23.109
Solicitation provisions and contract clauses
FAR 23.109 mandates the inclusion of specific sustainability-related clauses in federal contracts unless a documented exception or exemption applies, ensuring compliance with environmental procurement policies.
Overview
FAR 23.109 prescribes the use of specific solicitation provisions and contract clauses to promote the procurement of sustainable products and services. It details when contracting officers must include clauses related to sustainable products, EPA-designated items, biobased products, and products containing ozone-depleting substances or hydrofluorocarbons. The section also outlines exceptions and exemptions, as well as the required documentation for justifying non-use of these clauses.
Key Rules
- Sustainable Products and Services Clause
- Insert clause 52.223-23 in most solicitations and contracts unless a written justification, exception, or exemption applies to the entire contract action.
- EPA-Designated Items
- Use provision 52.223-4 for solicitations requiring EPA-designated items (except COTS). Use clause 52.223-9 for contracts over $150,000 involving these items, with Alternate I if estimates can be verified.
- Biobased Products
- Insert provision 52.223-1 in solicitations for USDA-designated biobased products or if clause 52.223-2 is included. Use clause 52.223-2 in service/construction contracts unless biobased products are not involved.
- Ozone-Depleting Substances and Hydrofluorocarbons
- Insert relevant clauses (52.223-11, -12, -20, -21) in contracts for certain products/services, except those performed or delivered outside the U.S. and its outlying areas.
Responsibilities
- Contracting Officers: Must determine applicability, obtain justifications/exemptions if needed, and insert the correct clauses/provisions in solicitations and contracts.
- Contractors: Must comply with the requirements of the inserted clauses, including reporting, certification, and use of sustainable/recovered/biobased materials as specified.
- Agencies: Oversee compliance, review justifications, and ensure proper documentation and clause usage.
Practical Implications
- Ensures sustainability is considered in federal procurement.
- Requires careful review of contract requirements and applicable exceptions.
- Common pitfalls include failing to insert required clauses, misapplying exceptions, or inadequate documentation for justifications.