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Acquisition Policy Flash! 24-08

What's Changed?

Federal Acquisition Circular (FAC) 2024-05, Sustainable Procurement, implementing the final rule in Federal Acquisition Regulation (FAR) Case 2022-006

Purpose: To inform the VA acquisition workforce of FAC 2024-05, effective May 22, 2024, which implements the final rule in FAR Case 2022-006, Sustainable Procurement. This rule amends the FAR to restructure and update the regulations to focus on current environmental and sustainability matters and to implement a requirement for agencies to procure sustainable products and services to the maximum extent practicable.

FAR parts referenced: FAR part 2, 23, 36, and 52.

Effective Date: May 22, 2024.

Background: On December 8, 2021, President Biden signed Executive Order (E.O.) 14057, Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability. Section 208(a) directs agencies to reduce emissions, promote environmental stewardship, support resilient supply chains, drive innovation, and incentivize markets for sustainable products and services by purchasing sustainable products and services in accordance with relevant statutory requirements, and, to the maximum extent practicable, as identified or recommended by the Environmental Protection Agency (EPA). The Executive Office of the President’s Office of Management and Budget (OMB), Council on Environmental Quality (CEQ), and Climate Policy Office jointly issued Memorandum M-22-06 (PDF, 15 pages) on the same date to provide direction for agency compliance with the E.O.

In August 2022, CEQ issued Implementing Instructions for E.O. 14057 (PDF, 73 pages). Section 4.6 of the instructions further directs agencies to prioritize multi-attribute products and delineates when it is considered not practicable to procure sustainable products and services. The CEQ implementing instructions provide additional direction as it relates to Federal facility requirements, such as goals for pollution prevention and waste diversion and requirements for waste reduction, as well as direction for certain construction and modernization projects to meet and (where practicable) exceed the CEQ’s Guiding Principles for Sustainable Federal Buildings and Associated Instructions (PDF, 58 pages).

In alignment with E.O. 14057, Memorandum M-22-06, and the CEQ Implementing Instructions, Department of Defense, General Services Administration, and National Aeronautics and Space Administration published a proposed rule at 88 FR 51672 on August 3, 2023, to amend the FAR to restructure and update FAR part 23 to focus on current environmental and sustainability matters, implement a requirement for agencies to procure sustainable products and services to the maximum extent practicable, and update requirements for construction and architect-contracts. The following changes are made to the FAR as a result of this final rule:

  • Dedicates FAR part 23 to environmental matters by moving content related to drug-free workplaces and encouraging contractors to ban texting while driving to FAR part 26.
  • Adds a definition of “sustainable products and services” in FAR 2.101.
  • Consolidates and updates statutory and other environmental purchasing program requirements in FAR subpart 23.1, Sustainable Products and Services.
  • Creates a new omnibus contract clause at FAR 52.223-23, Sustainable Products and Services, to uniformly communicate the Government’s requirements for sustainable products and services.
  • Dedicates FAR subpart 23.2 to energy savings performance contracts.
  • Consolidates requirements related to hazardous and radioactive material in FAR subpart 23.3.
  • Consolidates and updates Federal facility and pollution prevention requirements in FAR subpart 23.4.
  • Redesignates the remaining content at FAR subpart 23.8 as FAR subpart 23.5.
  • Makes other conforming changes throughout the FAR to align with the revision in FAR part 23.
  • Updates agency requirements for construction and architect-engineer contracts at FAR 36.104(b)(1) to align with the CEQ’s Guiding Principles for Sustainable Federal Buildings and Associated instructions.
  • Removes certain contractor reporting requirements in the clauses at FAR clauses 52.223-11, Ozone-Depleting Substances and High Global Warming Potential Hydrofluorocarbons; 52.223-12, Maintenance, Service, Repair, or Disposal of Refrigeration Equipment and Air Conditioners; and the alternates to FAR clause 52.223-5, Pollution Prevention and Right-to-Know Information.
  • Finalizes the interim rule published under FAR Case 2010-001 (see 76 FR 31395, May 31, 2011).

Applicability: This Acquisition Flash applies to all VA contracting activities responsible for procuring products, services, and construction and architect-engineer contracts.

Action Required: Contracting officers shall comply with FAC 2024-05, Sustainable Procurement, effective May 22, 2024.

Additional Information: Direct any questions to Procurement Guidance and Instruction Service (PGIS) via email at vapgismailbox@va.gov.

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