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Panoptic Enterprises' FEDERAL CONTRACTS DISPATCH

DATE: February 7, 2003

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

SOURCE: Federal Register, February 7, 2003, Vol. 68, No. 26, page 6355

AGENCIES: Department of Energy (DOE)

ACTION: Final Rule

SYNOPSIS: DOE is amending the DEAR to further implement Executive Order 13101, Greening the Government Through Waste Prevention, Recycling, and Federal Acquisition, dated September 14, 1998. This final rule supplements the Federal Acquisition Regulation (FAR) policy regarding the acquisition of products containing recovered materials with regard to DOE's facility management contractors.

EDITOR'S NOTE: For more on Federal Acquisition Circular (FAC) 97-18, which amended the FAR to implement Executive Order 13101 and which is being supplemented by this final rule, see the June 6, 2000, FEDERAL CONTRACTS DISPATCH "Federal Acquisition Circular (FAC) 97-18, Miscellaneous Amendments."

For more on the notice of proposed rulemaking (NPRM), see the November 30, 2000, FEDERAL CONTRACTS DISPATCH "Department of Energy Acquisition Regulation (DEAR); Acquisition of Products Containing Recovered Materials."

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)." The Environmental Protection Agency's list of designated products is on the Internet at http://www.epa.gov/cpg/.

The DEAR is Part 9 of Title 48 of the Code of Federal Regulations (CFR). It is available on the Internet at http://professionals.pr.doe.gov/ma5/MA-5Web.nsf/Procurement/Acquisition+Regulation?OpenDocument.

EFFECTIVE DATE: March 10, 2003.

FOR FURTHER INFORMATION CONTACT: Richard B. Langston, Office of Procurement and Assistance Policy, ME-61, 1000 Independence Avenue, SW, Washington, DC 20585 , 202-586-8247, 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." FAC 97-18, published June 6, 2000, reorganized and rewrote FAR Subpart 23.4, Use of Recoverd Materials, to implement Executive Order 13101.

On November 30, 2000, DOE published an NPRM to bring the DEAR into conformance with the revised FAR. The NPRM proposed to make the following changes to the DEAR:

• Add DEAR 923.405, Procedures, to note that the recommended percentage of recycled content included in the EPA RMANs is to be specified in the solicitation and contract as the minimum recycled content.
  
  
• Delete DEAR 923.471, Policy, because it is unnecessarily duplicative of FAR 23.403, Policy.
  
  
• Add DEAR Subpart 923.7, Contracting for Environmentally Preferable and Energy-Efficient Products and Services, which would consist of DEAR 923.705, Contract Clause. DEAR 923.705 would supplement the instruction at FAR 23.705, Contract Clause, concerning the use of FAR 52.223-10, Waste Reduction Program.
  
  
• Add DEAR 936.601-3, Applicable Contract Procedures, to supplement FAR 36.601-3, Applicable Contract Procedures, by requiring 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."
  
  
• Add paragraph (a)(8) to DEAR 936.602-70, DOE Selection Criteria, to require 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]."
  
  
• Revise DEAR 970.2304, Use of Recovered/Recycled Materials, to include references to FAR Subpart 23.4 and FAR 23.704, Application to Government-Owned or Leased Facilities (in DEAR 970.2304-1, General), and to provide guidance concerning circumstances under which DEAR DEAR 970.5204-39, Affirmative Procurement Program, should be included in subcontracts (in DEAR 970.2304-2, Contract Clause).
  
  Revise DEAR 970.2304-39 to include guidance concerning circumstances under which the clause should be included in certain subcontracts. The list of circumstances under which recycled content products need not be purchased conformed to the wording of the FAR.

Five organizations submitted comments on the NPRM. As a result of the comments, the NPRM is finalized with the following changes:

• Because EPA RMANs often do not specify a minimum percentage of recycled content but a range of content as the content sometimes varies by geographical area, DEAR 923.405(e) is revised to add "or range of content" to "the EPA recommended percentage of recovered/recycled content or range of content contained in the Recovered Materials Advisory Notice (RMAN) shall be specified in the solicitation and contract as the minimum percentage of recovered/recycled content or range of content."
  
  
• DEAR Subpart 923.7 is not added because DEAR 923.705 is unnecessarily duplicative of FAR 23.705.
  
  
• DEAR 936.601-3 is not added because it is unnecessarily duplicative of FAR 36.601-3.
  
  
• Subsequent to the publication of the NPRM, a separate final rule was published which amended the numbering structure of DEAR Part 970, Management and Operating Contracts. That final rule redesignated DEAR 970.5204-39 as DEAR 970.5223-2 (see the December 22, 2000, FEDERAL CONTRACTS DISPATCH "Department of Energy Acquisition Regulation (DEAR); Rewrite of Part 970, DOE Management and Operating Contracts").
  
  In addition to the redesignated number, proposed DEAR 970.5204-39 differs from DEAR 970.5223-2 in that the requirement for the submission of subcontract reports at the "conclusion of each fiscal year" is changed to "at the end of the federal fiscal year and the end of the contract"; and instead of requiring that the clause be flowed down to subcontractors, the contractor is required to flow down "a clause substantially the same as this clause."

FOR FURTHER INFORMATION CONTACT: Panoptic Enterprises at 703-451-5953 or by e-mail to Panoptic@FedGovContracts.com.

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