23.104 General procedures
Source: FAR 23.104 on acquisition.gov
Contracting officers must document and justify any exceptions to sustainable procurement, clearly identify sustainable and exempt products in contracts, and prioritize statutory and EPA/USDA-designated products using available resources.
Overview
FAR 23.104 outlines the general procedures for procuring sustainable products and services in federal acquisitions. It provides guidance on when exceptions may be made, how to identify applicable products and services in solicitations and contracts, prioritization of sustainable purchasing, and resources for compliance. The section emphasizes the need for written justification if sustainable procurement is deemed impracticable, clear identification of sustainable and exempt items, and prioritization of statutory and EPA/USDA-designated products. Contracting officers must maintain documentation and ensure proper identification in contract documents, while agencies are encouraged to use the Green Procurement Compilation (GPC) as a resource.
Key Rules
- Written Justification for Exceptions
- If sustainable procurement is not practicable, a written justification must be provided and kept in the contract file.
- Identification in Solicitations and Contracts
- Solicitations and contracts must specify which products/services are sustainable and which are exempt, unless the entire contract is covered by a justification, exception, or exemption.
- Prioritization of Sustainable Products
- Agencies must prioritize products meeting statutory requirements, then multi-attribute sustainable products, and finally those meeting EPA requirements if no statutory programs apply.
- Use of Green Procurement Compilation (GPC)
- Agencies should consult the GPC for guidance on sustainable products and applicable purchasing programs.
Responsibilities
- Contracting Officers: Ensure written justifications are obtained and filed, identify sustainable/exempt products in contracts, and follow prioritization rules.
- Contractors: Comply with sustainable procurement requirements and be aware of identified sustainable/exempt products in contracts.
- Agencies: Oversee prioritization and use of resources like the GPC for compliance.
Practical Implications
- This section ensures federal acquisitions support sustainability goals unless justified otherwise.
- It impacts solicitation and contract documentation, requiring clear identification and prioritization of sustainable products.
- Common pitfalls include missing written justifications, improper identification, or failure to consult the GPC for applicable requirements.
(a) Maximum extent practicable. If the requiring activity submits a written justification addressing the reasons described in 23.103(a)(1), the contracting officer may consider it not practicable to procure sustainable products or services. A written justification may be for a specific product or service or at the line item or contract level. The contracting officer shall maintain the written justification in the contract file.
(b) Identification.
(1) Except as provided in paragraph (b)(2) of this section, the contracting officer shall ensure the solicitation and contract identifies—
(i) The sustainable products and services, including the purchasing program and type of product or service, that are applicable to the acquisition, as identified by the requiring activity; and
(ii) Any products and services that are not subject to the requirements of this subpart and the clause at 52.223-23, Sustainable Products and Services, based on the written justification under paragraph (a) of this section, an exception at 23.105, or an exemption at 23.106.
(2) The requirement in paragraph (b)(1) of this section does not apply if the justification, exception, or exemption covers the entirety of the contract action requirements.
(c) Prioritization. Agencies shall prioritize sustainable products and services as follows:
(1) Procure products and services that meet applicable statutory purchasing program requirements (see 23.107). When both an EPA-designated item (see 23.107-1) and a biobased product in a USDA-designated product category (see 23.107-2) could be used for the same purposes, and there is not an EPA-designated item that is also a biobased product in a USDA-designated product category that meets the agency's needs, procure the EPA-designated item.
(2) Consistent with other statutory procurement requirements, prioritize multi-attribute sustainable products and services, which are those that meet applicable statutory purchasing program requirements (see 23.107) and one or more required EPA purchasing programs (see 23.108).
(3) If no statutory purchasing program requirements apply, procure sustainable products and services that meet required EPA purchasing program requirements (see 23.108).
(d) Resource. The Green Procurement Compilation (GPC) available at https://sftool.gov/greenprocurement" target="_blank">https://sftool.gov/greenprocurement provides a comprehensive list of sustainable products and services and other related sustainable acquisition guidance. In addition to the resources identified for each purchasing program listed in 23.107 and 23.108, agencies should consult the GPC when determining which purchasing programs apply to a specific product or service.