§ 6962 Federal procurement · 116-252

§ 6962.

Federal procurement

(a)

Application of section

Except as provided in subsection (b), a procuring agency shall comply with the requirements set forth in this section and any regulations issued under this section, with respect to any purchase or acquisition of a procurement item where the purchase price of the item exceeds $10,000 or where the quantity of such items or of functionally equivalent items purchased or acquired in the course of the preceding fiscal year was $10,000 or more.

(b)

Procurement subject to other law

Any procurement, by any procuring agency, which is subject to regulations of the Administrator under section 6964 of this title (as promulgated before

October 21, 1976

, under comparable provisions of prior law) shall not be subject to the requirements of this section to the extent that such requirements are inconsistent with such regulations.

(c)

Requirements

(1)

After the date specified in applicable guidelines prepared pursuant to subsection (e) of this section, each procuring agency which procures any items designated in such guidelines shall procure such items composed of the highest percentage of recovered materials practicable (and in the case of paper, the highest percentage of the postconsumer recovered materials referred to in subsection (h)(1) practicable), consistent with maintaining a satisfactory level of competition, considering such guidelines. The decision not to procure such items shall be based on a determination that such procurement items—

(A)

are not reasonably available within a reasonable period of time;

(B)

fail to meet the performance standards set forth in the applicable specifications or fail to meet the reasonable performance standards of the procuring agencies; or

(C)

are only available at an unreasonable price. Any determination under subparagraph (B) shall be made on the basis of the guidelines of the National Institute of Standards and Technology in any case in which such material is covered by such guidelines.

(2)

Agencies that generate heat, mechanical, or electrical energy from fossil fuel in systems that have the technical capability of using energy or fuels derived from solid waste as a primary or supplementary fuel shall use such capability to the maximum extent practicable.

(3)

(A)

After the date specified in any applicable guidelines prepared pursuant to subsection (e) of this section, contracting officers shall require that vendors:

(i)

certify that the percentage of recovered materials to be used in the performance of the contract will be at least the amount required by applicable specifications or other contractual requirements and

(ii)

estimate the percentage of the total material utilized for the performance of the contract which is recovered materials.

(B)

Clause (ii) of subparagraph (A) applies only to a contract in an amount greater than $100,000.

(d)

Specifications

All Federal agencies that have the responsibility for drafting or reviewing specifications for procurement items procured by Federal agencies shall—

(1)

as expeditiously as possible but in any event no later than eighteen months after

November 8, 1984

, eliminate from such specifications—

(A)

any exclusion of recovered materials and

(B)

any requirement that items be manufactured from virgin materials; and

(2)

within one year after the date of publication of applicable guidelines under subsection (e), or as otherwise specified in such guidelines, assure that such specifications require the use of recovered materials to the maximum extent possible without jeopardizing the intended end use of the item.

(e)

Guidelines

The Administrator, after consultation with the Administrator of General Services, the Secretary of Commerce (acting through the National Institute of Standards and Technology), and the Director of the Government Publishing Office, shall prepare, and from time to time revise, guidelines for the use of procuring agencies in complying with the requirements of this section. Such guidelines shall—

(1)

designate those items which are or can be produced with recovered materials and whose procurement by procuring agencies will carry out the objectives of this section, and in the case of paper, provide for maximizing the use of post consumer recovered materials referred to in subsection (h)(1); and

(2)

set forth recommended practices with respect to the procurement of recovered materials and items containing such materials and with respect to certification by vendors of the percentage of recovered materials used,

and shall provide information as to the availability, relative price, and performance of such materials and items and where appropriate shall recommend the level of recovered material to be contained in the procured product. The Administrator shall prepare final guidelines for paper within one hundred and eighty days after

November 8, 1984

, and for three additional product categories (including tires) by

October 1, 1985

. In making the designation under paragraph (1), the Administrator shall consider, but is not limited in his considerations, to—

(A)

the availability of such items;

(B)

the impact of the procurement of such items by procuring agencies on the volume of solid waste which must be treated, stored or disposed of;

(C)

the economic and technological feasibility of producing and using such items; and

(D)

other uses for such recovered materials.

(f)

Procurement of services

A procuring agency shall, to the maximum extent practicable, manage or arrange for the procurement of solid waste management services in a manner which maximizes energy and resource recovery.

(g)

Executive Office

The Office of Procurement Policy in the Executive Office of the President, in cooperation with the Administrator, shall implement the requirements of this section. It shall be the responsibility of the Office of Procurement Policy to coordinate this policy with other policies for Federal procurement, in such a way as to maximize the use of recovered resources, and to, every two years beginning in 1984, report to the Congress on actions taken by Federal agencies and the progress made in the implementation of this section, including agency compliance with subsection (d).

(h)

“Recovered materials” defined

As used in this section, in the case of paper products, the term “recovered materials” includes—

(1)

postconsumer materials such as—

(A)

paper, paperboard, and fibrous wastes from retail stores, office buildings, homes, and so forth, after they have passed through their end-usage as a consumer item, including: used corrugated boxes; old newspapers; old magazines; mixed waste paper; tabulating cards; and used cordage; and

(B)

all paper, paperboard, and fibrous wastes that enter and are collected from municipal solid waste, and

(2)

manufacturing, forest residues, and other wastes such as—

(A)

dry paper and paperboard waste generated after completion of the papermaking process (that is, those manufacturing operations up to and including the cutting and trimming of the paper machine reel into smaller rolls or rough sheets) including: envelope cuttings, bindery trimmings, and other paper and paperboard waste, resulting from printing, cutting, forming, and other converting operations; bag, box, and carton manufacturing wastes; and butt rolls, mill wrappers, and rejected unused stock; and

(B)

finished paper and paperboard from obsolete inventories of paper and paperboard manufacturers, merchants, wholesalers, dealers, printers, converters, or others;

(C)

fibrous byproducts of harvesting, manufacturing, extractive, or wood-cutting processes, flax, straw, linters, bagasse, slash, and other forest residues;

(D)

wastes generated by the conversion of goods made from fibrous material (that is, waste rope from cordage manufacture, textile mill waste, and cuttings); and

(E)

fibers recovered from waste water which otherwise would enter the waste stream.

(i)

Procurement program

(1)

Within one year after the date of publication of applicable guidelines under subsection (e), each procuring agency shall develop an affirmative procurement program which will assure that items composed of recovered materials will be purchased to the maximum extent practicable and which is consistent with applicable provisions of Federal procurement law.

(2)

Each affirmative procurement program required under this subsection shall, at a minimum, contain—

(A)

a recovered materials preference program;

(B)

an agency promotion program to promote the preference program adopted under subparagraph (A);

(C)

a program for requiring estimates of the total percentage of recovered material utilized in the performance of a contract; certification of minimum recovered material content actually utilized, where appropriate; and reasonable verification procedures for estimates and certifications; and

(D)

annual review and monitoring of the effectiveness of an agency’s affirmative procurement program.

In the case of paper, the recovered materials preference program required under subparagraph (A) shall provide for the maximum use of the post consumer recovered materials referred to in subsection (h)(1).

(3)

In developing the preference program, the following options shall be considered for adoption:

(A)

Case-by-Case Policy Development: Subject to the limitations of subsection (c)(1)(A) through (C), a policy of awarding contracts to the vendor offering an item composed of the highest percentage of recovered materials practicable (and in the case of paper, the highest percentage of the post consumer recovered materials referred to in subsection (h)(1)). Subject to such limitations, agencies may make an award to a vendor offering items with less than the maximum recovered materials content.

(B)

Minimum Content Standards: Minimum recovered materials content specifications which are set in such a way as to assure that the recovered materials content (and in the case of paper, the content of post consumer materials referred to in subsection (h)(1)) required is the maximum available without jeopardizing the intended end use of the item, or violating the limitations of subsection (c)(1)(A) through (C).

Procuring agencies shall adopt one of the options set forth in subparagraphs (A) and (B) or a substantially equivalent alternative, for inclusion in the affirmative procurement program.

Source

(Pub. L. 89–272, title II, § 6002, as added Pub. L. 94–580, § 2,

Oct. 21, 1976

, 90 Stat. 2822; amended Pub. L. 95–609, § 7(n),

Nov. 8, 1978

, 92 Stat. 3082; Pub. L. 96–482, § 22,

Oct. 21, 1980

, 94 Stat. 2346; Pub. L. 97–375, title I, § 102,

Dec. 21, 1982

, 96 Stat. 1819; Pub. L. 98–616, title V, § 501(a)–(e),

Nov. 8, 1984

, 98 Stat. 3274–3276; Pub. L. 100–418, title V, § 5115(c),

Aug. 23, 1988

, 102 Stat. 1433; Pub. L. 102–393, title VI, § 630,

Oct. 6, 1992

, 106 Stat. 1773; Pub. L. 103–355, title I, § 1554(1), title IV, § 4104(e),

Oct. 13, 1994

, 108 Stat. 3300, 3342; Pub. L. 113–235, div. H, title I, § 1301(d),

Dec. 16, 2014

, 128 Stat. 2537.)

Notes

Codification

Pub. L. 102–393, title VI, § 630,

Oct. 6, 1990

, 106 Stat. 1773, which directed that this title be amended by adding a new section 6962j, relating to a preference for recycled toner cartridges, and which had been executed by adding the provisions of purported new section as subsec. (j) of this section, to reflect the probable intent of Congress, was repealed by Pub. L. 103–355, title I, § 1554(1),

Oct. 13, 1994

, 108 Stat. 3300. Similar provisions were contained in Pub. L. 103–123, title IV, § 401,

Oct. 28, 1993

, 107 Stat. 1238, prior to repeal by Pub. L. 103–355, title I, § 1554(2),

Oct. 13, 1994

, 108 Stat. 3300.

Amendments

1994—Subsec. (c)(3). Pub. L. 103–355, § 4104(e), designated existing provisions as subpar. (A), redesignated subpars. (A) and (B) as cls. (i) and (ii), respectively, and added subpar. (B).

Subsec. (j). Pub. L. 103–355, § 1554(1), struck out subsec. (j). See Codification note above.

1992—Subsec. (j). Pub. L. 102–393 added subsec. (j). See Codification note above.

1988—Subsecs. (c)(1)(C), (e). Pub. L. 100–418 substituted “National Institute of Standards and Technology” for “Bureau of Standards”.

1984—Subsec. (c)(1). Pub. L. 98–616, § 501(c), inserted “(and in the case of paper, the highest percentage of the postconsumer recovered materials referred to in subsection (h)(1) practicable)”.

Subsec. (d)(1). Pub. L. 98–616, § 501(e), substituted “eighteen months after

November 8, 1984

” for “five years after

October 21, 1976

”.

Subsec. (e). Pub. L. 98–616, § 501(b)(2), substituted “for paper within one hundred and eighty days after

November 8, 1984

, and for three additional product categories (including tires) by

October 1, 1985

” for “for at least three product categories, including paper, by

May 1, 1981

, and for two additional product categories, including construction materials, by

September 30, 1982

.” in provisions following par. (2).

Subsec. (e)(1). Pub. L. 98–616, § 501(b)(1), inserted “, and in the case of paper, provide for maximizing the use of post consumer recovered materials referred to in subsection (h)(1)”.

Subsec. (g). Pub. L. 98–616, § 501(d), substituted “the requirements of” for “the policy expressed in” and inserted “, and to, every two years beginning in 1984, report to the Congress on actions taken by Federal agencies and the progress made in the implementation of this section, including agency compliance with subsection (d)”.

Subsecs. (h), (i). Pub. L. 98–616, § 501(a), added subsecs. (h) and (i).

1982—Subsec. (g). Pub. L. 97–375 struck out provision requiring the Office of Procurement Policy to report annually to Congress on actions taken by Federal agencies and the progress made in the implementation of the policy expressed in this section.

1980—Subsec. (c)(1). Pub. L. 96–482, § 22(1), (2), in provision preceding subpar. (A), substituted “After the date specified in applicable guidelines prepared pursuant to subsection (e) of this section, each procuring agency which procures any item designated in such guidelines shall procure such” for “After two years after

October 21, 1976

, each procuring agency shall procure”, and in subpar. (C), “subparagraph (B)” for “clause (B)”.

Subsec. (c)(2). Pub. L. 96–482, § 22(3), substituted “energy or fuels derived from solid waste” for “recovered material and recovered-material-derived fuel”.

Subsec. (c)(3). Pub. L. 96–482, § 22(4), substituted subpars. (A) and (B) for provision requiring certification of the percentage of the total material utilized for the performance of the contract which is recovered materials.

Subsec. (d). Pub. L. 96–482, § 22(5), in par. (1), substituted provision requiring Federal agencies to eliminate from specifications as expeditiously as possible, but in no event later than 5 years after

Oct. 21, 1976

, any exclusion of recovered materials and any requirement that items be manufactured from virgin materials for provision that Federal agencies in reviewing specifications, ascertain whether those specifications violate prohibitions in par. (2)(A) to (C), with such review undertaken not later than 18 months after

Oct. 21, 1976

, and in par. (2), substituted provision that Federal agencies act within 1 year from publication of applicable guidelines under subsec. (e) of this section for provision that in drafting or revising specifications after

Oct. 21, 1976

, any exclusion of recovered materials be eliminated and specifications not require the item to be manufactured from virgin materials.

Subsec. (e). Pub. L. 96–482, § 22(6), designated provision relating to requirements of guidelines as cl. (2) and subpars. (A) and (C), added cl. (1), subpars. (B) and (C), and provision preceding subpar. (A), and struck out provision requiring information on source of supply.

1978—Subsec. (c). Pub. L. 95–609, § 7(n)(1), (2), redesignated subpar. (1)(A) as par. (1), subpars. (1)(B) and (C) as pars. (2) and (3), respectively, and cls. (i) to (iii) of former subpar. (1)(A) as subpars. (A) to (C), respectively, of par. (1), and in par. (3), as so redesignated, inserted “After the date specified in any applicable guidelines prepared pursuant to subsection (e) of this section,” before “contracting”.

Subsec. (e). Pub. L. 95–609, § 7(n)(3), inserted provision dealing with certification by vendors of the materials used.

Change of Name

“Director of the Government Publishing Office” substituted for “Public Printer” in subsec. (e) on authority of section 1301(d) of Pub. L. 113–235, set out as a note under section 301 of Title 44, Public Printing and Documents.

Effective Date of 1994 Amendment

For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 2302 of Title 10, Armed Forces.

Transfer of Functions

For transfer of certain enforcement functions of Administrator or other official of Environmental Protection Agency under this chapter to Federal Inspector, Office of Federal Inspector for the Alaska Natural Gas Transportation System, and subsequent transfer to Secretary of Energy, then to Federal Coordinator for Alaska Natural Gas Transportation Projects, see note set out under section 6903 of this title.

§ 6962. Federal procurement

Federal procurement

Application of section

Procurement subject to other law

Requirements

Specifications

Guidelines

Procurement of services

Executive Office

“Recovered materials” defined

Procurement program

Codification

Amendments

Change of Name

Effective Date of 1994 Amendment

Transfer of Functions