The FAR Councils are taking their first major steps toward reducing the federal government’s energy usage. The interim rule published on May 26, 2011 [pdf] requires that 95% of all future government acquisitions be “sustainable.” It implements Executive Order 13423 (Jan. 24, 2007) [pdf] and Executive Order 13514 (Oct. 5, 2009) [pdf], which require that federal agencies improve their energy efficiency and leverage their buying power to create a market for sustainable goods and services. The rule changes the FAR in some significant ways, most of which are likely to affect contractors.
Under new FAR Subpart 23.1, agencies are required to promote sustainable acquisition by ensuring that 95% of new contract actions require products that are energy-efficient, water-efficient, biobased, environmentally preferable, non-ozone depleting, or contain recycled content. “New contract actions” includes both new contracts (and task or delivery orders placed on those contracts), as well as new task or delivery orders placed on existing contracts.
Contractors will also face new requirements. Under FAR 23.002, contractors operating government-owned or government-leased facilities, as well as those providing support services at such facilities, will have to comply with the same sustainable acquisition requirements. FAR subpart 23.9 and FAR 52.223-19 require that all contractors comply with an agency’s environmental management system. FAR Part 4 requires (rather than encourages) contractors to submit all paper documents on double-sided 30 percent post-consumer fiber paper, if practicable.
The interim rule provides limited exceptions for acquisitions by intelligence activities, law enforcement activities, vehicle fleets for law enforcement, protective, emergency response, or military tactical purposes, and any agency activities or facilities in the interest of national security. It also does not apply to contracts for the acquisition of weapons systems and contracts performed outside the United States. Barring these exceptions, the interim rule overrides any other inconsistent contracting policies.
Contractors also face new green construction obligations. Under the interim rule, agencies must promote sustainable acquisition by implementing high-performing and sustainable building design, construction, renovation, repair, operation, and management. Agencies must pursue cost-effective, innovative strategies to minimize energy and water consumption and seek out renovation alternatives that will reduce maintenance costs. By the end of 2015, agencies will be required to recycle or recover at least 50% of construction and demolition materials and debris that might be placed in the waste stream. Contractors performing new construction or major renovations will be required to comply with the Guiding Principles for Federal Leadership in High-Performance and Sustainable Buildings [pdf].
The FAR Councils note that they do not expect the new rules to impose significant economic impacts on contractors because they are “only emphasizing existing requirements” already put in place by agency sustainability programs and previous executive orders. The accuracy of this prediction remains to be seen.