Attachment 3 Class Deviations.pdf

U.S. Department 1200 New Jersey Ave., S.E.

of Transportation Washington, DC 20590

Office of the Secretary of Transportation

SUBJECT: Class Deviation No. 2025-01 from the Federal Acquisition Regulation Regarding Executive Orders 14173 and 14168

FROM: Chrishaun Jones Senior Procurement Executive Office of the Senior Procurement Executive

TO: Department of Transportation Chiefs of the Contracting Offices

I. Purpose: This class deviation (CD) is issued under Federal Acquisition Regulation (FAR)

1.404 and Transportation Acquisition Regulation (TAR) 1201.404 and authorizes a class deviation regarding the revocation of Executive Order (E.O.) 11246, Equal Employment Opportunity, and updates terminology based on E.O. 14168, Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government, issued on January 20, 2025.

II. Effective Date: Immediately

III. Background: On January 21, 2025, President Trump issued 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.

On February 15, 2025, the Chair of the Civilian Agency Acquisition Council (CAAC) issued CAAC Letter No. 2025-01, and on February 18, 2025, Supplement 1 to the letter, in accordance with FAR 1.404(a)(1) to authorize agencies to issue their own class deviations.

The CAAC Letter addressed the removal of equal employment opportunity language per revoked E.O. 11246. Several FAR provisions promulgated to enforce E.O. 11246 are not consistent with the direction in E.O. 14173 (see FAR subpart 22.8 and associated provisions and clauses as prescribed at FAR 22.810, as well as affected parts).

The CAAC Letter also addressed new E.O. 14168, and the required removal of the defined term “gender identity” per E.O. 14168 from FAR 22.801 and applicable clauses at FAR Part 52 that include the term.

This class deviation implements the CAAC Letter while rulemaking is conducted to update the FAR.

https://www.acquisition.gov/sites/default/files/caac/CAAC_Letter_2025-01.pdf https://www.acquisition.gov/sites/default/files/caac/deviation/GSA_Deviation_CAAC_Letter_2025-01.pdf

IV. Required Actions: The requirements in this CD apply to all DOT Operating Administrations and Contracting Offices for applicable solicitations and contracts.

Heads of the Contracting Activities (HCA) must ensure this CD is disseminated to the acquisition workforce and ensure compliance with the requirements in the class deviation.

Effective immediately, DOT contracting staff must comply with the following:

a) When issuing new solicitations or contracts:

1. INCLUDE the following deviated provisions and clauses, if applicable:

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

(DEVIATION FEB 2025)

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

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

2025) (DEVIATION FEB 2025)

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

FEB 2025)

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

FEB 2025)

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

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

FEB 2025)

viii. 52.244-6, Subcontracts for Commercial Products and Commercial Services

(JAN 2025) (DEVIATION FEB 2025)

2. DO NOT INCLUDE any of the following provisions and clauses:

i. 52.222-9, Apprentices and Trainees

ii. 52.222-21, Prohibition of Segregated Facilities

iii. 52.222-22, Previous Contracts and Compliance Reports

iv. 52.222-23, Notice of Requirement for Affirmative Action To Ensure Equal

Employment Opportunity for Construction

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

vi. 52.222-25, Affirmative Action Compliance

vii. 52.222-26, Equal Opportunity

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

ix. 52.222-29, Notification of Visa Denial

b) Amend open solicitations to include the applicable clauses and to remove inapplicable clauses as listed above.

Karen.Tempest Cross-Out

Karen.Tempest Cross-Out

Karen.Tempest Cross-Out

Karen.Tempest Cross-Out

c) When issuing new solicitations:

1. INCLUDE the following notice:

“System updates may lag policy updates. The System for Award Management (SAM) may continue to require entities to complete representations based on provisions that are not included in DOT solicitations. Examples include:

• 52.222-25, Affirmative Action Compliance, and

• 52.212-3(d), Offeror Representations and Certifications—Commercial

Products and Commercial Services.

Contracting officers will not need to consider these representations when making award decisions or enforce requirements. Entities are not required to, nor are they able to, update their entity registration to remove these representations in SAM.”

d) ENSURE contractors are 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.

e) FOR EXISTING CONTRACTS, Heads of the contracting activities (HCAs) shall ensure that they issue appropriate guidance for when existing contracts should be modified to comply with this deviation. At a minimum, contracting officers shall provide a copy of this FAR class deviation to contractors when the contract has more than six months remaining under the period of performance and ensure the contract incorporates the new language and removes the rescinded language at the next modification.

V. Applicability: This CD is applicable to all solicitations and contracts (see definition of contract at FAR.2101).

See Attachment A for the changes in the FAR text as revised by this deviation.

VI. Expiration Date: This CD will remain in effect until it is incorporated into the FAR or is otherwise rescinded, whichever occurs first.

VII. Point of Contact: Questions or comments regarding this class deviation may be directed to DOTAcquisitionPolicy@dot.gov.

Attachments:

Attachment A – Line-In/Line-Out: FAR Deviation Text mailto:DOTAcquisitionPolicy@dot.gov

ATTACHMENT A

FAR DEVIATION TEXT

(DEVIATION FEB 2025)

Executive Order 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” of January 21, 2025, revoking Executive Order 11246, Equal Employment Opportunity

Baseline is FAC 2025-03, published in the Federal Register on January 3, 2025, effective January 17, 2025.

Additions are shown as [bolded and bracketed]and deletions are shown in strikethrough deletions.

FAR Text unchanged shown as asterisks.

PART 1—FEDERAL ACQUISITION REGULATIONS SYSTEM

Subpart 1.1—Purpose, Authority, Issuance

1.106 OMB approval under the Paperwork Reduction Act.

FAR segment OMB control No.

22.8 1250-0003

52.222-21 1250-0003

52.222-22 1250-0003

52.222-23 1250-0003

52.222-25 1250-0003

52.222-26 1250-0001 and 1250-0003

52.222-27 1250-0003

PART 2—DEFINITIONS OF WORDS AND TERMS

Subpart 2.1—Definitions

2.101 Definitions.

United States, when used in a geographic sense, means the

50 States and the District of Columbia, except as follows:

(2) [Reserved]For use in subpart 22.8, see the definition at

22.801.

PART 4—ADMINISTRATIVE AND INFORMATION MATTERS

Subpart 4.12—Representations and Certifications

4.1202 Solicitation provision and contract clause.

(a) * * *

(18) [Reserved] 52.222-22, Previous Contracts and Compliance Reports.

(19) [Reserved] 52.222-25, Affirmative Action Compliance.

PART 14—SEALED BIDDING

Subpart 14.4—Opening of Bids and Award of Contract

14.405 Minor informalities or irregularities in bids.

(d) Acknowledge receipt of an amendment to an invitation for bids, but only if-

(1) * * *

(2) The amendment involves only a matter of form or has either no effect or merely a negligible effect on price, quantity, quality, or delivery of the item bid upon[.]; and

(e) Execute the representations with respect to Equal Opportunity and Affirmative Action Programs, as set forth in the clauses at

52.222-22, Previous Contracts and Compliance Reports, and 52.222-

25, Affirmative Action Compliance.

PART 19—SMALL BUSINESS PROGRAMS

Subpart 19.6—Certificates of Competency and Determinations of

Responsibility

19.602 Procedures.

19.602-1 Referral.

(a) * * *

(2) Refer the matter to the cognizant SBA Government

Contracting Area Office (Area Office) serving the area in which the headquarters of the offeror is located, in accordance with agency procedures, except that referral is not necessary if the small business concern—

(ii) Is suspended or debarred under Executive Order 11246 or subpart 9.4.

PART 22—APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

Subpart 22.4—Labor Standards for Contracts Involving Construction

22.406-4 [Reserved] Apprentices and trainees.

(a) The contracting officer shall review the contractor’s employment and payment records of apprentices and trainees made available pursuant to the clause at 52.222-8, Payrolls and Basic Records, to ensure that the contractor has complied https://www.acquisition.gov/far/part-52#FAR_52_222_8 with the clause at 52.222-9, Apprentices and Trainees.

(b) If a contractor has classified employees as apprentices, trainees, or helpers without complying with the requirements of the clause at 52.222-9, the contracting officer shall reject the classification and require the contractor to pay the affected employees at the rates applicable to the classification of the work actually performed.

22.407 Solicitation provision and contract clauses.

(a) * * *

(4) [Reserved] 52.222-9, Apprentices and Trainees.

Subpart 22.8[Reserved]

PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

Subpart 52.2—Text of Provisions and Clauses

52.204-8 Annual Representations and Certifications.

As prescribed in 4.1202(a), insert the following provision:

Annual Representations and Certifications (JAN 2025)[(DEVIATION

FEB 2025)]

https://www.acquisition.gov/far/part-52#FAR_52_222_9 https://www.acquisition.gov/far/part-52#FAR_52_222_9 https://www.acquisition.gov/far/part-52#FAR_52_222_9

(c)(1) * * *

(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.

52.212-3 Offeror Representations and Certifications—Commercial

Products and Commercial Services.

As prescribed in 12.301(b)(2), insert the following provision:

Offeror Representations and Certifications—Commercial Products and Commercial Services (MAY 2024)[(DEVIATION FEB 2025)]

(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.

52.212-5 Contract Terms and Conditions Required To Implement

Statutes or Executive Orders—Commercial Products and Commercial

Services.

As prescribed in 12.301(b)(4), insert the following clause:

Contract Terms and Conditions Required To Implement Statutes or

Executive Orders—Commercial Products and Commercial Services

(JAN 2025)[(DEVIATION FEB 2025)]

(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).

52.213-4 Terms and Conditions—Simplified Acquisitions (Other Than

Commercial Products and Commercial Services).

As prescribed in 13.302-5(d), insert the following clause:

Terms and Conditions—Simplified Acquisitions (Other Than

Commercial Products and Commercial Services)

(JAN 2025)[(DEVIATION FEB 2025)]

(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).

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.

52.222-9 [Reserved]

52.222-11 Subcontracts (Labor Standards).

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

Subcontracts (Labor Standards) (MAY 2014)[(DEVIATION FEB 2025)]

(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;

52.222-12 Contract Termination—Debarment.

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

Contract Termination—Debarment (MAY 2014)[(DEVIATION FEB 2025)]

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).

U.S. Department 1200 New Jersey Ave., S.E.

of Transportation Washington, DC 20590

Office of the Secretary of Transportation

SUBJECT: Class Deviation No. 2025-02 from the Federal Acquisition Regulation Regarding Executive Orders 14148 and 14208

FROM: Chrishaun Jones Senior Procurement Executive Office of the Senior Procurement Executive

TO: Department of Transportation Chiefs of the Contracting Offices

I. Purpose: This class deviation (CD) is issued under Federal Acquisition Regulation (FAR)

1.404 and Transportation Acquisition Regulation (TAR) 1201.404 and authorizes a class deviation to FAR Part 11, 18, 23, and 37 necessary to implement 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.

II. Effective Date: Immediately

III. Background: Section 2 of E.O. 14148, Initial Rescissions of Harmful Executive Orders and Actions, of January 20, 2025 (see 90 FR 8237), revoked E.O. 14057, Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability, of December 8, 2021. The removal of requirements related to E.O. 14057 eliminates all non-statutory sustainability requirements or preferences in purchases of food service wares, including paper straws. In addition to removing requirements related to E.O. 14057, the class deviation also reflects recent updates to Code of Federal Regulation citations for the U.S. Department of Agriculture’s BioPreferred Program, a statutory purchasing preference program. Section 2 of E.O. 14208, Ending Procurement and Forced Use of Paper Straws, of February 10, 2025 (see 90 FR 9585), directs agencies to take appropriate action to eliminate policies designed to disfavor plastic straws.

On February 15, 2025, the Chair of the Civilian Agency Acquisition Council (CAAC) issued CAAC Letter No. 2025-02, and on February 18, 2025, Supplement 1 superseded the original issuance of the letter, in accordance with FAR 1.404(a)(1) to authorize agencies to issue their own class deviations.

This class deviation implements the CAAC Letter while rulemaking is conducted to update the

FAR.

IV. Required Actions: The requirements in this CD apply to all DOT Operating Administrations and Contracting Offices for applicable solicitations and contracts.

Heads of the Contracting Activities (HCA) must ensure this CD is disseminated to the acquisition workforce and ensure compliance with the requirements in the class deviation.

https://www.acquisition.gov/sites/default/files/caac/CAAC_Letter_2025-02.pdf https://www.acquisition.gov/sites/default/files/caac/CAAC_Letter_2025-02_Supplement-1.pdf

Effective immediately, DOT contracting staff must comply with the following:

a) Use the revised definitions in FAR Part 2 and follow the revised procedures in FAR Parts 11, 18, 23, and 37 as illustrated in Attachment A.

b) When issuing new solicitations or contracts:

1. INCLUDE the following deviated provisions and clauses, if applicable:

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

FEB 2025)

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

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

(DEVIATION FEB 2025)

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

FEB 2025)

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

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

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

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

2025)

2. DO NOT INCLUDE any of the following provisions and clauses:

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

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

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

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

v. 52.223-22, Public Disclosure of Greenhouse Gas Emissions and Reduction

Goals—Representation (DEC 2016)

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

c) Amend open solicitations to include the applicable clauses and to remove inapplicable clauses as listed above.

d) When issuing new solicitations:

1. INCLUDE the following notice:

“System updates may lag policy updates. The System for Award Management (SAM) may continue to require entities to complete representations based on provisions that are not included in DOT solicitations. Examples include:

• 52.223-22, Public Disclosure of Greenhouse Gas Emissions and Reduction Goals—Representation, and

• 52.212-3(t), Offeror Representations and Certifications—Commercial Products and Commercial Services.

Contracting officers will not need to consider these representations when making award decisions or enforce requirements. Entities are not required to, nor are they able to, update their entity registration to remove these representations in SAM.”

e) FOR EXISTING CONTRACTS, Heads of the contracting activities (HCAs) shall issue appropriate guidance for when existing contracts should be modified to comply with this deviation. At a minimum, contracting officers shall provide a copy of this FAR class deviation to contractors with contracts that have more than six months remaining under the period of performance and ensure the contract incorporates the new language and removes the rescinded language at the next modification.

V. Applicability: This CD is applicable to all solicitations and contracts (see definition of contract at FAR.2101).

VI. Expiration Date: This CD will remain in effect until it is incorporated into the FAR or is otherwise rescinded, whichever occurs first.

VII. Point of Contact: Questions or comments regarding this class deviation may be directed to DOTAcquisitionPolicy@dot.gov.

Attachments:

Attachment A – Line-In/Line-Out: FAR Deviation Text mailto:DOTAcquisitionPolicy@dot.gov

ATTACHMENT A

FAR DEVIATION TEXT

(DEVIATION FEB 2025)

Executive Order 14148, “Initial Rescissions of Harmful Executive Orders and Actions,” of January 20, 2025, revocation of Executive Order 14057, “Catalyzing Clean Energy Industries and Jobs Through

Federal Sustainability,” of December 8, 2021

Baseline is FAC 2025-03, published in the Federal Register on January 3, 2025, effective January 17, 2025.

Additions are shown as [bolded and bracketed]and deletions are shown in strikethrough deletions.

FAR Text unchanged shown as asterisks.

PART 1—FEDERAL ACQUISITION REGULATIONS SYSTEM

Subpart 1.1—Purpose, Authority, Issuance

1.106 OMB approval under the Paperwork Reduction Act.

The Paperwork Reduction Act of 1980 (44 U.S.C. chapter 35) imposes a requirement on Federal agencies to obtain approval from the Office of Management and Budget (OMB) before collecting information from 10 or more members of the public. The information collection and recordkeeping requirements contained in this regulation have been approved by the OMB. The following OMB control numbers apply:

FAR Segment OMB control No.

52.223-22 9000-0107.

PART 2—DEFINITIONS OF WORDS AND TERMS

Subpart 2.1—Definitions

2.101 Definitions.

Biobased product means a product determined by the U.S.

Department of Agriculture 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)]).

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 U.S. Department of Agriculture 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 http://www.epa.gov/smm/comprehensive-http://www.energy.gov/eere/femp/search-energy-http://www.energystar.gov/products?s=mega) http://www.biopreferred.gov/

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) Products 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).

United States, when used in a geographic sense, means the 50 States and the District of Columbia, except as follows: * * *

(9) For use in subpart 23.1, see definition at 23.101.[Reserved]

PART 11—DESCRIBING AGENCY NEEDS

11.002 Policy.

(d)(1) Agencies shall procure sustainable products and services (as defined in 2.101) in accordance with subpart 23.1.

(2) Unless it is not practicable (see 23.104(a)) or an exception or exemption applies (see 23.105 and 23.106, respectively), agencies shall incorporate the use of sustainable products and services when—

(i) Developing, reviewing, or revising Federal and military specifications, product descriptions (including commercial item descriptions) and standards;

http://www.epa.gov/snap) http://www.epa.gov/watersense/watersense-products) http://www.epa.gov/saferchoice/products) http://www.epa.gov/greenerproducts/recommendations-

(ii) Describing Government requirements for products and services; and

(iii) Developing source-selection factors.

(3) The Green Procurement Compilation (GPC) available at https://sftool.gov/greenprocurement provides a comprehensive list of sustainable products and services and other related sustainable acquisition guidance. Agencies should [consult the GPC when determining which statutory purchasing programs apply to a specific product or service and incorporate applicable requirements into the requirement document.] —

(i) Consult the GPC when determining which purchasing programs apply to a specific product or service; and

(ii) Incorporate into agency requirements any required standards, specifications, or ecolabels identified in the GPC for a specific product or service.

Subpart 11.3—Acceptable Material

11.301 Policy.

(c) * * *

(2) For biobased products, agencies may not require, as a condition of purchase of such products, the vendor or manufacturer to provide more data than would typically be provided by other business entities offering products for sale to the agency, other than data confirming the biobased content of a product (see 7 CFR 3201.8[7 CFR 4270.14]).

PART 18—EMERGENCY ACQUISITIONS

Subpart 18.2—Emergency Acquisition Flexibilities

18.202 Defense or recovery from certain events.

(e) Sustainable products and services. Contracting officers are encouraged, but not required, to procure sustainable products and services if the head of the agency determines the supplies or services are to be used to facilitate defense against or recovery from cyber, nuclear, biological, chemical, or radiological attack; to facilitate provision of international disaster assistance; or to support response to an emergency or major disaster (see 23.106(c)).

PART 23—ENVIRONMENT, SUSTAINABLE ACQUISITION, AND MATERIAL

SAFETY

23.000 Scope of part.

This part prescribes acquisition policies and procedures supporting the Government’s program to protect and improve the quality of the environment, to foster markets for sustainable products and services, and to ensure proper handling and notification of hazardous materials.

23.001 Definitions.

As used in this part—

Environmental means environmental aspects of internal agency operations and activities, including those aspects related to energy and transportation functions.

Greenhouse gas means carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, nitrogen trifluoride, or sulfur hexafluoride.

23.002 Policy.

In accordance with section 208(a) of Executive Order 14057, Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability, agencies shall reduce emissions, including greenhouse gas emissions; promote environmental stewardship;

support resilient supply chains; drive innovation; and incentivize markets for sustainable products and services.

Subpart 23.1—Sustainable Products and Services

23.100 Scope of subpart.

This subpart provides policies and procedures for procuring sustainable products and services. This subpart applies to all contract actions, including those using part 12 procedures for the acquisition of commercial products, including commercially available off-the-shelf (COTS) items, and commercial services and acquisitions valued at or below the micro-purchase threshold.

23.101 Definitions.

As used in this subpart— * * *

U.S. Department of Agriculture (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]).

United States, as defined in the Executive Office of the President's Office of Management and Budget, Council on Environmental Quality, and Climate Policy Office Memorandum M- 22-06, when used in a geographical sense means—

(1) The fifty States;

(2) The District of Columbia;

(3) The commonwealths of Puerto Rico and the Northern Mariana Islands;

http://www.biopreferred.gov/resources/categories.html

(4) The territories of Guam, American Samoa, and the United States Virgin Islands; and

(5) Associated territorial waters and airspace.

23.102 Authorities.

(a) Section 208 of Executive Order 14057, Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability, dated December 8, 2021.

(b) Paragraph G of section I of the Executive Office of the President's Office of Management and Budget, Council on Environmental Quality, and Climate Policy Office Memorandum M- 22-06, Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability, dated December 8, 2021.

(c) Implementing instructions for Executive Order 14057, Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability, dated August 2022.

(d) The[See the] authorities referenced in 23.107 for statutory purchasing programs.

23.103 Policy.

(a) Agencies shall procure sustainable products and services (as defined in 2.101) to the maximum extent practicable.

(1) Procuring sustainable products and services is considered practicable, unless the agency cannot acquire products or services—

(i) Competitively within a reasonable performance schedule;

(ii) That meet reasonable performance requirements; or

(iii) At a reasonable price (see 23.103(a)(2)).

(2) When considering whether the price of a sustainable product is reasonable, agencies should consider whether the product is cost-effective over the life of the product. For ENERGY STAR® or Federal Energy Management Program (FEMP)-designated products, a price is reasonable if it is cost-effective over the life of the product taking energy cost savings into account (42 U.S.C. 8259b(b)(2)). Life-cycle cost savings tools for energy-efficient products are available at https://www.energystar.gov/buildings/save_energy_commercial_buil dings/ways_save/energy_efficient_products and https://www.nrel.gov/analysis/tech-lcoe.html.

(b) When procuring sustainable products and services, agencies shall—

(1) Ensure compliance with applicable statutory purchasing program requirements (see 23.107); and

(2) Prioritize multi-attribute sustainable products and services (see 23.104(c)(2)).

(c) Regarding products under contract actions for services or construction, the contractor is required to provide products that meet the definition of sustainable products and services at 2.101, if the products are—

(1) Delivered to the Government;

(2) Furnished by the contractor for use by the Government;

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

(4) Acquired by the contractor for use in performing services under a Government contract where the cost of the products is a direct cost to a Government contract (versus costs which are normally applied to a contractor’s general and administrative expenses or indirect costs).

23.104 General procedures.

(a) Maximum extent practicable. If the requiring activity submits a written justification addressing the reasons described in 23.103(a)(1), the contracting officer may consider it not practicable to procure sustainable products or services. A written justification may be for a specific product or service or at the line item or contract level. The contracting officer shall maintain the written justification in the contract file.

(b) Identification.

(1) Except as provided in paragraph (b)(2) of this section, the contracting officer shall ensure the solicitation and contract identifies—

(i) The sustainable products and services, including the purchasing program and type of product or service, that are applicable to the acquisition, as identified by the requiring http://www.energystar.gov/buildings/save_energy_commercial_buil http://www.nrel.gov/analysis/tech-lcoe.html activity; and

(ii) Any products and services that are not subject to the requirements of this subpart and the clause at 52.223-23, Sustainable Products and Services, based on the written justification under paragraph (a) of this section [or an exception at 23.105], an exception at 23.105, or an exemption at 23.106.

(2) The requirement in paragraph (b)(1) of this section does not apply if the justification [or exception], exception, or exemption covers the entirety of the contract action requirements.

(c) Prioritization. Agencies shall prioritize sustainable products and services as follows:

(1) Procure[procure] products and services that meet applicable statutory purchasing program requirements (see 23.107). When both an EPA-designated item (see 23.107-1) and a biobased product in a USDA-designated product category (see 23.107-2) could be used for the same purposes, and there is not an EPA-designated item that is also a biobased product in a USDA-designated product category that meets the agency's needs, procure the EPA-designated item.

(2) Consistent with other statutory procurement requirements, prioritize multi-attribute sustainable products and services, which are those that meet applicable statutory purchasing program requirements (see 23.107) and one or more required EPA purchasing programs (see 23.108).

(3) If no statutory purchasing program requirements apply, procure sustainable products and services that meet required EPA purchasing program requirements (see 23.108).

(d) Resource. The Green Procurement Compilation (GPC) available at https://sftool.gov/greenprocurement provides a comprehensive list of sustainable products and services and other related sustainable acquisition guidance. In addition to the resources identified for each purchasing program listed in

23.107 and 23.108, agencies[Agencies] should consult the GPC when determining which [statutory] purchasing programs apply to a specific product or service.

23.105 Exceptions.

The following are excepted from the requirement to procure sustainable products and services: * * *

(d) Biobased products to be used in military equipment (products or systems designed or procured for combat or combat-related missions), spacecraft systems, or launch support equipment are not subject to the requirements in 23.107-2 (7 CFR 3201.3(e)[7 CFR part 4270.3(a)(5)]).

23.106 [Reserved]Exemptions.

(a) The Director of National Intelligence may exempt an intelligence activity of the United States and related personnel, resources, and facilities to the extent the Director determines necessary to protect intelligence sources and methods from unauthorized disclosure.

(b) The head of an agency may exempt the following:

(1) Particular agency activities and related personnel, resources, and facilities when it is in the interest of national security, to protect intelligence sources and methods from unauthorized disclosure, or where necessary to protect undercover law enforcement operations from unauthorized disclosure. The agency shall notify the Chair of the Council on Environmental Quality (CEQ) in writing within 30 days of issuance of the exemption under this paragraph (b)(1).

(2) On an individual or class basis, any manned and unmanned vehicle, vessel, aircraft, or non-road equipment that is used in combat support, combat service support, military tactical or relief operations, or training for such operations or spaceflight vehicles, including associated ground-support equipment.

(c) Contracting officers are encouraged, but not required, to procure sustainable products and services if the head of the agency determines the supplies or services are to be used to facilitate defense against or recovery from cyber, nuclear, biological, chemical, or radiological attack; to facilitate provision of international disaster assistance; or to support response to an emergency or major disaster.

(d) The head of the agency may submit to the President, through the Chair of CEQ, a request for an exemption of an agency activity, and related personnel, resources, and facilities from this subpart for any reason not otherwise addressed in this section.

23.107 Statutory purchasing programs.

Agencies shall ensure compliance with statutory purchasing program requirements described in 23.107-1 through 23.107-4.

23.107-1 Products containing recovered materials.

(e) Procedures. The following procedures apply when the thresholds set forth in paragraph (c)(1) of this section are exceeded.

(1) Once an item has been designated by EPA, agencies shall purchase conforming products to the maximum extent practicable in accordance with 23.104(a), unless a [justification or exception applies (see 23.104(a) and 23.105).] justification, exception, or exemption applies (see 23.104(a), 23.105, and 23.106, respectively).

23.107-2 Biobased products.

(a) Authorities.

(1) The Farm Security and Rural Investment Act of 2002 (FSRIA), 7 U.S.C. 8102, as implemented at 7 CFR part 3201[7 CFR part 4270].

(2) The Energy Policy Act of 2005, Public Law 109-58.

(e) Procedures. The following procedures apply when the thresholds set forth in paragraph (c)(1) of this section are exceeded.

(1) Once a biobased product is included in a USDA-designated product category, agencies shall purchase conforming products to the maximum extent practicable in accordance with 23.104(a), unless a [justification or exception applies (see 23.104(a) and 23.105).] justification, exception, or exemption applies (see 23.104(a), 23.105, and 23.106, respectively).

23.107-3 Energy-consuming products and water-consuming products.

(c) Procedures. To the maximum extent practicable in accordance with 23.104(a), unless a [justification or exception applies (see 23.104(a) and 23.105).]justification, exception, or exemption applies (see 23.104(a), 23.105, and 23.106, respectively)—

23.108 [Reserved]Required Environmental Protection Agency purchasing programs.

In accordance with 23.104(c), contracting officers shall, after meeting statutory purchasing program requirements in 23.107, purchase to the maximum extent practicable products and services that meet EPA purchasing program requirements described in 23.108-1 through 23.108-3.

23.108-1 Water-efficient products.

(a) Program. EPA's WaterSense® Program makes it easy to find and select water-efficient products that can save water, energy, and money. WaterSense®-labeled products are backed by independent, third-party certification and meet EPA's specifications for water efficiency and performance.

(b) Resource. For additional information on WaterSense® products, see https://www.epa.gov/watersense/watersense-products.

23.108-2 Chemically-intensive products.

(a) Program. Safer Choice is EPA's label for products that contain safer chemicals. Every chemical, regardless of percentage, in a Safer Choice-certified product is evaluated through EPA's rigorous scientific process and only the safest ingredients are allowed.

(b) Resource. For information on Safer Choice-certified products, see https://www.epa.gov/saferchoice.

23.108-3 Products and services that are subject to EPA Recommendations of Specifications, Standards, and Ecolabels.

(a) Program. The EPA Environmentally Preferable Purchasing (EPP) Program helps Federal agencies identify and procure environmentally preferable products and services to meet zero emissions and other sustainable procurement goals by providing Recommendations of Specifications, Standards, and Ecolabels. The EPP recommendations give preference to multi-attribute or life-cycle based standards and ecolabels that address key environmental and human health impact areas and where product http://www.epa.gov/watersense/watersense-http://www.epa.gov/saferchoice conformance is determined by a competent third-party certification body.

(b) Resource. For additional information on EPA Recommendations of Specifications, Standards, and Ecolabels, see https://www.epa.gov/greenerproducts/recommendations-specifications-standards-and-ecolabels-federal-purchasing.

23.109 Solicitation provisions and contract clauses.

(a) General. Insert the clause at 52.223-23, Sustainable Products and Services, in solicitations and contracts—

(1) Unless—

(i) The requiring activity has provided a written justification that it is not practicable to procure sustainable products and services (see 23.104(a)); [or]

(ii) An exception under 23.105 applies; [and]or

(iii) An exemption under 23.106 applies; and

(2) The scope of the written justification [or exception], exception, or exemption covers the entirety of the contract action requirements.

(c) Biobased products in USDA-designated product categories.

(1) * * *

(2) Insert the clause at 52.223-2, Reporting of Biobased Products Under Service and Construction Contracts, in service and construction solicitations and contracts, unless the contract will not involve the use of biobased products in USDA-designated product categories at https://www.biopreferred.gov or 7 CFR part 3201 [https://www.biopreferred.gov/resources/categories.html or 7 CFR part 4270].

http://www.epa.gov/greenerproducts/recommendations-http://www.biopreferred.govor/

Subpart 23.4—Pollution Prevention, Environmental Management Systems, and Waste Reduction

23.400 Scope of subpart.

This subpart prescribes policies and procedures for [obtaining information needed for Government compliance with right-to-know laws and pollution prevention requirements.] —

(a) Obtaining information needed for Government compliance with right-to-know laws and pollution prevention requirements;

(b) Contractor compliance with environmental management systems; and

(c) Ensuring waste reduction at Federal facilities.

23.401 Definitions.

As used in this subpart—

Federal agency means an executive agency (see 2.101).

Federal facility means a facility owned or operated by a Federal agency in the customs territory of the United States.

23.402 Authorities.

(a) Emergency Planning and Community Right-to-Know Act of

1986, 42 U.S.C. 11001-11050 (EPCRA).

(b) Pollution Prevention Act of 1990, 42 U.S.C. 13101-13109

(PPA).

(c) Executive Order 14057, Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability, dated December 8, 2021.

23.403 Emergency planning and toxic release reporting.

(a) Federal facilities are required to comply with the emergency planning and toxic release reporting requirements in EPCRA and PPA.

(b) Pursuant to EPCRA, PPA, and any agency implementing procedures, every contract that provides for performance on a Federal facility shall require the contractor to provide information necessary for the Federal agency to comply with paragraph (a) of this section.

23.404 [Reserved]Environmental management systems.

Agencies may implement an environmental management system (EMS) when it aligns with and supports its agency's mission needs and facilitates implementation and progress toward E.O.

14057 goals. If an agency uses an EMS for contractor operation of Government-owned or -leased facilities or vehicles, and contractor activities affect the agency's environmental management aspects—

(a) EMS requirements shall be included in contracts to ensure proper implementation and execution of EMS roles and responsibilities; and

(b) The contracting officer shall—

(1) Specify the EMS directives with which the contractor must comply; and

(2) Ensure contractor compliance to the same extent as the agency would be required to comply if the agency operated the facilities or vehicles.

23.405 Waste reduction program.

To support pollution prevention and agency efforts to minimize waste in accordance with E.O. 14057, c[C]ontracts for contractor operation of Government-owned or -leased facilities or for support services at Government-owned or -operated facilities shall require the contractor to promote cost-effective waste reduction in all operations and facilities covered by the contract.

23.406 Contract clauses.

(a) Insert the clause at 52.223-5, Pollution Prevention and Right-to-Know Information, in solicitations and contracts that provide for performance, in whole or in part, on a Federal facility.

(b) [Reserved.]Insert the clause at 52.223-19, Compliance With Environmental Management Systems, in solicitations and contracts for contractor operation of Government-owned or -leased facilities or vehicles located in the United States if an agency uses an EMS and contractor activities affect aspects of the agency's environmental management. For facilities located outside the United States, the agency head may determine that use of the clause is in the best interest of the Government.

(c) Insert the clause at 52.223-10, Waste Reduction Program, in solicitations and contracts for contractor operation of Government-owned or -leased facilities and all solicitations and contracts for support services at Government-owned or -operated facilities.

Subpart 23.5—Greenhouse Gas Emissions

23.500 Scope of subpart.

This subpart addresses public disclosure of greenhouse gas emissions and reduction goals.

23.501 Policy.

In order to better understand both direct and indirect greenhouse gas emissions that result from Federal activities, offerors that are registered in the System for Award Management (SAM) and received $7.5 million or more in Federal contract awards in the prior Federal fiscal year are required to—

(a) Represent whether they publicly disclose greenhouse gas emissions;

(b) Represent whether they publicly disclose a quantitative greenhouse gas emissions reduction goal; and

(c) Provide the website for any such disclosures.

23.502 Solicitation provision.

The provision at 52.223-22, Public Disclosure of Greenhouse Gas Emissions and Reduction Goals—Representation, is required only when 52.204-7, System for Award Management, is included in the solicitation (see 52.204-8, Annual Representations and Certifications).

PART 37—Service Contracting

Subpart 37.1—Service Contracts-General

37.102 Policy.

(i) Agencies shall ensure that service contracts that require the delivery, use, or furnishing of products are consistent with subpart 23.1 (see 23.103(c)[23.103(b)]).

PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

Subpart 52.2—Text of Provisions and Clauses

52.204-8 Annual Representations and Certifications.

As prescribed in 4.1202(a), insert the following provision:

ANNUAL REPRESENTATIONS AND CERTIFICATIONS (JAN 2025)[(DEVIATION FEB

2025)]

(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.

52.212-3 Offeror Representations and Certifications—Commercial Products and Commercial Services.

As prescribed in 12.301(b)(2), insert the following provision:

OFFEROR REPRESENTATIONS AND CERTIFICATIONS—COMMERCIAL PRODUCTS AND COMMERCIAL

SERVICES (MAY 2024) [(DEVIATION FEB 2025)]

(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)…