Solicitation provisions and contract clauses
FAR 23.109 requires contracting officers to include specific sustainability-related clauses and provisions in solicitations and contracts, ensuring compliance with federal environmental and sustainability mandates unless a valid exception or exemption applies.
Overview
FAR 23.109 prescribes the required solicitation provisions and contract clauses to promote sustainable products and services in federal acquisitions. It mandates the inclusion of specific FAR clauses and provisions in solicitations and contracts, unless certain exceptions, exemptions, or written justifications apply. The section covers requirements for sustainable products, EPA-designated items, biobased products, and products containing ozone-depleting substances or hydrofluorocarbons, specifying when and how to include relevant clauses based on contract type, value, and product category.
Key Rules
- Sustainable Products and Services Clause
- Insert FAR 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 FAR 52.223-4 for solicitations requiring EPA-designated items (except COTS). Use FAR 52.223-9 for contracts over $200,000 involving these items, with Alternate I if estimates can be verified.
- Biobased Products
- Insert FAR 52.223-1 in solicitations for USDA-designated biobased products or if FAR 52.223-2 is included. Use FAR 52.223-2 in service/construction contracts unless biobased products are not involved.
- Ozone-Depleting Substances and Hydrofluorocarbons
- Insert relevant clauses (FAR 52.223-11, -12, -20, -21) in contracts for specified products/services, except those performed or delivered outside the U.S. and its outlying areas.
Responsibilities
- Contracting Officers: Ensure correct clauses/provisions are included in solicitations and contracts, verify applicability of exceptions/exemptions, and coordinate with technical personnel as needed.
- Contractors: Comply with certification, reporting, and product requirements as specified in the included clauses.
- Agencies: Provide written justifications for exceptions, maintain oversight of sustainable procurement, and ensure compliance with federal sustainability mandates.
Practical Implications
This section ensures federal contracts support sustainability goals by requiring the use of sustainable, recycled, and biobased products, and by controlling the use of ozone-depleting substances and hydrofluorocarbons. Contractors must be vigilant in identifying applicable clauses and meeting certification and reporting obligations. Common pitfalls include overlooking exceptions, failing to include required clauses, or misunderstanding product category applicability.