Contract Requirements

Question: What is the contracts requirement?

Response: In accordance with the goals set in Executive Order (E.O.) 13693, related statutory requirements, and the Department of Energy's (DOE) annual Strategic Sustainability Performance Plan (SSPP), DOE Federal employees and contractors must ensure "each of the following environmental performance and sustainability factors are included ... for all applicable procurements [such as contracts] in the planning, award, and executive phases": recycled content designated products, energy efficient products and services (ENERGY STAR certified and FEMP designated), biobased designated, U.S. Environmental Protection Agency (EPA) programs (Safer Choice, SmartWay, SNAP, WaterSense), and EPA recommended specifications, standards, and labels [EO13693, Section 3(i)].

Question: What is the definition of "contracts"?

Response: The definition of contracts is new contracts and blanket ordering agreements issued, modifications to existing contracts task orders under existing multi-year contracts, multiple award contracts, multiple award schedules, and any other vehicles that are contractual agreements, such as purchasing agreements and long term purchase orders. Sites must ensure new contract actions and modifications to contracts or other such contractual agreements meet the EO13693 goal.

Question: What must be stipulated for a contract to meet the requirements?

Response: Sources for sustainable acquisition requirements to incorporate in a contract are

Question: Do the FAR and DEAR sustainable acquisition requirements have to be included in every contract whether applicable to sustainable acquisition or not?

Response: No but they certainly could be should your site be trying to achieve cradle-to-cradle or some parallel sustainability status. Typically contracts without sustainable acquisition opportunity would not include the FAR and DEAR sustainable acquisition requirements. Such contracts might be an inspection of an irrigation line where the work is to dig a hole, inspect the line, and cover the hole with no replacement of the irrigation line involved.

Question: The DOE reporting requirement denotes for now we only report on some types of contracts. Does this mean the 95% requirement only applies to those particular types of contracts?

Response: No. Executive Order 13514 refers to all eligible contracts. Contracts eligible for inclusion in the 95% target are only those for which sustainable acquisition opportunities exist. This can take the form of a consultant's use of recycled content paper in submitting a deliverable under the contract to more obvious examples such as the direct purchase of cleaning supplies. It is only the reporting that is limited to specific types of contracts.

Question: Does reporting only cover contracts issued in the applicable fiscal year?

Response: Yes. DOE sites should review new contracts awarded during the relevant fiscal year. This would include existing multi-year contracts with options that are renewed during that fiscal year. This also applies to contract modifications, provided the modification itself involves new work and offers opportunities for sustainable acquisition.

Question: Do we report on the number of contracts or the number of actions/purchases on each contract?

Response: Only report the contracts themselves, not the number of purchase actions on a contract. For example, if you have 1 custodial contract for services and another contract for products,report that as 2 contracts.

Question: Do we have to report even if we have no new contracts in the applicable fiscal year?

Response: Yes. If, in the year being reported on, your site has no contracts, modification to contracts, or other contractual implements, be sure to note that.

Question: Because the CRD (contractor requirements document) no longer references the sustainable acquisition requirements, does a site still have to comply with those provisions?

Response: Yes. The sustainable acquisition compliance and reporting is a requirement of the DEAR (Department of Energy Acquisition Regulation) and is otherwise mandated by the SSPP (Strategic Sustainability Performance Plan), incorporated by reference in Order 436.1.

Question: How do we apply the contract reporting guidance if we opt to exempt ourselves from the CRD (contractor requirements document) because we have developed a Strategic Sustainability Plan and our Environmental Management System is certified to ISO14001?

Response: There is no path for exemption from the CRD. Reporting on sustainable acquisition purchasing is a requirement of the Department of Energy Acquisition Regulation, which flows down from the Federal Acquisition Regulation. The SSP is a planning document. You report the status in the DOE Sustainability Dashboard and the planning and future actions in the SSP. They should reinforce each other and not be duplicative or exclusionary.

Question: What documents should be reviewed?

Response: Any transactional document that might prove compliance may be included in this review. For example, if a construction contract is compliant by specifying the right type of materials to be includedin a renovation in the agreement itself, the review could end there. But if the necessary specificity can instead be found in the statement of work, the statement of work should be reviewed. In addition, if other information is available that proves compliance, such as product receipts, those materials can also be relied upon.

Question: What should be included in the contract for it to be counted as compliant?

Response: : All significant opportunities for sustainable acquisition must be captured. For example, if the construction contract includes replacement of light fixtures, partitions, and painting, the terms specified should include ENERGY STAR fixtures, recycled content partitions, and low VOC and/or remanufactured or biobased content paint.

Purchasing Requirements

Question: Is product x designated?

Response: The quickest way to identify whether a product is designated is to refer to the Green Product Compilation tool (https://www.sftool.gov/GreenProcurement). Rather than a long list of products, the tool groups products by category: construction, office products, etc.

Question: If a designated product is only a micropurchase (below $3500) at our site, are we required to give preference?

Response: Yes. "The procurement requirements in subparts 23.1, 23.2, 23.4, and 23.7 apply to purchases at or below the micropurchase level" (Part 13.201(f) of the Federal Register notice issued May 31, 2011 on the Federal Acquisition Regulation on Sustainable Acquisition).

Question: Where can we find designated product x?

Response: The best way to find a product with specific attributes is to specify those attributes in all contract actions, task and delivery orders, and purchasing agreements. For items not purchased through those vehicles, a website search specifying the attributes required will typically round up the desired product with specified attributes. The following products have websites denoting the manufacturers:

Question: Where can we find template language?

Response: Template language can be found at the US Department of Energy's Sustainable Acquisition website (http://www.fedcenter.gov/members/workgroups/sustainableacquisition/environmentalspecs/)

Question: How do we determine if product x meets the requirements?

Response: To determine if a product has x% of biobased or recycled content or meets a specified standard, check out the

  • Respective standards websites where qualified products are listed (see list of such websites in response to question of "Where can we find designated product x?")
  • Product's Material Safety Data Sheet
  • Labeling on the product package

Question: Do we have to report the purchase of product x?

Response: We have to give preference to all designated products, including in all new contract actions, task and delivery orders, but we do not have reporting requirements for all of the designated products. For an overview of the reporting requirements, see the DOE Sustainable Acquisition website on "Reporting" (https://www.fedcenter.gov/members/workgroups/sustainableacquisition/reporting/).

Question: Is the Priority Products list consistent with the requirements of the designated products (BioPreferred, Comprehensive Procurement Guide, ENERGY STAR, EPEAT, FEMP, WaterSense)?

Response: Yes and no. The priority products list relies upon the "Environmentally Preferable" category of the Executive Orders (which is also incorporated by reference into federal law) and, thereby, moves beyond the single attributes designated into the future where credible "ecolabels" and life cycle assessment will playa greater role.

In the context of this guidance, the priority products list is only a reference for contract action tracking review and corrective action. Sites should still rely on the CPG levels (like 10% minimum recycled content trash bags), for example, if they wish to determine compliance.


Question: Where do we find information on the performance of product x?

Response: Three main sources of information on product performance are available:

Question: How can we be sure product x will not void the warranty of the equipment it is used in?

Response: Warranties cannot preclude the use of a specific type of product, such as those with biobased or recycled content. Warranties can specify certain attributes (such as paper density or lubricant viscosity), which means we need to ensure the product in question meets those attributes.


Question:  Do we have to give preference to a designated product that costs significantly more than the parallel product without the specified attribute?

Response:  We have an exemption if a product is not reasonably priced.  It is up to each site to determine what they consider reasonably priced.  It is different at each site.  The sites that are seeking to receive acclamation as sustainable tend to allow for higher pricing than sites that do not.  Some sites set a percentage limit, saying, for example, up to 5% over is reasonable.  In the course of determining price, we need to remember that price is not just the cost of the item.  We always need to look at the life cycle cost.  Cost includes lost staff time if the "cheaper" item causes health problems (pesticides, for example).  It includes the cost of a higher energy bill if the "cheaper" item uses more energy (electrical equipment, for example).  It includes disposal costs if the "cheaper" item must be disposed of as a hazardous waste (cleaning products, for example).


Question: How are other sites tracking the purchase of designated products?

Response: How other sites track the purchase of designated products depends on each site's financial system. The sites that have SAP as their financial software have an easier time because if initially set up to track the designated products it lends itself easily to updates, including tracking contracts that have the designated products specified.  Oracle (which many DOE sites use) is not as amenable because it requires coding by IT staff to extract data out of it, especially if it was not set up with such an extraction in mind.

While we no longer have a requirement to report on specific product purchases except for biobased products and EPEAT registered products, sites wishing to receive recognition via GreenBuy and Sustainability Awards will want to track their purchases of the DOE Priority Products.  Basically we have two systems for gathering data:

  • Imbed the requirement to report in our contracts and purchasing agreements so the vendor does the reporting.  This meshes well with our requirement to imbed the specifications of the designated products in all contracts and purchasing agreements and is the system we most recommend where feasible.
  • Extract the data out of the site's purchasing systems.  This is more onerous but possible.  To help a site set up tracking systems via the purchasing systems, bring together all staff involved, discuss the present financial software and purchasing systems (identifying which designated products are purchased via contracts, which via purchasing agreements, purchase requests, P-cards, or....) and then develop a plan for extracting data from the systems. There is software available, for instance, that can extract the data from P-Card purchases.

To learn how a few sites are tracking, see the notes of the minutes of the December 9, 2009 teleconference on tracking systems and additional information at the January 26, 2012 teleconference (https://www.fedcenter.gov/members/workgroups/sustainableacquisition/teleconferenceminutes). 


Question:What am I required to report each year for Sustainable Acquisition?

Response:We have three required annual reports for sustainable acquisition:

  1. Compliance in incorporating the sustainable acquisition requirements into contracts
  2. Purchases of electronic products that are registered to EPEAT (presently computers, displays/monitors, imaging equipment, mobile phones, and televisions/large screens)
  3. Purchases of the designated biobased products if FAR clause 52.223-2 is in your contract with DOE.

To report on numbers 1 and 2 above: Contact Steve Bruno (Tel. 202-287-1766, E-mail steve.bruno@ee.doe.gov).

To report on number 3 above: Go to the System for Award Management website (www.sam.gov) and create a user account. Follow instructions from there for reporting.

  • To be able to report at www.sam.gov, the correct information must be entered in the Federal Procurement Data System (FPDS) by your Contracting Officer. The Contracting Officer must select "biobased" in Field 8L for your DOE contract that is posted in FPDS.
  • If you find you are unable to report at www.sam.gov, then submit the biobased report to your Contracting Officer.

For up-to-date Sustainable Acquisition reporting information, check out the DOE Sustainable Acquisition reporting webpage (https://www.fedcenter.gov/members/workgroups/sustainableacquisition/reporting/)

Question:What does the "GreenBuy Award Program" reporting refer to?

Response: To receive recognition for meeting sustainable acquisition goals beyond the requirements, see the Priority Products list (https://www.fedcenter.gov/members/workgroups/sustainableacquisition/priorityproducts/). Reporting on meeting the Priority Products goal nominates DOE sites for the GreenBuy Award.

Question: What if products are not part of a contract but are purchased by the site separately, such as off a supply schedule or as an individual purchase card purchase?

Response: Such products are not part of the contracts reporting. If corrective action is needed for product purchases not pertaining to contracts (including developing a system or process to ensure compliance), please describe that when reporting and in your Site Sustainability Performance Plan. For example, if a DOE site finds staff have been purchasing virgin paper with their purchasing card, describe the corrective action planned to ensure that paper purchases in the future will comply with the requirement (minimum of 30% post-consumer recycled content). Should the site be striving to achieve a GreenBuy award then the goal to meet would be 100% post-consumer recycled content.

Question:What if the types of contracts requiring reporting (construction and custodial, for example) are embedded in a larger contract, such as a site management contract?

Response:Only the portion of the contract applicable to the review categories must be reported on. However, sites are strongly encouraged to review the rest of the contract for compliance with the EO 13514 requirement and report information on that as well.

Question:We have hundreds of contracts each year. What percent of contracts must be reviewed to be recognized as a statistically valid sample?

Response:At least 5 percent but no fewer than 10 individual contract actions per quarter. Check with your Contracting Officer to ensure you are meeting the minimum requirement. For example if 5 percent is the minimum requirement and there are 400 contracts in one fiscal year, a site would review at least 20 of those contracts, ensuring the selection is random and will yield a representative sample. One way to accomplish that might be to review all contracts in a particular quarter only, provided that quarter is representative of all four. But if there are only a few such contracts in a fiscal year, sampling is not warranted. If a sampling approach is taken, sites must provide details of the selection criteria.

For DOE Sustainable Acquisition questions, contact Shab Fardanesh (202-586-7011).

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