FAR Case 2022-006 Sustainable Procurement will be issued as a proposed rule on August 3rd, 2023. This rule restructures and updates FAR Part 23 to dedicate it solely to the environment, sustainability, and material safety. The proposed changes implement Section 208(a) of Executive Order (E.O.) 14057 Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability. The E.O. requires agencies to procure sustainable products and services to the maximum extent practicable. (See also OMB Memo M-22-06.)
The changes are extensive in terms of the movement of information within FAR Part 23. A distribution table on page 15 maps the current subparts to their proposed new subpart or section. The highlights include:
New clause FAR 52.223-XX (TBD), Sustainable Products and Services. Will be included in all new solicitations and contracts unless otherwise justified in writing, directing contractors to --
1) Deliver and furnish sustainable products and services, including use at Government-owned contractor-operated facilities,
2) Incorporate sustainable products and services into the construction of a public building or public works, and
3) Furnish sustainable products and services for contractor use in performing services under the contract where the cost of the products is a direct cost to the contract (versus costs that are part of the contractor's general and administrative expenses (G&A) or indirect costs).
The clause will also provide direction on how to prioritize statutory and multi-attribute sustainable products and services and refers to the Green Procurement Compilation (https://sftool.gov/greenprocurement) as a resource listing sustainable products and services and other related guidance.
Requirements for prioritizing sustainable products and services will be established for Federal buyers but allows the agency to opt out if doing do conflicts with other statutes, E.O.s, or other regulations that impost domestic manufacturing and content requirements (e.g., The Buy American Act).
Revises the description of required products under services that will be subject to the new policy as those that are --
(1) delivered to the Government during performance,
(2) acquired by the contractor for use in performing services under a Government contract where the cost of the products is a direct cost to a Government contract, or
(3) furnished by the contractor for use by the Government, including use at Government-owned contractor-operated facilities.
Moves FAR Subpart 23.5, Drug-Free Workplace to a new FAR Subpart 26.5. The associated FAR clause 52.223-6 will be renumbered as 52.226-XX (number TBD).
Moves FAR Subpart 23.6, Encouraging Contractor Policies to Ban Text Messaging While Driving, to a new FAR Subpart 26.6. The associated FAR clause 52.223-18 will be renumbered as 52.226-YY (number TBD).
The table below maps the current FAR subpart to the proposed new subpart.
The complete proposed rule can be found here. Submit comments in response to FAR Case 2022-006 to the Federal eRulemaking portal at https://www.regulations.gov by searching for “FAR Case 2022-006”. Select the link “Comment Now” that corresponds with “FAR Case 2022-006”. Follow the instructions provided on the “Comment Now” screen. Include your name, company name (if any), and “FAR Case 2022-006” on your attached document.
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