[Federal Register: December 18, 2001 (Volume 66, Number 243)]
[Rules and Regulations]
[Page 65351-65353]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18de01-14]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 11, 15, 23, and 42
[FAC 2001-02; FAR Case 1999-011; Item II]
RIN 9000-AI71
Federal Acquisition Regulation; Energy-Efficiency of Supplies and
Services
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) have agreed on a final rule
amending the Federal Acquisition Regulation (FAR) to implement
Executive Order (E.O.) 13123 of June 3, 1999, Greening the Government
through Efficient Energy Management.
DATES: Effective Date: February 19, 2002.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS
Building, Washington, DC, 20405, (202) 501-4755, for information
pertaining to status or publication schedules. For clarification of
content, contact Ms. Laura Smith, Procurement Analyst, at (202) 208-
7279. Please cite FAC 2001-02, FAR case 1999-011.
SUPPLEMENTARY INFORMATION:
A. Background
DoD, GSA, and NASA published a proposed rule in the Federal
Register at 65 FR 30310, May 10, 2000. The proposed rule--
1. Defined in Subpart 2.1, Definitions--
a. ``Energy-efficient product'' (relocated and revised from FAR
23.704);
b. ``Energy-savings performance contract'' (ESPC); and
c. ``Renewable energy'' and ``renewable energy technology'';
2. Revised the policies and sources of authority in Part 11;
3. Revised Part 15 to alert agencies to the special procedures at
10 CFR 436.33(b) that agencies must use when evaluating unsolicited
proposals for ESPCs;
4. Revised and relocated guidance on energy-efficient products and
services from Subpart 23.7 to Subpart 23.2 so that Subpart 23.7 would
focus on environmentally preferably products and services;
5. Revised Subpart 23.2 by--
a. Renaming the subpart ``Energy and Water Efficiency and Renewable
Energy'' to reflect its expanded subject area;
b. Deleting outdated definitions and guidance;
c. Adding guidance on energy- and water-efficient products (e.g.,
ENERGY STAR) and services, and ESPCs; and
d. Directing contracting officers to sources for more detailed
guidance and information; and
6. Made a number of editorial changes. Seven respondents submitted
public comments on the proposed rule. The Councils considered all
comments when developing this final rule. The major changes between the
final rule and the proposed rule are that the final rule--
a. Provides additional emphasis on water conservation at FAR
11.002(d)(2), 23.000(d), and 23.703;
b. Deletes E.O. 12902 of March 8, 1994, Energy Efficiency and Water
Conservation at Federal Facilities, at FAR 23.702(e) since this E.O.
was revoked by Section 604 of E.O. 13123; and
c. Revises 42.302(a)(68) to better reflect the current practices of
the contract administration office.
This is not a significant regulatory action, and therefore, was not
subject to review under Section 6(b) of Executive Order 12866,
Regulatory Planning and Review, dated September 30, 1993. This rule is
not a major rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not have a significant economic impact on a substantial
number of small entities within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq., because this rule simply
provides additional guidance to Government contracting and technical
personnel with respect to the Government's preference, currently set
forth in FAR Subpart 23.7, for buying environmentally preferable and
energy-efficient products and services. This rule requires a
contracting officer, when acquiring an energy-using product, to
purchase an energy-efficient product (where life-cycle cost-effective
and available), i.e., a product that is in the upper 25 percent of
energy efficiency as designated by the Department of Energy's (DOE's)
Federal Energy Management Program or that meets DOE and Environmental
Protection Agency (EPA) criteria for use of the ``ENERGY
STAR'' trademark label. The 25 percent benchmark for
determining energy efficiency is currently addressed at FAR 23.704.
Small entities that offer products to the Government may use the ENERGY
STAR label, if the product meets DOE and EPA criteria. The
rule also provides guidance to contracting officers on the use of
energy-savings performance contracts as alternatives to the traditional
method of financing energy efficiency improvements.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose information collection requirements that require
the approval of the Office of Management
[[Page 65352]]
and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 2, 11, 15, 23, and 42
Government procurement.
Dated: December 5, 2001.
Al Matera,
Director, Acquisition Policy Division.
Therefore, DoD, GSA, and NASA amend 48 CFR parts 2, 11, 15, 23, and
42 as set forth below:
1. The authority citation for 48 CFR parts 2, 11, 15, 23, and 42
continues to read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 2--DEFINITIONS OF WORDS AND TERMS
2. In section 2.101, revise the definition ``Energy-efficient
product,'' and add, in alphabetical order, the definitions, ``Energy-
savings performance contract,'' ``Renewable energy,'' and ``Renewable
energy technology'' to read as follows:
2.101 Definitions.
* * * * *
Energy-efficient product means a product that--
(1) Meets Department of Energy and Environmental Protection Agency
criteria for use of the Energy Star trademark label; or
(2) Is in the upper 25 percent of efficiency for all similar
products as designated by the Department of Energy's Federal Energy
Management Program.
Energy-savings performance contract means a contract that requires
the contractor to--
(1) Perform services for the design, acquisition, financing,
installation, testing, operation, and where appropriate, maintenance
and repair, of an identified energy conservation measure or series of
measures at one or more locations;
(2) Incur the costs of implementing the energy savings measures,
including at least the cost (if any) incurred in making energy audits,
acquiring and installing equipment, and training personnel in exchange
for a predetermined share of the value of the energy savings directly
resulting from implementation of such measures during the term of the
contract; and
(3) Guarantee future energy and cost savings to the Government.
* * * * *
Renewable energy means energy produced by solar, wind, geothermal,
and biomass power.
Renewable energy technology means--
(1) Technologies that use renewable energy to provide light, heat,
cooling, or mechanical or electrical energy for use in facilities or
other activities; or
(2) The use of integrated whole-building designs that rely upon
renewable energy resources, including passive solar design.
* * * * *
PART 11--DESCRIBING AGENCY NEEDS
3. In section 11.002, revise paragraph (d) to read as follows:
11.002 Policy.
* * * * *
(d)(1) The Resource Conservation and Recovery Act of 1976 (42
U.S.C. 6901, et seq.), Executive Order 13101 of September 14, 1998,
Greening the Government through Waste Prevention, Recycling, and
Federal Acquisition, and Executive Order 13123 of June 3, 1999,
Greening the Government through Efficient Energy Management, establish
requirements for acquiring
(i) Products containing recovered materials;
(ii) Environmentally preferable products and services;
(iii) Energy-efficient products and services; and
(iv) Products and services that utilize renewable energy
technologies.
(2) Executive agencies must consider use of recovered materials,
energy- and water-efficient products and services, environmentally
preferable purchasing criteria developed by the EPA, and environmental
objectives (see subparts 23.2 and 23.4 and 23.703(b)) when
(i) Developing, reviewing, or revising Federal and military
specifications, product descriptions (including commercial item
descriptions) and standards;
(ii) Describing Government requirements for supplies and services;
and
(iii) Developing source-selection factors.
* * * * *
4. In section 11.101, revise paragraph (b) to read as follows:
11.101 Order of precedence for requirements documents.
* * * * *
(b) Agencies must prepare requirements documents to achieve maximum
practicable--
(1) Energy efficiency, including using renewable energy
technologies; and
(2) Use of recovered material, other materials that are
environmentally preferable, energy- and water-efficient products, and
renewable energy technologies (see subparts 23.2, 23.4, and 23.7).
* * * * *
PART 15--CONTRACTING BY NEGOTIATION
5. In section 15.603, add paragraph (e) to read as follows:
15.603 General.
* * * * *
(e) Agencies must evaluate unsolicited proposals for energy-savings
performance contracts in accordance with the procedures in 10 CFR
436.33(b).
PART 23--ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLEENERGY
TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREEWORKPLACE
6. Revise the heading of Part 23 to read as set forth above.
7. Revise the heading and text of section 23.000 to read as
follows:
23.000 Scope.
This part prescribes acquisition policies and procedures supporting
the Government's program for ensuring a drug-free workplace and for
protecting and improving the quality of the environment by
(a) Controlling pollution;
(b) Managing energy and water use in Government facilities
efficiently;
(c) Using renewable energy and renewable energy technologies;
(d) Acquiring energy- and water-efficient products and services,
environmentally preferable products, and products that use recovered
materials; and
(e) Requiring contractors to identify hazardous materials.
8. Revise the heading and text of Subpart 23.2 to read as follows:
Subpart 23.2--Energy and Water Efficiency and Renewable Energy
Sec.
23.200 Scope.
23.201 Authorities.
23.202 Policy.
23.203 Energy-efficient products.
23.204 Energy-savings performance contracts.
23.200 Scope.
(a) This subpart prescribes policies and procedures for--
(1) Acquiring energy- and water-efficient products and services,
and products that use renewable energy technology; and
[[Page 65353]]
(2) Using an energy-savings performance contract to obtain energy-
efficient technologies at Government facilities without Government
capital expense.
(b) This subpart applies to acquisitions in the UnitedStates, its
possessions and territories, Puerto Rico, and the Northern Mariana
Islands. Agencies conducting acquisitions outside of these areas must
use their best efforts to comply with this subpart.
23.201 Authorities.
(a) Energy Policy and Conservation Act (42 U.S.C.
6361(a)(1)) and Resource Conservation and Recovery Act of 1976 (42
U.S.C. 6901, et seq.).
(b) National Energy Conservation Policy Act (42 U.S.C. 8253, 8262g,
and 8287).
(c) Executive Order 11912 of April 13, 1976, Delegations of
Authority under the Energy Policy and Conservation Act.
(d) Executive Order 13123 of June 3, 1999, Greening the Government
through Efficient Energy Management.
23.202 Policy.
The Government's policy is to acquire supplies and services that
promote energy and water efficiency, advance the use of renewable
energy products, and help foster markets for emerging technologies.
This policy extends to all acquisitions, including those below the
simplified acquisition threshold.
23.203 Energy-efficient products.
(a) If life-cycle cost-effective and available--
(1) When acquiring energy-using products, contracting officers must
purchase ENERGY STAR or other energy-efficient products
designated by the Department of Energy'sFederal Energy Management
Program (FEMP); or
(2) When contracting for services that will include the provision
of energy-using products, including contracts for design, construction,
renovation, or maintenance of a public building, the specifications
must require that the contractor provide ENERGY STAR or other energy-
efficient products.
(b) Information is available via the Internet on--
(1) ENERGY STAR at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.energystar.gov/; and
(2) FEMP at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.eren.doe.gov/femp/procurement.
23.204 Energy-savings performance contracts.
(a) Section 403 of Executive Order 13123 of June 3, 1999, Greening
the Government through Efficient EnergyManagement, requires an agency
to make maximum use of the authority provided in the National Energy
Conservation Policy Act (42 U.S.C. 8287) to use an energy-savings
performance contract (ESPC), when life-cycle cost-effective, to reduce
energy use and cost in the agency's facilities and operations.
(b)(1) Under an ESPC, an agency can contract with an energy service
company for a period not to exceed 25 years to improve energy
efficiency in one or more agency facilities at no direct capital cost
to the United States Treasury. The energy service company finances the
capital costs of implementing energy conservation measures and
receives, in return, a contractually determined share of the cost
savings that result.
(2) Except as provided in 10 CFR 436.34, ESPC's are subject to
subpart 17.1.
(c) To solicit and award an ESPC, the contracting officer--
(1) Must use the procedures, selection method, and terms and
conditions provided in 10 CFR part 436, subpart B; at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.eren.doe.gov/femp/resources/legislation.html; and
(2) May use the ``Qualified List'' of energy service companies
established by the Department of Energy and other agencies.
Subpart 23.7--Contracting for Environmentally Preferable Products
and Services
9. Revise the heading of subpart 23.7 to read as set forth above.
10. Revise section 23.700 to read as follows:
23.700 Scope.
This subpart prescribes policies for acquiring environmentally
preferable products and services.
11. Amend section 23.702 by removing paragraph (e), redesignating
(f) as (e), and adding a new paragraph (f) to read as follows:
23.702 Authorities.
* * * * *
(f) Executive Order 13123 of June 3, 1999, Greening the Government
through Efficient Energy Management.
12. Amend section 23.703 by revising paragraphs (a) and (b)(2) to
read as follows:
23.703 Policy
* * * * *
(a) Implement cost-effective contracting preference programs
promoting energy-efficiency, water conservation, and the acquisition of
environmentally preferable products and services; and
(b) * * *
(2) Promote energy-efficiency and water conservation.
* * * * *
PART 42--CONTRACT ADMINISTRATION AND AUDIT SERVICES
13. In section 42.302, revise paragraph (a)(68) to read as follows:
42.302 Contract administration functions.
(a) * * *
(68) Monitor the contractor's environmental practices for adverse
impact on contract performance or contract cost, and for compliance
with environmental requirements specified in the contract. ACO
responsibilities include--
(i) Requesting environmental technical assistance, if needed;
(ii) Monitoring contractor compliance with specifications requiring
the use of environmentally preferable products, energy-efficient
products, and materials or delivery of end products with specified
recovered material content. This must occur as part of the quality
assurance procedures set forth in Part 46; and
(iii) As required in the contract, ensuring that the contractor
complies with the reporting requirements relating to recovered material
content utilized in contract performance (see subpart 23.4).
* * * * *
[FR Doc. 01-30539 Filed 12-17-01; 8:45 am]
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