Kate M. Manuel Legislative Attorney
L. Elaine Halchin Specialist in American National Government
with increasing concerns about the environment, the magnitude of federal
spending on contracts has prompted questions from Members of Congress and
the public about the role of environmental considerations in federal
procurement. These include: to what extent do agencies consider
environmental factors when procuring goods or services? What legal authorities presently
require or allow agencies to take environmental factors into account when
acquiring goods or services? How are existing provisions authorizing
agencies to consider environmental factors implemented? This report
provides an overview, answering these and related questions.
The federal procurement system is designed “to deliver on a timely basis the
best value product or service to the customer, while maintaining the
public’s trust and fulfilling public policy objectives.” Environmental
objectives can generally be among the public policy objectives that factor
into federal procurement. However, they are not necessarily the most significant
objectives overall or in any specific procurement. There are numerous
other objectives (e.g., obtaining high quality goods and services at low
prices, promoting American manufacturing, protecting small businesses,
fostering affirmative action) that can also factor into procurement decisions.
The relationship and prioritization among these different objectives is
not always clear.
Various legal authorities currently require or allow contracting officers to
take environmental considerations into account when procuring goods and
services. These authorities can be broadly divided into three categories:
(1) “attribute-focused” authorities, generally requiring agencies to avoid
or acquire products based on their environmental attributes (e.g.,
ozone-depleting substances, recovered content); (2) general contracting
authorities, allowing agencies to purchase goods with certain
environmental attributes when they have bona fide requirements for such goods;
and (3) responsibility-related authorities, which require agencies to avoid
certain dealings with contractors that have been debarred for violations
of the Clean Air or Clean Water Acts. “Attribute-focused” authorities
arguably do not deprive vendors of ineligible products of due process or
equal protection in violation of the U.S. Constitution. However, certain
preferences for products with desired environmental attributes, or vendors
of such products, could potentially violate procurement integrity
regulations and the Competition in Contracting Act if not based in statute.
Use of evaluation factors based on environmental considerations is possible in
negotiated procurements, but subject to certain conditions, and the
reportedly lower lifecycle costs of “green” products do not, per se,
mean that their acquisition is justified on a “best value” basis.
Agencies generally implement these authorities by relying on third-party
designations of products with specific environmental attributes and using
standard purchasing methods, including bilateral contracts, the Federal
Supply Schedules, and government-wide commercial purchase cards.
Beginning with President Obama’s 2009 Executive Order on “Federal Leadership in Environmental,
Energy, and Economic Performance,” the Obama Administration has taken steps to
promote consideration of environmental factors in federal procurement.
Recently, for example, the General Services Administration (GSA) reported
on plans to incorporate consideration of greenhouse gas emissions
inventories into federal procurement decisions, and the Federal Acquisition
Regulation was amended to require that contractors report on their purchases of biobased
products under service and construction contracts. Certain such initiatives
have prompted controversy, however. Some Members of Congress sought to
restrict the Department of Defense’s purchase of biofuels as part of the
National Defense Authorization Act for FY2013, and some commentators have
objected to GSA’s use of the LEED rating system for buildings.
Date of Report: January 7, 2013
Number of Pages: 27 Order Number: R41297 Price: $29.95
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