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Barry McVay's FEDERAL CONTRACTS DISPATCH

DATE: November 30, 2000

FROM: Barry McVay, CPCM

SUBJECT: Department of Energy Acquisition Regulation (DEAR); Acquisition of Products Containing Recovered Materials

SOURCE: Federal Register, November 30, 2000, Vol. 65, No. 231, page 71292

AGENCIES: Department of Energy (DOE)

ACTION: Notice of Proposed Rulemaking

SYNOPSIS: DOE is proposing to amend the DEAR to provide guidance on the implementation of Executive Order 13101, Greening the Government Through Waste Prevention, Recycling, and Federal Acquisition, dated September 14, 1998.

EDITOR'S NOTE: The DEAR is available on the Internet at http://www.pr.doe.gov/dear.html.

For more on the recent issuance of three other "greening" executive orders (Executive Order 13148, Greening the Government Through Leadership in Environmental Management; Executive Order 13149, Greening the Government Through Federal Fleet and Transportation Efficiency; and Executive Order 13150, Federal Workforce Transportation), see the April 26, 2000, FEDERAL CONTRACTS DISPATCH "'Greening the Government' Executive Orders."

DATES: Comments on the proposed rulemaking must be received on or before close of business January 2, 2001.

ADDRESSES: Comments should be addressed to Richard Langston, MA-51, U.S. Department of Energy, Office of Procurement and Assistance Management 1000 Independence Avenue, SW, Washington, DC 20585.

FOR FURTHER INFORMATION CONTACT: Richard Langston, 202-586-8247, or e-mail: richard.langston@pr.doe.gov.

SUPPLEMENTAL INFORMATION: On September 14, 1998, President Clinton issued Executive Order 13101 to improve the federal government's use of recycled products and environmentally preferable products and services. The executive order states that "it is the national policy to prefer pollution prevention, whenever feasible. Pollution that cannot be prevented should be recycled; pollution that cannot be prevented or recycled should be treated in an environmentally safe manner. Disposal should be employed only as a last resort." Federal Acquisition Circular (FAC) 97-18, published July 6, 2000, revised the Federal Acquisition Regulation (FAR) to implement Executive Order 13101 (see the June 6, 2000, FEDERAL CONTRACTS DISPATCH "Federal Acquisition Circular (FAC) 97-18, Miscellaneous Amendments"). To implement Executive Order 13101 and bring the DEAR into conformance with the revised FAR, DOE is proposing to make the following changes to the DEAR:

• DEAR 923.405, Procedures, would be added. It would state that the "recommended percentage of recovered/recycled content contained in the Recovered Materials Advisory Notice (RMAN) shall be specified in the solicitation as the minimum percentage of recycled content. Acquisition of products with recycled contents exceeding the RMAN recommended content is encouraged if their performance is acceptable." (EDITOR'S NOTE: FAR 23.405, Procedures, states that "contracting officers should refer to EPA's [Environmental Protection Agency] list of EPA-designated products (available via the Internet at http://www.epa.gov/cpg/) and to their agencies' affirmative procurement programs when purchasing supplies that contain recovered material or services that could include supplies that contain recovered material." For more on the procurement of products with recovered materials, see the January 19, 2000, FEDERAL CONTRACTS DISPATCH "Comprehensive Guideline for Procurement of Products Containing Recovered Materials and Recovered Materials Advisory Notice III (RMAN III).")
  
  
• DEAR 923.471, Policy, which states "DOE policy is to acquire items composed of the highest percentage of recovered/recycled materials practicable...", would be deleted as unnecessarily duplicative of FAR 23.403, Policy, which states "the objective is to acquire competitively, in a cost-effective manner, products that meet reasonable performance requirements and that are composed of the highest percentage of required materials practicable."
  
  
• DEAR Subpart 923.7, Contracting for Environmentally Preferable and Energy-Efficient Products and Services, would be added, and it would consist of DEAR 923.705, Contract Clause. DEAR 923.705 would supplement the instructions at FAR 23.705, Contract Clause, concerning the use of FAR 52.223-10, Waste Reduction Program. DEAR 923.705 would state that FAR 52.223-10 should be included "in solicitations and contracts for prime support service awards being performed at government-owned or government-leased facilities and in contracts for operation of a Government-owned or government-leased facility." FAR 23.705 requires that FAR 52.223-10 be included "in all solicitations and contracts for contractor operation of government-owned or -leased facilities and all solicitation and contracts for support services at government-owned or -operated facilities."
  
  
• DEAR 936.601-3, Applicable Contract Procedures, would be added to supplement FAR 36.601-1, Applicable Contract Procedures, which requires that the construction design specifications use the "maximum practicable amount of recovered materials consistent with the performance requirements, availability, price reasonableness, and cost-effectiveness." Proposed DEAR 936.601-3 would require that the architect-engineer work statement "optimize life-cycle costs, recycled materials, pollution prevention, and other environmental and energy efficiency considerations associated with the construction, life-cycle operation, and decommissioning of their facilities."
  
  
• A new paragraph (a)(8) would be added to DEAR 936.602-70, DOE Selection Criteria, which would add a requirement that the contracting officer or architect-engineer evaluation board consider the "firms' experience in energy efficiency, pollution prevention, waste reduction, and the use of recovered materials and other criteria at FAR 36.602-1 [Selection Criteria]."
  
  
• DEAR 970.2304, Use of Recovered/Recycled Materials (and the DEAR subsections 970.2304-1, General, and 970.2304-2, Contract Clause) would be updated to include references to FAR Subpart 23.4, Use of Recovered Materials, FAR 23.704, Application to Government-Owned or Government-Leased Facilities, and FAR 23.705 (in DEAR 970.2304-1, but the proposed references are to the pre-FAC 97-18 section numbers (FAR 23.705 and FAR 23.706, respectively) and will have to be corrected when the rule is finalized); and to provide guidance concerning circumstances under which DEAR 970.5204-39, Affirmative Procurement Program, should be included in subcontracts (in DEAR 970.2304-2, and see next).
  
  
• DEAR 970.5204-39 would be revised to include guidance concerning circumstances under which the clause should be included in subcontracts ("if the contractor subcontracts a significant portion of the logistical operation of the government facility or subcontracts for construction or remodeling at the facility which includes the acquisition of items designated in EPA's Comprehensive Procurement Guidelines that federal agencies and their contractors are to acquire with recovered/recycled content...Examples of such a subcontract would be operation of the facility supply function, construction or remodeling at the facility, or operation of the facility motor vehicle fleet.").

FOR FURTHER INFORMATION CONTACT: Barry McVay at 703-451-5953 or by e-mail to BarryMcVay@FedGovContracts.com.

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