# | Description |
---|---|
Sec. | |
23.000 | Scope of part. |
# | Description |
---|---|
23.101 | Applicability. |
23.102 | Authorities. |
23.103 | Policy. |
23.104 | Exemptions. |
23.105 | Solicitation provision and contract clause. |
23.106 | Delaying award. |
23.107 | Compliance responsibilities. |
# | Description |
---|---|
23.201 | Authorities. |
23.202 | Definitions. |
23.203 | Policy. |
# | Description |
---|---|
23.300 | Scope of subpart. |
23.301 | Definition. |
23.302 | General. |
23.303 | Contract clause. |
# | Description |
---|---|
23.400 | Scope of subpart. |
23.401 | Authorities. |
23.402 | Definitions. |
23.403 | Policy. |
23.404 | Procedures. |
23.405 | Solicitation provision and contract clause. |
# | Description |
---|---|
23.601 | Requirements. |
23.602 | Contract clause. |
# | Description |
---|---|
23.701 | Applicability. |
23.702 | Authorities. |
28.703 | Definitions. |
23.704 | Policy. |
23.705 | Application to Government-owned or leased facilities. |
23.706 | Contract clause. |
# | Description |
---|---|
23.800 | Scope of subpart. |
23.801 | Authorities. |
23.802 | Definition. |
23.803 | Policy. |
23.804 | Contract clauses. |
# | Description |
---|---|
23.901 | Purpose. |
23.902 | General. |
23.903 | Applicability. |
23.904 | Definition. |
23.905 | Policy. |
23.906 | Requirements. |
23.907 | Solicitation provision and contract clause. |
# | Description |
---|---|
23.1001 | Purpose. |
23.1002 | Applicability. |
23.1003 | Definition. |
23.1004 | Requirements. |
23.1005 | Contract clause. |
(b) Clean Water Act (33 U.S.C. 1251 et seq.).
(c) Executive Order 11738, September 10, 1973 (38 FR 25161, September 12, 1973).
(d) Environmental Protection Agency (EPA) regulations (40 CFR Part 32).
(b) Except as provided in 23.104, executive agencies shall not enter into, renew, or extend contracts with firms proposing to use facilities listed by EPA (40 CFR Part 15) as violating facilities under the Air Act or the Water Act.
(1) $100,000 or under;
(2) For indefinite quantities and the contracting officer believes that the amount ordered in any year under the contract will not exceed $100,000; or
(3) For commercial items.
(b) If the facility to be used is on the EPA List of Violating Facilities for a conviction under the Air Act or the Water Act, the exemption in paragraph (a) above does not apply.
(c) The agency head may exempt any contract, subcontract, or class of contracts or subcontracts from the requirement in 23.103(b) for 1 year when it is in the paramount interest of the United States to do so.
(1) Before granting a class exemption, the agency head shall consult with the EPA Administrator or the Administrator's designee.
(2) The agency head shall notify the EPA Administrator, or a designee, as soon as practical after granting an individual exemption. The notification shall describe the purpose of the contract and explain why the paramount interest of the United States required the exemption.
(b) The contracting officer shall insert the clause at 52.223-2, Clean Air and Water, in solicitations and contracts to which this subpart applies (see 23.101), if--
(1) The contract is expected to exceed $100,000;
(2) The contracting officer believes that orders under an indefinite quantity contract in any year will exceed $100,000; or
(3) A facility to be used has been the subject of a conviction under the applicable portion of the Air Act (42 U.S.C. 7413(c)(1)) or Water Act (33 U.S.C. 1319(c)) and is listed by EPA as a violating facility; and
(4) The acquisition is not otherwise exempt under 23.104.
(b) After consulting with the agency involved, the EPA Administrator or a designee may request the contracting officer to delay award for up to 15 working days, beginning on the date the EPA Administrator or a designee is notified that the award is under consideration.
(c) The contracting officer then shall delay award, only for the period of time requested by the EPA (up to 15 working days), except when the delay is likely to prejudice the agency's programs or seriously disadvantage the Government. The contracting officer shall promptly notify the EPA Administrator or a designee only if a decision is made to award before the period requested expires.
(b) National Energy Conservation Policy Act (42 U.S.C. 8253 and 8262g).
(c) Executive Order 11912, April 13, 1976.
(d) Executive Order 12759, Sections 3, 9, and 10, April 17, 1991.
(e) Executive Order 12902, March 8, 1994.
(a) Consumes energy; and
(b) Is distributed in commerce for personal use or consumption by individuals.
"Covered product" means a consumer product of one of the following types:
(a) Central air conditioners.
(b) Clothes dryers.
(c) Clothes washers.
(d) Dishwashers.
(e) Freezers.
(f) Furnaces.
(g) Home heating equipment, not including furnaces.
(h) Humidifiers and dehumidifiers.
(i) Kitchen ranges and ovens.
(j) Refrigerators and refrigerator-freezers.
(k) Room air conditioners.
(l) Television sets.
(m) Water heaters.
(n) Any other type of product that the Secretary of Energy classifies as a covered product under 42 U.S.C. 6292(b).
"Energy efficiency standard" means a performance standard that--
(a) Prescribes a minimum level of energy efficiency for a covered product, determined by test procedures prescribed under 42 U.S.C. 6293; and
(b) Includes any other requirements that the Secretary of Energy may prescribe under 42 U.S.C. 6295(c).
"Energy use and efficiency label" means a label provided by a manufacturer of a covered product under 42 U.S.C. 6296.
"Manufacture" means to manufacture, produce, assemble, or import.
"Manufacturer," as used in this part, means any business that, or person who, manufactures a consumer product.
General Services Administration
Specifications Unit (3FBP-W)
7th & D Sts. SW
Washington, DC 20407
(1) All hazards to which they may be exposed;
(2) Relative symptoms and appropriate emergency treatment; and
(3) Proper conditions and precautions for safe use and exposure.
(b) To accomplish this objective, it is necessary to obtain certain information relative to the hazards which may be introduced into the workplace by the supplies being acquired. Accordingly, offerors and contractors are required to submit hazardous materials data whenever the supplies being acquired are identified as hazardous materials. The latest version of Federal Standard No. 313 (Material Safety Data Sheet, Preparation and Submission of) includes criteria for identification of hazardous materials.
(c) Hazardous material data (Material Safety Data Sheets (MSDS)) are required--
(1) As specified in the latest version of Federal Standard No. 313 (including revisions adopted during the term of the contract);
(2) For any other material designated by a Government technical representative as potentially hazardous and requiring safety controls.
(d) MSDS's must be submitted--
(1) By the apparent successful offeror prior to contract award if hazardous materials are expected to be used during contract performance.
(2) For agencies other than the Department of Defense, again by the contractor with the supplies at the time of delivery.
(e) The contracting officer shall provide a copy of all MSDS's received to the safety officer or other designated individual.
(b) If the contract is awarded by an agency other than the Department of Defense, the contracting officer shall use the clause at 52.223-3 with its Alternate I.
(a) Environmental Protection Agency (EPA) designated items for which agencies must develop and implement affirmative procurement programs pursuant to 42 U.S.C. 6901, et seq., and Executive Order 12873; and
(b) Other products when preference is given to offers of products containing recovered material.
(b) The statute also requires the EPA to prepare guidelines on the availability, sources, and potential uses of recovered materials and associated items, including solid waste management services.
(c) Executive Order 12873, dated October 20, 1993, as amended, requires that the Federal Government assume leadership in making more efficient use of natural resources through the acquisition of items made with recovered materials and work to increase and expand markets for recovered materials through greater Federal Government preference and demand for such items. Executive Order 12873 also provides direction for agency development and implementation of affirmative procurement programs.
"EPA designated item" means an item--
(1) That is or can be made with recovered material;
(2) That is listed by EPA in a procurement guideline (40 CFR Part 247); and
(3) For which EPA has provided purchasing recommendations in a related Recovered Materials Advisory Notice (RMAN).
"Postconsumer material" means a material or finished product that has served its intended use and has been diverted or recovered from waste destined for disposal, having completed its life as a consumer item. Postconsumer material is a part of the broader category of "recovered material."
"Recovered material" means waste materials and by-products which have been recovered or diverted from solid waste including postconsumer material, but such term does not include those materials and by-products generated from, and commonly reused within, an original manufacturing process.
(1) The price of the item exceeds $10,000; or
(2) The aggregate amount paid for items, or for functionally equivalent items, in the preceding fiscal year was $10,000 or more.
(b) EPA designated items. (1) EPA designates items that are or can be made with recovered materials in 40 CFR Part 247 and accompanying RMAN's. The RMAN cites the applications for which the EPA items have been designated and the percentages of recovered material content.
(2) For EPA designated items, agencies shall establish an affirmative procurement program. The responsibilities for preparation, implementation, and monitoring of affirmative procurement programs shall be shared between technical or requirements personnel and procurement personnel. As a minimum, such programs shall include--
(i) A recovered materials preference program;
(ii) An agency promotion program;
(iii) A program for requiring reasonable estimates, certification, and verification of recovered material used in the performance of contracts; and
(iv) Annual review and monitoring of the effectiveness of the program.
(3) Acquisition of EPA designated items that do not meet the EPA minimum recovered material standards shall be approved by an official designated by the agency head based on a written determination that the items--
(i) Are not available within a reasonable period of time;
(ii) Are available only at unreasonable prices;
(iii) Are not available from a sufficient number of sources to maintain a satisfactory level of competition; or
(iv) Based on technical verification, fail to meet performance standards in the specifications. Technical or requirements personnel shall provide a written statement when this determination is used partially or totally as a basis for an exemption. This determination shall be made on the basis of National Institute of Standards and Technology guidelines in any case in which the material is covered by these guidelines.
(4) Contractor certifications required by the clause at 52.223-9 shall be consolidated and reported in accordance with agency procedures.
(b) The contracting officer shall insert the clause at 52.223-9, Certification and Estimate of Percentage of Recovered Material Content for EPA Designated Items, in contracts exceeding the simplified acquisition threshold that are for, or specify the use of, an EPA designated item.
(a) Contracts at or below the simplified acquisition threshold; however, the requirements of this subpart shall apply to contracts of any value if the contract is awarded to an individual;
(b) Contracts for the acquisition of commercial items (see Part 12);
(c) Contracts or those parts of contracts that are to be performed outside of the United States, its territories, and its possessions;
(d) Contracts by law enforcement agencies, if the head of the law enforcement agency or designee involved determines that application of this subpart would be inappropriate in connection with the law enforcement agency's undercover operations; or
(e) Where application would be inconsistent with the international obligations of the United States or with the laws and regulations of a foreign country.
"Conviction" means a finding of guilt (including a plea of nolo contendere) or imposition of sentence, or both, by any judicial body charged with the responsibility to determine violations of the Federal or State criminal drug statutes.
"Criminal drug statute" means a Federal or non-Federal criminal statute involving the manufacture, distribution, dispensing, possession, or use of any controlled substance.
"Drug-free workplace" means the site(s) for the performance of work done by the contractor in connection with a specific contract at which employees of the contractor are prohibited from engaging in the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance.
"Employee" means an employee of a contractor directly engaged in the performance of work under a Government contract. "Directly engaged" is defined to include all direct cost employees and any other contract employee who has other than a minimal impact or involvement in contract performance.
"Individual" means an offeror/contractor that has no more than one employee including the offeror/contractor.
(1) Publishing a statement notifying its employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the contractor's workplace, and specifying the actions that will be taken against employees for violations of such prohibition;
(2) Establishing an ongoing drug-free awareness program to inform its employees about--
(i) The dangers of drug abuse in the workplace;
(ii) The contractor's policy of maintaining a drug-free workplace;
(iii) Any available drug counseling, rehabilitation, and employee assistance programs; and
(iv) The penalties that may be imposed upon employees for drug abuse violations occurring in the workplace;
(3) Providing all employees engaged in performance of the contract with a copy of the statement required by subparagraph (a)(1) of this section;
(4) Notifying all employees in writing in the statement required by subparagraph (a)(1) of this section, that as a condition of employment on a covered contract, the employee will--
(i) Abide by the terms of the statement; and
(ii) Notify the employer in writing of the employee's conviction under a criminal drug statute for a violation occurring in the workplace no later than 5 days after such conviction;
(5) Notifying the contracting officer in writing within 10 days after receiving notice under subdivision (a)(4)(ii) of this section, from an employee or otherwise receiving actual notice of such conviction. The notice shall include the position title of the employee;
(6) Within 30 days after receiving notice under subparagraph (a)(4) of this section of a conviction, taking one of the following actions with respect to any employee who is convicted of a drug abuse violation occurring in the workplace:
(i) Taking appropriate personnel action against such employee, up to and including termination; or
(ii) Requiring such employee to satisfactorily participate in a drug abuse assistance or rehabilitation program approved for such purposes by a Federal, State, or local health, law enforcement, or other appropriate agency.
(7) Making a good faith effort to maintain a drug-free workplace through implementation of subparagraphs (a)(1) through (a)(6) of this section.
(b) No individual shall be awarded a contract of any dollar value unless that individual agrees not to engage in the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance while performing the contract.
(c) For a contract of 30 days or more performance duration, the contractor shall comply with the provisions of paragraph (a) of this section within 30 days after contract award, unless the contracting officer agrees in writing that circumstances warrant a longer period of time to comply. Before granting such an extension, the contracting officer shall consider such factors as the number of contractor employees at the worksite, whether the contractor has or must develop a drug-free workplace program, and the number of contractor worksites. For contracts of less than 30 days performance duration, the contractor shall comply with the provisions of paragraph (a) of this section as soon as possible, but in any case, by a date prior to when performance is expected to be completed.
(1) Of any dollar value if the contract is expected to be awarded to an individual; or
(2) Expected to exceed the simplified acquisition threshold if the contract is expected to be awarded to other than an individual.
(b) Contracting officers shall not insert the clause at 52.223-6, Drug-Free Workplace, in solicitations and contracts, if--
(1) The resultant contract is to be performed entirely outside of the United States, its territories, and its possessions;
(2) The resultant contract is for law enforcement agencies, and the head of the law enforcement agency or designee involved determines that application of the requirements of this subpart would be inappropriate in connection with the law enforcement agency's undercover operations; or
(3) Inclusion of these requirements would be inconsistent with the international obligations of the United States or with the laws and regulations of a foreign country.
(b) After determining in writing that any of the causes at paragraph (d) of this section exist, the contracting officer may terminate the contract for default.
(c) Upon initiating action under paragraph (a) or (b) of this section, the contracting officer shall refer the case to the agency suspension and debarment official, in accordance with agency procedures, pursuant to Subpart 9.4.
(d) The specific causes for suspension of contract payments, termination of a contract for default, or suspension and debarment are--
(1) The contractor has failed to comply with the requirements of the clause at 52.223-6, Drug-Free Workplace; or
(2) The number of contractor employees convicted of violations of criminal drug statutes occurring in the workplace indicates that the contractor has failed to make a good faith effort to provide a drug-free workplace.
(e) A determination under this section to suspend contract payments, terminate a contract for default, or debar or suspend a contractor may be waived by the agency head for a particular contract, in accordance with agency procedures, only if such waiver is necessary to prevent a severe disruption of the agency operation to the detriment of the Federal Government or the general public (see Subpart 9.4). The waiver authority of the agency head cannot be delegated.
(b) Upon receipt of the notice, the contracting officer shall notify receiving activities so that appropriate safeguards can be taken.
(c) The clause permits the contracting officer to waive the notification if the contractor states that the notification on prior deliveries is still current. The contracting officer may waive the notice only after consultation with cognizant technical representatives.
(d) The contracting officer is required to specify in the clause at 52.223-7, the number of days in advance of delivery that the contractor will provide notification. The determination of the number of days should be done in coordination with the installation/facility radiation protection officer (RPO). The RPO is responsible for insuring the proper license, authorization or permit is obtained prior to receipt of the radioactive material.
(b) National Energy Conservation Policy Act (42 U.S.C. 8262g).
(c) Pollution Prevention Act of 1990 (42 U.S.C. 13101, et seq.).
(d) Executive Order 12873, October 20, 1993.
(e) Executive Order 12856, August 3, 1993.
(f) Executive Order 12902, March 8, 1994.
"Environmentally preferable" means products or services that have a lesser negative effect on human health or the environment when compared with competing products or services that serve the same purpose. This comparison should use principles recommended in guidance issued by EPA (see Executive Order 12873, Section 503), and may consider raw materials acquisition, production, manufacturing, packaging, distribution, reuse, operation, maintenance, or disposal of the product or service.
"Pollution prevention" means any practice that--
(1) Reduces the amount of any hazardous substance, pollutant, or contaminant entering any waste stream or otherwise released into the environment (including fugitive emissions) prior to recycling, treatment, or disposal, and reduces the hazards to public health and the environment associated with the release of such substances, pollutants, and contaminants; or
(2) Reduces or eliminates the creation of pollutants through increased efficiency in the use of raw materials, energy, water, or other resources.
"Recycling" means the series of activities, including collection, separation, and processing, by which products or other materials are recovered from the solid waste stream for use in the form of raw materials in the manufacture of products other than fuel for producing heat or power by combustion.
"Waste prevention" means any change in the design, manufacturing, purchase, or use of materials or products (including packaging) to reduce their amount or toxicity before they become municipal solid waste. Waste prevention also refers to the reuse of products or materials.
"Waste reduction" means preventing or decreasing the amount of waste being generated through waste prevention, recycling, or purchasing recycled and environmentally preferable products.
(b) The following environmental objectives shall be addressed throughout the acquisition process:
(1) Obtaining products and services considered to be environmentally preferable (based on EPA-issued guidance).
(2) Obtaining products considered to be energy-efficient; i.e., products that are in the upper 25 percent of energy-efficiency for all similar products, or products that are at least 10 percent more efficient than the minimum level that meets Federal standards (see Executive Order 12902, Section 507).
(3) Eliminating or reducing the generation of hazardous waste and the need for special material processing (including special handling, storage, treatment, and disposal).
(4) Promoting the use of nonhazardous and recovered materials.
(5) Realizing life-cycle cost savings.
(6) Promoting cost-effective waste reduction when creating plans, drawings, specifications, standards, and other product descriptions authorizing material substitutions, extensions of shelf-life, and process improvements.
(b) Executive Order 12843, April 21, 1993.
(c) Environmental Protection Agency (EPA) regulations, Protection of Stratospheric Ozone (40 CFR Part 82).
(a) Any substance designated as Class I by EPA (40 CFR Part 82), including but not limited to chlorofluorocarbons, halons, carbon tetrachloride, and methyl chloroform; or
(b) Any substance designated as Class II by EPA (40 CFR Part 82), including but not limited to hydrochlorofluorocarbons.
(1) Implement cost-effective programs to minimize the procurement of materials and substances that contribute to the depletion of stratospheric ozone; and
(2) Give preference to the procurement of alternative chemicals, products, and manufacturing processes that reduce overall risks to human health and the environment by lessening the depletion of ozone in the upper atmosphere.
(b) In preparing specifications and purchase descriptions, and in the acquisition of supplies and services, agencies shall ensure that acquisitions--
(1) Comply with the requirements of Title VI of the Clean Air Act, Executive Order 12843, and 40 CFR 82.84(a)(2), (3), (4), and (5); and
(2) Substitute safe alternatives to ozone-depleting substances, as identified under 42 U.S.C. 7671k, to the maximum extent practicable, as provided in 40 CFR 82.84(a)(1), except in the case of Class I substances being used for specified essential uses, as identified under 40 CFR 82.4(r).
(a) 52.223-11, Ozone-Depleting Substances, in solicitations and contracts for ozone-depleting substances or for supplies that may contain or be manufactured with ozone-depleting substances.
(b) 52.223-12, Refrigeration Equipment and Air Conditioners, in solicitations and contracts for services when the contract includes the maintenance, repair, or disposal of any equipment or appliance using ozone-depleting substances as a refrigerant, such as air conditioners, including motor vehicles, refrigerators, chillers, or freezers.
(b) Under EPCRA section 313 (42 U.S.C. 11023), and PPA section 6607 (42 U.S.C. 13106), the owner or operator of certain manufacturing facilities is required to submit annual reports on toxic chemical releases and waste management activities to the Environmental Protection Agency (EPA) and the States.
(b) This subpart does not apply to--
(1) Acquisitions of commercial items as defined in Part 2; or
(2) Contractor facilities located outside the United States. (The United States, as used in this subpart, includes any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the United States Virgin Islands, the Northern Mariana Islands, and any other territory or possession over which the United States has jurisdiction.)
(b) Federal agencies, to the greatest extent practicable, shall contract with companies that report in a public manner on toxic chemicals released to the environment.
(1) As the owner or operator of facilities to be used in the performance of the contract that are subject to Form R filing and reporting requirements, the offeror will file, and will continue to file throughout the life of the contract, for such facilities, the Toxic Chemical Release Inventory Form (Form R) as described in EPCRA sections 313(a) and (g) and PPA section 6607; or
(2) Facilities to be used in the performance of the contract are exempt from Form R filing and reporting requirements because the facilities--
(i) Do not manufacture, process, or otherwise use any toxic chemicals listed under section 313(c) of EPCRA, 42 U.S.C. 11023(c);
(ii) Do not have 10 or more full-time employees as specified in section 313(b)(1)(A) of EPCRA, 42 U.S.C. 11023(b)(1)(A);
(iii) Do not meet the reporting thresholds of toxic chemicals established under section 313(f) of EPCRA, 42 U.S.C. 11023(f) (including the alternate thresholds at 40 CFR 372.27, provided an appropriate certification form has been filed with EPA);
(iv) Do not fall within Standard Industrial Classification Code (SIC) designations 20 through 39 as set forth in 19.102; or
(v) Are not located within any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the United States Virgin Islands, the Northern Mariana Islands, or any other territory or possession over which the United States has jurisdiction.
(b) A determination that it is not practicable to include the solicitation provision at 52.223-13, Certification of Toxic Chemical Release Reporting, in a solicitation or class of solicitations shall be approved by a procurement official at a level no lower than the head of the contracting activity. Prior to making such a determination for a solicitation or class of solicitations with an estimated value in excess of $500,000 (including all options), the agency shall consult with the Environmental Protection Agency, Director, Environmental Assistance Division, Office of Pollution Prevention and Toxic Substances (Mail Code 7408), Washington, DC 20460.
(c) Award shall not be made to offerors who do not certify in accordance with paragraph (a) of this section when the provision at 52.223-13, Certification of Toxic Chemical Release Reporting, is included in the solicitation. If facilities to be used by the offeror in the performance of the contract are not subject to Form R filing and reporting requirements and the offeror fails to check the appropriate box(es) in 52.223-13, Certification of Toxic Chemical Release Reporting, such failure shall be considered a minor informality or irregularity.
(d) The contracting officer shall cooperate with EPA representatives and provide such advice and assistance as may be required to aid EPA in the performance of its responsibilities under E.O. 12969.
(e) EPA, upon determining that a contractor is not filing the necessary forms or is filing incomplete information, may recommend to the head of the contracting activity that the contract be terminated for convenience. The head of the contracting activity shall consider the EPA recommendation and determine if termination or some other action is appropriate.
(a) Insert the provision at 52.223-13, Certification of Toxic Chemical Release Reporting, in all solicitations for competitive contracts expected to exceed $100,000 (including all options) and competitive 8(a) contracts, unless it has been determined in accordance with 23.906(b) that to do so is not practicable; and
(b) When the solicitation contains the provision at 52.223-13, Certification of Toxic Chemical Release Reporting, insert the clause at 52.223-14, Toxic Chemical Release Reporting, in the resulting contract, if the contract is expected to exceed $100,000 (including all options).
(b) Pursuant to Section 1-104 of E.O. 12856, and any agency implementing procedures, every new contract that provides for performance on a Federal facility shall require the contractor to provide information necessary for the Federal agency to comply with the emergency planning and toxic release reporting requirements of EPCRA and PPA, and other agency obligations under E.O. 12856.