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Session 14: Other Legal Issues & Trends

Thursday, July 17, 1997
2:45 - 4:00 pm

Speakers:

Moderator:

The objective of this session was to provide the most up-to-date status of the latest trends and legal proposals impacting the procurement of environmentally preferable products within the federal government.

The moderator, Jim Weiner, Department of Interior (DOI), introduced the session by reviewing Executive Order 12873 sections pertaining to EPP. He observed that most people agree with the concept of EPP but specific federal implementation actions can be contentious. For example, EPA's ongoing attempt to provide written guidance on the role and use of third party certifications has been contentious. DOI believes that the authority is there and supports EPA's EPP guidance.


Speaker 1: Charles Smith, Cytor Corporation

Mr. Smith explained his role as a consultant to federal agencies on procurement issues. He helps federal clients identify environmental products, achieve compliance with EPP requirements. During his presentation, several questions were asked regarding the extent to which his role treaded on the ground of "inherently governmental function" and the extent to which government agencies might be abrogating their responsibilities by allowing him to develop strategies for selecting sources of supply.


Speaker 2: Richard Holcomb, U.S. Department of Agriculture

Mr. Holcomb explained a new venture capital program within USDA to commercialize agricultural-based products. He observed that EPP adds another dimension to the standard procurement considerations of price, quality, and timeliness. He provided information on the history of the program. The 1990 farm bill created an alternative agricultural research and commercialization center. It created a venture capital group that does marketing and business consulting, creates demand, price preferences, and other incentives to encourage the commercialization of "sustainable" agricultural products. The project has invested $28 million and is authorized to spend $75 million. A list of projects that have received support is posted on the Internet. The program intends to expand to a FAR case, extending it to the entire federal community. Thus far there has been no resistance to this approach from the private sector. Other agencies might look to this program as a model for similar marketing efforts for products demonstrating EPP principles.


Speaker 3: E. Donald Elliott, Paul Hastings, et. al.

Mr. Elliot discussed the Coalition for Truth in Environmental Marketing, an ad-hoc organization concerned with eco-seal and consumer information about the environmental attributes of products. He pointed out that it is important that government not be arbitrary in procuring "environmentally preferable" products. The subject is fraught with judgement calls, uncertainties, complexities. He used the example of the decision between a plastic, paper, or ceramic cup. A study by the Natural Resources Defense Council shows that a ceramic cup must be used more than 600 times to be better than a paper cup, from an energy conservation standpoint. Life Cycle Analysis tools are not yet available to add other environmental attributes into the mix to make the trade-offs. He said that no one can develop a simple list; there is no way to simplify the purchasing decision; and there are problems using third parties to certify and verify environmental claims.


Speaker 4: Scott Riback, General Accounting Office

The General Accounting Office (GAO) is responsible for overseeing federal agency compliance with the 1984 Competition in Contracting Act (as amended). The key concept in the law is fair and open competition. He pointed out that EPP is only one of several competing interests in the government contracting arena. He provided examples drawn from GAO cases. The most typical complaint investigated by GAO deals with specifications that restrict competition by being drawn too narrowly.


Speaker 5: David van Hoogstraten, EPA, Office of Policy Planning and
Evaluation

Mr. Van Hoogstraten of EPA's Office of Policy Planning and Evaluation discussed international trade issues and how EPP considerations must be consistent with a variety of international laws and regulations such as Most Favored Nation status, World Trade Organization mandates, etc. In a global marketplace, federal agencies procure goods made overseas. The United States has disputed the EU Ecoseal because it does not take local conditions into consideration; nor does it require a consensus process. He pointed out that issues in the environmental arena involve judgement calls; objective, measurable standards are not available. A lively question and answer session hit on several key issues being debated, such as third party certification. The main concern is the delegation of government authority. A representative of a third party certification organization argued that opponents try to make the issue seem more complex than necessary and that decisions about the majority of products can be based on clear, objective data. He also feels that it's perfectly legitimate to focus on one key attribute at a time.

One person asked a question about the type of environmental information available to employees making purchases with government credit cards. The panelists agreed that the government must substantiate "green" products identified in catalogs.

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