On May 31, 2011, the Department of Defense, General Services Administration, and NASA issued an interim rule, effective immediately, to implement Executive Orders 13514 and 13423 pertaining to policies promoting environmentally sustainable acquisitions. The interim rule requires agencies to leverage acquisitions to foster markets for sustainable technologies, materials, products, and services and to implement high-performance sustainable building design, construction, renovation, repair, commissioning, operation and maintenance, management, and deconstruction practices.

Sustainable acquisitions are defined as “acquiring goods and services in order to create and maintain conditions—(1) under which humans and nature can exist in productive harmony; and (2) that permit fulfilling the social, economic, and other requirements of present and future generations.”

The heads of each agency are to ensure that 95% of new contract acquisitions, including task and delivery orders, for both products and services, for any dollar amount, are, whenever practicable (which is not defined), energy efficient, water-efficient, biobased, non-ozone depleting, contain recycled content, or are non-toxic (or a less toxic alternative). The only exceptions to the rule are for the acquisition of weapons systems or contracts performed outside the United States. Agencies are to promote the policy by leading by example.

Requirements include:

  • a general rule that agencies use, and require contractors to use, 30% postconsumer fiber content paper and double-sided printing;
  • compliance with the “Guiding Principles for Federal Leadership in High-Performance and Sustainable Buildings,” available here;
  • contractor compliance with sustainability requirements to the same extent that the agency would be required to do so in acquisitions for contractor operation of Government-owned or -leased facilities or support services at such facilities; and
  • implementation of an environmental management system (“EMS”) at the appropriate organizational levels, and instructions to the contractor as to when they must comply with the EMS’ directives.

Comments are being accepted on this interim rule until August 1, 2011. The full text of the interim rule is available at 76 Fed.Reg. 31395.

It is unknown at this time how much impact this regulation will have on future federal procurements.