DEVIATION CLAUSE CHANGES.docx

CLAUSE CHANGES:

This modification incorporates changes to several contract clauses resulting from implementation of Section 2 of the Executive Order (E.O.) 14148, Initial Rescissions of Harmful Executive Orders and Actions, issued on January 20, 2025, which revoked E.O. 14057 and Section 2 of E.O 14208, Ending Procurement and Forced Use of Paper Straws, issued on February 10, 2025 as shown:

Delete the following clauses entirely:

1. 52.223-1 Biobased Product Certification (MAY 2024)

2. 52.223-2 Reporting of Biobased Products Under Service and Construction Contracts (MAY 2024)

3. 52.223-10 Waste Reduction Program (MAY 2024)

4. 52.223-19, Compliance with Environmental Management Systems (MAY 2011)

5. 52.223-22, Public Disclosure of Greenhouse Gas Emissions and Reduction Goals—Representation (DEC 2016)

6. 52.223-23, Sustainable Products and Services (MAY 2024)

Amend the following clauses to incorporate the deviations shown on the following pages:

1. 52.204-8 Annual Representations and Certifications (JAN 2025)

2. 52.212-3 Offeror Representations and Certifications—Commercial Products and Commercial Services (MAY 2024)

3. 52.212-5 Contract Terms and Conditions Required To Implement Statutes or Executive Orders—Commercial Products and Commercial Services (JAN 2025)

4. 52.213-4 Terms and Conditions—Simplified Acquisitions (Other Than Commercial Products and Commercial Services) (JAN 2025)

5. 52.223-1 Biobased Product Certification (MAY 2024)

6. 52.223-2 Reporting of Biobased Products Under Service and Construction Contracts (MAY 2024)

7. 52.223-10 Waste Reduction Program (MAY 2024)

8. 52.223-23, Sustainable Products and Services (MAY 2024)

This modification incorporates changes to several contract clauses resulting from implementation of E.O. 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, which revoked E.O. 11246, Equal Employment Opportunity. The Office of Federal Contract Compliance Programs (OFCCP) published an announcement reiterating, as provided in E.O. 14173, that for 90 days from the date of the E.O., Federal contractors may continue to comply with the regulatory scheme in effect on January 20, 2025 as shown below:

By way of this modification, you are made aware that:

1. FAR subparts 22.13, Equal Opportunity for Veterans, and 22.14, Employment of Workers with Disabilities, and their related provisions and clauses, are based on statute, and are not covered by the revocation of E.O. 11246, and thus are not affected by this FAR class deviation.

2. Existing United States laws on civil rights/nondiscrimination apply whether or not the company is a government contractor.

The following clauses will be deleted:

1. 52.222-9, Apprentices and Trainees

2. 52.222-21, Prohibition of Segregated Facilities

3. 52.222-22, Previous Contracts and Compliance Reports

4. 52.222-23, Notice of Requirement for Affirmative Action To Ensure Equal Employment Opportunity for Construction

5. 52.222-24, Preaward On-Site Equal Opportunity Compliance Evaluation

6. 52.222-25, Affirmative Action Compliance

7. 52.222-26, Equal Opportunity

8. 52.222-27, Affirmative Action Compliance Requirements for Construction

9. 52.222-29, Notification of Visa Denial

Amend the following clauses to incorporate the deviations shown on the following pages:

1. 52.204-8, Annual Representations and Certifications (JAN 2025)

2. 52.212-3, Offeror Representations and Certifications—Commercial Products and Commercial Services (MAY 2024)

3. 52.212-5, Contract Terms and Conditions Required To Implement Statutes or Executive Orders—Commercial Products and Commercial Services (JAN 2025)

4. 52.213-4, Terms and Conditions—Simplified Acquisitions (Other Than Commercial Products and Commercial Services) (JAN 2025)

5. 52.222-6 Construction Wage Rate Requirements (AUG 2018)

6. 52.222-11 Subcontracts (Labor Standards) (MAY 2014)

7. 52.222-12 Contract Termination—Debarment (MAY 2014)

8. 52.244-6, Subcontracts for Commercial Products and Commercial Services (JAN 2025)

**Changes in Purple result from: Class Deviation No. 2025-02 from the Federal Acquisition Regulation Regarding Executive Orders 14148 and 14208

** Changes in NAVY result from: Class Deviation No. 2025-01 from the Federal Acquisition Regulation Regarding Executive Orders 14173 and 14168

1. 52.204-8, Annual Representations and Certifications (JAN 2025) (DEVIATION FEB 2025)

CHANGES ARE:

(c)(1) The following representations or certifications in SAM are applicable to this solicitation as indicated: * * *

(xix) 52.223-22, Public Disclosure of Greenhouse Gas Emissions and Reduction Goals—Representation. This provision applies to solicitations that include the provision at 52.204-7.

--AND--

(xiv) [Reserved]52.222-22, Previous Contracts and Compliance Reports. This provision applies to solicitations that include the clause at 52.222-26, Equal Opportunity.

(xv) [Reserved]52.222-25, Affirmative Action Compliance. This provision applies to solicitations, other than those for construction, when the solicitation includes the clause at 52.222-26, Equal Opportunity.

2. 52.212-3, Offeror Representations and Certifications—Commercial Products and Commercial Services (MAY 2024) (DEVIATION FEB 2025)

CHANGES ARE:

(t) [Reserved.] Public Disclosure of Greenhouse Gas Emissions and Reduction Goals. Applies in all solicitations that require offerors to register in SAM (12.301(d)(1)).

(1) This representation shall be completed if the Offeror received $7.5 million or more in contract awards in the prior Federal fiscal year. The representation is optional if the Offeror received less than $7.5 million in Federal contract awards in the prior Federal fiscal year.

(2) Representation. [Offeror to check applicable block(s) in paragraph (t)(2)(i) and (ii)].

(i) The Offeror (itself or through its immediate owner or highest-level owner) □ does, □ does not publicly disclose greenhouse gas emissions, i.e., makes available on a publicly accessible website the results of a greenhouse gas inventory, performed in accordance with an accounting standard with publicly available and consistently applied criteria, such as the Greenhouse Gas Protocol Corporate Standard.

(ii) The Offeror (itself or through its immediate owner or highest-level owner) □ does, □ does not publicly disclose a quantitative greenhouse gas emissions reduction goal, i.e., make available on a publicly accessible website a target to reduce absolute emissions or emissions intensity by a specific quantity or percentage.

(iii) A publicly accessible website includes the Offeror's own website or a recognized, third-party greenhouse gas emissions reporting program.

(3) If the Offeror checked "does" in paragraphs (t)(2)(i) or (t)(2)(ii) of this provision, respectively, the Offeror shall provide the publicly accessible website(s) where greenhouse gas emissions and/or reduction goals are reported:____________.

--AND--

(d) [Reserved] Representations required to implement provisions of Executive Order 11246—

(1) Previous contracts and compliance. The offeror represents that—

(i) It □ has, □ has not participated in a previous contract or subcontract subject to the Equal Opportunity clause of this solicitation; and

(ii) It □ has, □ has not filed all required compliance reports.

(2) Affirmative Action Compliance. The offeror represents that

(i) It □ has developed and has on file, □ has not developed and does not have on file, at each establishment, affirmative action programs required by rules and regulations of the Secretary of Labor (41 CFR parts 60-1 and 60-2), or

(ii) It □ has not previously had contracts subject to the written affirmative action programs requirement of the rules and regulations of the Secretary of Labor.

3. 52.212-5, Contract Terms and Conditions Required To Implement Statutes or Executive Orders—Commercial Products and Commercial Services (JAN 2025) (DEVIATION FEB 2025)

CHANGES ARE:

(b) * * *

(33) [Reserved] 52.222-21, Prohibition of Segregated Facilities (APR 2015).

(34) [Reserved] (i) 52.222-26, Equal Opportunity (SEPT 2016) (E.O. 11246).

(ii) Alternate I (FEB 1999) of 52.222-26.

(e)(1) * * *

(ix) [Reserved]52.222-21, Prohibition of Segregated Facilities (APR 2015).

(x) [Reserved]52.222-26, Equal Opportunity (SEP 2016) (E.O. 11246).

Alternate II (JAN 2025)[(DEVIATION FEB 2025)]. * * * (e)(1) * * *

(ii) * * *

(I) [Reserved] 52.222-21, Prohibition of Segregated Facilities (APR 2015).

(J) [Reserved] 52.222-26, Equal Opportunity (SEP 2016) (E.O. 11246).

--AND--

(b) The Contractor shall comply with the FAR clauses in this paragraph (b) that the Contracting Officer has indicated as being incorporated in this contract by reference to implement provisions of law or Executive orders applicable to acquisitions of commercial products and commercial services:

[Contracting Officer check as appropriate.]

__(46) 52.223-23, Sustainable Products and Services (MAY 2024)[(DEVIATION FEB 2025)](E.O. 14057, 7 U.S.C. 8102, 42 U.S.C. 6962, 42 U.S.C. 8259b, and 42 U.S.C. 7671l).

4. 52.213-4, Terms and Conditions—Simplified Acquisitions (Other Than Commercial Products and Commercial Services) (JAN 2025) (DEVIATION FEB 2025)

CHANGES ARE:

(b) The Contractor shall comply with the following FAR clauses, incorporated by reference, unless the circumstances do not apply:

(1) The clauses listed below implement provisions of law or Executive order: * * *

(xvii) 52.223-23, Sustainable Products and Services (MAY 2024[(DEVIATION FEB 2025)]) (E.O. 14057, 7 U.S.C. 8102, 42 U.S.C. 6962, 42 U.S.C. 8259b, and 42 U.S.C. 7671l) (Applies to contracts when the agency identifies in the statement of work, or elsewhere in the contract, the sustainable products and services that apply to the acquisition).

--AND--

(a) * * *

(1) * * *

(vii) [Reserved] 52.222-21, Prohibition of Segregated Facilities (APR 2015).

(viii) [Reserved] 52.222-26, Equal Opportunity (SEP 2016) (E.O. 11246).

5. 52.222-6 Construction Wage Rate Requirements (AUG 2018) (DEVIATION FEB 2025)

CHANGES ARE:

52.222-6 Construction Wage Rate Requirements.

As prescribed in 22.407(a), insert the following clause:

Construction Wage Rate Requirements (AUG 2018)[(DEVIATION FEB 2025)]

(a) * * *

(b) * * *

(3) Such laborers and mechanics shall be paid not less than the appropriate wage rate and fringe benefits in the wage determination for the classification of work actually performed, without regard to skill, except as provided in the clause entitled Apprentices and Trainees. Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein; provided that the employer's payroll records accurately set forth the time spent in each classification in which work is performed.

6. 52.222-11 Subcontracts (Labor Standards) (MAY 2014) (DEVIATION FEB 2025)

CHANGES ARE:

(a) * * *

(b) The Contractor shall insert in any subcontracts for construction, alterations and repairs within the United States the clauses entitled—

(1) Construction Wage Rate Requirements;

(2) Contract Work Hours and Safety Standards—Overtime Compensation (if the clause is included in this contract);

(3) [Reserved]Apprentices and Trainees;

7. 52.222-12 Contract Termination—Debarment (MAY 2014) (DEVIATION FEB 2025)

CHANGES ARE:

A breach of the contract clauses entitled Construction Wage Rate Requirements, Contract Work Hours and Safety Standards—Overtime Compensation, Apprentices and Trainees, Payrolls and Basic Records, Compliance with Copeland Act Requirements, Subcontracts (Labor Standards), Compliance with Construction Wage Rate Requirements and Related Regulations, or Certification of Eligibility may be grounds for termination of the contract, and for debarment as a Contractor and subcontractor as provided in 29 CFR 5.12.

52.222-21 [Reserved] 52.222-22 [Reserved] 52.222-23 [Reserved] 52.222-24 [Reserved] 52.222-25 [Reserved] 52.222-26 [Reserved] 52.222-27 [Reserved] 52.222-29 [Reserved] * * * * * 52.244-6 Subcontracts for Commercial Products and Commercial Services.

As prescribed in 44.403, insert the following clause:

Subcontracts for Commercial Products and Commercial Services (JAN 2025)[(DEVIATION FEB 2025)] (c)(1) * * *

(xi) [Reserved] 52.222-21, Prohibition of Segregated Facilities (APR 2015).

(xii) [Reserved] 52.222-26, Equal Opportunity (SEP 2016) (E.O. 11246).

8. 52.223-1 Biobased Product Certification (MAY 2024) (DEVIATION FEB 2025)

CHANGES ARE:

BIOBASED PRODUCT CERTIFICATION (MAY 2024) [(DEVIATION FEB 2025)]

As required by the Farm Security and Rural Investment Act of 2002 (7 U.S.C. 8101(4)) and the Energy Policy Act of 2005 (7 U.S.C. 8102(a)(2)(F)), the offeror certifies, by signing this offer, that biobased products (within categories of products listed by the United States Department of Agriculture in 7 CFR part 3201, subpart B [at https://www.biopreferred.gov/resources/categories.html]) to be used or delivered in the performance of the contract, other than biobased products that are not purchased by the offeror as a direct result of this contract, will comply with the applicable specifications or other contractual requirements.

(End of provision)

9. 52.223-2 Reporting of Biobased Products Under Service and Construction Contracts (MAY 2024) (DEVIATION FEB 2025)

CHANGES ARE:

a) Definitions. As used in this clause— Biobased product means a product determined by the U.S. Department of Agriculture (USDA) to be a commercial product or industrial product (other than food or feed) that is composed, in whole or in significant part, of biological products, including renewable domestic agricultural materials and forestry materials, or that is an intermediate ingredient or feedstock.

The term includes, with respect to forestry materials, forest products that meet biobased content requirements, notwithstanding the market share the product holds, the age of the product, or whether the market for the product is new or emerging. (7 U.S.C. 8101) (7 CFR 3201.2[7 CFR 4270.2]).

USDA-designated product category means a generic grouping of products that are or can be made with biobased materials—

(1) That are listed by USDA in a procurement guideline (7 CFR part 3201, subpart B) available at https://www.biopreferred.gov/resources/categories.html; and

(2) For which USDA has provided purchasing recommendations (available at https://www.biopreferred.gov [or 7 CFR part 4270]).

(b) The Contractor shall report to https://www.sam.gov, with a copy to the Contracting Officer, on the product types and dollar value of any biobased products in USDA-designated product categories purchased by the Contractor during the previous Government fiscal year, between October 1 and September 30; and

(c) Submit this report no later than—

(1) October 31 of each year during contract performance; and

(2) At the end of contract performance.

10. 52.223-10 Waste Reduction Program (MAY 2024) (DEVIATION FEB 2025)

CHANGES ARE:

(a) Definitions. As used in this clause— Recycling means the series of activities, including collection, separation, and processing, by which products or other materials are recovered from the solid waste stream for use in the form of raw materials in the manufacture of products other than fuel for producing heat or power by combustion.

Waste prevention means any change in the design, manufacturing, purchase, or use of materials or products (including packaging) to reduce their amount or toxicity before they are discarded. Waste prevention also refers to the reuse of products or materials.

Waste reduction means preventing or decreasing the amount of waste being generated through waste prevention, recycling, or purchasing recycled and environmentally preferable products.

b) Consistent with the requirements of section 207 of Executive Order 14057, the[The] Contractor shall establish a program to promote cost-effective waste reduction in all operations and facilities covered by this contract. The Contractor's programs shall comply with applicable Federal, State, and local requirements, specifically including Section 6002 of the Resource Conservation and Recovery Act (42 U.S.C. 6962, et seq.) and implementing regulations (40 CFR part 247).

(End of clause)

11. 52.223-23, Sustainable Products and Services (MAY 2024) (DEVIATION FEB 2025)

CHANGES ARE:

(a) Definitions. As used in this clause— Biobased product means a product determined by the U.S. Department of Agriculture (USDA) to be a commercial product or industrial product (other than food or feed) that is composed, in whole or in significant part, of biological products, including renewable domestic agricultural materials and forestry materials, or that is an intermediate ingredient or feedstock. The term includes, with respect to forestry materials, forest products that meet biobased content requirements, notwithstanding the market share the product holds, the age of the product, or whether the market for the product is new or emerging. (7 U.S.C. 8101) (7 CFR 3201.2[7 CFR part 4270.2)]).

Recovered material means waste materials and by-products recovered or diverted from solid waste, but the term does not include those materials and by-products generated from, and commonly reused within, an original manufacturing process. (42 U.S.C. 6903).

Sustainable products and services means products and services that are subject to and meet the following applicable statutory mandates and directives for purchasing:

(1) Statutory purchasing programs.

(i)[(1)] Products containing recovered material designated by the U.S. Environmental Protection Agency (EPA) under the Comprehensive Procurement Guidelines (42 U.S.C. 6962) (40 CFR part 247) (https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program#products).

(ii)[(2)] Energy- and water-efficient products that are ENERGY STAR® certified or Federal Energy Management Program (FEMP)-designated products (42 U.S.C. 8259b) (10 CFR part 436, subpart C) (https://www.energy.gov/eere/femp/search-energy-efficient-products and https://www.energystar.gov/products?s=mega).

(iii)[(3)] Biobased products meeting the content requirement of the USDA under the BioPreferred® program (7 U.S.C. 8102) (7 CFR part 3201[7 CFR part 4270]) (https://www.biopreferred.gov).

(iv)[(4)] Acceptable chemicals, products, and manufacturing processes listed under EPA’s Significant New Alternatives Policy (SNAP) program, which ensures a safe and smooth transition away from substances that contribute to the depletion of stratospheric ozone (42 U.S.C. 7671l) (40 CFR part 82, subpart G) (https://www.epa.gov/snap).

(2) Required EPA purchasing programs.

(i) WaterSense® labeled (water efficient) products and services (https://www.epa.gov/watersense/watersense-products).

(ii) Safer Choice-certified products (products that contain safer chemical ingredients) (https://www.epa.gov/saferchoice/products).

(iii) Product and services that meet EPA Recommendations of Specifications, Standards, and Ecolabels in effect as of October 2023 (https://www.epa.gov/greenerproducts/recommendations-specifications-standards-and-ecolabels-federal-purchasing).

(b) Requirements.

(1) The sustainable products and services, including the purchasing program and type of product or service, that are applicable to this contract, and any products or services that are not subject to this clause, will be set forth in the statement of work or elsewhere in the contract.

(2) The Contractor shall ensure that the sustainable products and services required by this contract are—

(i) Delivered to the Government;

(ii) Furnished for use by the Government;

(iii) Incorporated into the construction of a public building or public work; and

(iv) Furnished for use in performing services under this contract, where the cost of the products is a direct cost to this contract (versus costs which are normally applied to the Contractor’s general and administrative expenses or indirect costs). This includes services performed by contractors performing management and operation of Government-owned facilities to the same extent that, at the time of award, an agency would be required to comply if an agency operated or supported the facility.

(3)(i) Except as provided in paragraph (b)(3)(ii) of this clause, sustainable products and services must meet the applicable standards, specifications, or other program requirements at time of quote or offer submission; and

(ii) Sustainable products and services must meet the EPA Recommendations of Specifications, Standards, and Ecolabels in effect as of October 2023.

(c) Resource. The Green Procurement Compilation (GPC) available at https://sftool.gov/greenprocurement provides a comprehensive list of sustainable products and services and sustainable acquisition guidance. The Contractor should review the GPC when determining which [statutory] purchasing programs apply to a specific product or service.

(End of clause)

12. 52.244-6, Subcontracts for Commercial Products and Commercial Services (JAN 2025) (DEVIATION FEB 2025)

CHANGES ARE:

(c)(1) * * *

(xi) [Reserved] 52.222-21, Prohibition of Segregated Facilities (APR 2015).

(xii) [Reserved] 52.222-26, Equal Opportunity (SEP 2016) (E.O. 11246).