EPA's Final Guidance on Environmentally Preferable Purchasing - Appendices
Key Policy, Guidance Documents
As published by the EPA on August 20, 1999.
- Appendix A: Glossary of Terms
- Appendix B: Environmental Attribute
- Appendix C: Sample EPP Policy Directive
- Appendix D: Text of Policy Letter on Use of Non-Governmental Entities Issued By the Office of Federal Environmental Executive and U.S. Environmental Protection Agency, April 1998
- Appendix E: Pilot Project Case Study Template
Appendix A: A Glossary of Terms
Acquisition - means the acquiring of products and services (including construction) by contract with appropriated funds by and for the use of the Federal government through purchase or lease, whether the supplies or services are already in existence or must be created, developed, demonstrated, and evaluated. Acquisition begins at the point when agency needs are established and includes the description of requirements to meet those needs, solicitation and selection of sources, award of contracts, contract financing, contract performance, contract administration, and those technical and management functions directly related to the process of fulfilling agency needs by contract. (EO 13101, Section 201)
Bio-based products - are defined as commercial or industrial products (other than food or feed) that utilize biological products or renewable, domestic, agricultural (e.g., plant, animal and marine), or forestry materials. (EO 13101, Section 201)
Environmentally preferable - products or services that have a lesser or reduced effect on human health and the environment when compared with competing products or services that serve the same purpose. The product or service comparison may consider raw materials acquisition, production, manufacturing, packaging, distribution, reuse, operation, maintenance, or disposal. (EO 13101, Section 201)
Life cycle assessment - means the comprehensive examination of a products environmental and economic aspects and potential impacts throughout its lifetime, including raw material extraction, transportation, manufacturing, use, and disposal. (EO 13101, Section 201)
The International Standards Organization, through ISO 14040, has defined life cycle assessment slightly differently as follows: Compilation and evaluation of the inputs, outputs, and the potential environmental impacts of a product system throughout its life cycle.
Life cycle cost - means the amortized annual cost of a product,including capital costs, installation costs, operating costs, maintenance costs and disposal costs discounted over the lifetime of the product, according to OMB Circular A-94 and Executive Order 13101, Section 201. However, this definition does not include external costs (i.e., those not borne directly by the entity that owns and operates a product/service, such as environmental costs to society at large). For the purposes of this guidance, EPA encourages agencies to consider all internal and external costs associated with a product, process, or activity throughout its entire life cyclefrom raw materials acquisition to manufacture, recycling and final disposal.
Non-governmental entities - within the context of this guidance, non-governmental entities include, but are not limited to, voluntary consensus standards bodies (see§ 12(d) of the National Technology Transfer and Advancement Act (Pub. L. 104-113, §12(d), 15 U.S.C. 272 note), environmental standard setting organizations, third party certification programs, environmental labeling or environmental "report card" programs and other environmental consulting organizations.
Pollution prevention - "source reduction," as defined under the Pollution Prevention Act of 1990 (42 U.S.C. § 13102), and other practices that reduce or eliminate the creation of pollutants through: increased efficiency in the use of raw materials, energy, water, or other resources; or protection of natural resources by conservation..
The Pollution Prevention Act defines source reduction to mean any practice that:
Reduces the amount of any hazardous substance, pollutant, or contaminant entering any waste stream or otherwise released into the environment (including fugitive emissions) prior to recycling, treatment, or disposal
Reduces the hazards to public health and the environment associated with the release of such substances, pollutants, or contaminants.
The term includes: equipment or technology modifications, process or procedure modifications, reformulation or redesign of products, substitution of raw materials, and improvements in housekeeping, maintenance, training, or inventory control.
B: Environmental Attributes
Below is a list of environmental attributes that can help Executive agencies assess the environmental performance of products and services. This list, viewed from a life cycle perspective can enable Executive agency purchasers to select the product or service that minimizes adverse environmental impact. Although, it is a preliminary list of the major sources of potential human health and environmental risk, this source should not be considered definitive. Definitions for each of the attributes follow the list. Agency personnel can use this list in two ways:
To provide a framework for identifying the most important environmental attributes of products and services, and using that information in product or service comparisons.
As a check list of environmental issues to consider when designing and acquiring systems or buildings.
Not all of the environmental attributes will apply to each product or service; indeed, in some cases, information on just a few key environmental attributes will enable Executive agency personnel to determine environmental preferability.
The list of environmental attributes suggests that Federal agency personnel can use two different approaches to soliciting information from providers of products and services. The first includes consideration of releases of pollutants that occur during the life-cycle of the product. In the research on product life-cycle assessments that have been conducted over the past several years, these releases are known as ``inventory'' items. Alternatively, the risks (or risk surrogates) associated with various life-cycle stages of a product can be identified. This approach seeks to identify actual environmental impacts rather than solely environmental releases. When calculating risks, general population (both environmental and human) exposures and occupational exposures need to be considered. Executive agencies may consider using both risk and release data in their decisions to purchase environmentally preferable products and services.
If product and service providers use this list as a basis for making environmental marketing claims, the claims should conform to the FTCs Guides for the Use of Environmental Marketing Claims (Green Guides), 16 C.F.R. Part 260). A copy of the Green Guides can be obtained through FTCs Web site [http://www.ftc.gov]. Any party making a claim (or an independent third party that is certifying a claim) concerning a product's environment attribute must, at the time the claim is made, possess and rely upon a reasonable basis for substantiating the claim (16 C.F.R.§ 260.5). A reasonable basis consists of competent and reliable evidence. In the context of environmental marketing claims, such substantiation will often require competent and reliable scientific evidence, defined as tests, analyses, research, studies, or other evidence based on the expertise of professionals in the relevant area, conducted and evaluated in an objective manner by persons qualified to do so, using procedures generally accepted in the profession to yield accurate and reliable results.
The Green Guides state that either an unqualified or inadequately qualified claim that a product is "environmentally preferable" implies to consumers that a product is generally environmentally superior to others. "Environmentally preferable" claims should be accompanied by language limiting the superiority claim to the particular attributes that can be substantiated. For example, Green Guides state that environmental seals-of-approval should be accompanied by information on product labels explaining the basis for the award.
Executive agency personnel are reminded that the attributes listed and defined below are not comprehensive. In addition, Executive agency personnel should note that not all of these attributes will be applicable to every product or service. Furthermore, different attributes may be applicable to each product or service life cycle stage being considered.
A. Natural Resources Use
Ecosystem impacts, such as endangered species, wetlands loss, fragile ecosystems, erosion, animal welfare, etc.
Energy consumption, which can serve as an indicator of acid rain, climate change potential, air pollution, and associated human health risks.
Water consumption which can serve as an indicator of water quality impacts, risks to aquatic ecosystems, and degradation of drinking water resources.
Non-renewable resource consumption, which can serve as an indicator of acid rain, climate change potential, air pollution, and associated human health risks and risks to endangered species and fragile ecosystems.
Renewable resource consumption, which can serve as an indicator of loss of biodiversity and increased erosion. Although in many cases the use of renewable resources is considered environmentally preferable to use of nonrenewable resources, products made from renewable resources may also have negative environmental impacts (e.g., ethanol is derived from a renewable resource, yet its manufacture can lead to releases of VOCs).
B. Human Health and Ecological Stressors
- Bioaccumulative pollutants.
- Ozone depleting chemical global warming gases.
- Chemical releases
(Toxics Release Inventory (TRI) list chemicals or others.)
- Ambient air releases
(other than TRI, including volatile organic compounds and particular matter).
- Indoor environmental releases
(consumer and occupational).
- Conventional pollutants released to water.
- Hazardous waste.
- Non-hazardous solid waste
(e.g., municipal solid waste, large volume waste, surface impoundments).
- Other stressors.
C. Hazard Factors Associated With Materials
Human Health Hazards:
- acute toxicity
- developmental/reproductive toxicity
- other chronic toxicity
- aquatic toxicity
- avian toxicity
- terrestrial species toxicity
D. Positive Attributes
The attributes listed below are viewed as positive because they either serve as proxies for minimizing natural resource use or avoiding waste and the associated environmental impacts identified in A, B, and C. These attributes also are linked to authorities and requirements in statutes or executive orders that encourage the Federal government to promote their use. "Recyclability" and "recycled content" are attributes encouraged under RCRA. There are executive orders that encourage Federal agencies acquire bio-based products, and to promote energy efficiency and water conservation. "Durability", "reusability", "take-back", and "reconditioned or remanufactured" are positive attributes that encourage source reduction."Product disassembly potential" increases the potential for source reduction and recycling of product components. Agencies should note that the presence of these attributes alone does not automatically make a product or service environmentally preferable. When making purchasing decisions, executive agencies should consider a range of environmental impacts associated with products from a life cycle perspective when making purchasing decisions.
- Recycled content
- Product disassembly potential
- Reconditioned or remanufactured
- Energy efficiency
- Water efficiency
- Other attributes with positive environmental effects
A. Natural Resource Use
Ecosystem impacts- adverse impacts on the ecosystem, for example, endangered species, wetlands loss, fragile ecosystems, erosion.
Energy consumption- the total amount of energy consumed for product or service manufacture, use, and disposal. Different sources of energy are associated with different environmental impacts.
Water consumption- refers to the water resources that are consumed or used, which can serve as an indicator of water quality impacts, risks to aquatic ecosystems, and degradation of drinking water resources.
Non-renewable resource consumption- those resources consumed that are not renewable in 200 years (e.g., fossil fuels, minerals). This can serve as an indicator of acid rain, climate change potential, air pollution, and associated human health risks and risks to endangered species and fragile ecosystems.
Renewable resource consumption- refers to a continuum of resources, from those that are renewable in under 200 years, such as timber-based products, which can serve as an indicator of biodiversity loss and increased erosion, to those which are renewable in less than 2 years, such as grain-based feed stocks.
B. Human Health and Ecological Stressors
Bioaccumulative pollutants- those chemicals that bioconcentrate in the environment as described in the Significant New Use Rule for new chemicals. (40 CFR 721.3.)
Ozone depleting chemicals- defined in the Protection of Stratospheric Ozone Final Rule. (58 FR 65018, December 10, 1993.)
Global warming gases- listed in Climate Change 1992, The Scientific Report on the IPCC Scientific Assessment. (Table A 2.1.)
Chemical releases- ambient releases of chemicals of concern such as those reported in the TRI of the Emergency Planning and Community Right-to-Know Act. The current list is reported in 40 CFR 372.65.
Ambient air pollutants- pollutants for which ambient air quality standards have been developed. (40 CFR 50.4- 50.12.) These pollutants include nitrogen dioxide, sulfur dioxide, ozone precursors, particulate matter, carbon monoxide, and lead.
Indoor environmental releases- releases to an indoor environment of potentially hazardous chemicals such as those reported in the TRI in both occupational and consumer settings.
Conventional pollutants- defined in 40 CFR 401.16. These pollutants include biochemical oxygen demand, total suspended solids, fecal coliform, pH, and oil and grease.
Hazardous waste- Quantity of Resource Conservation and Recovery Act (RCRA) hazardous waste as defined in 40 CFR 261.3.
Non-hazardous waste- solid waste as defined in 40 CFR 261.3. Includes municipal solid waste, large volume waste (e.g., oil and gas, mining, etc.) and solids disposed of in surface impoundments.
Other stressors- any other stressors associated with the product or service but not captured elsewhere.
C. Factors Associated With Materials
Human Health Hazards
Acute toxicity- the potential of a chemical substance to cause adverse health effects from short-term exposure.
Carcinogenicity- defined by EPA through a weight-of-evidence approach. (51 FR 33992, September 24, 1986 and 61 FR 17960, April 23, 1996.) When quantification is possible, slope factors or other measures such as LED10 can also be used to express carcinogenic potency.
Development/reproductive toxicity- adverse effects on the developing organism that result from chemical exposure prior to conception (i.e., either parent), during prenatal development, or, postnatally, to the time of sexual maturation. (56 FR 63798, December 5, 1991.) Reproductive toxicity is any adverse effect on an organism's ability to reproduce. (61 FR 56274, October 31, 1996.)
Immunotoxicity- any adverse effect on an organism's immune system that results from exposure to a chemical substance.
Irritancy- defined according to the Occupational Safety and Health Administration (OSHA) Hazard Communication Standard (29 CFR part 1910.1200) or other standard scales such as EPA or Organization for Economic Cooperation and Development (OECD) Guidelines (EPA 712-C-98-196, August, 1998.)
Neurotoxicity- any adverse change in the development, structure, or function of the central and peripheral nervous system following exposure to a chemical agent (59 FR 42272, August 17, 1994.)
Sensitization- an immunologically mediated cutaneous reaction to a substance. EPA test methods for evaluating sensitization potential are found in 40 CFR part 798.4100.
Other chronic toxicity- the potential of a chemical substance to cause an adverse effect on any organ or system following absorption and distribution to a site distant from the toxicants entry point.
Corrosivity- dermal corrosion is defined by EPA as the production of irreversible tissue damage in the skin following application of a test substance. Test methods for evaluating dermal corrosion can be found in the harmonized Office of Prevention, Pesticide and Toxic Substances (OPPTS) guidelines for acute dermal irritation. (OPPTS 870.2500.) These guidelines harmonize the TSCA, FIFRA and OECD requirements in this area. The OSHA HazCom Standard listed above for irritancy also explicitly or implicitly covers corrosivity, sensitization, neurotoxicity, and all other toxic endpoints.
Flammability- defined by the OSHA HazCom Standard (29 CFR 1910.1200) and ignitability is defined in 40 CFR part 261.21.
Reactivity- defined in 40 CFR 261.23.
Aquatic toxicity- the potential of a substance to have an adverse effect on aquatic species. Measurement methods for aquatic toxicity can be found in 40 CFR part 797, subpart B.
Avian toxicity- the potential of a substance to have an adverse effect on avian species.
Terrestrial species toxicity- the potential of a substance to have an adverse effect on terrestrial species, other than man.
D. Positive Attributes
The following attributes are generally viewed as positive because they either serve as proxies for minimizing natural resource use or avoiding waste and the associated environmental impacts identified in A, B and C. Agencies should note that the presence of these attributes alone do not automatically make a product or service environmentally preferable. Executive agencies should consider a range of environmental impacts associated with products from a life cycle perspective when making purchasing decisions.
(1) Recycled content: Materials that have been recovered from the solid waste stream, either during the manufacturing process (pre-consumer), or after consumer use (post-consumer) (see Federal Trade Commission Environmental Marketing Guides mentioned above for more detail). Executive agencies are required to purchase EPA-designated items with recycled content (40 C.F.R. Part 247). Purchasers may want to consider whether the material contains pre-consumer or post-consumer recycled content. Recycled content, under the Federal Trade Commission guides, includes recycled raw material, that would have otherwise been incinerated or land filled, as well as used, reconditioned and remanufactured components. For products that are only partially made of recycled material, a recycled claim should indicate the percentage, by weight, of recycled content in the finished product. Unless it is otherwise clear from the context of the sale, for products that contain used, reconditioned or remanufactured components, a recycled claim should make clear that such components are used, reconditioned or remanufactured. Manufacturers scrap material that would have, in any case, been incorporated into the product does not qualify as recycled under the Federal Trade Commissions guides. Refer to 16 C.F.R. § 260.7(e).
(2) Recyclability: Refers to products or materials that can be collected, separated or otherwise recovered from the solid waste stream for reuse, or in the manufacture or assembly of another package or product, through an established recycling program. For products that are made of both recyclable and non-recyclable components, the recyclable claim should be adequately qualified to avoid consumer deception about which portions or components are recyclable. In addition, unless recycling collection programs for the product are available to a substantial majority of communities or consumers where the product is sold, claims of recyclability need to be qualified to indicate the limited of availability of recycling collection sites. A product that is made from recyclable material, but, due to its shape, size or some other attribute, is not accepted in recycling programs for such material, should not be marketed as recyclable. Refer to the FTC Environmental Marketing Guides, 16 C.F.R. § 260.7(d).
(3) Product disassembly potential: Refers to the ease with which a product can be disassembled for maintenance, parts replacement, or recycling.
(4) Durability: Refers to the expected lifetime of the product.
(5) Reusability: Refers to how many times a product may be reused. Since reusable products generally require more up-front costs than disposable products, they are often subjected to a cost/benefit analysis in order to determine the life cycle cost.
(6) Reconditioned/Remanufactured: Refers to the process of restoring used, durable products to meet original performance standards. Remanufacturing has many other names, including: rebuilding (automotive sector); retreading (tire remanufacturing); reconditioning; and refurbishing. Remanufacturing results in less waste and raw material and energy use.
(7) Take-back: Refers to the manufacturer or designee accepting a return of end-of-life product; who pays for the transportation of the product may be situation-specific.
(8) Bio-based: Refers to a commercial or industrial product (other than food or feed) that utilizes biological products or renewable, domestic, agricultural (plant, animal and marine), or forestry materials.
(9) Energy efficiency: Refers to products that meet or exceed the Department of Energy (DOE)/Federal Energy Management Programs product energy efficiency recommendations which identify the top 25 percent of energy efficiency for all similar products or that meet the energy efficiency criteria of the Environmental Protection Agency (EPA)/DOE Energy Star program.
(10) Water efficiency: Refers to any plumbing fixtures that meet or exceed the Department of Energys Federal Energy Management Program recommended performance standards for flow rates.
(11) Other attributes: Refers to any other positive attributes that are associated with the product but are not listed here.
Appendix C: Sample EPP Policy Directive
Environmentally Preferable Purchasing Policy
The purchase and use of products and services can have a profound impact on the environment. [NAME OF DEPARTMENT OR AGENCY] recognizes the positive impact that it can make on the environment through the purchasing decisions that its employees make. It is the intent of [NAME OF DEPARTMENT OR AGENCY] to integrate environmental considerations into every aspect of acquisition. Although the environment may not be the core of our professional mission, the integration of these factors will result in economic, health, and environmental gains that will further our goals.
Overall Statement of Policy
[NAME OF DEPARTMENT OR AGENCY] is committed to the following:
Appendix D: Text of Policy Letter on Use of Non-Governmental Entities Issued By the Office of Federal Environmental Executive and U.S. Environmental Protection Agency, April 1998
Pilot Project Approach on Use of Non-Governmental Entities to Implement Section 503 of Executive Order 12873 on Federal Acquisition, Recycling and Waste Prevention
as issued by the Office of Federal Environmental Executive and EPA on April 24, 1998
Section 503(a) of Executive Order 12873 directs EPA to "issue guidance that recommends principles that Executive agencies should use in making determinations for the preference and purchase of environmentally preferable products." Section 503 (b) states that Executive agencies shall use EPA's guidance to "identify and purchase environmentally preferable products" and to "modify their procurement programs by reviewing and revising specifications, solicitation procedures, and policies as appropriate."
On September 28, 1995, EPA issued a proposed Guidance on the Acquisition of Environmentally Preferable Products and Services which includes a series of principles that are intended to guide Federal purchasers as they consider environmental preferability in their acquisition decisions. This proposed Guidance was the culmination of numerous discussions EPA had with staff from key purchasing agencies and departments as well as representatives from industry and environmental and other interested organizations.
In EPA's proposed Guidance (Supplementary Information - Section III (E)), EPA acknowledged the existence of non-governmental entities -- including, but not limited to, environmental standard setting organizations, third party certification programs, environmental labeling or environmental "report card" programs and other environmental consulting organizations -- to which Executive agencies, in appropriate circumstances, may refer for technical assistance1 in meeting the Executive Order goals.
In this paper, EPA suggests a pilot project approach to test the utility of various means of using non-governmental entities to achieve environmentally preferable purchasing goals. This pilot project approach will be publicized through a Notice of Availability in the Federal Register. Ultimately the findings from the pilot project approach will provide practical information to EPA in the development of its final Guidance.
Spectrum of Approaches
First, it must be emphasized that Executive agencies may choose to implement EPA's proposed Guidance without technical assistance from non-governmental entities. A number of on-going environmentally preferable purchasing (EPP) pilot projects are relying successfully on the in-house environmental and procurement expertise of EPA and the partnering Executive agency (e.g., General Services Administration and the Department of Defense). Therefore, this paper should in no way be interpreted as an EPA endorsement of a specific non-governmental entity, organization or program, nor should agencies feel obligated in any way to utilize the technical assistance of such entities.
However, to the extent that the Agencies are interested in tapping the expertise that resides outside the Government, EPA concludes that Agencies, in carrying out existing mandates for environmentally preferable purchasing may use non-governmental entities in accordance with appropriate operating guidelines. Executive agencies should note that they must avoid favoring, without reasonable justification, one non-governmental entity over another. Executive agencies should also inform their personnel about the Federal Trade Commission's Guides for the Use of Environmental Marketing Claims which govern environmental claims made by anyone, including manufacturers or environmental labeling or "report card" programs.
Thus far, EPA has identified a number of different potential approaches for how Executive agencies could use the technical expertise of non-governmental entities in furthering their environmentally preferable purchasing goals. All of the potential approaches described below require that the Executive agencies involved critically examine all information from non-governmental entities. The Executive agencies involved, and not the non-governmental entities, must make all final determinations regarding environmental preferability.
This list of approaches is not comprehensive. Agencies are encouraged to bring to EPA's attention other potential approaches for using non-governmental entities. In utilizing an approach, agencies have considerable discretion in incorporating environmental preferability into procurement decisions. For example, environmental considerations that result in limiting competition or in the payment of a price premium for goods or services may be reasonably related to an agency's definition of its "minimum needs" and therefore permissible.
Approach 1: Use of Existing Information Developed
by Non-governmental Entities
Executive agencies' personnel could use existing information developed by non-governmental entities regarding environmental preferability of products and services, along with other available information (such as product performance and price) in defining the requirements for procurements and making more informed procurement and acquisition decisions. For example, Agencies might consider undertaking pilot projects to test the utility of non-governmental entities in the following instances:
a) Executive agencies could examine and evaluate already existing environmental criteria or standards developed by non-governmental entities for products or product categories (as well as for services or service categories), along with other available information, to identify a range of environmental attributes which can inform the agencies' own determinations of environmental preferability. Those determinations of environmental preferability could then translate into agency requirements, or at the very least, important criteria in the evaluation and selection of competing vendors or manufacturers.
b) In buying commercial items off-the-shelf, Executive agencies could inform their personnel to take into consideration environmental information (e.g., environmental claims, product profiles, "report cards", or environmental seals along with accompanying explanation, etc.,) either displayed on the products or provided through product literature or other materials (e.g., newsletters) in making purchasing decisions. This environmental information could be provided by vendors or manufacturers or by non-governmental entities. Executive agency personnel should be cautioned to avoid making their purchasing decisions on broad claims of environmental superiority.2
c) At the request of vendors or manufacturers, an Executive agency could include in its catalogs or schedules symbols from non-governmental entities denoting certain environmental characteristics, provided that (1) these symbols are accompanied by additional information that specify the reasons why a product has been "tagged" with a symbol; (2) the catalogs or schedules clearly emphasize that Executive agency personnel are not required to purchase products or services that are tagged; and (3) procurement officials should not rely on the symbols to make purchasing decisions, but instead, are required to take into account the environmental information underlying the symbol for relevance to the procurement.3 Agencies including such symbols in their schedules or catalogs should ensure that their employees receive appropriate guidance in utilizing this approach. Vendors or manufacturers who choose not to obtain a seal or other symbols denoting certain environmental characteristics from non-governmental entities may nevertheless also request that environmental information about their products be included in the agency's catalogs or schedules.
This option will be piloted on a limited basis so that it can be closely monitored to determine its effectiveness.
d) On its own initiative, an Executive agency could tag products or services in its catalogs or schedules with its own symbol which denotes environmental characteristics that the Executive agency, through its own determination, deems preferable. This symbol could be based on existing information (e.g., environmental claims, product profiles, "report cards", or environmental seals along with accompanying explanation, etc.) available from non-governmental entities or from vendors or manufacturers themselves. This symbol should be accompanied by specific information explaining the basis for "tagging" a product as well as the source of the information. Catalogs or schedules should emphasize that Executive agency personnel would not be required to purchase products or services which are tagged, but are requested to take into account the environmental information underlying the symbol for relevance to the procurement.
Approach 2: Use of Non-governmental Entities as Certifiers
of Specific Claims
Executive agencies could require vendors or manufacturers to have specific, measurable and verifiable claims certified by qualified non-governmental entities. A product's percentage content of volatile organic compounds (VOCs), for example, would be considered measurable and verifiable. The rationale behind this approach is that credible certification by non-governmental entities (or actual evidence from vendors or manufacturers themselves) could increase the credibility of claims that may be displayed on products. Such certification, or a vendor's or a manufacturer's ability otherwise to prove particular claims of environmental preferability, could be a prerequisite for competitive consideration.
This approach assumes that (1) no particular non-governmental entity is favored (without reasonable justification) over any other non-governmental entity; and (2) vendors or manufacturers who choose not to be certified by non-governmental entities are provided the opportunity to present credible evidence that their products or services conform to established standards.
Approach 3: Use of Non-government Entities as "Consultants"
under Advisory and Assistance Contracts
Pursuant to the competitive contracting process as set forth in the Federal Acquisition Regulation (FAR), non-governmental entities could provide consulting services to Executive agencies. Non-governmental entities may provide advice and recommendations about environmentally preferable purchasing, for example, through the identification of key environmental characteristics of product categories. Under this approach, Executive agencies would define environmental preferability with the assistance of a non-governmental entity on a procurement-by-procurement basis. As per FAR Subpart 9.5, Executive agencies must fully consider the potential for conflict of interest concerns where a non-governmental entity may be unable to render impartial advice or assistance because of private business or financial interests. Also, Executive agencies should make every effort to maximize competition in awarding these advisory and assistance contracts to avoid any exclusive or preferential relationship with any particular non-governmental entity. Finally, the environmental preferability standards developed under this approach could be used as a basis for defining the agency's "minimum needs" in particular procurements and for developing criteria for evaluating competing vendors.
EPA's Suggested Next Steps
One of the key tenets of EPA's proposed Guidance is to have Executive agencies undertake a series of pilot projects that can demonstrate the applicability and workability of the guiding principles as contained in EPA's proposed Guidance. The success of our efforts depends on learning from these pilot projects and sharing the results widely among the different Executive agencies. It is in this spirit that EPA strongly encourages Executive agencies to enter into pilot projects that test the potential approaches for using non-governmental entities as described above.
Moving forward with this non-governmental entities pilot approach is desirable for a number of reasons:
EPA can capture the lessons from the pilots and share them among the Executive agencies so that there is no duplication of effort;
we can determine where the use of expertise outside of the government is appropriate and useful and where it is not; and
the net effect of creating a market for such EPP services may encourage increased competition among existing and new organizations or programs that can support Federal procurement of environmentally preferable products and services. Ultimately, the results from this and other pilot project approaches will help Executive agencies identify the most effective and practical ways to achieve the goals of environmentally preferable purchasing.
EPA recognizes that any pilot project involving a non-governmental entity will initially raise practical questions such as which non-governmental entities are legitimate and are credible and which are not; is there a need to certify a certifier? While EPA is not currently able to offer an "approved" list of non-governmental programs best suited to assist the agencies, it is prepared to provide assistance to Executive agencies on an individual procurement-by-procurement basis. As an initial step, Agencies are directed to the list of questions for evaluating non-governmental entities contained in Section III, [E] Third Party Certification Programs of EPA's proposed Guidance on the Acquisition of Environmentally Preferable Products and Services. The list of questions is included as Appendix 1 of this letter.
Specifically, within the context of this non-governmental entity pilot project approach, EPA's Environmentally Preferable Purchasing Program in the Office of Pollution Prevention and Toxics, is prepared to:
Assist Executive agencies in structuring a pilot project involving non-governmental entities, including providing support to assess the utility of non-governmental entities on an individual procurement-by-procurement basis;
Seek out and identify non-governmental entities who have expertise in the area of environmentally preferable purchasing through a variety of means, such as, but not limited to, Federal Register notices or announcements in the Commerce Business Daily (CBD). To make such a task manageable, EPA will identify, with help and guidance from the agencies, a few product or service categories upon which to focus at first. If successful, further federal register notices or CBD announcements could be issued focusing on additional product or service categories;
Assemble a list of product categories for which eco-labeling criteria and standards have been established, both domestically and internationally for agencies to consider in developing their own criteria for environmental preferability. If appropriate, EPA will assist in such evaluations; and
Assist Executive agencies in structuring an environmentally preferable purchasing pilot project that does not involve non-governmental entities.
In turn, Executive agencies should consult with EPA when undertaking pilots which may raise environmental issues beyond their expertise (e.g., where a pilot involves consideration of the way a product is made).
Furthermore, Executive agencies who choose to undertake pilots under option 1(c ) should consult with EPA in developing a written process or procedure for the role seals or symbols and the associated information would play in their pilots. For example, agencies should provide clear guidance which specifies the importance of considering the underlying criteria, not the seal or the symbol.
As EPA and Executive agencies embark on these activities, EPA will continue to explore a number of different ways that it can address issues which are raised within the pilot project context more definitively. Executive agencies will be kept informed of developments on these issues. Agencies should inform EPA of their efforts in environmentally preferable purchasing, whether such efforts involve non-governmental entities or not in order to share lessons learned among other agencies and to aid in the evaluation of the pilot projects. In this way, EPA can make EPP concepts more practical for use within the Federal acquisition context. To facilitate this, Agencies are requested to send the attached FAX BACK form. Pilot projects involving non-governmental entities will be evaluated over a period of the next three years. EPA will use the findings from that evaluation to inform the development of its final Guidance.
For further information and to inform EPA of pilot project efforts, please contact:
Eun-Sook Goidel, Program Manager
Environmentally Preferable Purchasing Program
Pollution Prevention Division
Office of Pollution Prevention and Toxics
Telephone: 202 260-3296
Fax: 202 260-0178
For legal issues associated with use of non-governmental entities in environmentally preferable purchasing, please contact:
Tali Zemel, Esq.
Office of General Counsel
Telephone: 202 564-4708
Appendix 1. List of Questions for Evaluating Non-governmental Entities4
Executive agencies should consider the following list of questions in evaluating non-governmental entities should agencies choose to use the expertise of these programs to pilot different approaches to achieve the goals of environmentally preferable purchasing such programs. Does the program have:
an open, public process that involves key stakeholders (businesses, environmental and consumer groups, states etc.) in developing its criteria or standards?
award criteria, assumptions, methods and data used to evaluate the product or product categories that are transparent (i.e., they are publicly available, easily accessed and understandable to the lay person)?
a system of data verification and data quality?
a peer review process (with representation of all stakeholders) for developing the standards or criteria?
criteria which are developed based on a "systems" or life cycle approach (i.e., "cradle to grave")?
an outreach program to educate the consumer, which includes clear communications to consumers that provide key information concerning environmental impacts associated with the product?
an established goal of updating standards or criteria as technology and scientific knowledge advance?
authority to inspect the facility whose product is certified to ensure compliance with the standards or criteria?
testing protocols for the products that are certified which ensure testing is conducted by a credible institution?
access to obtaining the seal by small and medium sized companies (e.g., the cost of the seal is not so high as to prevent access by companies)? and
compliance with the Federal Trade Commission's (FTC) Guides for the Use of Environmental Marketing Claims?
FAX BACK FORM
Please Inform EPA about Your Pilot Project Involving the Use of Non-governmental Entities in Environmentally Preferable Purchasing!!
Type of Acquisition/Procurement:
(e.g., small purchase, credit card purchase, competitive bid, etc.)
Name of Non-Governmental Entity:
Type of Non-Governmental Entity (check all that apply):
___ environmental standard setting organizations
___ third party environmental certification programs
___ environmental labeling organizations
___ environmental report card organization
___ environmental consultants
___ other (please specify:_____________________________________)
Type of Information/Assistance Sought from Non-Governmental Entity:
___ general environmental information about a product/service category;
___ analyze life cycle and multiple environmental attributes;
___ analyze basic environmental performance characteristics for specific categories of products/services;
___ identify environmentally preferable product/service criteria for a given product category based on agencies' core environmental values;
___ identify products/services in a given category which meet agencies' predetermined set of environmental performance criteria; and
___ other (please specify:_____________________________________)
Please FAX to:
Environmentally Preferable Purchasing Program
U.S. Environmental Protection Agency
1. For example, Executive agencies might seek technical assistance from non-governmental entities to help Executive agencies:
(a) analyze life cycle and multiple environmental attributes;
(b) analyze basic environmental performance characteristics for specific categories of products/services;
(c ) identify environmentally preferable product/service criteria for a given product category based on agencies' core environmental values; and
(d) identify products/services in a given category which meet agencies' predetermined set of environmental performance criteria.
Executive agencies are reminded that they must critically
examine all information from non-governmental entities. The Executive
agencies involved, and not the non-governmental entities, must make all
final determinations regarding environmental preferability. [Back
2. The following excerpt from FTC's Guides for the Use of Environmental Marketing Claims illustrates this point: A product is advertised as "environmentally preferable." This claim is likely to convey to consumers that this product is environmentally superior to other products. If the manufacturer cannot substantiate this broad claim, the claim would be deceptive. The claim would not be deceptive if it were accompanied by clear and prominent qualifying language limiting the environmental superiority representation to the particular product attribute or attributes for which it could be substantiated, provided that no other deceptive implications were created by the context. (From FTC's Guides, (a) General Environmental Benefit Claims, Example 6) [Back to text]
3. The following excerpt from FTC's Guides for the Use of Environmental Marketing Claims provides an example of this point: A product label contains an environmental seal, either in the form of a globe icon, or a globe icon with only the text "Earth Smart" around it. Either label is likely to convey to consumers that the product is environmentally superior to other products. If the manufacturer cannot substantiate this broad claim, the claim would be deceptive. The claims would not be deceptive if they were accompanied by clear and prominent qualifying language limiting the environmental superiority representation to the particular product attribute or attributes for which they could be substantiated, provided that no other deceptive implications were created by the context. (From FTC's Guides, (a) General Environmental Benefit Claims, Example 5) [Back to text]
4. Excerpted from EPA's proposed Guidance on the Acquisition of Environmentally Preferable Products and Services. [Back to text]
Appendix E: Pilot Project Case Study Template
What does your agency/department/office do? Where is it based?
What, if anything, is unique about your efforts to purchase environmentally preferable products and services?
What were the motivating factors behind the project?
What kinds of products and services are you purchasing with environmental attributes in mind? Do you focus on a particular group of products or services? If so, why?
How have you incorporated environmental attributes into the purchasing process? Did you alter the established procurement process in any way to accommodate environmentally preferable products?
What obstacles did you encounter (if any) in incorporating environmental attributes into the purchasing process? How were these obstacles dealt with?
Did you incorporate environmental attributes into procurement specifications, standards, or policies; requests for proposals; bid announcements; manufacturer certifications; etc.? (If so, please provide examples.)
Product and Service Evaluation
How do you evaluate the products or services you purchase that have environmental attributes? Do you rely solely on information provided by vendors, or have you developed your own criteria or your own evaluation system?
Do you consider more than one attribute when evaluating a certain product (e.g., considering both recycled-content and bleaching when purchasing paper products)? If so, how do you go about taking multiple attributes into consideration?
Are products or services that meet your environmental attributes priced competitively with other comparable products or services? Do you have a price preference for products or services meeting your environmental criteria?
How do you inform vendors about your preference for products with environmental attributes?
Were vendors already providing environmental information before you requested it?
How did vendors react to your request for environmental attributes of their products?
Customer (End-User) Reactions
Who has been most affected by the changes brought about by your efforts to purchase environmentally preferable products (i.e., procurement staff, other employees, contractors, citizens, end-users)? How have they been affected?
Have you attempted to inform or educate your customers about products' environmental attributes? How?
How have customers responded to the environmental information you provided? Are you keeping track of their responses?
Have customers been pleased with the performance of environmentally preferable products (especially when compared to products that are not considered environmentally preferable)?
How are you tracking/measuring the success of your Environmental Preferable Purchasing efforts? Have you been able to quantify your success in terms of positive effects on the environment?
Have any cost savings resulted from the purchase of environmentally preferable products? How were these calculated?
Do you think your experience with purchasing environmentally preferable products could be valuable to others who purchase different products?
What are your future plans regarding the purchase of environmentally preferable products? Do you expect to incorporate additional attributes or examine other product categories? What are some of the opportunities and challenges you foresee in expanding your Environmental Preferable Purchasing efforts?