1.0 Introduction

1.1 Purpose
Recycling conserves natural resources and etends landfill life. Buying recycled products creates a demand for those materials diverted for recycling. As the nation's largest single consumer, the Federal government plays a significant role in creating a demand for recycled products. The Department of Energy (DOE), as one of the largest purchasing agencies of the Federal government, has a significant role to play in creating a demand for recycled-content products. This document provides Department-wide guidance for implementing an effective program for buying recycled products (affirmative procurement).

1.2 Authority
The following documents establish the requirements for Federal affirmative procurement programs:

Clarification for DOE contractors: Procurement regulations are provided in Appendices C and D for the information and convenience of the Federal workforce. The clause Acquisition and Use of Environmentally Preferable Products and Services (DEAR 970.5404-39) calls for compliance with the ...U.S. Department of Energy Affirmative Procurement Program for Products Containing Recovered Materials and related guidance document(s), as they are identified in writing by the Department. That statement shall not be construed to mean that DOE contractors must follow the procurement regulations contained in Appendices C and D just because they are attached to this guidance document.

1.2.3 Executive Orders 12873 (1993) and 12995 (March 1996)

Purchasing Requirements -- President Clinton issued Executive Order 12873 Federal Acquisition, REcycling, and Waste Prevention in 1993 (Appendix E). Among other things, the Order reiterates the long-standing RCRA 6002 requirements for agencies to develop and implement affirmative procurement programs. Further, section 402 (b) of the Order states that 100 percent of an agency's EPA-designated item purchases are to contain recovered materials unless written justification is provided that the product does not meet availability, competition, performance, or price criteria.

Agency Environmental Executive

Section 302 of EO 12873 requires the designation of Agency Environmental executives who are responsible for ensuring that their agencies comply with the Order. Secretary Pena designated Dan Reicher, Assistant Secretary for Energy Efficiency and Environmental Restoration, to serve as the DOE Agency Environmental executive. The Office of Pollution Prevention (EM-77) provides staff support to the Agency Environmental executive. For assistance with affirmative procurement-related issues, contact:

Office of Pollution Prevention, EM-77
U.S. Department of Energy
19901 Germantown Road
Germantown, MD 20874-1290
(301) 903-1380

March 25, 1996, President Clinton issued Executive Order 12995, which amended Section 504 of Executive Order 12873 regarding the minimum content standard for printing and writing paper. This amendment can be found immediately following executive Order 12873 in Appendix E.

1.2.4 Environmental Protection Agency Guidelines (May 1995)

Between 1983 and 1989, EPA designated five items (paper and paper products, retread tires, re-refined lubricating oil, cement and concrete containing fly ash, and building insulation containing recovered materials). On May 1, 1995, EPA published the first Comprehensive Guideline for Procurement of Products Containing Recovered Materials (CPG I) in the Federal Register (Appendix F). The CPG designated 19 new items, organized the items into categories, and consolidated all 24 EPA-designated items in one location in the Code of Federal Regulations (40 CFR Part 247). The Recovered Materials Advisory Notice, RMAN I, for these designated items also was published in the Federal Register on May 1, 1995 (60 FR 21386)(Appendix G). The RMAN contains recommended minimum recovered content levels for most of the designated items. An alternative approach is recommended when recovered content level is not applicable.

2.0 DOE Affirmative Procurement Program for EPA-Designated Items

DOE's policy is to acquire items composed of the highest percentage of recovered/recycled materials practicable (consistent with published minimum content standards), without adversely affecting performance requirements; consistent with maintaining a satisfactory level of competition; and consistent with maintaining cost effectiveness and avoiding price premiums paid for products containing recovered/recycled materials.

2.2 Applicability

DOE meets the RCRA definition of a procuring agency and therefore must establish a written affirmative procurement program for EPA-designated items. This guidance applies to all DOE program offices and facilities, contractors operating DOE facilities, and applicable state and local agencies and is applicable for all 24 items designated by the EPA as of August 1997 as well as all items EPA designates in the future.

2.2.1 Government-Owned, Contractor-Operated or -Leased Facilities

Many DOE-owned facilities are operated by M&O contractors. DOE's M&O contractors procure many EPA-designated items in the course of performing their duties for the Department. For this reason, M&O contractors must be aware of and comply with affirmative procurement program requirements.
Department of Energy Acquisition Regulation DEAR Coverage: DOE is responsible for ensuring that existing and new contracts contain provisions for the contractor to comply with DOE's affirmative procurement program. Once the Use of Recovered/Recycled Materials, clause is included in the M&O contract, the contractor is required to comply with DOE's affirmative procurement program. M&O contractors may voluntarily comply with DOE's affirmative procurement program until such time as the contract clause is incorporated into their contracts. Applicable sections of the DEAR can be found in Appendix D.

2.2.2 State and Local Agencies

State and local agencies purchasing more than $10,000 worth of a particular EPA-designated item in a year and using some Federal funds for these purchases are required to establish an affirmative procurement program for those particular items. For example, state and local agencies may use some funds from DOE's Weatherization Assistance Program to purchase building insulation. If the agency, or the agency's contractors, purchase more than $10,000 worth of building insulation in a year and use some Federal funds for these purchases, they are required to establish an affirmative procurement program for building insulation containing recovered materials. The organization through which the funds are distributed (in this eample, the DOE Weatherization Assistance Program) is responsible for ensuring that grant recipients are aware of and comply with this requirement.

2.3 Performance and Goals

The Department has made considerable affirmative procurement progress in past years. As shown in Table 2.1, the percentage of recycled EPA-designated items purchased by DOE has been steadily increasing since Fiscal Year (FY) 1992.

To further improve upon the Department's affirmative procurement performance, the Secretary's 1996 Pollution Prevention Program Plan increases DOE's affirmative procurement goal to 100 percent by December 31, 1999 (FY 1999). These goals are applicable to all DOE Headquarters and Operations Offices, to contractors operating DOE facilities, and to applicable state and local agencies.

DOE and its contractors operate over 600 sites in 40 states. Nothing in this document negates or diminishes any state or local affirmative procurement requirement that is more stringent than a similar requirement contained in this or subsequent documents.

2.4 Preference Program

The Department's preference program for EPA-designated items uses specifications recommended by EPA in its Recovered Materials Advisory Notices (RMANs). These specifications can be found in Appendix I. This is done so that when the EPA designates additional items in subsequent years, only the appendi need be updated (in most cases), rather than the entire document.

Thousands of recycled and environmentally preferable products are available to procuring agencies and their contractors through established Federal supply sources, and new items are continuously being added. DOE strongly encourages users to consider Federal supply sources, such as the General Services Administration (GSA), the Government Printing Office (GPO), and the Defense Supply Center (DSC), for EPA-designated items and other recycled products. Information about product availability from Federal supply sources can be found in Appendix J.

2.6 Promotion Program

DOE's promotion program includes internal and external elements. The internal promotion program consists of educating program and procurement offices about requirements to procure recycled products and providing DOE employees and contractors with information on sources of recycled products. DOE's external promotion program includes making manufacturers and suppliers of recycled products aware of DOE's affirmative procurement.

2.7 Estimation, Certification, and Verification of Recycled

2.7.1 Estimation

DOE's recovered materials content levels for EPA-designated items should be specified in the statement of work. Vendors responding to bids for EPA-designated items must meet the minimum content standards; therefore, a separate estimate from the vendor regarding the percentage of recovered materials in the product is not required unless the product eceeds the recovered materials content levels specified.

2.7.2 Certification

Vendors are responsible for: 1) providing written certification to the contracting officer that their products meet minimum content standards; 2) maintaining copies of certification documents; and 3) producing copies of the written certification upon request by DOE.

2.7.3 Verification

DOE's Environmental executive shall periodically review vendor certification documents as part of the annual review and monitoring process. Such reviews shall enable DOE's Environmental Executive to verify the Department's compliance with EO 12873.

2.7.4 Exceptions

Federal supply sources such as GSA, GPO, and DSC have established their own estimation, certification, and verification procedures for EPA-designated items; therefore, program offices procuring designated items through these supply sources are not required to conduct independent estimation, certification, and verification procedures.

2.8 Annual Review and Reporting

Each year, the Office of Pollution Prevention (EM-77) requests information from field and Headquarters offices regarding their purchases of EPA-designated, recycled items during the previous fiscal year. Headquarters procurement offices, DOE-managed sites, and contractor-operated sites are required to report. Site operating contractors that purchase less than $10,000 worth of any EPA-designated item may estimate their purchase amounts. The basis for the estimates is required to be shown. DOE-managed sites and Headquarters procurement offices are required to track and report actual purchase amounts regardless of the amount of designated items purchased. When EM-77 receives field and Headquarters reports, the information is consolidated into the DOE RCRA Agency Summary Report and submitted to the Office of Federal Procurement Policy in February of each year. OFPP compiles information from Federal agencies annual reports and reports to Congress biennially.

The primary purpose of the RCRA Agency Summary Report is to capture information on the dollar amount of EPA-designated items purchased (i.e, total purchases and recycled purchases). If less than 100 percent of DOE's EPA-designated item purchases contain recovered materials,then DOE's Environmental executive must either: a) justify to the Federal Environmental executive why the items were not purchased; or b) submit a plan for how the agency intends to increase purchases of the designated item(s).

The results of the RCRA Agency Summary Report are used by DOE's Environmental executive to identify strengths and weaknesses of the Department's program and provide feedback to program and procurement offices. DOE's annual report, and subsequent reports prepared by the Federal Environmental executive and OFPP, are available for review by the public. To facilitate compliance with annual reporting requirements, DOE has developed two electronic reporting systems: the Executive Order 12873 Affirmative Procurement Reporting System (APRS) and the Recycled Materials Affirmative Procurement Tracking System (RMAPTS). APRS is an on-line version of the RCRA Agency Summary Report. RMAPTS is an automated tracking and reporting system that allows for the ongoing tracking and reporting of EPA-designated items.

2.9 Specifications Review

Program offices are responsible for reviewing and revising specifications, product descriptions, and standards during the acquisition planning stage to enhance DOE's procurement of recycled and environmentally preferable products. Standards or specifications, unrelated to performance, that present barriers to the procurement of recycled or environmentally preferable products should be revised or eliminated when reviewing or drafting procurement specifications. When converting to Commercial Item Descriptions (CID) during procurement actions, DOE and DOE contractor personnel shall ensure that environmental factors have been considered and that the CID meets or eceeds the environmentally preferable criteria of the government specification or product description. DOE's Environmental executive must provide a written plan for revising DOE specifications, standards, or product descriptions identified by the Federal Environmental executive as being inconsistent with section 6002 of RCRA . These specifications, standards, etc., must be revised within 60 days of receiving notice from the Federal Environmental executive. If revisions cannot be completed within 60 days, DOE's Environmental executive must monitor and report progress toward the revision plan. If it is not feasible to revise a specification, DOE's Environmental executive must provide justification.

2.10 Other Recycled and Environmentally Preferable Products

EPA's guidelines may not reflect those procured products or services of highest usage by DOE. Users are encouraged to request, procure, and use other products containing recovered materials in addition to those items specified in DOE's APP. Additional recycled products are available through Federal supply sources and outside vendors. In addition, EO 12873 requires EPA to issue guidance for agencies to use in making determinations for the preference and purchase of environmentally preferable products. Once the proposed guidance is issued by EPA, DOE will use these principles to identify and purchase environmentally preferable products, and will review and revise specifications, solicitation procedures, and policies where appropriate.

2.11 Life-Cycle Cost Analysis

OFPP's Policy Letter 92-4 requires Federal agencies to use life-cycle cost analyses, wherever feasible and appropriate, to assist in the selection of products and services. At this time, life-cycle cost information for EPA-designated items is not yet available. Until such information is developed and issued, DOE will rely on recovered materials content levels established by EPA.

2.12 Awards

DOE has established an annual awards program to recognize successful and innovative waste prevention, recycling, and affirmative procurement programs throughout the Department. The program is administered by the Office of Environmental Management as part of DOE's Waste Minimization/Pollution Prevention program. There is also a White House awards program for all Federal agencies that recognizes outstanding achievements in the areas of: waste prevention, recycling, affirmative procurement, environmental innovation, and model-facility demonstration

2.1 Inspector General Review

Section 603 of EO 12873 directs the President's Council on Integrity and Efficiency to request that the Inspectors General periodically review agencies affirmative procurement programs and reporting procedures to ensure compliance with the Order.

Acquisition -- the acquiring by contract with appropriated funds for supplies or services (including construction) by and for the use of the Federal Government through purchase or lease, whether the supplies or services are already in eistence 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 satisfy agency 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 128736 ]

Affirmative Procurement Program (APP) -- a program which ensures that items composed of recovered materials will be purchased to the maximum extent practicable, consistent with Federal law and procurement regulations. [RCRA, section 6002]

Certification - - written documentation provided by offerors/bidders/vendors certifying that the percentage of recovered materials contained in products or to be used in the performance of the contract is at least the amount required by applicable specifications or other contractual requirements. Certification on multi-component or multi-material products should verify the percentage of postconsumer waste and recycled material contained in the major constituents of the product. [EPA Guidelines]

Cost-Effective Procurement Preference Program -- a program that favors, where price and other factors are equal, the procurement of products and services that are more environmentally-sound or energy-efficient than other competing products and services. [OFPP Policy Letter 92-4]

EPA Designated Item -- an item that is or can be made with recovered materials and is listed by EPA in a procurement guideline. [FAR 23.402]

Environmentally Preferable - - products or services that have a lesser negative effect on human health and the environment when compared with competing products or services that serve the same purpose. This comparison should use principles recommended in guidance issued by EPA (see Executive Order 13101, Section 503), and may consider raw materials acquisition, production, manufacturing, packaging, distribution, reuse, operation, maintenance, or disposal of the product or service. [FAR 23.703]

Estimation -- written documentation of the best quantitative determination made by vendors of the total percentage of recovered material contained in products to be supplied to the purchaser. Estimations should be based on historical or actual percentages of recovered materials in products sold in substantial quantities to the general public or on other factual basis. EPA's guidelines recommend that procuring agencies maintain records of these estimates for three years by product type, quantity purchased, and price paid. [EPA Guidelines]

Executive Agency or Agency -- an executive agency as defined in 5 U.S.C 105. For the purpose of this order, military departments, as defined in 5 U.S.C.102, are covered under the auspices of the Department of Defense.

Life-Cycle Analysis -- the comprehensive eamination of a product's environmental and economic effects throughout its lifetime including new material etraction, transportation, manufacturing, use, and disposal.

Life-Cycle Cost -- 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.

Minimum Content Standard -- the minimum recovered material content specifications which are set in such a way as to ensure that the recovered material content required is the maximum available without jeopardizing the intended end use of the item or violating the limitations of the minimum content standards set forth by EPA's guidelines. [RCRA, section 6002]

Performance Specification -- a specification that states the desired operation or function of a product but does not specify the materials from which the product must be constructed. [EPA Guidelines]

Postconsumer Material -- a material or finished product that has served its intended use and has been discarded for disposal or recovery, having completed its life as a consumer item. "Postconsumer material" is a part of the broader category of "recovered materials."

Practicable -- capable of being used consistent with: performance in accordance with applicable specifications; availability at a reasonable price; availability within a reasonable period of time; and maintenance of a satisfactory level of competition. [EPA Guidelines]

Preference -- means when two products or services are equal in performance characteristics and price, the Government, in making purchasing decisions, will favor the product that is more environmentally-sound or energy-efficient. [OFPP Policy Letter 92-4 and DEAR 923.471]

Procurement Guidelines -- regulations issued by EPA pursuant to section 6002 of RCRA which: (1) identify items that are or can be produced with recovered materials and where procurement of such items will advance the objectives of RCRA; and (2) provide recommended practices for the procurement of such items. [RCRA, section 6002]

Procuring Agency -- any Federal agency, or any State agency or agency of a political subdivision of a State which is using appropriated Federal funds for such procurement, or any person contracting with any such agency with respect to work performed under such contract. [EPA Guidelines]

Recovered Material -- waste materials and by-products which have been recovered or diverted from solid waste including postconsumer material, but such term does not include those materials and by-products generated from, and commonly reused within, an original manufacturing process. [FAR 23.402]

Recycled Material -- a material that can be utilized in place of a raw or virgin material in manufacturing a product and consists of materials derived from postconsumer waste, industrial scrap, material derived from agricultural wastes, and other items, all of which can be used in the manufacture of new products. [EPA Guidelines and OFPP Policy Letter 92-4]

Recycling -- the series of activities, including collection, separation, and processing, by which products or other materials are recovered from the solid waste stream for use in the form of raw materials in the manufacture of new products other than fuel for producing heat or power by combustion. [FAR 23.703 and EO 13101 ]

Specification -- a clear and accurate description of the technical requirement for materials, products, or services which specifies the minimum requirement for quality and construction of materials and equipment necessary for an acceptable product. In general, specifications are in the form of written descriptions, drawings, prints, commercial designations, industry standards,and other descriptive references. [EPA Guidelines]

Verification -- procedures used by procuring agencies to verify vendor estimates and certifications of the percentages of recovered material contained in the products supplied to them or to be used in the performance of a contract. [EPA Guidelines]

Virgin Material -- a raw material used in manufacturing that has been mined or harvested and has not yet become a product. [EPA Guidelines]