(a) As used in this subpart—

Energy-efficient product means a product that—

(1) Meets Department of Energy (DOE) and Environmental Protection Agency (EPA) criteria for use of the ENERGY STAR® trademark label (see https://www.energy.gov/eere/femp/search-energy-efficient-products); or

(2) Is in the upper 25 percent of efficiency for all similar products as designated by the DOE Federal Energy Management Program (FEMP) (see https://www.energy.gov/eere/femp/search-energy-efficient-products).

EPA-designated item means a product that is listed by EPA in a procurement guideline because it can be made with recovered material and for which EPA has provided recommended recovered material content levels (see https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program#products).

Low standby power device means a product that—

(1) Uses an external standby power device or contains an internal standby power function; and

(2) Uses no more than one watt of electricity in its standby power consuming mode or meets recommended low standby levels as designated by DOE FEMP (see https://www.energy.gov/femp/low-standby-power-product-list).

Ozone-depleting substance means any substance the EPA designates in 40 CFR part 82 as—

(1) Class I, including, but not limited to, chlorofluorocarbons, halons, carbon tetrachloride, and methyl chloroform; or

(2) Class II, including, but not limited to, hydrochlorofluorocarbons.

Sustainable product means—

(1) A product that contains recovered material designated by the EPA under the Comprehensive Procurement Guidelines (42 U.S.C. 6962) (40 CFR part 247) ( https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program#products).

(2) An energy-efficient product or low standby power device (42 U.S.C. 8259b) (10 CFR part 436, subpart C) ( https://www.energy.gov/eere/femp/search-energy-efficient-products, https://www.energystar.gov/products?s=mega, and https://www.energy.gov/femp/low-standby-power-product-list).

(3) A biobased product that meets the content requirements of the USDA under the BioPreferred® program 7 U.S.C. 8102) (7 CFR Part 4270) ( https://www.biopreferred.gov/).

(4) A substance identified in the EPA’s Significant New Alternatives Policy (SNAP) program as a safe alternative to an ozone-depleting substance (42 U.S.C. 7671) (40 CFR part 82, subpart G) ( https://www.epa.gov/snap/unacceptable-and-acceptable-substitutes-tables).

USDA-designated product category means a generic grouping of biobased products that are listed by USDA in a procurement guideline and for which USDA has provided minimum biobased content standards (https://www.biopreferred.gov/resources/categories.html).

(a) Agencies must procure sustainable products to the maximum extent practicable. Procuring a sustainable product is considered practicable, unless the agency cannot acquire the sustainable product—

(1) Competitively within a reasonable performance schedule;

(2) That meets reasonable performance requirements; or

(3) At a reasonable price.

(b) When considering whether the price of a sustainable product is reasonable, agencies should consider whether the product is cost-effective over the life of the product.

(a)Work with the requiring activity to identify sustainable products that apply to the acquisition.

(b) When it is not practicable to procure a sustainable product (see 23.102(a)), include a justification explaining the circumstances in the contract file.

(c) Ensure the solicitation and contract identify sustainable products that are required to be provided during performance of the contract and those that are covered by a justification described in paragraph (b).

(a)When both an EPA-designated item containing recovered material and a biobased product in a USDA-designated product category could be used for the same purposes, procure the EPA-designated item.

(b)Treat products from designated countries, as defined in part 25, as eligible for the preference for biobased products provided that those products—

(1) Meet the criteria for the definition of biobased product, except that the products need not meet the requirement that renewable agricultural materials or forestry materials in such product must be domestic; and

(2) Otherwise meet all requirements for participation in the preference program.

The following are excepted from the requirement to procure sustainable products:

(a)Contracts performed or supplies delivered outside of the United States, unless the agency head determines that such application is in the interest of the United States.

(b) Weapon systems.

(c) Energy-consuming products or systems designed or procured for combat or combat-related missions.

(d) Biobased products to be used in military equipment (products or systems designed or procured for combat or combat-related missions), spacecraft systems, or launch support equipment.

(e) Substitution is not required for class II substances identified as safe alternatives under 42 U.S.C. 7671k, or for products made with or containing such substances, and such substances may be used as substitutes for other class I or class II substances.

(a)Do not purchase class II substances, or products containing class II substances, for the purpose of any use prohibited under 42 U.S.C. 7671d(c) (40 CFR 82.84(a)(2)).

(b) Do not purchase products whose sale is prohibited under 42 U.S.C. 7671h, except when the products will be used by persons certified to service vehicles (40 CFR 82.84(a)(4)).

(c) Do not purchase nonessential products as defined under 42 U.S.C. 7671i (40 CFR 82.84(a)(4)).

(a)Each agency must implement the following:

(1) A program to promote the procurement of EPA-designated items that contain recovered material. This program applies to an item if the agency procures $10,000 or more worth of the item in a fiscal year. The program must meet the minimum requirements at 40 CFR 247.6.

(2) A program to promote the procurement of biobased products in the USDA BioPreferred® Program. This program applies to a product if the agency procures $10,000 or more worth of the product in a fiscal year. The program must meet the minimum requirements at 7 CFR 4270.5(b).

(b) Agencies may use their own specifications or commercial product descriptions; however, the solicitation and contract should specify that—

(1) EPA-designated items be composed of the highest percentage of recovered materials practicable or meet the EPA’s minimum recovered material content standards.

(2) Biobased products in the BioPreferred® Program be composed of the highest percentage of biobased material practicable or meet the USDA’s minimum biobased content standards.

(a) General. Insert the clause at 52.223-23, Sustainable Products, in solicitations and contracts unless a written justification or exception (see 23.103(b) and 23.105, respectively) covers the entire acquisition.

(b) Products containing recovered material. Except for the acquisition of COTS items—

(1) Insert the provision at 52.223-4, Recovered Material Certification, in solicitations that require the delivery or specify the use of EPA-designated items; and

(2) Insert the clause at 52.223-9, Estimate of Percentage of Recovered Material Content for EPA-designated Items, in solicitations and contracts exceeding $200,000 that are for, or specify the use of, EPA-designated items containing recovered materials. If technical personnel advise that estimates can be verified, use the clause with its Alternate I.

(c) Biobased products.

(1) Insert the provision at 52.223-1, Biobased Product Certification, in solicitations, other than for acquisitions described at 23.105(d), that—

(i) Require the delivery or specify the use of biobased products in USDA-designated product categories; or

(ii) (Include the clause at 52.223-2.

(2) Insert the clause at 52.223-2, Reporting of Biobased Products Under Service and Construction Contracts, in service and construction solicitations and contracts, unless the contract will not involve the use of biobased products in USDA-designated product categories.

(d) Products containing ozone-depleting substances. Except for contracts for supplies that will be delivered outside the United States and its outlying areas, or contracts for services that will be performed outside the United States and its outlying areas, insert the following clauses:

(1) 52.223-11, Ozone-Depleting Substances, in solicitations and contracts that may include products that may contain or be manufactured with ozone-depleting substances.

(2) 52.223-12, Maintenance, Service, Repair, or Disposal of Refrigeration Equipment and Air Conditioners, in solicitations and contracts that include the maintenance, service, repair, or disposal of refrigeration equipment or air conditioners.

As used in this subpart—

Energy savings performance contract, pursuant to 42 U.S.C. 8287 and 10 CFR 436.31, means a contract that requires the contractor to—

(1) Perform services for the design, acquisition, financing, installation, testing, operation, and where appropriate, maintenance and repair, of an identified energy conservation measure or series of measures at one or more locations;

(2) Incur the costs of implementing the energy savings measures, including at least the cost (if any) incurred in making energy audits, acquiring and installing equipment, and training personnel in exchange for a predetermined share of the value of the energy savings directly resulting from implementation of such measures during the term of the contract; and

(3) Guarantee future energy and cost savings to the Government.

(a)Agencies should make maximum use of the authority provided in the National Energy Conservation Policy Act (42 U.S.C. 8287) to use an energy savings performance contract (ESPC) when life-cycle, cost-effective to reduce energy use and cost in the agency's facilities and operations.

(b) To solicit and award an ESPC, use the procedures, selection method, and terms and conditions provided in 10 CFR part 436, subpart B.

(c) For more information see https://energy.gov/eere/femp/energy-savings-performance-contracts-feder… .

Hazardous material is defined in the latest version of Federal Standard No. 313, Material Safety Data, Transportation Data, and Disposal Data for Hazardous Materials Furnished to Government Activities.

(a)Offerors and contractors are required to submit hazardous materials data whenever the supplies being acquired are identified as hazardous materials. The latest version of Federal Standard No. 313 includes criteria for identification of hazardous materials.

(b) Safety Data Sheets (SDS's) are required—

(1) As specified in the latest version of Federal Standard No. 313, including revisions adopted during the term of the contract;

(2) For any other material designated by a Government technical representative as potentially hazardous and requiring safety controls.

(c) (c) SDS's must be submitted—

(1) By the apparent successful offeror prior to contract award if hazardous materials are expected to be used during contract performance.

(2) For agencies other than the Department of Defense, again by the contractor with the supplies at the time of delivery.

(d) The contracting officer must provide a copy of all SDS's received to the safety officer or other designated individual.

(a)The clause at 52.223-7, Notice of Radioactive Materials, requires the contractor to notify the contracting officer prior to delivery of radioactive material.

(b) Upon receipt of the notice, the contracting officer must notify receiving activities so that appropriate safeguards can be taken.

(c) The clause permits the contracting officer to waive the notification if the contractor states that the notification on prior deliveries is still current. The contracting officer may waive the notice only after consultation with cognizant technical representatives.

(d) The contracting officer must specify in the clause at 52.223-7, the number of days in advance of delivery that the contractor will provide notification. The determination of the number of days should be done in coordination with the installation/facility radiation protection officer (RPO). The RPO is responsible for ensuring the proper license, authorization, or permit is obtained prior to receiving radioactive material.

(a)

(1) Insert the clause at 52.223-3, Hazardous Material Identification and Safety Data, in solicitations and contracts if the contract will require the delivery of hazardous materials as defined in 23.301.

(2) If the contract is awarded by an agency other than the Department of Defense, the contracting officer shall use the clause at 52.223-3 with its Alternate I..

(b) Insert the clause at 52.223-7, Notice of Radioactive Materials, in solicitations and contracts for supplies that are or that contain—

(1) Radioactive material requiring specific licensing under regulations issued pursuant to the Atomic Energy Act of 1954; or

(2) Radioactive material not requiring specific licensing in which the specific activity is greater than 0.002 microcuries per gram or the activity per item equals or exceeds 0.01 microcuries. Such supplies include, but are not limited to, aircraft, ammunition, missiles, vehicles, electronic tubes, instrument panel gauges, compasses, and identification markers.

(a)As used in this subpart—

Federal facility means a facility owned or operated by a Federal agency in the customs territory of the United States.

Pollution prevention means any practice that—

(1) Reduces the amount of any hazardous substance, pollutant, or contaminant entering any waste stream or otherwise released into the environment (including fugitive emissions) prior to recycling, treatment, or disposal; and

(2) Reduces the hazards to public health and the environment associated with the release of such substances, pollutants, and contaminants. (42 U.S.C. 13102(5))

Toxic chemical means a chemical or chemical category listed in 40 CFR 372.65.

Contracts that require performance on a Federal facility must require the contractor to provide information necessary for the agency to comply with the emergency planning and toxic chemical release reporting requirements in EPCRA and PPA.

Insert the clause at 52.223-5, Pollution Prevention and Right-to-Know Information, in solicitations and contracts that provide for performance, in whole or in part, on a Federal facility.