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[Federal Register: September 22, 2010 (Volume 75, Number 183)]
[Rules and Regulations]               
[Page 57690-57696]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22se10-10]                         

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DEPARTMENT OF ENERGY

48 CFR Parts 907, 923, 936, 952, and 970

RIN 1991-AB95

 
Acquisition Regulation: Sustainable Acquisition

AGENCY: Department of Energy.

ACTION: Interim final rule with request for comments.

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SUMMARY: The Department of Energy (DOE) is amending the Department of 
Energy Acquisition Regulation (DEAR) to implement Executive Order 
13514, Federal Leadership in Environmental, Energy and Economic 
Performance. The intent of the rule is to leverage agency acquisitions 
to foster markets for sustainable technologies and energy efficient and 
environmentally sustainable materials, products, and services.

DATES: Effective Date: October 22, 2010.
    Comment Date: Submit comments to the address below by October 22, 
2010.

ADDRESSES: You may submit comments on this interim final rule, 
identified by RIN 1991-AB95, by any of the following methods:
     Federal eRulemaking Portal at http://www.Regulations.gov. 
Follow the instructions for submitting documents.
     E-mail to DEARrulemaking@hq.doe.gov. Include Sustainable 
Acquisition and RIN 1991-AB95 in the subject line of the e-mail with a 
copy to Richard.langston@hq.doe.gov.
     Mail to Richard Langston, MA-61, U.S. Department of 
Energy, 1000 Independence Avenue, SW., Washington, DC 20585.

FOR FURTHER INFORMATION CONTACT: Richard Langston at 202-287-1339 or 
Richard.Langston@hq.doe.gov.

SUPPLEMENTARY INFORMATION:

I. Background
II. Section by Section Analysis
III. Procedural Requirements
    A. Review Under Executive Order 12866
    B. Review Under Executive Order 12988
    C. Review Under the Regulatory Flexibility Act
    D. Review Under the Paperwork Reduction Act
    E. Review Under the National Environmental Policy Act
    F. Review Under Executive Order 13132
    G. Review Under the Unfunded Mandates Reform Act of 1995
    H. Review Under the Treasury and General Government 
Appropriations Act, 1999
    I. Review Under Executive Order 13211
    J. Review Under the Treasury and General Government 
Appropriations Act, 2001
    K. Review Under the Small Business Regulatory Enforcement 
Fairness Act of 1996
    L. Approval by the Office of the Secretary of Energy

I. Background

    Executive Order (E.O.) 13514, Federal Leadership in Environmental, 
Energy and Economic Performance was issued October 5, 2009. It is being 
implemented in Federal contracting by FAR Case 2010-001 which is being 
processed concurrently with this rulemaking. This rulemaking will 
implement and supplement FAR Case 2010-001.
    FAR Case 2010-001 was drafted in recognition of changing 
environmental circumstances and our Nation's heightened energy demands. 
These circumstances demand that the Federal Government lead by example 
to create a clean energy economy that will increase prosperity, promote 
energy security, protect the interests of taxpayers, and safeguard the 
health of our environment. Executive Order 13514 requires Federal 
agencies to leverage agency acquisitions to foster markets for 
sustainable technologies and energy efficient and environmentally 
sustainable materials, products, and

[[Page 57691]]

services. Federal agencies are additionally required to design, 
construct, maintain and operate high performance sustainable buildings 
in sustainable locations.
    FAR Case 2010-001 carries forward certain elements of earlier 
Executive Order 13423, ``Strengthening Federal Environmental, Energy, 
and Transportation Management,'' issued on January 26, 2007. That Order 
established the policy that Federal agencies shall conduct their 
environmental, transportation, and energy-related activities in an 
environmentally, economically, and fiscally sound, integrated, 
continuously improving, efficient, and sustainable manner.
    This rulemaking implements the Executive Orders and FAR Case in DOE 
contracting and more specifically in contracts for the operation of DOE 
facilities and motor vehicle fleets.
    The FAR Case is being issued as an Interim Final Rule, prior to the 
receipt of public comment. That is because urgent and compelling 
reasons exist to promulgate this action as an interim final rule, 
principal of which are the prior issuance of both Executive Order 13514 
and E.O. 13423, which the FAR rulemaking and this rulemaking are 
intended to implement. The same factors warrant our issuance of this 
document as an Interim Final Rule. In light of Public Law 98-577, Small 
Business and Federal Procurement Competition Enhancement Act of 1989, 
and FAR 1.501, both of which require we afford the opportunity for 
public comment before any significant revision of the FAR System, this 
Interim Final Rule solicits public comments which will be fully 
considered before finalizing this Interim Final Rule.

II. Section by Section Analysis

    1. Part 907 is amended to add a new subpart 907.1, Acquisition 
Plans, consisting of section 907.105(b)(16), Environmental and energy 
conservation objectives.
    2. A new section 923.002 is added to restate a requirement of E.O. 
13423 and to prescribe a clause to be used in DOE contracts for 
contractor operation of DOE owned facilities or fleets.
    3. A new subpart 923.1, Sustainable Acquisition, is added to 
implement 23.101 and to explain the Department's Sustainable 
Acquisition Program. FAR Subpart 23.1, Sustainable Acquisition is a new 
Part created by FAR Case 2010-001. The new DEAR subpart 923.1 will 
contain sections 923.101, Policy, 923.102, Applicability to 
contractors, and 923.103, Contract clause.
    4. Subpart 923.4, Use of Recovered Materials, containing section 
923.4, Procedures, is removed as its content is duplicative of the 
updated FAR 23.4.
    5. Subpart 923.7, Contracting for Environmentally Preferable and 
Energy Efficient Products and Services containing section 923.703, 
Policy, is removed as it is outdated.
    6. A new subpart 923.9, Contractor Compliance with Environmental 
Management Systems, is added to implement the new FAR 23.9. It consists 
of section 923.903, Contract clause,
    7. A new subpart 936.2, Special Aspects of Contracting for 
Construction, is added consisting of section 936.202-70 Specifications.
    8. Part 952, Solicitation Provisions and Contract Clauses is 
amended to add a new clause titled 952.223-78, Sustainable acquisition 
program.
    9. A new section 970.2301, Sustainable Acquisition is added. It 
consists of sections 970.2301-1, Policy, and 970.2301-2, Contract 
clauses.
    10. Section 970.2307, Contracting for Environmentally Preferable 
and Energy Efficient Products and Services, including 970.2307-1, Motor 
vehicle fleet operations, and 970.2307-2, Contract clause, are removed.
    11. The clause at 970.5223-2, Affirmative procurement program, is 
removed.
    12. The clause at 970.5223-5, DOE Motor Vehicle Fleet Fuel 
Efficiency, is removed.
    13. A new clause 970.5223-6, Executive Order 13423, Strengthening 
Federal Environmental, Energy, and Transportation Management is added.
    14. A new clause 970.5223-7, Sustainable acquisition program, is 
added.

III. Procedural Requirements

A. Review Under Executive Order 12866

    This regulatory action has been determined not to be a significant 
regulatory action under Executive Order 12866, Regulatory Planning and 
Review (58 FR 51735, October 4, 1993). Accordingly, this interim final 
rule is not subject to review under the Executive Order by the Office 
of Information and Regulatory Affairs (OIRA) within the Office of 
Management and Budget (OMB).

B. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
Civil Justice Reform (61 FR 4729, February 7, 1996), imposes on 
executive agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; (3) provide a clear legal standard 
for affected conduct rather than a general standard; and (4) promote 
simplification and burden reduction. With regard to the review required 
by section 3(a), section 3(b) of Executive Order 12988 specifically 
requires that executive agencies make every reasonable effort to ensure 
that the regulation: (1) Clearly specifies the preemptive effect, if 
any; (2) clearly specifies any effect on existing Federal law or 
regulation; (3) provides a clear legal standard for affected conduct 
while promoting simplification and burden reduction; (4) specifies the 
retroactive effect, if any; (5) adequately defines key terms; and (6) 
addresses other important issues affecting clarity and general 
draftsmanship under any guidelines issued by the Attorney General. 
Section 3(c) of Executive Order 12988 requires executive agencies to 
review regulations in light of applicable standards in section 3(a) and 
section 3(b) to determine whether they are met or that it is 
unreasonable to meet one or more of them. DOE has completed the 
required review and determined that, to the extent permitted by law, 
these regulations meet the relevant standards of Executive Order 12988.

C. Review Under the Regulatory Flexibility Act

    This rule has been reviewed under the Regulatory Flexibility Act, 5 
U.S.C. 601 et seq., which requires preparation of an initial regulatory 
flexibility analysis for any rule that must be proposed for public 
comment and which is likely to have a significant economic impact on a 
substantial number of small entities. The rule would not have a 
significant economic impact on small entities because it imposes no 
significant burdens. Any costs incurred by DOE contractors complying 
with the rule would be reimbursed under the contract.
    Accordingly, DOE certifies that this rule would not have a 
significant economic impact on a substantial number of small entities, 
and, therefore, no regulatory flexibility analysis is required and none 
has been prepared.

D. Review Under the Paperwork Reduction Act

    This final rule contains no new information collection or 
recordkeeping requirements. Information collection or recordkeeping 
requirements mentioned in this rule relative to the Environmentally 
Preferable and Sustainable Purchasing Practices clause

[[Page 57692]]

of 970.5223-2 are the same burdens previously contained in the 
Affirmative Procurement clause being replaced by this rule. The 
clearance number is 1910-4100 with an expiration date of August 31, 
2011.

E. Review Under the National Environmental Policy Act

    DOE has concluded that promulgation of this rule falls into a class 
of actions which would not individually or cumulatively have 
significant impact on the human environment, as determined by DOE's 
regulations (10 CFR Part 1021, Subpart D) implementing the National 
Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.). 
Specifically, this rule is categorically excluded from NEPA review 
because the amendments to the DEAR would be strictly procedural 
(categorical exclusion A6). Therefore, this rule does not require an 
environmental impact statement or environmental assessment pursuant to 
NEPA.

F. Review Under Executive Order 13132

    Executive Order 13132 (64 FR 43255, August 4, 1999) imposes certain 
requirements on agencies formulating and implementing policies or 
regulations that preempt state law or that have federalism 
implications. Agencies are required to examine the constitutional and 
statutory authority supporting any action that would limit the 
policymaking discretion of the states and carefully assess the 
necessity for such actions. DOE has examined today's rule and has 
determined that it does not preempt state law and does not have a 
substantial direct effect on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government. No further 
action is required by Executive Order 13132.

G. Review Under the Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires a 
federal agency to perform a detailed assessment of costs and benefits 
of any rule imposing a federal mandate with costs to state, local or 
tribal governments, or to the private sector, of $100 million or more 
in any single year. This rule does not impose a federal mandate on 
state, local or tribal governments or on the private sector.

H. Review Under the Treasury and General Government Appropriations Act, 
1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277), requires federal agencies to issue a 
Family Policymaking Assessment for any rule or policy that may affect 
family well-being. This rule will have no impact on family well being.

I. Review Under Executive Order 13211

    Executive Order 13211, Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, 
May 22, 2001), requires federal agencies to prepare and submit to the 
OIRA, OMB, a Statement of Energy Effects for any significant energy 
action. A ``significant energy action'' is defined as any action by an 
agency that promulgates or is expected to lead to promulgation of a 
final rule, and that: (1) Is a significant regulatory action under 
Executive Order 12866, or any successor order; or (2) is likely to have 
a significant adverse effect on the supply, distribution, or use of 
energy; or (3) is designated by the Administrator of OIRA as a 
significant energy action. For any significant energy action, the 
agency must give a detailed statement of any adverse effects on energy 
supply, distribution, or use should the proposal be implemented, and of 
reasonable alternatives to the action and their expected benefits on 
energy supply, distribution, and use.
    Today's rule is not a significant energy action. Accordingly, DOE 
has not prepared a Statement of Energy Effects.

J. Review Under the Treasury and General Government Appropriations Act, 
2001

    The Treasury and General Government Appropriations Act, 2001, 44 
U.S.C. 3516 note, provides for agencies to review most disseminations 
of information to the public under implementing guidelines established 
by each agency pursuant to general guidelines issued by OMB. OMB's 
guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's 
guidelines were published at 67 FR 62446 (October 7, 2002). DOE has 
reviewed today's rule under the OMB and DOE guidelines and has 
concluded that it is consistent with applicable policies in those 
guidelines.

K. Review Under the Small Business Regulatory Enforcement Fairness Act 
of 1996

    As required by 5 U.S.C. 801, the Department will report to Congress 
promulgation of this rule prior to its effective date. The report will 
state that it has been determined that the rule is not a ``major rule'' 
as defined by 5 U.S.C. 804(2).

L. Approval by the Office of the Secretary of Energy

    The Office of the Secretary of Energy has approved issuance of this 
final rule.

List of Subjects in 48 CFR Parts 907, 923, 936, 952 and 970

    Government procurement.

    Issued in Washington, DC, on September 14, 2010.
Patrick M. Ferraro, 
Acting Director, Office of Procurement and Assistance Management, 
Office of Management, Department of Energy.
Stephen Law, 
Acting Director, Office of Acquisition and Supply Management, National 
Nuclear Security Administration.

0
For the reasons set out in the preamble, DOE amends Chapter 9 of Title 
48 of the Code of Federal Regulations as set forth below:

PART 907--ACQUISITION PLANNING

0
1. The authority citation for part 907 is revised to read as follows:

    Authority: 42 U.S.C. 7101 et seq., and 50 U.S.C. 2401 et seq.

0
2. Add new subpart 907.1, consisting of section 907.105, to read as 
follows:

Subpart 907.1--Acquisition Plans

907.105  Contents of written acquisition plans.

    (b)(16) Environmental and energy conservation objectives.
    Incorporate sustainable building considerations including building 
location and regional planning considerations into planning for new 
Federal facilities and leases.

PART 923--ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND DRUG-
FREE WORKPLACE

0
3. The authority citation for part 923 continues to read as follows:

    Authority:  42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.

0
4. The heading of part 923 is revised as set forth above.
0
5. Add a new section 923.002, to part 923 to read as follows:

923.002  Policy.

    (a) Requirement. FAR 23.002 and Section 3(e) of Executive Order 
13423, Strengthening Federal Environmental, Energy and Transportation 
Management, require contracts for the operation of Government-owned 
facilities or Government-owned motor vehicle fleets to include 
provisions that obligate the contractor to comply with

[[Page 57693]]

the requirements of Executive Order 13423 to the same extent as the 
Federal agency would be required to comply if the agency operated the 
facility or fleet.
    (b) Contract clause. Insert the clause at 970.5223-6, Executive 
Order 13423, Strengthening Federal Environmental, Energy, and 
Transportation Management, in contracts for Contractor operation of a 
DOE facility or motor vehicle fleet.

0
6. Add a new subpart 923.1 to part 923, to read as follows:

Subpart 923.1--Sustainable Acquisition

Sec.
923.101 Policy.
923.102 Applicability to contractors.
923.103 Contract clauses.

923.101   Policy.

    The Department has promoted energy efficient products as well as 
products with recycled or biobased content as these products have 
become more common and the market has become more energy and resource 
aware. All of these products and services and others with 
environmentally preferable attributes are captured in the DOE 
Sustainable Acquisition Program. Guidance on all these products may be 
found at: http://www.hss.energy.gov/pp/epp/.

923.102   Applicability to contractors.

    Many of the Department's major facilities are operated by 
contractors. Provisions regarding those contracts may be found at Part 
970 of this chapter. At other locations, the Department makes 
significant use of contractors to operate and maintain its facilities. 
As such, the Department encourages the greatest possible use of energy 
efficient and environmentally sustainable products and services by its 
facility support contractors. The DOE Sustainable Acquisition Program 
is to be followed by all contractors operating DOE facilities or motor 
vehicle fleets.

923.103   Contract clauses.

    Insert the clause at 952.223-78, Sustainable Acquisition Program, 
or its Alternate I, in all contracts under which the contractor 
operates Government-owned facilities or Government-owned fleets or 
performs construction at a Government-owned facility. All such 
contracts should also include the following clauses: FAR 52.223-2, 
Affirmative Procurement of Biobased Products under Service and 
Construction Contracts; FAR 52.223-10, Waste Reduction Program; FAR 
52.223-XX, Compliance with Environmental Management Systems (see 
923.903 regarding the applicability of this clause to specific DOE 
contracts); FAR 52.223-15, Energy Efficiency in Energy Consuming 
Products; and FAR 52.223-17, Affirmative Procurement of EPA-designated 
Items in Service and Construction Contracts.

Subpart 923.4 [Removed]

0
7. Remove subpart 923.4, including sections 923.405 and 923.471.

Subpart 923.7 [Removed]

0
8. Remove subpart 923.7 including section 923.703.
0
9. Add a new subpart 923.9 consisting of section 923.903 to read as 
follows:

Subpart 923.9--Contractor Compliance With Environmental Management 
Systems

Sec.  923.903   Contract clause.

    The FAR Environmental Management Systems clause at 52.223-XX should 
be used in contracts where the contractor operates a DOE site or 
portion thereof. Some DOE sites have a single Environmental Management 
System for the site while others have separate Environmental Management 
Systems for various portions of the site which may be operated by 
different contractors. Check with local environmental management 
personnel regarding the applicability of the FAR 52.223-XX clause to a 
specific contract.

PART 936--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

0
10. The authority citation for part 936 continues to read as follows:

    Authority:  42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.

0
11. Add a new section 936.202-71 to subpart 936.2 to read as follows:

936.202-71  Specifications.

    When developing specifications for the work to be performed, plan 
for ways to ensure that construction and demolition debris can be 
diverted or recycled in sufficient quantities as to ensure that the 
Agency goal from section 2(e) of Executive Order 13514 of diverting at 
least 50% of the debris stream may be attained.

PART 952--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
12. The authority citation for part 952 continues to read as follows:

    Authority:  42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.

0
13. Add a new section 952.223-78, to read as follows:

952.223-78   Sustainable acquisition program.

    In accordance with 923.103 insert the following clause or its 
Alternate I in all contracts under which the contractor operates 
Government-owned facilities, motor vehicle fleets, or significant 
portions thereof or performs construction at a DOE facility.

SUSTAINABLE ACQUISITION PROGRAM (OCT 2010)

    (a) Pursuant to Executive Order 13423, Strengthening Federal 
Environmental, Energy and Transportation Management, and Executive 
Order 13514, Federal Leadership in Environmental, Energy, and 
Economic Performance, the Department of Energy (DOE) is committed to 
managing its facilities in an environmentally preferable and 
sustainable manner that will promote the natural environment and 
protect the health and well being of its Federal employees and 
contractor service providers. In the performance of work under this 
contract, the Contractor shall provide its services in a manner that 
promotes the natural environment, reduces greenhouse gas emissions 
and protects the health and well being of Federal employees, 
contract service providers and visitors using the facility.
    (b) Green purchasing or sustainable acquisition has several 
interacting initiatives. The Contractor must comply with initiatives 
that are current as of the contract award date. DOE may require 
compliance with revised initiatives from time to time. The 
Contractor may request an equitable adjustment to the terms of its 
contract using the procedures in the Changes clause of the contract. 
The initiatives important to these Orders are explained on the 
following Government or Industry Internet Sites:
    (1) Recycled Content Products are described at http://epa.gov/cpg.
    (2) Biobased Products are described at http://www.biopreferred.gov/.
    (3) Energy efficient products are at http://energystar.gov/products for Energy Star products.
    (4) Energy efficient products are at http://www.femp.energy.gov/procurement for FEMP designated products.
    (5) Environmentally preferable and energy efficient electronics 
including desktop computers, laptops and monitors are at http://www.epeat.net the Electronic Products Environmental Assessment Tool 
(EPEAT) the Green Electronics Council site.
    (6) Green house gas emission inventories are required, including 
Scope 3 emissions which include contractor emissions. These are 
discussed at Section 13 of Executive Order 13514 which can be found 
at http://www.archives.gov/federal-register/executive-orders/disposition.html.
    (7) Non-Ozone Depleting Alternative Products are at http://www.epa.gov/ozone/strathome.html.
    (8) Water efficient plumbing products are at http://epa.gov/watersense.
    (c) The clauses at FAR 52.223-2, Affirmative Procurement of 
Biobased

[[Page 57694]]

Products under Service and Construction Contracts, 52.223-15, Energy 
Efficiency in Energy Consuming Products, and 52.223-17 Affirmative 
Procurement of EPA-Designated Items in Service and Construction 
Contracts, require the use of products that have biobased content, 
are energy efficient, or have recycled content. To the extent that 
the services provided by the Contractor require provision of any of 
the above types of products, the Contractor must provide the energy 
efficient and environmentally sustainable type of product unless 
that type of product--
    (1) Is not available;
    (2) Is not life cycle cost effective or does not exceed 110% of 
the price of alternative items if life cycle cost data is 
unavailable (EPEAT is an example of lifecycle costs that have been 
analyzed by DOE and found to be acceptable at the silver and gold 
level);
    (3) Does not meet performance needs; or,
    (4) Cannot be delivered in time to meet a critical need.
    (d) In the performance of this contract, the Contractor shall 
comply with the requirements of Executive Order 13423, Strengthening 
Federal Environmental, Energy and Transportation Management, (http://www.epa.gov/greeningepa/practices/eo13423.htm) and Executive Order 
13514, Federal Leadership in Environmental, Energy, and Economic 
Performance (http://www.archives.gov/federal-register/executive-orders/disposition.html). The Contractor shall also consider the 
best practices within the DOE Acquisition Guide, Chapter 23, 
Acquisition Considerations Regarding Federal Leadership in 
Environmental, Energy, and Economic Performance. This guide includes 
information concerning recycled content products, biobased products, 
energy efficient products, water efficient products, alternative 
fuels and vehicles, non-ozone depleting substances and other 
environmentally preferable products and services. This guide is 
available on the Internet at: http://management.energy.gov/documents/AcqGuide23pt0Rev1.pdf.
    (e) Contractors must establish and maintain a documented energy 
management program which includes requirements for energy and water 
efficient equipment, EnergyStar or WaterSense, as applicable and 
procedures for verification of purchases, following the criteria in 
DOE Order 430.2B, Departmental Energy, Renewable Energy, and 
Transportation Management, Attachment 1, or its successor to the 
extent required elsewhere in the contract. This requirement should 
not be flowed down to subcontractors.
    (f) In complying with the requirements of paragraph (c) of this 
clause, the Contractor(s) shall coordinate its activities with and 
submit required reports through the Environmental Sustainability 
Coordinator or equivalent position. Reporting under this paragraph 
and paragraphs (g) and (h) of this clause is only required if the 
contract or subcontract offers subcontracting opportunities for 
energy efficient and environmentally sustainable products or 
services exceeding $100,000 in any contract year.
    (g) The Contractor shall prepare and submit performance reports, 
if required, using prescribed DOE formats, at the end of the Federal 
fiscal year, on matters related to the acquisition of 
environmentally preferable and sustainable products and services. 
This is a material delivery under the contract. Failure to perform 
this requirement may be considered a failure that endangers 
performance of this contract and may result in termination for 
default.
    (h) These provisions shall be flowed down only to first tier 
subcontracts exceeding the simplified acquisition threshold that 
support operation of the DOE facility and offer significant 
subcontracting opportunities for energy efficient or environmentally 
sustainable products or services. The Subcontractor, if 
subcontracting opportunities for sustainable and environmentally 
preferable products or services exceed the threshold in paragraph 
(f) of this clause, will comply with the procedures in paragraphs 
(c) through (f) of this clause regarding the collection of all data 
necessary to generate the reports required under paragraphs (c) 
through (f) of this clause, and submit the reports directly to the 
Prime Contractor's Environmental Sustainability Coordinator at the 
supported facility. The Subcontractor will advise the Contractor if 
it is unable to procure energy efficient and environmentally 
sustainable items and cite which of the reasons in paragraph (c) of 
this clause apply. The reports may be submitted at the conclusion of 
the subcontract term provided that the subcontract delivery term is 
not multi-year in nature. If the delivery term is multi-year, the 
Subcontractor shall report its accomplishments for each Federal 
fiscal year in a manner and at a time or times acceptable to both 
parties. Failure to comply with these reporting requirements may be 
considered a breach of contract with attendant consequences.
    (i) When this clause is used in a subcontract, the word 
``Contractor'' will be understood to mean ``Subcontractor.''
    (End of Clause)

    Alternate I for Construction Contracts and Subcontracts (OCT 
2010)--When contracting for construction, alteration, or renovation 
of DOE facilities, substitute the following paragraphs (d) through 
(i):
    (d) In the performance of this contract, the Contractor shall 
comply with the requirements of Executive Order 13423, Strengthening 
Federal Environmental, Energy and Transportation Management, (http://www.epa.gov/greeningepa/practices/eo13423.htm) and Executive Order 
13514, Federal Leadership in Environmental, Energy, and Economic 
Performance (http://www.archives.gov/federal-register/executive-orders/disposition.html). The Contractor shall also consider the 
best practices within the DOE Acquisition Guide, Chapter 23, 
Acquisition Considerations Regarding Federal Leadership in 
Environmental, Energy, and Economic Performance. This guide includes 
information concerning recycled content products, biobased products, 
energy efficient products, water efficient products, alternative 
fuels and vehicles, non-ozone depleting substances and other 
environmentally preferable products and services. This guide is 
available on the Internet at: http://management.energy.gov/documents/AcqGuide23pt0Rev1.pdf. When developing the Bill of 
Materials for approval of the Contracting Officer or Representative, 
the contractor shall specify energy efficient and environmentally 
sustainable materials to the extent possible within the constraints 
of the general design specifications. Compliance with the Guiding 
Principles for Federal Leadership in High Performance and 
Sustainable Buildings (Guiding Principles) shall be achieved through 
certification to the Leadership in Energy and Environmental Design 
(LEED) Gold level under the LEED rating system most suited to the 
building type.
    (e) [Reserved]
    (f) In complying with the requirements of paragraph (c) of this 
clause, the Contractor(s) shall coordinate its activities with and 
submit required reports through the Environmental Sustainability 
Coordinator or equivalent position. Reporting under this paragraph 
and paragraphs (g) and (h) of this clause is only required if the 
contract or subcontract offers subcontracting opportunities for 
energy efficient and environmentally sustainable products or 
services exceeding $100,000 in any contract year, except for 
reporting on high performance sustainable buildings which may be 
required elsewhere in this contract.
    (g) The Contractor shall prepare and submit performance reports 
using prescribed DOE formats, at the end of the Federal fiscal year, 
on matters related to the acquisition of energy efficient and 
environmentally and sustainable products and services. This is a 
material delivery under the contract. Failure to perform this 
requirement may be considered a failure that endangers performance 
of this contract and may result in termination for default.
    (h) These provisions shall be flowed down only to first tier 
construction subcontracts exceeding the simplified acquisition 
threshold that support operation of the DOE facility and offer 
significant opportunities for designating energy efficient or 
environmentally sustainable products or services in the materials 
selection process. The subcontractor, if subcontracting 
opportunities for sustainable and environmentally preferable 
products or services exceed the threshold in paragraph (f) of this 
clause, will comply with the procedures in paragraphs (c) through 
(f) of this clause regarding the collection of all data necessary to 
generate the reports required under paragraphs (c) through (f) of 
this clause, and submit the reports directly to the Prime 
Contractor's Environmental Sustainability Coordinator at the 
supported facility. The subcontractor will advise the contractor if 
it is unable to procure energy efficient and environmentally 
sustainable items and cite which of the reasons in paragraph (c) of 
this clause apply. The reports may be submitted at the conclusion of 
the subcontract term provided that the subcontract delivery term is 
not multi-year in nature. If the delivery term is multi-year, the 
subcontractor shall report its accomplishments for each Federal 
fiscal year in a manner and at a time or times acceptable to both 
parties. Failure to comply with these

[[Page 57695]]

reporting requirements may be considered a breach of contract with 
attendant consequences.
    (i) When this clause is used in a subcontract, the word 
``Contractor'' will be understood to mean ``Subcontractor.''
    (End of Clause)

PART 970--DOE MANAGEMENT AND OPERATING CONTRACTS

0
14. The authority citation for part 970 continues to read as follows:

    Authority: 42 U.S.C. 2201, 2282a, 2282b, 2282c; 42 U.S.C. 7101 
et seq.; 50 U.S.C. 2401 et seq.

0
15. Add new sections 970.2301, 970.2301-1, and 970.2301-2 to subpart 
970.23 to read as follows:

970.2301  Sustainable acquisition.

970.2301-1  Policy.

    There are many environmentally beneficial and resource efficient 
programs described in various subparts of FAR Part 23. For ease of use, 
DOE refers to all of these as the DOE Sustainable Acquisiton Program 
with guidance for the many products at http://www.hss.energy.gov/pp/epp. Contractors operating DOE facilities shall comply with the 
requirements of Executive Order 13423, Strengthening Federal 
Environmental, Energy and Transportation Management, and Executive 
Order 13514, Federal Leadership in Environmental, Energy, and Economic 
Performance. The contractor shall also consider the best practices 
within the DOE Acquisition Guide, Chapter 23, Acquisition 
Considerations Regarding Federal Leadership in Environmental, Energy, 
and Economic Performance.

970.2301-2  Contract clauses.

    (a) Section 3(f) of Executive Order 13423 requires contractors to 
comply with the provisions of the Order to the same extent as the 
Federal agency would be required to comply if it operated the facility 
or fleet. Insert the clause at 970.5223-6, Executive Order 13423, 
Strengthening Federal Environmental, Energy, and Transportation 
Management, in such contracts.
    (b) Insert the clause at 970.5223-6, Sustainable and 
Environmentally Preferable Purchasing Practices, or its Alternate I in 
contracts for the management and operation of DOE facilities, or other 
contracts under which the contractor manages Government facilities or 
fleets, or conducts mission operations at Government facilities, or 
performs construction at DOE facilities. Inclusion of this contract 
clause applies to contractors that are responsible for the management 
and operation of the DOE's facilities or the conduct of mission 
operations at the Department's facilities, including elements of the 
National Nuclear Security Administration (NNSA), the Power Marketing 
Administrations, and the National Laboratories. All such contracts 
should also include the following clauses: FAR 52.223-2, Affirmative 
Procurement of Biobased Products under Service and Construction 
Contracts; FAR 52.223-10, Waste Reduction Program; FAR 52.223-XX, 
Compliance with Environmental Management Systems (see 923.903 regarding 
the applicability of this clause to specific DOE contracts); FAR 
52.223-15, Energy Efficiency in Energy Consuming Products; and FAR 
52.223-17, Affirmative Procurement of EPA-designated Items in Service 
and Construction Contracts.

970.2304, 970.2304-1 and 970.2304-2  [Removed]

0
16. Remove sections 970.2304, 970.2304-1 and 970.2304-2.

970.2307, 970.2307-1, and 970.2307-2  [Removed]

0
17. Remove sections 970.2307, 970.2307-1 and 970.2307-2.

970.5223-2 and 970.5223-5  [Removed]

0
18. Remove 970.5223-2 and 970.5223-5.
0
19. Add 970.5223-6 to subpart 970.52 to read as follows:

970.5223-6  Executive Order 13423, Strengthening Federal Environmental, 
Energy, and Transportation Management.

    In accordance with the prescriptions at 923.002(b) or 970.2301-
2(b), insert the following in contracts for the operation of a DOE 
facility or motor vehicle fleet.

EXECUTIVE ORDER 13423, STRENGTHENING FEDERAL ENVIRONMENTAL, ENERGY, AND 
TRANSPORTATION MANAGEMENT (OCT 2010)

    Since this contract involves Contractor operation of Government-
owned facilities and/or motor vehicles, the provisions of Executive 
Order 13423 are applicable to the Contractor to the same extent they 
would be applicable if the Government were operating the facilities 
or motor vehicles. Information on the requirements of the Executive 
Order may be found at http://www.archives.gov/federal-register/executive-orders/.
    (End of Clause)

0
20. Add a new section 970.5223-7 to part 970, to read as follows:

970.5223-7  Sustainable acquisition program.

    As prescribed in 970.2301-2, insert the following clause in 
contracts:

SUSTAINABLE ACQUISITION PROGRAM (OCT 2010)

    (a) Pursuant to Executive Order 13423, Strengthening Federal 
Environmental, Energy and Transportation Management, and Executive 
Order 13514, Federal Leadership in Environmental, Energy, and 
Economic Performance, the Department of Energy (DOE) is committed to 
managing its facilities in an environmentally preferable and 
sustainable manner that will promote the natural environment and 
protect the health and well being of its Federal employees and 
contractor service providers. In the performance of work under this 
contract, the Contractor shall provide its services in a manner that 
promotes the natural environment, reduces greenhouse gas emissions 
and protects the health and well being of Federal employees, 
contract service providers and visitors using the facility.
    (b) Green purchasing or sustainable acquisition has several 
interacting initiatives. The Contractor must comply with initiatives 
that are current as of the contract award date. DOE may require 
compliance with revised initiatives from time to time. The 
Contractor may request an equitable adjustment to the terms of its 
contract using the procedures at 48 CFR 970.5243-1 Changes. The 
initiatives important to these Orders are explained on the following 
Government or Industry Internet Sites:
    (1) Recycled Content Products are described at http://epa.gov/cpg.
    (2) Biobased Products are described at http://www.biopreferred.gov/.
    (3) Energy efficient products are at http://energystar.gov/products for Energy Star products.
    (4) Energy efficient products are at http://www.femp.energy.gov/procurement for FEMP designated products.
    (5) Environmentally preferable and energy efficient electronics 
including desktop computers, laptops and monitors are at http://www.epeat.net the Electronic Products Environmental Assessment Tool 
(EPEAT) the Green Electronics Council site.
    (6) Green house gas emission inventories are required, including 
Scope 3 emissions which include contractor emissions. These are 
discussed at Section 13 of Executive Order 13514 which can be found 
at http://www.archives.gov/federal-register/executive-orders/disposition.html.
    (7) Non-Ozone Depleting Alternative Products are at http://www.epa.gov/ozone/strathome.html.
    (8) Water efficient plumbing products are at http://epa.gov/watersense.
    (c) The clauses at FAR 52.223-2, Affirmative Procurement of 
Biobased Products under Service and Construction Contracts, 52.223-
15, Energy Efficiency in Energy Consuming Products, and 52.223-17 
Affirmative Procurement of EPA-Designated Items in Service and 
Construction Contracts, require the use of products that have 
biobased content, are energy efficient, or

[[Page 57696]]

have recycled content. To the extent that the services provided by 
the Contractor require provision of any of the above types of 
products, the Contractor must provide the energy efficient and 
environmentally sustainable type of product unless that type of 
product--
    (1) Is not available;
    (2) Is not life cycle cost effective (or does not exceed 110% of 
the price of alternative items if life cycle cost data is 
unavailable), EPEAT is an example of lifecycle costs that have been 
analyzed by DOE and found to be acceptable at the silver and gold 
level;
    (3) Does not meet performance needs; or,
    (4) Cannot be delivered in time to meet a critical need.
    (d) In the performance of this contract, the Contractor shall 
comply with the requirements of Executive Order 13423, Strengthening 
Federal Environmental, Energy and Transportation Management, (http://www.epa.gov/greeningepa/practices/eo13423.htm) and Executive Order 
13514, Federal Leadership in Environmental, Energy, and Economic 
Performance (http://www.archives.gov/federal-register/executive-orders/disposition.html). The Contractor shall also consider the 
best practices within the DOE Acquisition Guide, Chapter 23, 
Acquisition Considerations Regarding Federal Leadership in 
Environmental, Energy, and Economic Performance. This guide includes 
information concerning recycled content products, biobased products, 
energy efficient products, water efficient products, alternative 
fuels and vehicles, non ozone depleting substances and other 
environmentally preferable products and services. This guide is 
available on the Internet at: http://management.energy.gov/documents/AcqGuide23pt0Rev1.pdf.
    (e) Contractors must establish and maintain a documented energy 
management program which includes requirements for energy and water 
efficient equipment, EnergyStar or WaterSense, as applicable and 
procedures for verification of purchases, following the criteria in 
DOE Order 430.2B, Departmental Energy, Renewable Energy, and 
Transportation Management, Attachment 1, or its successor. This 
requirement should not be flowed down to subcontractors.
    (f) In complying with the requirements of paragraph (c) of this 
clause, the Contractor shall coordinate its activities with and 
submit required reports through the Environmental Sustainability 
Coordinator or equivalent position.
    (g) The Contractor shall prepare and submit performance reports 
using prescribed DOE formats, at the end of the Federal fiscal year, 
on matters related to the acquisition of environmentally preferable 
and sustainable products and services. This is a material delivery 
under the contract. Failure to perform this requirement may be 
considered a failure that endangers performance of this contract and 
may result in termination for default [see FAR 52.249-6, Termination 
(Cost Reimbursement)].
    (h) These provisions shall be flowed down only to first tier 
subcontracts exceeding the simplified acquisition threshold that 
support operation of the DOE facility and offer significant 
subcontracting opportunities for energy efficient or environmentally 
sustainable products or services. The Subcontractor will comply with 
the procedures in paragraphs (c) through (f) of this clause 
regarding the collection of all data necessary to generate the 
reports required under paragraphs (c) through (f) of this clause, 
and submit the reports directly to the Prime Contractor's 
Environmental Sustainability Coordinator at the supported facility. 
The Subcontractor will advise the Contractor if it is unable to 
procure energy efficient and environmentally sustainable items and 
cite which of the reasons in paragraph (c) of this clause apply. The 
reports may be submitted at the conclusion of the subcontract term 
provided that the subcontract delivery term is not multi-year in 
nature. If the delivery term is multi-year, the Subcontractor shall 
report its accomplishments for each Federal fiscal year in a manner 
and at a time or times acceptable to both parties. Failure to comply 
with these reporting requirements may be considered a breach of 
contract with attendant consequences.
    (i) When this clause is used in a subcontract, the word 
``Contractor'' will be understood to mean ``Subcontractor.''
    (End of Clause)

    Alternate I for Construction Contracts and Subcontracts (OCT 
2010)--When contracting for construction, alteration, or renovation 
of DOE facilities, substitute the following paragraphs (d) through 
(i):
    (d) In the performance of this contract, the Contractor shall 
comply with the requirements of Executive Order 13423, Strengthening 
Federal Environmental, Energy and Transportation Management, (http://www.epa.gov/greeningepa/practices/eo13423.htm) and Executive Order 
13514, Federal Leadership in Environmental, Energy, and Economic 
Performance (http://www.archives.gov/federal-register/executive-orders/disposition.html). The Contractor shall also consider the 
best practices within the DOE Acquisition Guide, Chapter 23, 
Acquisition Considerations Regarding Federal Leadership in 
Environmental, Energy, and Economic Performance. This guide includes 
information concerning recycled content products, biobased products, 
energy efficient products, water efficient products, alternative 
fuels and vehicles, non-ozone depleting substances and other 
environmentally preferable products and services. This guide is 
available on the Internet at: http://management.energy.gov/documents/AcqGuide23pt0Rev1.pdf. When developing the Bill of 
Materials for approval of the Contracting Officer or Representative, 
the contractor shall specify energy efficient and environmentally 
sustainable materials to the extent possible within the constraints 
of the general design specifications. Compliance with the Guiding 
Principles for Federal Leadership in High Performance and 
Sustainable Buildings (Guiding Principles) shall be achieved through 
certification to the Leadership in Energy and Environmental Design 
(LEED) Gold level under the LEED rating system most suited to the 
building type.
    (e) [Reserved]
    (f) In complying with the requirements of paragraph (c) of this 
clause, the Contractor(s) shall coordinate its activities with and 
submit required reports through the Environmental Sustainability 
Coordinator or equivalent position.
    (g) The Contractor shall prepare and submit performance reports 
using prescribed DOE formats, at the end of the Federal fiscal year, 
on matters related to the acquisition of energy efficient and 
environmentally sustainable products and services. This is a 
material delivery under the contract. Failure to perform this 
requirement may be considered a failure that endangers performance 
of this contract and may result in termination for default, see 48 
CFR 52.249-6, Termination (Cost Reimbursement).
    (h) These provisions shall be flowed down only to first tier 
construction subcontracts exceeding the simplified acquisition 
threshold that support operation of the DOE facility and offer 
significant opportunities for designating energy efficient or 
environmentally sustainable products or services in the materials 
selection process. The subcontractor will comply with the procedures 
in paragraphs (c) through (f) of this clause regarding the 
collection of all data necessary to generate the reports required 
under paragraphs (c) through (f) of this clause, and submit the 
reports directly to the Prime Contractor's Environmental 
Sustainability Coordinator at the supported facility. The 
subcontractor will advise the contractor if it is unable to procure 
energy efficient and environmentally sustainable items and cite 
which of the reasons in paragraph (c) of this clause apply. The 
reports may be submitted at the conclusion of the subcontract term 
provided that the subcontract delivery term is not multi-year in 
nature. If the delivery term is multi-year, the subcontractor shall 
report its accomplishments for each Federal fiscal year in a manner 
and at a time or times acceptable to both parties. Failure to comply 
with these reporting requirements may be considered a breach of 
contract with attendant consequences.
    (i) When this clause is used in a subcontract, the word 
``Contractor'' will be understood to mean ``Subcontractor.''
    (End of Clause)

[FR Doc. 2010-23655 Filed 9-21-10; 8:45 am]
BILLING CODE 6450-01-P
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