CANCELLED BY PIC 12-02
APPLICABILITY OF AFFIRMATIVE PROCUREMENT
PURPOSE: To clarify section 23.405(b) of the FAR and assist acquisition personnel understand the procedures under Executive Order 13101 of September 14, 1998, “Greening the Government through Waste Prevention, Recycling, and Federal Acquisition” as implemented by NPG 8830.1, “Affirmative Procurement Plan for Environmentally Preferable Products.”
BACKGROUND: The Environmental Protection Agency, through its “Affirmative Procurement” program and Comprehensive Procurement Guideline (CPG), designates items that must contain recycled content when purchased by federal, state, and local agencies, or by government contractors using appropriated federal funds. Both the FAR and NPG 8830.1 require that Government purchases of EPA-designated items contain the specified amount of recovered materials unless a request for waiver or justification documentation has been processed. EPA maintains the list of these products in its Comprehensive Procurement Guideline, which can be accessed at http://www.epa.gov/cpg. Questions have arisen about the broad scope of Affirmative Procurement requirements, specifically involving roles or responsibility of procurement offices and the degree to which NASA’s contractors are required to comply with EPA’s CPG.
The requirements of E.O. 13101 and related legislation and guidance are implemented in FAR Subpart 23.4 - Use of Recovered Materials. NPG 8830.1 describes NASA’s affirmative procurement program in accordance with FAR 23.402(b)(2).
Direct Procurement: The Affirmative Procurement program requires all direct purchases of CPG-listed products by NASA civil servants contain recovered material (FAR 23.404(b)), unless a waiver is prepared and distributed in accordance with NPG 8830.1 paragraph 1.4 and FAR 23.405(c). For purposes of this Procurement Information Circular, the definition of a “direct procurement” is when CPG-listed products are separately identified line items in a solicitation or contract. Contracting officers must ensure that direct procurements of items on the CPG list either contain recovered materials or that a waiver has been obtained in accordance with NPG 8830.1. (Additionally, unless a waiver has been obtained, contracting officers shall ensure that the clauses at 52.223-4, Recovered Material Certification, and 52.223-9, Estimate of Recovered Material Content for EPA-Designated Products, are in all contracts for the direct procurement of items on the CPG list.)
Support Services Contracts: Section 23.705 of the FAR requires contracting officers to include the clause at 52.223-10, Waste Reduction Program, when the contract is for the operation of Government owned or leased facilities or for support services at Government owned or leased facilities. Among other things, the clause at 52.223-10 provides that prime contractors will determine when EPA-designated items are used in the performance of the contract. (The contracting officer must also include the clauses at 52.223-4 and 52.223-9 when the clause at 52.223-10 is included in a contract.)
Other Contracts: Even though a contract does not contain a line item specifying the delivery of a product on the CPG list, i.e., is not a direct procurement, contractors may still be required to purchase items on the CPG by explicit requirement contained in specifications, standards or statements of work. Section 11.101(b) of the FAR states that “agencies should prepare product descriptions to achieve maximum practicable use of recovered materials, other materials that are environmentally preferable, and products that are energy-efficient (see Subpart 23.4 and 23.7).” (Contracting officer shall include the clauses at 52.223-4 and 52.223-9 when specifications, standards or statements of work require the acquisition of products on the CPG list.)
The requirement in 23.405(b) of the FAR that contracting officers should refer to EPA’s list of EPA-designated products does not mean that they are responsible for ensuring that product descriptions specify the maximum practicable use of recovered materials. NPG 8830.1 defines different roles for environmental mangers, program offices, and request originators have in NASA’s Affirmative program. Paragraph 2.2 of NPG 8830.1 describes the implementation roles as follows:
The implementation will be accomplished in two ways. (1) Environmental Offices, through awareness programs conducted at each Center, appropriate to program objectives, to include distribution of EPA's list of designated items to the Request Originator, and (2) Request Originators, through specifications and product descriptions in NASA solicitations, contracts, and where appropriate, in modifications to existing contracts, as required by the FAR and any FAR contractor clauses.
Paragraph 1.3 of the NPG defines the role of the procurement office as:
Center Procurement Offices, in consultation with the Environmental Manager and the Request Originator, are responsible for the following: (1) Providing guidance and facilitating acquisition planning with respect to environmentally preferable goods and services, including those available through Federal sources of supply; (2) assisting in any market research necessary to determine the availability of environmentally preferable goods and services; (3) ensuring that solicitations and contracts contain the appropriate provisions and FAR clauses to implement Affirmative Procurement (FAR Part 23).
As part of its responsibilities, contracting officers must become familiar with the CPG in order to provide guidance to the request originators regarding the acquisition of EPA-designated items. Additionally, in accordance with NPG 8830.1 paragraph 18.104.22.168, contracting officers should ask the request originators how they considered the CPG when a procurement might involve an EPA-designated item on the CPG (if there is no waiver in the file, and the request originator did not affirm its applicability on the Market Research Analysis Report). Construction falls in this category. Contracting officers do not need to make this inquiry when the clause at 52.223-10 is included in the contract since 52.223-10 places the responsibility to use CPG items on the contractor.
EFFECTIVE DATE: This PIC is effective as dated and shall remain in effect until canceled or superseded.
HEADQUARTERS CONTACT: Patrick Flynn, Code HK, (202) 358-0460, email: firstname.lastname@example.org.
R. Scott Thompson
Director, Contract Management Division