Affirmative Procurement Plan (APP) for EPA-designated Guideline Items Containing Recovered Materials (RM)

Preface

Introduction

Purpose
Authority
Policy
Responsibility
         *Federal Environmental Executive (FEE)
         *Agency Environmental Executive (AEE)
Applicability
         *General
         *Contractors
State and Local Agencies

DOL'S Affirmative Procurement Program

  Preference Program for Recovered Materials
 Promotion Program for Recovered Materials
 Procedures for Vendor Estimation, Certification
           *Estimation
           *Certification
           *Exclusions
Review and Monitoring Program
          *Report to Federal Environmental Executive
          *Specification Control
          *Justifications

Exhibit 1 - Applicability Key

Acronyms

Federal agencies are required by section 6002 of the Resource Conservation and Recovery Act (RCRA) and Executive Order 12873, "Federal Acquisition, Recycling, and Waste Prevention," to buy certain products containing recovered materials. This document, "U.S. Department of Labor Affirmative Procurement Program For Products Containing Recovered Materials," provides Department-wide guidance for establishing an effective affirmative procurement program.

Questions on compliance and implementation issues in this Guidance may be directed to the Office of the Assistant Secretary for Administration and Management, Business Operations Center, Office of Financial Management (OFM) and the Office of Business Systems Services (OBSS).

PURPOSE

This document formally establishes the Department of Labor's (DOL's) Affirmative Procurement Program (APP) for products containing recovered materials and provides Department-wide guidance for implementing an effective program. The purpose of Federal affirmative procurement programs is to foster markets for recovered materials by maximizing the Federal Government's recycled products' purchases. A secondary objective is to reduce the amount of solid waste requiring disposal through the purchase and use of products containing recovered materials.

As part of DOL's on-going pollution prevention efforts, this APP is issued in accordance with the policy set out in Secretary's Order 5-94, "Procurement and Use of Environmentally Preferable Products and Services" (August 19,1994). The Order stipulates that the Assistant Secretary for Administration and Management is designated as DOL's Agency Environmental Executive (AEE), with duties to include developing and implementing an APP.

AUTHORITY

The following documents establish the requirements for affirmative procurement programs. Specific requirements contained in these documents are found in DOL's "Guide to Environmental Procurement."

• Section 6002 of the Resource Conservation and Recovery Act and Executive Order 12873
• Title 40, Code of Federal Regulations [CFR], Parts 247 through 253
• Office of Federal Procurement Policy (OFPP), Policy Letter 92-4

POLICY

The DOL's APP ensures items composed of recovered material will be purchased to the maximum extent practicable, and is consistent with the Environmental Protection Agency's (EPA) Federal Procurement Guidelines (Guidelines) and OFPP's Policy Letter. Each EPA guideline, including recovered material minimum content standards, has been referenced and incorporated into DOL's "Guide to Environmental Procurement." However, DOL may modify its minimum content standards in the future if it is determined that EPA's minimum content standards are either too restrictive; i.e., lowering the standards would enable DOL to procure more products made with recovered materials, or too lenient; i.e., raising the standards would enable DOL to procure items containing recovered material to the maximum extent practicable.

Nothing in DOL's APP shall be used to negate any state or local affirmative procurement requirement more stringent than a similar requirement implemented by DOL's APP.

RESPONSIBILITY

Federal Environmental Executive (FEE) (Part 3, Sec 301)

Executive Order 12873 requires Federal agencies to expand waste prevention and recycling programs, implement affirmative procurement programs for EPA-designated items, and procure other environmentally preferable products and services. The Order requires the Presidential appointment of a Federal Environmental Executive, to be located in EPA, to ensure agencies comply with the provisions of the Order. The FEE reports annually to the Office of Management and Budget (OMB) on agencies' compliance with the requirements of the Order.

Agency Environmental Executive (AEE) (EO 12873 Sec 103 and Part 3)

Executive Order 12873 also requires the head of each executive department and major procuring agency to designate an Agency Environmental Executive responsible for:

• Coordinating all environmental programs in the areas of procurement and acquisition, standards, and specification review, facilities management, waste prevention and recycling, and logistics.
• Participating in the interagency development of a Federal plan to: -- create an awareness and outreach program for the private sector to facilitate markets for environmentally preferable and recycled products and services, promote new technologies, improve awareness about Federal efforts in this area, and expedite agency efforts to procure new products identified under the Order; -- establish incentives, provide guidance, and coordinate appropriate educational programs for agency employees; and -- coordinate the development of standard agency reports required by the Order.
• Reviewing agency programs and acquisitions to ensure compliance with the Order.
• Tracking and reporting DOL's purchases of guideline items.

APPLICABILITY

General

Section 6002 (a) of RCRA and EPA's Procurement Guidelines apply to all procuring agencies, defined as "...any Federal agency, or any State agency, or agency of a political subdivision of a State which uses appropriated Federal funds for such procurement, or any person contracting with any such agency with respect to work performed under such contract." These requirements are clearly shown in Exhibit 1 in this document.

• First, it determines those parties responsible for developing and implementing an APP and those responsible for APP compliance. The DOL, as a Federal agency, has developed a comprehensive APP, which shall be implemented by all DOL program offices, operations offices, sites, and applicable contractors. All Departmental elements must take steps to carry out DOL's comprehensive APP.
• Second, EPA's Guidelines only apply to an agency whose total annual purchases (for each designated item) equal $10,000 or more, or when the procuring agency purchased $10,000 or more of the item (or of a functionally equivalent item) during the preceding year. The procurement requirements identified in EPA's Guidelines apply to DOL as a whole; thus, all DOL program offices, operations offices, sites, and applicable contractors shall be responsible for implementing the procurement requirements outlined in both this document and EPA's Guidelines if DOL purchases in excess of $10,000 each fiscal year of an item designated by EPA.

Contractors

This guidance applies to all DOL contractors as referenced in paragraph 3 of Secretary's Order 5-94. However, DOL's APP and this Guidance shall only apply to such contractors as long as appropriate provisions are contained in the contracts. It is the responsibility of DOL to ensure: 1) appropriate existing contracts are revised to include APP compliance provisions, and 2) appropriate new contracts contain APP compliance provisions.

Maintenance and Operations (M&O) contractors procure a majority of the products regulated by EPA's Guidelines. Therefore, they should be familiar with all applicable APP requirements contained in their contracts with DOL. Once appropriate provisions are included in each M&O contract, the contractor is required to comply with DOL's APP as if the contractor were a DOL entity. Hence, the M&O contractor will be required to monitor and report on its APP-related procurement activities as well as require its applicable sub-contractors to comply with DOL's APP.

Nothing in DOL's APP would preclude an M&O contractor from voluntarily implementing an affirmative procurement program until such time as provisions are incorporated into the contract.

STATE AND LOCAL AGENCIES

State and local agencies purchasing more than $10,000 worth of a particular EPA- designated item in a year, and using some Federal funds for these purchases, are required to establish an affirmative procurement program for those particular items.

1. PREFERENCE PROGRAM FOR RECOVERED MATERIALS (RCRA 6002 (I) (3))

DOL's preference program is based on EPA's Procurement Guidelines for designated items, found in DOL's "Guide to Environmental Procurement" and on the companion LaborNet site. For those items not covered by EPA Guidelines, preference will be given to the procurement and use of such products containing recovered materials versus products made with virgin materials when adequate competition exists, and when price, performance, and availability are equal.

2. PROMOTION PROGRAM FOR RECOVERED MATERIALS (RCRA 6002)

The AEE is responsible for actively promoting DOL's desire to buy recycled products. This includes making recycled products' suppliers aware of DOL's preference program, educating program and procurement offices about requirements to procure recycled products, and providing DOL employees and contractors with information on sources of recycled products. The DOL will internally and externally promote its desire to buy recycled products by:

• Including explicit recovered material preference standards for EPA-designated items in appropriate solicitations for bids, statements of work, and during contract negotiations.
• Providing informational materials and training to program and procurement offices regarding DOL's recovered materials preference program through internal documents; newsletters; and at appropriate conferences, workshops, and meetings.
• Providing vendor and product information from GSA's Federal Supply Service, other established Federal supply sources, and outside vendors to program and procurement offices through: -- electronic media such as the Internet; and -- internal documents and publications; newsletters; and at appropriate conferences, workshops, and meetings.

3. PROCEDURES FOR VENDOR ESTIMATION, CERTIFICATION (RCRA 6002(c)(3)(a) and (e)(2); FAR 52.223-4), and Agency Verification (ref: EO 12873)

The EPA's Guidelines recommend procuring agencies require vendors provide an estimate of the total recycled content of their products and certify that the recycled content meets minimum content standards. (Recycled content is usually expressed as a percentage of total content.) EPA's guidelines also recommend agencies establish procedures to verify vendor estimates and certifications. The DOL suggests program and procurement offices adopt the following procedures:

Estimation

The DOL's minimum content standards for designated items shall be specified in the statement of work. Vendors responding to bids for EPA-designated items must meet the minimum content standards; therefore, a separate estimate from the vendor regarding the percentage of recovered materials in the product is not required unless the product exceeds the minimum content standards specified.

Certification

Vendors are responsible for: 1) providing written certification to the contracting officer their products meet minimum content standards, 2) maintaining copies of certification documents, and 3) producing copies of the written certification upon request by DOL.

Currently, the Federal Acquisition Regulation (FAR) contains a "Recovered Material Certification" provision (52.223-4) which Federal agency contracting officers shall insert into solicitations, including specifications requiring use and/or procuring recovered materials. The provision is as follows:

• *Recovered Material Certification

*The offeror certifies, by signing this offer, recovered materials, as defined in section 23.402 of the Federal Acquisition Regulation, will be used as required by the applicable specifications.

Exclusions

Federal supply sources such as the General Services Administration (GSA), Government Printing Office (GPO), and Defense General Supply Center (DGSC) have established their own estimation, certification, and verification procedures for EPA- designated items. Therefore, program offices procuring designated items through these supply sources are not required to conduct independent estimation, certification, and verification procedures.

4. REVIEW AND MONITORING PROGRAM EFFECTIVENESS (RCRA 6002 (I))
Report to Federal Environmental Executive

The AEE is responsible for tracking the Department's purchasing of EPA-designated items and reporting this information to the FEE, as requested. The AEE will request information from all Departmental elements and appropriate headquarters' offices in preparing DOL's annual report to OFPP. From this information, the AEE will coordinate preparing and submitting the final DOL report. The results of these reports will be used by the AEE to fulfill annual reporting requirements, identify strengths and weaknesses of DOL's program, and provide feedback to program and procurement offices.

Specification Control

Program offices are responsible for reviewing and revising specifications, product descriptions, and standards during the acquisition planning stage to enhance DOL's procurement of recycled and environmentally preferable products. Standards or specifications, unrelated to performance, presenting barriers to procuring recycled or environmentally preferable products should be revised or eliminated when reviewing or drafting procurement specifications. When converting to Commercial Item Descriptions (CID) during procurement actions, DOL agencies and contractor personnel will ensure environmental factors have been considered and the CID meets or exceeds the environmentally preferable criteria in Government specifications or product descriptions.

Justifications

The AEE may periodically request to review the agencies' copies of vendor certification documents for verification purposes, as well as other procurement documents involving specifications for EPA-designated items containing recovered material. Section 402(b) of EO 12873 requires 100 percent of an agency's purchases of EPA-designated items meet or exceed EPA guideline standards unless written justification is provided that a product is: 1) not available competitively, 2) not available within a reasonable time frame, 3) does not meet appropriate performance standards, or 4) is only available at an unreasonable price.

1. ARE YOU A PROCURING AGENCY?

RCRA Section 1004(17) defines a procuring agency as "...any Federal agency, or any State agency or agency of a political subdivision of a State using appropriated Federal funds for such procurement, or any person contracting with any such agency with respect to work performed under such contract."

• Federal agencies are always procuring agencies.
• A State or local agency is a procuring agency when it uses appropriated Federal funds for a procurement.
• A contractor is a procuring agency when it is contracting with a Federal agency or State or local agency using appropriated Federal funds for a procurement.
• Only Government agencies and their contractors are or can become "procuring agencies."

Private party recipients of Federal loans, grants, or funds under cooperative agreements are not procuring agencies.

2. ARE YOU PURCHASING OR ACQUIRING A DESIGNATED ITEM?

3. ARE YOU PURCHASING $10,000 OR MORE OF A DESIGNATED ITEM OR DID YOU PURCHASE AT LEAST $10,000 OF A DESIGNATED ITEM IN THE PRECEDING FISCAL YEAR?

RCRA Section 6002(a) requires "...a procuring agency shall comply with the requirements set forth in this section and any regulations issued under this section, with respect to any purchase or acquisition of a procurement item where the purchase price of the item exceeds $10,000 or where the quantity of such items or of functionally equivalent items purchased or acquired in the course of the preceding fiscal year was $10,000 or more."

• The $10,000 threshold applies to each procuring agency as a whole.
• If a procuring agency has determined it purchased $10,000 worth of a designated item or functionally equivalent items during the preceding year, it is subject to RCRA Section 6002. If so, the requirements apply to all purchases of these items occurring in the current fiscal year.
• If the procuring agency did not procure $10,000 worth of a designated item in the preceding fiscal year, it is not subject to RCRA Section 6002, unless, in the current fiscal year, it purchases $10,000 or more of a designated item in a single procurement action. If so, the requirements apply to the single procurement and to all subsequent purchases of the designated item made during the current fiscal year.

1 Source: EPA Office of Solid Waste; please refer questions to the EPA Hotline number 1-800-424-9346 or in the Washington DC area 703-412-9810.

AEE -- Agency Environmental Executive
APP -- Affirmative Procurement Program
BOC -- Business Operations Center
CID -- Commercial Item Descriptions
CFR -- Code of Federal Regulations
DOL -- Department of Labor
DGSC -- Defense General Supply Center
EO -- Executive Order 12873
EPA -- Environmental Protection Agency
FAR -- Federal Acquisition Regulations
FEE -- Federal Environmental Executive
GPO -- Government Printing Office
GSA --General Services Administration
M&O -- Maintenance and Operations
OASAM -- Office of the Assistant Secretary for Administration & Management
OBSS -- Office of Business Systems Services, BOC, OASAM
OFM -- Office of Financial Management, BOC, OASAM
OFPP -- Office of Federal Procurement Policy
OMB -- Office of Management and Budget
RCRA -- Resource Conservation and Recover Act

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