I.  Background

In the face of changing environmental circumstances and our Nation's heightened energy demands, the Federal Government must lead by example to create a clean energy economy that will increase prosperity, promote energy security, protect the interests of taxpayers, and safeguard the health of our environment. Executive Order 13514 (E.O. 13514), Federal Leadership in Environmental, Energy, and Economic Performance, was signed on October 5, 2009 (74 FR 52117, October 8, 2009). It requires Federal agencies to leverage agency acquisitions to foster markets for sustainable technologies and materials, products, and services. The head of each agency shall advance sustainable acquisition by ensuring that 95 percent of new contract actions, including task and delivery orders, for products and services, with the exception of acquisition of weapon systems, are energy-efficient (Energy Star or Federal Energy Management Program (FEMP)-designated), water-efficient, biobased, environmentally preferable (e.g., Electronic Product Environmental Assessment Tool (EPEAT)-registered), non-ozone depleting, contain recycled content, or are non-toxic or less toxic alternatives, where such products and services meet agency performance requirements. Federal agencies are also required to design, construct, maintain and operate high-performance sustainable buildings in sustainable locations.

Similarly, recognizing the long-term impact that Federal environmental management can have on national health and security, Executive Order 13423 (E.O. 13423), Strengthening Federal Environmental, Energy, and Transportation Management, was signed on January 24, 2007 (72 FR 3919, January 26, 2007). E.O. 13423 establishes the policy that Federal agencies shall conduct their environmental, transportation, and energy-related activities in an environmentally, economically, and fiscally sound, integrated, continuously improving, efficient, and sustainable manner.

The authorities throughout the applicable FAR parts are updated to include E.O. 13423 and E.O. 13514. Additionally, authorities throughout the applicable FAR parts are updated to delete references to E.O. 13101, E.O. 13123, and E.O. 13148, because the Executive orders were revoked by E.O. 13423.

Under FAR part 2, the definitions for "renewable energy" and "United States" are revised to reflect the latest definitions of the terms in E.O. 13514. A new definition for "sustainable acquisition," derived from the definition of "sustainable" in E.O. 13514, is added to FAR part 2. The definition of "water consumption intensity" is also added to FAR part 2 from E.O. 13514.

FAR part 4 changes include revisions to the policy for contractor submission of paper documents to the Government and updating the general description of the Federal Procurement Data System (FPDS). In efforts to reduce or prevent waste and meet the intent of the agencies' requirement to purchase at least 30 percent postconsumer fiber content paper as directed in both E.O. 13423 and E.O. 13514, contractors are required, if not using electronic commerce methods, to submit paper documents to the Government on double-sided 30 percent post-consumer fiber paper, whenever practicable. This is a change from the current regulations that only encourage the submission of paper documents on recycled paper. The general description of FPDS is revised to reflect that the Web-based tool will be a means of collecting sustainable acquisition data.

FAR parts 5, 7, and 11 are revised to ensure agencies are including or considering sustainable acquisition requirements in their synopses, acquisition planning documents and functions, and descriptions of agency needs.

Conforming changes are made to FAR parts 12 and 13.

FAR part 23 is revised to ensure that the policy of "leading by example" is followed by Federal agencies. This includes fostering markets for sustainable technologies, materials, products, and services, as a goal of agency acquisitions.

FAR 23.001 is amended to add new definitions for "environmental," "greenhouse gases," and "United States." All the definitions derive from E.O. 13514. FAR 23.002 is added to implement a policy, derived from E.O. 13423 sections 3(e) and (f), which requires that contracts for contractor operation of a Government-owned or -leased facility and contracts for support services at a Government-owned or -operated facility include provisions that obligate the contractor to comply with the requirements of the order to the same extent as the agency would be required to comply if the agency operated or supported the facility. Compliance includes developing programs to promote and implement cost-effective waste reduction.

A new FAR subpart 23.1, Sustainable Acquisition, is added to implement section 2(h) and section 18 of E.O. 13514. Federal agencies, with certain exceptions or exemptions, are required to advance sustainable acquisition by ensuring that 95 percent of new contract actions (including those for construction) contain requirements for products that are designated as energy-efficient, water-efficient, biobased, environmentally preferable (e.g., EPEAT-registered, non-toxic or less toxic alternatives), non-ozone depleting, or those that contain recovered materials. A new definition for "contract action" is added to the new FAR subpart 23.1.

Changes to FAR subpart 23.2, Energy and Water Efficiency and Renewable Energy, include updates to the authorities and policy. Sections (2)(d) and 14 of E.O. 13514, relating to the use and management of water through water-efficient means, are implemented in FAR subpart 23.2.

FAR 23.403 is revised to require agencies to purchase recycled content and biobased products or require them in the acquisition of services; the delivery, use, or furnishing of such products, which must meet, but may exceed, the minimum recycled or biobased content of an United States Environmental Protection Agency (EPA)- or United States Department of Agriculture-designated product.

Under FAR subpart 23.8, agencies are required to substitute safe alternatives to ozone-depleting substances. This subpart is revised to inform agencies that EPA's Significant New Alternatives Policy (SNAP) program (available at http://www.epa.gov/ozone/snap) has a list of safe alternatives to ozone-depleting substances.

DoD, GSA, and NASA deleted the content of FAR subpart 23.9, which required contractors to report to agencies compliance with the toxic chemical release reporting. E.O. 13148 required contractors to affirm compliance with toxic chemical release reporting requirements. E.O. 13148 was revoked by E.O. 13423. The associated clauses at FAR 52.223-13 and 52.223-14 are also deleted. Toxic chemical release reporting remains a requirement under environmental statutes and regulations, but the coverage in the FAR and the contract clauses are being deleted. FAR subpart 23.9 now requires contractor compliance with an agency's environmental management system. A new clause is prescribed to meet this requirement for contractor operation of Government-owned or - leased facilities in the United States, unless the agency head determines that use of the clause is in the interest of the facilities not located in the United States.

The requirement to implement high-performance sustainable building design, construction, renovation, repair, operation, and management stated in E.O. 13514 is included in FAR 36.104. In addition, new definitions are added at FAR 36.001, and a Web site is provided for accessing the "Guiding Principles for Federal Leadership in High Performance and Sustainable Buildings."

This interim rule adds language at FAR 37.102 requiring agencies to ensure that service contracts that require the delivery, use, or furnishing of products are consistent with FAR part 23.

To promote electronics stewardship, the policy at FAR 39.101 implements provisions of section 2(i) of E.O. 13514 to require agencies to enable power management, double-sided printing, and other energy-efficient or environmentally preferable features on all agency electronic products. The policy also requires agencies to employ best management practices for energy-efficient management of servers and Federal data centers.

FAR part 52 is revised to incorporate the policies reflected in E.O. 13514 and E.O. 13423. The modified clauses include--

FAR 52.204-4, Printed or Copied Double-Sided Postconsumer Fiber Paper;

FAR 52.204-8, Annual Representations and Certifications;

FAR 52.213-4, Terms and Conditions--Simplified Acquisitions (Other Than Commercial Items);

FAR 52.223-5, Pollution Prevention and Right-to-Know Information; and

FAR 52.223-10, Waste Reduction Program.

Additionally, DoD, GSA, and NASA added the clause at FAR 52.223-19 to address contractor compliance with environmental management systems.