r) 52.223-1, Biobased Product Certification.
* * * * *
PART 7--ACQUISITION PLANNING
0
4. Amend section 7.103 by revising paragraph (n)(2) to read as follows:
7.103 Agency-head responsibilities.
* * * * *
(n) * * *
(2) Comply with the policy in 11.002(d) regarding procurement of
biobased products, products containing recovered materials, and
environmentally preferable and energy-efficient products and services.
* * * * *
PART 11--DESCRIBING AGENCY NEEDS
0
5. Amend section 11.002 by revising paragraph (d) to read as follows:
11.002 Policy.
* * * * *
(d)(1) When agencies acquire products and services, various
statutes and executive orders (identified in Part 23) require
consideration of--
(i) Energy-efficient products and services (Subpart 23.2);
(ii) Products and services that utilize renewable energy
technologies (Subpart 23.2);
(iii) Products containing energy-efficient standby power devices
(Subpart 23.2);
(iv) Products containing recovered materials (Subpart 23.4);
(v) Biobased products (Subpart 23.4); and
(vi) Environmentally preferable products and services (Subpart
23.7).
(2) Executive agencies shall consider maximum practicable use of
products and services listed in paragraph (d)(1) of this section when--
(i) Developing, reviewing, or revising Federal and military
specifications, product descriptions (including commercial item
descriptions) and standards;
(ii) Describing Government requirements for products and services;
and
(iii) Developing source-selection factors.
* * * * *
11.101 [Amended]
0
6. Amend section 11.101 by removing paragraph (b) and redesignating
paragraph (c) as (b).
0
7. Amend section 11.302 by revising paragraph (c) to read as follows:
11.302 Policy.
* * * * *
(c)(1) When the contracting officer needs additional information to
determine whether supplies meet minimum recovered material or biobased
standards stated in the solicitation, the contracting officer may
require offerors to submit additional information on the recycled or
biobased content or related standards. The request for the information
must be included in the solicitation. When acquiring commercial items,
limit the information to the maximum extent practicable to that
available under normal commercial practices.
(2) For biobased products, the contracting officer may require
vendors to provide information on life cycle costs and environmental
and health benefits in accordance with 7 CFR 2902.8.
PART 12--ACQUISITION OF COMMERCIAL ITEMS
0
8. Amend section 12.301 by revising paragraph (e)(3) to read as
follows:
12.301 Solicitation provisions and contract clauses for the
acquisition of commercial items.
* * * * *
(e) * * *
(3) The contracting officer may use the provisions and clauses
contained in Part 23 regarding the use of recovered material and
biobased products when appropriate for the item being acquired.
* * * * *
PART 13--SIMPLIFIED ACQUISITION PROCEDURES
0
9. Amend section 13.201 by revising paragraph (f) to read as follows:
13.201 General.
* * * * *
(f) The procurement requirements in Subparts 23.2, 23.4, and 23.7
apply to purchases at or below the micro-purchase threshold.
* * * * *
PART 23--ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY
TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE
0
10. Amend section 23.000 by revising paragraph (d) to read as follows:
23.000 Scope.
* * * * *
(d) Acquiring energy-efficient and water-efficient products and
services, environmentally preferable products, products that use
recovered materials, and biobased products; and
* * * * *
0
11. Revise Subpart 23.4 to read as follows:
Subpart 23.4--Use of Recovered Materials and Biobased Products
Sec.
23.400 Scope of subpart.
23.401 Definitions.
23.402 Authorities.
23.403 Policy.
23.404 Agency affirmative procurement programs.
23.405 Procedures.
23.406 Solicitation provisions and contract clauses.
23.400 Scope of subpart.
(a) The procedures in this subpart apply to all agency acquisitions
of an Environmental Protection Agency (EPA) or United States Department
of Agriculture (USDA)-designated item, if--
(1) The price of the designated item exceeds $10,000; or
(2) The aggregate amount paid for designated items, or for
functionally equivalent designated items, in the preceding fiscal year
was $10,000 or more.
(b) While micro-purchases are included in determining the aggregate
amount paid under paragraph (a)(2) of this section, it is not
recommended that an agency track micro-purchases when--
(1) The agency anticipates the aggregate amount paid will exceed
$10,000; or
(2) The agency intends to establish or continue an affirmative
procurement program in the following fiscal year.
23.401 Definitions.
As used in this subpart--
(a) 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 purchasing recommendations in a
[[Page 63044]]
related Recovered Materials Advisory Notice (RMAN).
(b) USDA-designated item means a generic grouping of products that
are or can be made with biobased materials--
(1) That is listed by USDA in a procurement guideline (7 CFR part
2902, subpart B); and
(2) For which USDA has provided purchasing recommendations.
23.402 Authorities.
(a) The Resource Conservation and Recovery Act of 1976 (RCRA), 42
U.S.C. 6962.
(b) The Farm Security and Rural Investment Act of 2002 (FSRIA), 7
U.S.C. 8102.
(c) Executive Order 13101 of September 14, 1998, Greening the
Government Through Waste Prevention, Recycling, and Federal
Acquisition.
(d) The Energy Policy Act of 2005, Public Law 109-58.
23.403 Policy.
Government policy on the use of products containing recovered
materials and biobased products considers cost, availability of
competition, and performance. Agencies shall assure the use of products
containing recovered materials and biobased products to the maximum
extent practicable without jeopardizing the intended use of the product
while maintaining a satisfactory level of competition at a reasonable
price. Such products shall meet the reasonable performance standards of
the agency and be acquired competitively, in a cost-effective manner.
Except as provided at FAR 23.404(b), virgin material shall not be
required by the solicitation (see 11.302).
23.404 Agency affirmative procurement programs.
(a) An agency must establish an affirmative procurement program for
EPA and USDA-designated items if the agency's purchases of designated
items exceed the threshold set forth in 23.400.
(1) Agencies have a period of 1 year to revise their procurement
program(s) after the designation of any new item by EPA or USDA.
(2) Technical or requirements personnel and procurement personnel
are responsible for the preparation, implementation, and monitoring of
affirmative procurement programs.
(3) Agency affirmative procurement programs must include--
(i) A recovered materials and biobased products preference program;
(ii) An agency promotion program;
(iii) For EPA-designated items only, a program for requiring
reasonable estimates, certification, and verification of recovered
material used in the performance of contracts. Both the recovered
material content and biobased programs require preaward certification
that the products meet EPA or USDA recommendations. A second
certification is required at contract completion for recovered material
content; and
(iv) Annual review and monitoring of the effectiveness of the
program.
(b) Exemptions. (1) Agency affirmative procurement programs must
require that 100 percent of purchases of EPA or USDA-designated items
contain recovered material or biobased content, respectively, unless
the item cannot be acquired--
(i) Competitively within a reasonable time frame;
(ii) Meeting reasonable performance standards; or
(iii) At a reasonable price.
(2) EPA and USDA may provide categorical exemptions for items that
they designate, when procured for a specific purpose. For example, some
USDA-designated items such as mobile equipment hydraulic fluids, diesel
fuel additives, and penetrating lubricants (see 7 CFR 2902.10 et seq.)
are excluded from the preferred procurement requirement for the
application of the USDA-designated item to one or both of the
following:
(i) Spacecraft system and launch support equipment.
(ii) Military equipment, i.e., a product or system designed or
procured for combat or combat-related missions.
(c) Agency affirmative procurement programs must provide guidance
for purchases of EPA-designated items at or below the micro-purchase
threshold.
(d) Agencies may use their own specifications or commercial product
descriptions when procuring products containing recovered materials or
biobased products. When using either, the contract should specify--
(1) For products containing recovered materials, that the product
is composed of the--
(i) Highest percent of recovered materials practicable; or
(ii) Minimum content standards in accordance with EPA's Recovered
Materials Advisory Notices; and
(2) For biobased products, that the product is composed of--
(i) The highest percentage of biobased material practicable; or
(ii) USDA's recommended minimum contents standards.
(e) Agencies shall treat as eligible for the preference for
biobased products, products from ``designated countries,'' as defined
in 25.003, provided that those products--
(1) Meet the criteria for the definition of biobased product,
except that the products need not meet the requirement that renewable
agricultural materials (including plant, animal, and marine materials)
or forestry materials in such product must be domestic; and
(2) Otherwise meet all requirements for participation in the
preference program.
23.405 Procedures.
(a) Designated items and procurement guidelines.
(1) Recovered Materials. Contracting officers should refer to EPA's
list of EPA-designated items (available via the Internet at http://www.epa.gov/cpg/) and to their agencies' affirmative procurement
program when purchasing products that contain recovered material, or
services that could include the use of products that contain recovered
material.
(2) Biobased products. Contracting officers should refer to USDA's
list of USDA-designated items (available through the Internet at http://www.usda.gov/biopreferred) and to their agencies affirmative
procurement program when purchasing supplies that contain biobased
material or when purchasing services that could include supplies that
contain biobased material.
(b) Procurement exemptions.
(1) Once an item has been designated by either EPA or USDA,
agencies shall purchase conforming products unless an exemption applies
(see 23.404(b)).
(2) When an exemption is used for an EPA-designated item or the
procurement of a product containing recovered material does not meet or
exceed the EPA recovered material content guidelines, the contracting
officer shall place a written justification in the contract file.
(c) Program priorities. When both the USDA-designated item and the
EPA-designated item will be used for the same purposes, and both meet
the agency's needs, the agency shall purchase the EPA-designated item.
23.406 Solicitation provisions and contract clauses.
(a) Insert the provision at 52.223-1, Biobased Product
Certification, in solicitations that--
(1) Require the delivery or specify the use of USDA-designated
items; or
(2) Include the clause at 52.223-2.
(b) Insert the clause at 52.223-2, Affirmative Procurement of
Biobased Products Under Service and Construction Contracts, in service
or construction solicitations and contracts unless the contract will
not involve the use of USDA-designated items at http://
[[Page 63045]]
www.usda.gov/biopreferred or 7 CFR Part 2902.
(c) Insert the provision at 52.223-4, Recovered Material
Certification, in solicitations that are for, or specify the use of,
EPA-designated items.
(d) Insert the clause at 52.223-9, Estimate of Percentage of
Recovered Material Content for EPA-Designated Products, in
solicitations and contracts exceeding $100,000 that are for, or specify
the use of, EPA-designated products containing recovered materials. If
technical personnel advise that estimates can be verified, use the
clause with its Alternate I.
23.701 [Removed]
0
12. Remove and reserve section 23.701.
0
13. Amend section 23.702 by adding paragraph (g) to read as follows:
23.702 Authorities.
* * * * *
(g) Farm Security and Rural Investment Act of 2002 (FSRIA) (7
U.S.C. 8102).
0
14. Amend section 23.703 by revising paragraph (b)(7); and adding
paragraph (b)(8) to read as follows:
23.703 Policy.
* * * * *
(b) * * *
(7) Promote the use of biobased products.
(8) Purchase only plastic ring carriers that are degradable (7 USC
8102(c)(1), 40 CFR part 238).
PART 42--CONTRACT ADMINISTRATION AND AUDIT SERVICES
0
15. Amend section 42.302 by revising paragraph (a)(68)(ii) to read as
follows:
42.302 Contract administration functions.
(a) * * *
(68) * * *
(ii) Monitoring contractor compliance with specifications or other
contractual requirements requiring the delivery or use of
environmentally preferable products, energy-efficient products,
products containing recovered materials, and biobased products. This
must occur as part of the quality assurance procedures set forth in
Part 46; and
* * * * *
PART 45--GOVERNMENT PROPERTY
45.103 [Amended]
0
16. Amend section 45.103 by removing from paragraph (a)(1)
``11.101(c)'' and adding ``11.101(b)'' in its place.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
17. Add sections 52.223-1 and 52.223-2 to read as follows:
52.223-1 Biobased Product Certification.
As prescribed in 23.406(a), insert the following provision:
BIOBASED PRODUCT CERTIFICATION [December 7, 2007]
As required by the Farm Security and Rural Investment Act of 2002
and the Energy Policy Act of 2005 (7 U.S.C. 8102(c)(3)), 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 2902, 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)
52.223-2 Affirmative Procurement of Biobased Products Under Service
and Construction Contracts.
As prescribed in 23.406(b), insert the following clause:
AFFIRMATIVE PROCUREMENT OF BIOBASED PRODUCTS UNDER SERVICE AND
CONSTRUCTION CONTRACTS [December 7, 2007]
(a) In the performance of this contract, the contractor shall make
maximum use of biobased products that are United States Department of
Agriculture (USDA)-designated items unless--
(1) The product cannot be acquired--
(i) Competitively within a time frame providing for compliance with
the contract performance schedule;
(ii) Meeting contract performance requirements; or
(iii) At a reasonable price.
(2) The product is to be used in an application covered by a USDA
categorical exemption (see 7 CFR 2902.10 et seq.). For example, some
USDA-designated items such as mobile equipment hydraulic fluids, diesel
fuel additives, and penetrating lubricants are excluded from the
preferred procurement requirement for the application of the USDA-
designated item to one or both of the following:
(i) Spacecraft system and launch support equipment.
(ii) Military equipment, i.e., a product or system designed or
procured for combat or combat-related missions.
(b) Information about this requirement and these products is
available at http://www.usda.gov/biopreferred.
(End of clause)
52.223-4 [Amended]
0
18. Amend section 52.223-4 by removing from the prescription
``23.406(a)'' and adding ``23.406(c)'' in its place.
52.223-9 [Amended]
0
19. Amend section 52.223-9 by removing from the prescription and
Alternate I ``23.406(b)'' and adding ``23.406(d)'' respectively, in its
place.
[FR Doc. 07-5478 Filed 11-6-07; 8:45 am]
BILLING CODE 6820-EP-S