Piloting the Federal Government's Course to Environmentally Preferable Purchasing

Laura Davis, Ruth Heikkinen, and Laurent R. Hourcle

While the concept of environmentally preferable purchasing by federal agencies is not a new initiative by any means, it has been pursued with never-before-seen vigor under the Clinton Administration. The concept goes back in law tout least the 1976 amendments to the Solid Waste Disposal Act, more commonly known as the Resource Conservation and Recovery Act (RCRA). Section 6002 of that statute created a dual approach by which EPA designated items with recycled content and buying federal agencies had an obligation to buy the designated goods. These are sometimes called "guideline goods." For almost 20 years, however, only a handful of products (cement containingjly ash, re-refined oil, retread tires, paper and building insulation materials) were designated, and even then, the federal agencies were essentially left to their own devices as to when purchase of guideline items would be in their interest.

Less than a year after taking office, on October 20, 1993, President Clinton signed Executive Order 12873, "Federal Acquisition, Recycling, and Waste Prevention.'' While a number of other environmentally related executive orders have been signed by President Clinton, EO 12873 has become the focus of the quest for acquisition of environmentally preferable goods and services by the government. This Executive Order does several things related to environmentally preferable purchasing:

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Laura Davis is an environmental engineer at The General Sm'ces Administration-Federal Supply Sentice's Paint and Chemical Commodity Center in Auburn, WA. She is involved in environmentally preferable purchasing initiatives and is currently working on the latex paint pilot. Ruth Heikkinen is a member of the U S . EPAS Environmentally Preferable Purchasing Team. She concentrates on encouraging federal agencies involved in procuring new buildings or renovating existing ones to consider environmental impacts in purchasing building products. Professor Laurent R. Hourcle, Colonel, USAF (Ret.) is co-director of the Environmental Law Program and acting director of the Institute for the Environment at George Washington University. Among other courses, he co-teaches a course on environmental issues in government contracts. He has beena consultant to EPAonenvironmentallyprefeablepurchasinggovemment- contracting issues. He is also a member of the editorial advisory board of the Federal Facilities Environmental Journal.

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Federal Facilities Environmental Journal/Summer 1997 CCC 104647~97/08022546 CD 1997 John Wiley & Sons, Inc.

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Laura Davis. Ruth Heifinen, and Laurent R. Hourcle

Guideline items are in many respects more

Defines environmentally preferable as ”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 definition then goes on to describe different steps in the life cycle of a product from raw materials to disposal. ( Sec. 201) Creates the Environmental Protection Agency position of Federal Environmental Executive (FEE), who is designated by the President and administratively located at EPA, to oversee federal agencies’ implementation of the Order. (Sec. 301) Creates Agency Environmental Executives (AEEs) to implement the order at their respective agencies. (Sec. 302) Requires EPA development of affirmative procurement programs for guideline items that include an annual reporting requirement by the AEEs to the FEE. (Secs. 402-403) Requires revision of federal and military specifications that hinder acquisition of guideline or environmentally preferable products. (Sec. 501) Creates an expedited process for designation of guideline products. (Sec. 502) Requires promulgation of guidance for federal agencies in the acquisition of environmentally preferable products. (Sec. 503) Sets minimum content standards for printing and writing paper. (Sec. 504) Mandates procurement of re-refined oil and retread tires. (Sec. 506) Requires federal agencies to set goals for solid waste prevention, recycling and procurement of guideline or environmentally preferable products. (Secs. 601-602) Obligates inclusion of environmental and recycling considerations in new federal buildings and leased federal property. (Sec. 702) Requires federal agencies to have recycling programs. (Sec. 705) Requires development of a federal awards program for agencies best meeting the objectives of the Order. (Secs. 801-802)

straightfornard. Under the Executive Order there are two categories related to pur- chasing--”guideline” items and the more general category of ”environ- mentally preferable purchasing” of goods and services. Guideline items are in many respects more straightforward. The issue is the availability of different products with a significant recovered material content. Recovered material is generally defined as “waste materials and by- products which have been recovered or diverted from solid waste.”’

In response to the Executive Order, EPA quickly proposed and has now finalized 19 additional items as guideline products and has pro- posed yet an additional 13. Federal, state, and local governments using appropriated funds must purchase guideline items when the quan- tity purchased within a year exceeds $10,000. Guideline items must be purchased with a specified amount of recovered materials, unless

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Piloting the Federal Government’s Course to Environmentally Preferable Purchasing

The effort to develop a program for federal agencies to engage in environmentally preferable purchasing under Section 503 has been more difficult.

unreasonable in terms of price, delivery schedule, or suitability to meet an agency requirement.

The effort to develop a program for federal agencies to engage in environmentally preferable purchasing under Section 503 has been more difficult. Here the task is more complex, as at issue is how to define ”environmentally preferable.’’ Is a neon light that will reduce energy use environmentally preferable if it contains mercury that may contaminate its ultimate disposal site? Is a paper with a high recovered material environmentally preferable if it cannot itself be readily recycled, and makes all the other paper with which it is disposed more difficult to recycle? As products continually improve, will what is environmentally preferable today be eclipsed in environmental performance by a totally different product available a year from now, and if so, will the govern- ment be able to easily buy the new product?

This quest for environmental preferability underscores the complexity of environmental decision making. At the same time this is occurring, the federal government has also embarked on procurement reform to make federal purchasing simpler, and more like the private sector. The efforts to insert environmental preferability requirements were seen by some as a broad federal bureaucratic program that would have further burdened federal purchasing with more, as opposed to the desired less, requirements.

There is much to argue that even though it might be more burdensome, environmentally preferable purchasing, in many ways is at the heart of government reinvention efforts. As stated in the proposed guidance:

The proposed guidance is intended like the [National Performance Review] to promote government that “works better and costs less.” It will work better by reducing its negative impacts on the environment and ensuring productive, sustainable natural systems. And it will cost less by incorporating environmental considerations into its decisions (in this case, purchasing decisions) and, from a fiscal as well as an environmental standpoint, operating its facilities and programs more efficiently.2

After arduous internal discussions among federal agencies, discus- sions with stakeholders and public comment, EPA on September 29, 1995, issued its proposed ”Guidance on Acquisition of Environmentally Preferable Products and service^."^ The guidance includes guiding principles or a ”framework” for environmentally preferable purchasing but deferred immediate federal agency-wide implementation. Rather, acknowledging the complexity of the task, EPA proposed a laboratory of pilot projects to determine what environmentally preferable products and services actually are and how they may be acquired through the federal acquisition process.

FRAMEWORK: GUIDING PRINCIPLES

speak” as follows: The guidance lists seven guiding principles paraphrased from ”reg

Federal Facilities Environmental Journal/Summer 1997 27

Laura Davis, Ruth Heifinen, and Laurent R. Hourcle

From the nature of these guiding principles, it is easy to understand that the EPA EPPguidance does not lend itself t o a one-size-fits-all approach.

Environmentally preferable purchasing should be considered early in the acquisition process as a part of an overall pollution prevention strategy. Environmental preferability is a function of many different environmental attributes. A life-cycle approach should be used to the extent possible. Environmental preferability should consider global as well as local impacts in addition to the reversibility of an impact. Environmental preferability should be tailored to local conditions and circumstances. Environmental aspects of products or services should be considered in deciding among vendors. Agencies should carefully evaluate claims of environmental preferability.

From the nature of these guiding principles, it is easy to understand that the EPA EPP guidance does not lend itself to a one-size-fits-all approach. Rather an approach that focuses on the intrinsic environmen- tal characteristics of individual products or services combined with careful selection among various government acquisition strategies to best suit local circumstances is needed.’ In other words, what is needed is local innovation. This realization led EPA to the approach of pilot projects.

A number of pilot projects have been completed or are now under way. The first and most cited example is the General Services Administration’s (GSA) Cleaning Products pilot. In response to this guidance, GSA and EPA partnered to develop environmental attributes of biodegradable cleaning products.

After study and meeting with industry and federal customer stake- holders, seven environmental characteristics were selected as relevant and practicable to cleaning products. These attributes were determined to be fairly easy for vendors to supply and easy for customers to understand and apply to their situation.

The seven attributes are:

1. 2. 3. 4. 5. 6. 7.

Skin irritation; Food chain exposure; Air pollution potential (VOC); Contains fragrances; Contains dyes; Packaging (reduced or recycled); and Minimized exposure to concentrate.

The outcome of this effort was GSA’s Paints and Chemicals Commod- ity Center’s publishing the February 1996 Commercial Cleaning Sup- plies Catalog. This catalog includes environmental attribute information for 28 biodegradable cleaners and degreasers. In using these attributes, a customer can construct a profile of the environmental impact of each

28 Federal Facilities Environmental Journal/Summer 1997

Piloting the Federal Government’s Course to Environmentally Preferable Purchasing

Considering the environmental impacts of products over their whole life cycle is key to the parking lot renovation and repair EPP pilot.

product and make an educated judgment about the relative environ- mental preferability of different products. A new catalog with attribute information for 55 products will be available in July 1997.

Based on the success of this project, the GSA Paints and Chemicals Commodity Center and EPA are now working on providing environ- mental attribute data on interior latex paints. They have distributed draft attributes to interested participants and are currently collecting and evaluating comments.

Another very different type of pilot has been undertaken by the Department of Defense (DOD). This project has been a close collabora- tion between DODs Washington Headquarters Service, which oversees buildings in the Washington, D.C. area (including the Pentagon) and EPA’s Pollution Prevention division. It began when DOD realized that the parking lot at the Pentagon had begun to develop cracks and potholes. This realization occurred at about the same time that DOD had decided to renovate the entire Pentagon building to lessen its impact on the environment. From this, the Pentagon’s engineering and buildings maintenance staff saw an opportunity to ”green” the parking lot. The challenge of this pilot project was to encourage DOD’s parking lot renovation contractor to purchase environmentally preferable products.

EPA assisted DOD in identifymg the best environmental attributes available in materials that meet performance and cost requirements. DOD specified materials with these attributes in its Request for Propos- als from paving contractors. Recognizing that new materials that appear on the market often have better environmental characteristics than the ones they replace, DOD also put in place a “price differential’’ system under which the contractor is encouraged to seek out better environmen- tal products and propose them to DOD for purchase. To make sure that the contractor it chose understood the importance of the environmental element of this work, one criterion DOD used in evaluating potential contractors was their demonstrated environmental stewardship.

Considering the environmental impacts of products over their whole life cycle is key to the parking lot renovation and repair EPP pilot. The goal is to use paving products that minimize environmental impacts across not just one but multiple stages of their life, from ”birth” (manu- facture) to ”death” (disposal, recycling, or reuse).

The DOD facilities team’s next foray into the world of environmen- tally preferable purchasing involves renovations to interior office space, scheduled to begin in the fall of 1997.

CONCLUSION As these projects were the first of their kind, there were several

lessons learned that will be applied to future projects. One of the main things learned was that an interagency partnership can work. The Cleaning Products project involved GSA and EPA, both with different concerns and goals. However, by being willing to work together, both agencies were able to harmonize their goals to reach a successful end.

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Laura Davis, Ruth Heifinen, and Laurent R. Hourcle

Federal employees, customers, vendors, and industy associations all need to work together to make environmentally preferable purchasing a reality for the government.

Other lessons learned are discussed in EPA’s publication ”Cleaning Products Pilot Proje~t.”~ These lessons learned according to the report are:

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Be patient as new stakeholders are introduced. Satisfy the customer. Adopt well-defined objectives and be pragmatic. Product experience is important. Ensure that the informational (matrix) model works. Change is slow. Vendor cooperation is mutually beneficial. EPA’s nonregulatory role. Environmentally preferable purchasing and ”Reinventing Government’’ share important goals. Government procurement flexibility is important.

However, what may be the most important thing to remember is that everyone has something valuable to contribute. Federal employees, cus- tomers, vendors, and industry associations all need to work together to make environmentally preferable purchasing a reality for the government.

The biggest threat to federal agency environmentally preferable purchasing is inaction. While it is true that there is no one right answer about what is environmentally preferable, tools such as those used for life-cycle analysis of products are increasingly available to judge envi- ronmental preferability along with traditional factors such as cost and schedule. That fact underscores EPA’s pilot projects approach to tailor- ing environmental attributes and procurement planning to specific product categories. What is needed to make this effort a success is for more agencies to undertake pilot projects that collectively will form the knowledge base for environmentally preferable purchasing. *:*

NOTES 1. Executive Order 12873,5205.

2. 60 Fed. Reg. 50723.

3. 60 Fed. Reg. 50722.

4. There has been a heated debate over third-party certifiers (e.g., In the United States- Green Seal, Scientific Certifications, and overseadreen Dot and Blue Angel). These raise serious as yet unresolved problems involving whether the discretion of federal officials to purchase should be limited by nongovernmental agencies; whether these programs unfairly limit the opportunity of small business to compete; and, whether, in a larger sense, a requirement for third-party certification is a violation of international trade treaties.

5. EPA (742/R-97/002, February 1997.

30 Federal Facilities Environmental ]ournal/Summer 1997