FAC 2024-05, Sustainable Procurement, 89 Fed. Reg. 30212, April 22, 2024, is one of the most complex rules I have ever read. It takes effect on May 22. It makes changes to 19 FAR parts. FAR Part 23 is being completely reorganized. 

The FACt takes what is now a one page of coverage in FAR Subpart 23.1, Sustainable Acquisition Policy, and turns it into what will be multiple pages of rules. A new section 23.103, Policy, will read as follows:

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23.103 Policy. (a) Agencies shall procure sustainable products and services (as defined in 2.101) to the maximum extent practicable. (1) Procuring sustainable products and services is considered practicable, unless the agency cannot acquire products or services— (i) Competitively within a reasonable performance schedule; (ii) That meet reasonable performance requirements; or (iii) At a reasonable price (see 23.103(a)(2)). (2) 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. For ENERGY STAR® or Federal Energy Management Program (FEMP)- designated products, a price is reasonable if it is cost-effective over the life of the product taking energy cost savings into account (42 U.S.C. 8259b(b)(2)). Life-cycle cost savings tools for energy-efficient products are available at https://www.energystar.gov/ buildings/save_energy_commercial_ buildings/ways_save/energy_efficient_ products and https://www.nrel.gov/ analysis/tech-lcoe.html.

(b) When procuring sustainable products and services, agencies shall— (1) Ensure compliance with applicable statutory purchasing program requirements (see 23.107); and (2) Prioritize multi-attribute sustainable products and services (see 23.104(c)(2)).

(c) Regarding products under contract actions for services or construction, the contractor is required to provide products that meet the definition of sustainable products and services at 2.101, if the products are— (1) Delivered to the Government; (2) Furnished by the contractor for use by the Government; (3) Incorporated into the construction of a public building or public work; or (4) Acquired by the contractor for use in performing services under a Government contract where the cost of the products is a direct cost to a Government contract (versus costs which are normally applied to a contractor’s general and administrative expenses or indirect costs).

The FAC amends FAR Part 2 to add a definition of sustainable products and services as follows. The numbers in brackets are the number of pages in each of the documents cited.

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Sustainable products and services means products and services that are subject to and meet the following applicable statutory mandates and directives for purchasing:

(1) Statutory purchasing programs.

(i) Products containing recovered material designated by the U.S. Environmental Protection Agency (EPA) under the Comprehensive Procurement Guidelines (42 U.S.C. 6962) (40 CFR part 247) (https://www.epa.gov/smm/ comprehensive-procurement-guidelinecpg-program#products).

(ii) Energy- and water-efficient products that are ENERGY STAR® certified or Federal Energy Management Program (FEMP)-designated products (42 U.S.C. 8259b) (10 CFR part 436, subpart C) (https://www.energy.gov/ eere/femp/search-energy-efficientproducts and https:// www.energystar.gov/products?s=mega).

(iii) Biobased products meeting the content requirement of the U.S. Department of Agriculture under the BioPreferred® program (7 U.S.C. 8102) (7 CFR part 3201) (https:// www.biopreferred.gov).

(iv) Acceptable chemicals, products, and manufacturing processes listed under EPA’s Significant New Alternatives Policy (SNAP) program, which ensures a safe and smooth transition away from substances that contribute to the depletion of stratospheric ozone (42 U.S.C. 7671l) (40 CFR part 82, subpart G) (https:// www.epa.gov/snap).

(2) Required EPA purchasing programs.

(i) WaterSense® labeled (water efficient) products and services (https://www.epa.gov/watersense/ watersense-products).

(ii) Safer Choice-certified products (products that contain safer chemical ingredients) (https://www.epa.gov/ saferchoice/products).

(iii) Products and services that meet EPA Recommendations of Specifications, Standards, and Ecolabels in effect as of October 2023 (https:// www.epa.gov/greenerproducts/ recommendations-specificationsstandards-and-ecolabels-federalpurchasing). 

Bold face added.

By my tally, the bolded references in that definition add up to hundreds of pages of regulations and guidance.

Question: Have any of you received either (1) a briefing or (2) comprehensive training about FAC 2024-05? If not, do you know of any plans to provide you with such a briefing or training?

6 hours ago, Vern Edwards said:

Question: Have any of you received either (1) a briefing or (2) comprehensive training about FAC 2024-05? If not, do you know of any plans to provide you with such a briefing or training?

I wasn't briefed, but was notified via an email with a link to the federal register. 

I have not had any training or heard about plans to provide any. I would guess my agency's sustainability team is going to put something together, but I do not know that. 

40 minutes ago, dsmith101abn said:

I would guess my agency's sustainability team is going to put something together,

Do you think this change will be put into practice, or is the fact that it has been incorporated into the FAR mean that box has been checked and it is back to business as usual?

48 minutes ago, Retreadfed said:

Do you think this change will be put into practice, or is the fact that it has been incorporated into the FAR mean that box has been checked and it is back to business as usual?

probably somewhere in between, I can only speculate, I'd guess my sustainability team will put some process together in phases where someone is going to want to see what we're buying, maybe have some incentive for products and services that use sustainability. They'll probably put together some agency goal that is X% of awards include sustainability products and services, and of those awards Y% of the products and services are lower carbon, energy efficient, etc. Operating administrations will probably get data calls to self report progress.  CO's will try and get an exception for most everything. 

Outside of simple supply and services, I'd gather this is going to be more focused on the PM/Designer, etc. to figure out how they're going to manage project delivery and the CO will have little input since some agencies don't include CO's in the IPT's. 

Totally unsupported negative outlook of an opinion, but that's what i think will happen... at least where i work. 

On 5/14/2024 at 9:47 AM, Vern Edwards said:

Question: Have any of you received either (1) a briefing or (2) comprehensive training about FAC 2024-05? If not, do you know of any plans to provide you with such a briefing or training?

No, but we’ve received Hatch Act training twice over the past month in my political appointee-run org.