23.106 Exemptions
Source: FAR 23.106 on acquisition.gov
FAR 23.106 allows agencies to exempt certain activities from sustainable procurement requirements for national security, intelligence, law enforcement, or emergency reasons, with specific notification and documentation obligations.
Overview
FAR 23.106 outlines specific exemptions from sustainable products and services requirements for certain government activities, primarily those related to national security, intelligence, law enforcement, and emergency response. The section details who may grant exemptions, under what circumstances, and the notification or procedural requirements associated with these exemptions.
Key Rules
- Director of National Intelligence Exemption
- The Director of National Intelligence can exempt intelligence activities and related resources if necessary to protect intelligence sources and methods.
- Agency Head Exemptions
- Agency heads may exempt activities, personnel, and resources for national security, intelligence, or undercover law enforcement reasons, with written notification to the Chair of the Council on Environmental Quality (CEQ) within 30 days.
- Agency heads may also exempt vehicles, vessels, aircraft, and equipment used in combat, relief, or training operations, as well as spaceflight vehicles and their support equipment.
- Optional Sustainable Procurement in Emergencies
- Contracting officers are encouraged, but not required, to procure sustainable products/services for defense, disaster assistance, or emergency response if the agency head determines it is necessary.
- Presidential Exemption Requests
- Agency heads may request additional exemptions from the President, via the CEQ Chair, for reasons not otherwise covered.
Responsibilities
- Contracting Officers: Should be aware of exemptions and are encouraged to procure sustainably in emergencies, but are not required to do so if an exemption applies.
- Contractors: Must comply with exemption determinations and understand when sustainable procurement requirements do not apply.
- Agencies: Must document and notify CEQ of exemptions, and may request further exemptions through proper channels.
Practical Implications
- This section provides flexibility for agencies to bypass sustainable procurement requirements in sensitive or emergency situations.
- Contractors should confirm whether an exemption applies before assuming sustainable procurement is required.
- Failure to notify CEQ or properly document exemptions can result in compliance issues.
(a) The Director of National Intelligence may exempt an intelligence activity of the United States and related personnel, resources, and facilities to the extent the Director determines necessary to protect intelligence sources and methods from unauthorized disclosure.
(b) The head of an agency may exempt the following:
(1) Particular agency activities and related personnel, resources, and facilities when it is in the interest of national security, to protect intelligence sources and methods from unauthorized disclosure, or where necessary to protect undercover law enforcement operations from unauthorized disclosure. The agency shall notify the Chair of the Council on Environmental Quality (CEQ) in writing within 30 days of issuance of the exemption under this paragraph (b)(1).
(2) On an individual or class basis, any manned and unmanned vehicle, vessel, aircraft, or non-road equipment that is used in combat support, combat service support, military tactical or relief operations, or training for such operations or spaceflight vehicles, including associated ground-support equipment.
(c) Contracting officers are encouraged, but not required, to procure sustainable products and services if the head of the agency determines the supplies or services are to be used to facilitate defense against or recovery from cyber, nuclear, biological, chemical, or radiological attack; to facilitate provision of international disaster assistance; or to support response to an emergency or major disaster.
(d) The head of the agency may submit to the President, through the Chair of CEQ, a request for an exemption of an agency activity, and related personnel, resources, and facilities from this subpart for any reason not otherwise addressed in this section.