On March 13, 2009, the Department of Energy ("DoE") published a final rule to promote federal procurement of energy-efficient products. The final rule establishes guidelines for federal agencies regarding the implementation of amendments to the National Energy Conservation Policy Act ("NECPA"), which requires federal agencies to procure ENERGY STAR qualified and Federal Energy Management Program ("FEMP") designated products in procurements involving energy-consuming products and systems.

The Energy Policy Act of 2005 (Pub. L. 109-58) amended NECPA by adding section 553, to require each federal agency to procure ENERGY STAR qualified or FEMP designated products, unless the head of the agency determines in writing that a statutory exception applies. Section 553 of NECPA was further amended by section 525 of the Energy Independence and Security Act of 2007 (Pub. L. 140-110) to clarify that the procurement requirement applies to the procurement of a product in a category covered by the ENERGY STAR program or the FEMP program for designated products. Further, each federal agency is required to incorporate into the specifications of all procurements involving energy-consuming products and systems, and into the factors for evaluation of offers received for such procurements, criteria for energy efficiency that is consistent with the criteria used for rating ENERGY STAR qualified products and for rating FEMP designated products.

In addition to establishing requirements for the actual procurement of certain products, section 553 directs heads of agencies to incorporate into the specifications for all procurements involving covered products, criteria for energy efficiency that is consistent with the criteria used to rate ENERGY STAR products and FEMP designated products. The definition of "covered products" for the purpose of the regulation includes any product that is of a category for which an ENERGY STAR qualification or FEMP designation is established.

The above requirements apply to general specifications, project specifications, and construction, renovation and service contracts that involve the procurement of covered products. Contractors should consider the requirements of this new rule when competing for:

  • Design, design/build, renovation, retrofit and services contracts;
  • Facility maintenance and operations contracts;
  • Energy savings performance contracts and utility energy service contracts; and
  • If applicable, lease agreements for buildings or equipment, including build-to-lease contracts, such as those used to implement the Military Housing Privatization Initiative.

Contractors should also note that agencies are encouraged to use ENERGY STAR and FEMP designated products in new service contracts and other existing service contracts as they are recompeted and should, to the extent possible, incorporate such requirements and preferences into existing contracts as they are modified or extended through the exercise of contract options.

Given the importance of this and other energy-efficient initiatives, contractors that provide ENERGY STAR and FEMP designated products should make certain they are listed as providers of these products on contract vehicles maintained by the General Services Administration ("GSA") and the Defense Logistics Agency ("DLA"), in order to take advantage of upcoming procurement opportunities.