Sustainable Procurement Update: Spring 2024

Crowell & Moring LLP


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During the month of April, the Biden administration has continued to leverage federal procurement in pursuit of ambitious environmental sustainability policy goals.
United States Government, Public Sector
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During the month of April, the Biden administration has continued to leverage federal procurement in pursuit of ambitious environmental sustainability policy goals. The most recent round of new regulations and initiatives finds the administration seeking to strengthen purchasing mandates of sustainable goods and services, as well as laying the groundwork for significant restrictions on the federal procurement of products containing per- and polyfluoroalkyl substances (PFAS).

Sustainable Products and Services – On April 22, 2024, the Department of Defense, General Services Administration, and National Aeronautics and Space Administration, released a final rule instructing federal agencies "to procure sustainable products and services to the maximum extent practicable." The rule defines "sustainable products and services" as products containing recovered materials, bio-based products, energy- and energy-efficient products, or items included on the Environmental Protection Agency Recommendations of Specifications, Standards, and Ecolabels list.

The final rule creates a presumption that procurement of sustainable goods and services is practicable unless an agency justifies that it cannot acquire products or services "(i) within a reasonable performance schedule; (ii) that meet reasonable performance requirements; or (iii) at a reasonable price." Additionally, limited exceptions exist for certain defense procurements and contracts performed outside the United States, and heads of agencies are authorized to issue an exemption in the interest of national security and other limited circumstances. Moving forward, the final rule mandates the inclusion of a new omnibus clause implementing these sustainability requirements in all solicitations and contracts (subject to the exceptions and exemptions identified above), including ones at or below the simplified acquisition threshold (SAT) and for commercial products, including commercially available off-the-shelf (COTS) items, and services.

This final rule is effective May 22, 2024.

Reducing PFAS in Federal Procurement – On April 16, 2024, GSA published a Request for Information seeking public comment on reducing or even eliminating procurement of products with PFAS through GSA contract solutions. Acting in furtherance of Executive Order 14057 and the Office of Management and Budget Memo M-22-06, which directed federal agencies to prioritize procurement of non-PFAS products, GSA is seeking public input on a range of questions, including:

  • What product areas should GSA exclude at this time and why?
  • What is the potential impact on domestic manufacturing if GSA establishes PFAS reduction requirements that reduce or prohibit PFAS, or eliminate them entirely?
  • How long should GSA give contractors to reduce PFAS?
  • What type of exception process should GSA consider?
  • Would it be more impactful for GSA to target a specific product type or chemical signature in products to meet the goal of reducing or eliminating PFAS?
  • How would a reduction or elimination of PFAS containing products impact your company's ability to compete?

This follows a GSA announcement on April 8, 2024, requiring government contractors to only purchase and use non-PFAS cleaning products in all federal buildings within GSA's property portfolio.

The government contracting community should pay close attention to these mounting actions that will directly impact the way manufacturers and service providers do business with the federal government moving forward.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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