General Services Administration Acquisition Regulation: Contractor Identification of Products With Environmental Attributes

GENERAL SERVICES ADMINISTRATION

48 CFR Parts 501, 538, and 552

[APD 2800.12A CHGE 58]

General Services Administration Acquisition Regulation:

Contractor Identification of Products With Environmental Attributes

AGENCY: Office of Acquisition Policy, GSA.

ACTION: Final rule.

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SUMMARY: The General Services Administration Acquisition Regulation

(GSAR) is amended to revise section 501.105; revise the prescription

for the multiple award schedule (MAS) clause at 552.238-75,

Identification of Energy-Efficient Office Equipment and Supplies

Containing Recovered Materials or Other Environmental Attributes, to

require its use in all MAS solicitations and contracts for supplies;

and revise the clause to amend the definitions of energy-efficient

office equipment and recovered materials, add a definition of

remanufactured products, and make editorial changes.

EFFECTIVE DATE: December 16, 1994.

FOR FURTHER INFORMATION CONTACT:

Paul Linfield, Office of GSA Acquisition Policy (202) 501-1224.

SUPPLEMENTARY INFORMATION:

A. Public Comments

An interim rule and a proposed rule were published for public

comment in the Federal Register (59 FR 3657 dated January 26, 1994, and

59 FR 6231 dated February 10, 1994, respectively). Both were intended

to assist Federal agencies in satisfying requirements expressed in

various statutes and executive orders to consider energy-efficiency and

other environmental considerations in their procurement practices. Vice

President Gore's National Performance Review (NPR) also believed that

the GSA, as a major procuring agency and through its multiple awards

schedules programs, could provide encouragement to suppliers and assist

Federal agencies in meeting their statutory and executive order

responsibilities. Federal agencies use the GSA MAS contracts to satisfy

many of their supply requirements. In its report, Reinventing Federal

Procurement, the NPR included a recommendation that would have multiple

award schedule contractors identify energy-efficient products and

products with other environmental attributes. The GSA believes this

rule also implements the NPR recommendation.

Comments received from ten companies and organizations were

considered in formulating this final rule. These comments focused

primarily on definitions and informational aspects of the regulation.

One comment suggested substituting the term, ``environmentally

preferable,'' for ``environmental attributes'' and inclusion of

definitions for such terms as ``postconsumer material,''

``recyclable,'' ``recycling,'' and ``waste prevention'' in the

regulation. These terms from Executive Order 12873, Federal

Acquisition, Recycling, and Waste Prevention, with the exception of

``recyclable,'' are not used in the GSA regulation. ``Recyclable'' is

specifically addressed in guidance contained in 16 CFR Part 260 that is

referred to in the regulation. Consequently, the GSA does not believe

defining these terms is necessary.

Furthermore, the GSA does not publish this rule to implement

Executive Order 12873 nor to substitute for guidance the Environmental

Protection Agency (EPA) is developing pursuant to section 503 of that

executive order to assist Federal agencies in their purchasing of

environmentally preferable products. However, the GSA believes its rule

does not conflict with, but in fact, further policies expressed in

Executive Order 12873.

Three companies submitted substitute definitions for ``energy-

efficient office equipment.'' These substitute definitions were not

accepted because of limitations in their applicability or because they

could lead to unwarranted and improper comparisons of competing

products. However, as a result of these comments, the definition was

modified.

One comment expressed concern with the definition of ``recovered

materials.'' The concern was that rebuilt parts and similar products

may not fall within the definition. Suggested revisions to the

definition were not accepted. The definition used in the regulation is

the statutory definition in the Resource Conservation and Recovery Act

(42 U.S.C. 6903(19)) and is unchanged in this final rule. However, as a

result of this comment and a second comment that also alluded to

remanufactured products, a definition of ``remanufactured products''

was added to the regulation for clarity.

The majority of the remaining comments involved informational

aspects of the regulation. The significant issues were the potential

conflict with the guidance currently being developed by the EPA for

purchasing environmentally preferable products, the amount and kinds of

information necessary to substantiate environmental claims, and

verification of those claims.

One organization suggested the criteria is used by the GSA is too

limited and not consistent with the approach the EPA is taking. A

second opposed the interim rule ``on the grounds that no compelling

reasons for its issuance were presented and its issuance is premature

in light of EPA's work under Executive Order 12873.'' Several comments

were made that the regulation may encourage the purchase of products

based upon one or two favorable environmental characteristics while

ignoring potentially significant adverse environmental impacts in other

stages of their life cycle or that the regulation may encourage

questionable and unfounded claims. One stated that listing specific

environmental attributes should be avoided because suppliers ``would

have little enticement to innovate outside the attributes listed.'' It

continued, ``Federal procurement programs should encourage the

submission of information on the broad life cycle of a product in the

areas of energy usage, raw material usage, air emissions, water

emissions and solid waste production.'' To shortcut unfounded claims,

another urged the GSA to require offerors to supply it with complete

information about the specific evidence, test procedures and results to

support any claim.

Several comments questioned the GSA's decision to rely upon third

party certifications. The significant issues raised were (1) the GSA

should not delegate this responsibility, (2) ecolabels tend to be based

upon limited or narrow criteria and are not consistent with the broad

life cycle approach favored by an EPA concept paper, and (3) third

party certification can be costly to suppliers.

The GSA considered all of these comments in light of its limited

objectives and anticipated benefits. GSA notes that its regulation does

not limit contractors only to those environmental attributes expressly

identified in the regulation, but instead merely requires them to have

a reasonable basis substantiating any claim to an environmental

attribute that is made. Neither does the GSA dictate to contractors how

it must substantiate the environmental claim, but again provides

flexibility. Third party verification is one option available to

suppliers.

The GSA also considered the anticipated benefits of the

informational models suggested in the EPA concept paper and favored by

some organizations that commented on the regulation. The burden

involved in collecting and evaluating information involved in such an

approach is not consistent with the GSA's MAS programs where contracts

are awarded to multiple suppliers that offer the same generic types of

products at various prices. Ordering activities are thus provided the

opportunity to satisfy their requirements with the lowest cost product

that has the features specifically meeting their needs. Life cycle

analysis applied to environmental attributes does not further this

objective because it has not been demonstrated to be a cost-effective

tool. The GSA agrees with one organization's comment that more work is

needed before information requests on the broad life cycle of a product

would be useful because ``the tools to translate these concepts into

practice--such as life cycle assessment and life cycle costing--are, on

this date, still under development.''

The GSA also notes that it is not unaware of the work the EPA is

doing in developing guidance on purchasing environmentally preferable

products. While the GSA will continue to work with the EPA, the

objectives of this rule and the EPA's objectives do not coincide.

Though there are common elements, the achievement of the GSA's limited

objectives is not dependent upon the approach ultimately decided upon

by the EPA to assist Federal agencies in the purchase of

environmentally preferable products. Moreover, to satisfy the NPR

recommendation, the GSA cannot defer its final rule pending the

development and issuance of the EPA's guidance.

Consequently, the GSA made no substantive changes to the final rule

as a result of comments on the informational aspects of the regulation.

Since it cannot anticipate when EPA's final guidance will be published,

the GSA believes its regulation will encourage the identification of

current and new products with environmental attributes and identify

those products for Federal agencies that place orders against GSA MAS

contracts. Such an outcome will be consistent with the policies

expressed in various statutes and executive orders and satisfy the

recommendation in the NPR report, Reinventing Federal Procurement.

B. Executive Order 12866

This rule was reviewed by the Office of Management and Budget (OMB)

in accordance with Executive Order 12866, Regulatory Planning and

Review.

C. Regulatory Flexibility Act

The rule is not expected to have an economic impact on a

substantial number of small entities as defined under the Regulatory

Flexibility Act.

Under multiple award schedules, contractors currently are required

to submit certain marketing information with their offers and to

publish and distribute to ordering agencies commercial catalogs and/or

pricelists. This rule would require those contractors to identify and

describe those products that have environmental attributes.

An initial regulatory flexibility analysis was prepared and

submitted to the Chief Counsel for Advocacy of the Small Business

Administration. Copies of the initial regulatory flexibility analysis

were available for public comment. No comments were received on the

impact of the rule on small business.

The final regulatory flexibility analysis reflects the policy of

the Federal Government to accommodate and encourage technological

innovation and the development of products that reduce energy

consumption, conserve natural resources, and are less harmful to

consumers and the environment. The final regulatory flexibility

analysis indicates that the rule will affect contractors, including

small businesses under MAS solicitations. In FY 1992 the GSA awarded

approximately 2,800 such contracts. Of this total, more than 2,000 (74

percent) were awarded to small business concerns.

D. Paperwork Reduction Act

The information collection requirement contained in this rule has

been approved by OMB under section 3504(h) of the Paperwork Reduction

Act and assigned OMB Control Number 3090-0262. The title of this

collection is Identification of Products with Environmental Attributes.

Requiring contractors to identify and describe products with

environmental attributes is intended to stimulate the development of

products that incorporate pollution prevention technologies and

facilitate the marketing of such products to the Federal Government,

the Nation's largest single consumer. Federal agencies are required to

give preference to such products, when doing so is cost-effective and

meets performance requirements. The estimated annual burden for this

collection is 14,000 hours. This is based on an estimated average

burden hour per response of 5 hours, a proposed frequency of one

response per respondent, and an estimated number of likely respondents

or 2,800.

Any comments concerning the accuracy of the burden may be directed

to the Director, Office of GSA Acquisition Policy (VP), 18th and F

Streets, NW, Room 4006, Washington, DC 20405 and to the Office of

Information and Regulatory Affairs of OMB, Attention Desk Officer for

GSA, Washington, DC 20503.

List of Subjects in 48 CFR Parts 501, 538, and 552

Government procurement.

Accordingly, 48 CFR Parts 501, 538, and 552 are amended as follows:

1. The authority citation for 48 CFR Parts 501, 538, and 552

continues to read as follows:

Authority: 40 U.S.C. 486(c).

PART 501--GENERAL SERVICES ADMINISTRATION ACQUISITION REGULATION

SYSTEM

2. Section 501.105 is revised to read as follows:

501.105 OMB Approval under the Paperwork Reduction Act.

The following OMB control numbers apply:

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OMB control

GSAR reference No.

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509.105-1(a)............................................. 3090-0007

510.004-70............................................... 3090-0203

510.011(i)............................................... 3090-0246

512.104(a)(2)............................................ 3090-0204

512.104(a)(4)............................................ 3090-0204

514.201(7)(a)............................................ 3090-0200

516.203-4(b)............................................. 3090-0243

516.505.................................................. 3090-0248

519.708(b)............................................... 3090-0252

522.406-6................................................ 1215-0140

523.370.................................................. 3090-0205

525.105-70(d)............................................ 3090-0198

525.205.................................................. 3090-0240

532.502-3................................................ 3090-0229

532.905-70............................................... 9000-0102

532.905-71............................................... 3090-0080

537.110(a)............................................... 3090-0197

537.110(b)............................................... 3090-0006

538.203-71(a)............................................ 3090-0121

538.203-71(b)............................................ 3090-0250

538.203-71(d)............................................ 3090-0262

542.1107................................................. 3090-0027

546.302-70............................................... 3090-0027

546.302-71............................................... 3090-0027

546.570.................................................. 3090-0227

552.210-74............................................... 3090-0203

552.210-79............................................... 3090-0246

552.212-1................................................ 3090-0204

552.212-71............................................... 3090-0204

552.214-75............................................... 3090-0200

552.216-71............................................... 3090-0243

552.216-73............................................... 3090-0248

552.216-74............................................... 3090-0248

552.219-73............................................... 3090-0252

552.223-71............................................... 3090-0205

552.225-70............................................... 3090-0198

552.225-75............................................... 3090-0240

552.228-74............................................... 3090-0189

552.232-74............................................... 3090-0229

552.232-79............................................... 3090-0080

552.237-70............................................... 3090-0197

552.237-71............................................... 3090-0006

552.238-70............................................... 3090-0250

552.238-72............................................... 3090-0121

552.238-75............................................... 3090-0262

552.242-70............................................... 3090-0027

552.246-70............................................... 3090-0027

552.246-72............................................... 3090-0027

552.249-71............................................... 3090-0227

GSA-72................................................... 3090-0121

GSA-72-A................................................. 3090-0121

GSA-527.................................................. 3090-0007

GSA-618-D................................................ 1215-0149

GSA-1142................................................. 3090-0080

GSA-1364................................................. 3090-0086

GSA-1678................................................. 3090-0027

GSA-2419................................................. 9000-0102

570.802(c)............................................... 3090-0086

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PART 538--GSA SCHEDULE CONTRACTING

3. Section 538.203-71 is amended to revise paragraph (d) to read as

follows:

538.203-71 Solicitation provisions and contract clauses.

* * * * *

(d) The contracting officer shall insert the clause at 552.238-75,

Identification of Energy-Efficient Office Equipment and Supplies

Containing Recovered Materials or Other Environmental Attributes, in

solicitations and contracts awarded for supplies under the multiple

award schedule program.

PART 552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

4. Section 552.238-75 is revised to read as follows:

552.238-75 Identification of Energy-Efficient Office Equipment and

Supplies Containing Recovered Materials or Other Environmental

Attributes.

As prescribed in 538.203-71(d), insert the following clause:

Identification of Energy-Efficient Office Equipment and Supplies

Containing Recovered Materials or Other Environmental Attributes (Sept

1994)

(a) Definitions. ``Energy-efficient office equipment,'' as used

in this clause, means office equipment that, in representative use,

provides equivalent or better performance and value to users, but

uses significantly less energy than most functionally equivalent

models.

``Recovered materials,'' as used in this clause, means waste

material and by-products which have been recovered or diverted from

solid waste, but such term does not include those materials and by-

products generated from, and commonly reused, within an original

manufacturing process (42 U.S.C. 6903(19)). For paper, it also

includes postconsumer materials, and manufacturing and certain other

wastes. (42 U.S.C. 6962(h)).

``Remanufactured products,'' as used in this clause, means

equipment or parts that have been factory remanufactured or rebuilt

to meet new equipment or part performance specifications and have

had no use subsequent to their remanufacture.

(b) The offeror shall identify in its offer and include in any

commercial catalogs and pricelists and any resultant Government

catalogs or pricelists submitted to the Contracting Officer, energy-

efficient office equipment and supplies that contain recovered

material, remanufactured products, or other environmental

attributes. Examples of energy-efficient office equipment are

microcomputers and associated equipment that meet the requirements

of the Environmental Protection Agency's (EPA's) Energy Star

Computers Program. Supplies that contain recovered materials and

other environmental attributes include, but are not limited to,

products identified in EPA procurement guidelines (40 CFR subchapter

I) and products that are either degradable, ozone safe, recyclable,

contain low volatile organic content compounds, contribute to source

reduction, or otherwise are designed or manufactured to achieve

environmental improvement. For example, an offeror can identify

products that are safe or safer alternatives for more toxic or

hazardous products and products that can be substituted for ones

manufactured with toxic or hazardous materials. Such supplies shall

satisfy the guidance contained in 16 CFR part 260, Guides for the

Use of Environmental Marketing Claims.

(c) An offeror, in identifying an item with an environmental

attribute, shall possess evidence or rely upon a reasonable basis to

substantiate the claim (see 16 CFR 260.5). The Government will

accept an offeror's claim of an item's environmental attribute on

the basis of--

(1) Participation in a Federal agency sponsored program, e.g.,

EPA's Energy Star Computers Program;

(2) Verification by an independent organization that specializes

in certifying such claims; or

(3) Possession of competent and reliable evidence. For any test,

analysis, research, study or other evidence to be ``competent and

reliable,'' it must have been conducted and evaluated in an

objective manner by persons qualified to do so, using procedures

generally accepted in the profession to yield accurate and reliable

results.

(End of Clause)

Dated: September 23, 1994.

Arthur E. Ronkovich,

Acting Associate Administrator, Office of Acquisition Policy.

[FR Doc. 94-30197 Filed 12-7-94; 8:45 am]

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