[Federal Register Volume 68, Number 26 (Friday, February 7, 2003)]
[Rules and Regulations]
[Pages 6355-6359]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-2911]


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DEPARTMENT OF ENERGY

48 CFR Parts 923, 936 and 970

RIN 1991-AB47


Acquisition Regulation: Affirmative Procurement Program--
Acquisition of Products Containing Recovered Materials

AGENCY: Department of Energy.

ACTION: Final rule.

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SUMMARY: The Department of Energy (DOE) is amending the Department of 
Energy Acquisition Regulation (DEAR) to further implement Executive 
Order 13101, Greening the Government Through Waste Prevention, 
Recycling, and Federal Acquisition, dated September 14, 1998. On June 
6, 2000, the Federal Acquisition Regulation (FAR) was amended to 
implement the Executive Order by a final rule published in the Federal 
Register. Today's amendment to the DEAR is necessary to supplement the 
FAR regarding agency policy applicable to DOE's facility management 
contractors.

EFFECTIVE DATE: March 10, 2003.

FOR FURTHER INFORMATION CONTACT: Richard Langston, U.S. Department of 
Energy, Office of Procurement and Assistance Management, ME-61, 1000 
Independence Avenue, SW., Washington, DC 20585 at (202) 586-8247, or 
via e-mail at [email protected].

SUPPLEMENTARY INFORMATION: 
I. Background
II. Discussion of Public Comments
III. Section-by-Section Analysis
IV. Procedural Requirements
    A. Review Under Executive Order 12866
    B. Review Under Executive Order 12988
    C. Review Under the Regulatory Flexibility Act
    D. Review Under the Paperwork Reduction Act
    E. Review Under the National Environmental Policy Act
    F. Review Under Executive Order 13132
    G. Review Under the Unfunded Mandates Reform Act of 1995
    H. Review Under the Treasury and General Government 
Appropriations Act, 1999
    I. Review Under the Small Business Regulatory Enforcement 
Fairness Act of 1996
    J. Review Under Executive Order 13211
    K. Approval by the Office of the Secretary of Energy

I. Background

    This action follows a Notice of Proposed Rulemaking published in 
the Federal Register on November 30, 2000 (65 FR 71292). The public 
comment period for the notice ended January 2, 2001. The purpose of 
this rule is to provide additional guidance regarding Executive Order 
13101, dated September 14, 1998 (63 FR 49641), entitled Greening the 
Government Through Waste Prevention, Recycling, and Federal 
Acquisition, which superceded Executive Order 12873 dated October 20, 
1993, entitled Federal Acquisition, Recycling, and Waste Prevention. 
Among the changes made by this rule is the revision of the clause at 
section 970.5223-2 of the DEAR to

[[Page 6356]]

include subcontract flow down of Affirmative Procurement Program 
requirements in certain limited circumstances.
    Subsequent to the publication of the Notice of Proposed Rulemaking, 
a separate final rule was published December 22, 2000, 65 FR 80994, 
amending the DEAR. That final rule amended the numbering structure of 
Part 970, Management and Operating Contracts. As a result of that final 
rule, the clause at 970.5204-39 in the proposed rule was redesignated 
970.5223-2.

II. Discussion of Public Comments

    Five organizations submitted comments in 9 areas as discussed 
below.
    1. 923.405, Procedures [DOE supplemental coverage--paragraph (e)]. 
The Department had proposed that the percentage of recovered/recycled 
content, recommended by the Environmental Protection Agency (EPA) in 
their Recovered Materials Advisory Notices (RMANs) be specified in the 
solicitation as the minimum percentage of recycled content.
    Comment: One reviewer suggested that this created a problem as the 
EPA RMANs often do not specify a specific content but rather a range of 
content as the content sometimes varies by geographical area.
    Response: The Department agrees with this comment and has added the 
phrase ``or range of content'' at 923.405(e).
    2. 923.705, Contract clause, specifies the use of the clause at FAR 
52.223-10.
    Comment: A reviewer did not believe the meaning of the phrase 
``prime support service awards being performed at Government-owned or 
Government-leased facilities'' was clear. The same reviewer suggested 
the word ``awards'' was unnecessary in the same phrase.
    Response: The Department has chosen not to finalize proposed 
section 923.705 because it would be unnecessarily duplicative of 
existing FAR coverage at 23.705.
    3. 936.601-3, Applicable contract procedures. The Department had 
proposed to add a new Section 936.601 addressing topics that 
requirements personnel should consider when designing and constructing 
or modifying facilities. No comments were received but the Department 
has chosen to delete the addition of a section 936.601-3 from this rule 
as it is unnecessarily duplicative of existing FAR coverage at 36.601-
3.
    4. 970.5223-2, Affirmative Procurement Program. The rule would 
extend the Affirmative Procurement Program to certain subcontracts.
    Comment: A reviewer suggested that flow down would be contrary to 
other DOE efforts to implement more economical and efficient commercial 
procurement practices. The reviewer suggested this would entail 
substantial cost to implement on the part of subcontractors who would 
have to develop additional compliance procedures, including an 
inspection program.
    Response: The Department disagrees. The Resource Conservation and 
Recovery Act of 1976, 42 U.S.C. 6962, as amended, and EPA regulations, 
found at 40 CFR part 247, require Federal agencies to acquire products 
with recovered/recycled content which have been designated by EPA in 
the Comprehensive Procurement Guidelines. Executive Order 13101, 
Greening the Government Through Waste Prevention, Recycling, and 
Federal Acquisition, Section 701, requires contracts for contractor 
operation of a Government-owned or Government-leased facility to 
include provisions that obligate the contractor to comply with the 
requirements of the Executive Order. The result of the statute, EPA 
regulations, and the Executive Order are that this portion of the 
operation of a Federal facility cannot be operated as though it were a 
commercial facility. Disregarding these requirements when a 
subcontractor operates a portion of a Government facility would be 
contrary to the intent of the requirements. The purpose of this 
rulemaking is not to flow down the Affirmative Procurement Program to 
all subcontracts. The purpose of the rulemaking is to capture those 
instances in which a facility management contractor subcontracts for a 
significant portion of the operation of the Government facility which 
involves acquisition of items designated in EPA's Comprehensive 
Procurement Guidelines that Federal agencies and their contractors are 
to acquire with recovered/recycled content. The flow down applies only 
to such subcontracts not to all subcontracts. The reviewer is concerned 
that our flow down in this limited area will include extensive 
certifications or inspections. The Department has chosen not to flow 
down this level of detailed guidance. The contractor and subcontractor 
may agree on what degree of detail is appropriate to the circumstance. 
No inspection programs are contemplated or mandated by this rulemaking.
    5. 970.5223-2, Affirmative Procurement Program. The Department had 
proposed changing the clause title from ``Acquisition and Use of 
Environmentally Preferable Products and Services'' to ``Affirmative 
Procurement Program.''
    Comment: A reviewer asked the origin of the title of the clause. 
The same reviewer suggested we add ``for EPA Designated Products.'' 
Another reviewer suggested ``environmentally preferable'' should be 
retained in the title as the program guidance materials address this 
topic.
    Response: The title ``Affirmative Procurement Program'' is the 
title used by the Resource Conservation and Recovery Act, 42 U.S.C. 
6962, to describe a preference program for Federal acquisition of 
products with recovered/recycled content. The DOE Affirmative 
Procurement Program Guidance materials do include consideration of 
environmentally preferable aspects of procurement; however, the primary 
focus of the program is products with recycled content. Environmentally 
preferable procurement is generally viewed as a separate program area 
which seeks to acquire products and 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. 
Accordingly, the Department is not accepting the suggestion that we 
retain''environmentally preferable'' in the title. The suggestion that 
we add ``for EPA designated products'' is not adopted as the Department 
prefers the shorter title.
    6. 970.5223, Affirmative Procurement Program. Paragraph (a) advises 
the reader that the Department's Affirmative Procurement Program 
Guidance is available on the Internet.
    Comment: Two reviewers questioned the meaning of this. They were 
concerned that posting the guidance on the Internet would allow the 
Government to revise the Guidance without notice.
    Response: The guidance provided at the DOE Executive Order 13101 
home page is extensive and includes Federal, EPA and DOE regulatory 
materials, Executive Orders, strategic plans, and related information. 
The specific portion considered to be the DOE Affirmative Procurement 
Program Guidance, for purposes of compliance with the clause at 
970.5223-2, is entitled DOE's Affirmative Procurement Program Guidance. 
It was developed after extensive coordination within the Department. It 
is the same guidance referred to in current contracts and it is posted 
on the Internet only for the convenience of all. Any changes will be 
coordinated within the Department.

[[Page 6357]]

Posting the Guidance on the Internet is only for the convenience of all 
parties and will have no effect on the formal means through which 
revisions may be made.
    7. 970.5223-2, Affirmative Procurement Program. Paragraph (c) 
addresses submission of contract reports.
    Comment: A reviewer suggested that the requirement for the 
submission of subcontract reports at the ``conclusion of each fiscal 
year'' would be problematic for supply item subcontracts in particular 
since a set delivery date generally would not cross fiscal years. The 
reviewer suggested that it be revised to read ``at the end of the 
Federal fiscal year and the end of the contract.''
    Response: The intent of this suggestion has been adopted but the 
text has been included at paragraph (d) for clarity since paragraph (d) 
addresses subcontract matters. The added text allows submission of the 
report upon completion of the subcontract unless the subcontract term 
is multiple year, in which case it provides that the parties will agree 
to an annual report submission schedule.
    8. 970.5223-2, Affirmative Procurement Program. Paragraph (d) 
addresses applicability to subcontracts.
    Comment: A reviewer suggested that the facility management 
contractor be allowed to flow down a clause substantially the same as 
that at 970.5223-2. The reviewer suggested it might be easier to 
accomplish the intent of the instruction if it is possible to tailor 
the clause to the circumstances of the subcontract situation. The 
reviewer also suggested that there was no reason to flow down the 
clause if the parties can determine the amount of products with 
recycled content that will be acquired under the subcontract at the 
time of the subcontract award.
    Response: The Department agrees. The instructions, at 970.2304-2, 
and in paragraph (d) of the clause, have been revised to allow use of a 
clause substantially the same as the 970.5223-2 clause. Additionally, 
the instructions, at 970.2304-2, and in paragraph (d) of the clause, 
have been revised to provide that in situations in which the facility 
management contractor can reasonably determine the amount of products 
with recovered/recycled content that will be acquired under the 
subcontract, the facility management contractor may include such 
quantities in its own report and only flow down a requirement that the 
subcontractor will procure such products with recovered/recycled 
content. When it is not possible to determine the amount to be acquired 
under the subcontract, such as an ``as required'' supply or service 
subcontract, the clause should be included in the subcontract.
    9. 970.5223-2, Affirmative Procurement Program. Paragraph (e) 
concerns terminology to be used when the clause is used in a 
subcontract.
    Comment: A reviewer questioned whether all facility management 
contractors have a recycling coordinator.
    Response: Yes, all DOE facility management contractors have a 
recycling coordinator.

III. Section-by-Section Analysis

    The Department of Energy amends the regulation as follows:
    1. The authority citation for Parts 923 and 936 is revised.
    2. A new section 923.405, Procedures, is being added to note that 
the recommended percentage of recycled content or range of recycled 
content included in the EPA Recovered Materials Advisory Notices 
(RMANs) is to be specified in the solicitation and contract as the 
minimum recycled content or range of content.
    3. Section 923.471, Policy, is being deleted as unnecessarily 
duplicative of FAR coverage at 23.403.
    4. Section 936.602-70 is modified by the addition of a new 
paragraph (a)(8) regarding consideration of the Architect-Engineer 
firm's experience in energy efficiency, pollution prevention, waste 
reduction, and the use of recovered and environmentally preferable 
materials when performing Architect-Engineer evaluations.
    5. Section 970.2304 is being updated to include reference to 48 CFR 
(FAR) 23.4 and 23.704 and is revised to provide guidance concerning 
circumstances under which the clause at 970.5223-2 should be included 
in subcontracts. The list of circumstances under which recycled content 
products need not be purchased is revised to conform to the wording of 
the Federal Acquisition Regulation.
    6. The clause at 970.5223-2 is being updated and revised to include 
guidance concerning circumstances under which the clause should be 
included in certain subcontracts. The list of circumstances under which 
recycled content products need not be purchased is revised to conform 
to the wording of the Federal Acquisition Regulation.

IV. Procedural Requirements

A. Review Under Executive Order 12866

    Today's regulatory action has been determined not to be a 
``significant regulatory action'' under Executive Order 12866, 
``Regulatory Planning and Review'' (58 FR 51735, October 4, 1993). 
Accordingly, this rule is not subject to review under that Executive 
Order by the Office of Information and Regulatory Affairs of the Office 
of Management and Budget (OMB).

B. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on 
Executive agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; and (3) provide a clear legal 
standard for affected conduct rather than a general standard and 
promote simplification and burden reduction. With regard to the review 
required by section 3(a), section 3(b) of Executive Order 12988 
specifically requires that Executive agencies make every reasonable 
effort to ensure that the regulation: (1) Clearly specifies the 
preemptive effect, if any; (2) clearly specifies any effect on existing 
Federal law or regulation; (3) provides a clear legal standard for 
affected conduct while promoting simplification and burden reduction; 
(4) specifies the retroactive effect, if any; (5) adequately defines 
key terms; and (6) addresses other important issues affecting clarity 
and general draftsmanship under any guidelines issued by the Attorney 
General. Section 3(c) of Executive Order 12988 requires Executive 
agencies to review regulations in light of applicable standards in 
section 3(a) and section 3(b) to determine whether they are met or it 
is unreasonable to meet one or more of them. DOE has completed the 
required review and determined that, to the extent permitted by law, 
this final rule meets the relevant standards of Executive Order 12988.

C. Review Under the Regulatory Flexibility Act

    This final rule has been reviewed under the Regulatory Flexibility 
Act, 5 U.S.C. 601 et seq., which requires preparation of an initial 
regulatory flexibility analysis for any role that is likely to have 
significant economic impact on a substantial number of small entities. 
This rule, which would implement provisions of Executive Order 13101 
concerning the use of recycled materials, would not have a significant 
economic impact on small entities. While rule requirements may flow 
down to subcontractors in certain

[[Page 6358]]

circumstances, the costs of compliance are not estimated to be large 
and, in any event, would be reimbursable expenses under the contract or 
subcontract.
    Accordingly, DOE certifies that this rule would not have a 
significant economic impact on a substantial number of small entities, 
and, therefore, no regulatory flexibility analysis has been prepared.

D. Review Under the Paperwork Reduction Act

    Information collection or record keeping requirements contained in 
this rulemaking have been previously cleared under Office of Management 
and Budget paperwork clearance package Number 1910-0300. There are no 
new burdens imposed by this rule.

E. Review Under the National Environmental Policy Act

    DOE has concluded that promulgation of this rule falls into a class 
of actions which would not individually or cumulatively have 
significant impact on the human environment, as determined by DOE's 
regulations (10 CFR part 1021, subpart D) implementing the National 
Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.). 
Specifically, this rule is categorically excluded from NEPA review 
because the amendments to the DEAR would be strictly procedural 
(categorical exclusion A6). Therefore, this rule does not require an 
environmental impact statement or environmental assessment pursuant to 
NEPA.

F. Review Under Executive Order 13132

    Executive Order 13132 (64 FR 43255, August 4, 1999) imposes certain 
requirements on agencies formulating and implementing policies or 
regulations that preempt State law or that have federalism 
implications. Agencies are required to examine the constitutional and 
statutory authority supporting any action that would limit the 
policymaking discretion of the States and carefully assess the 
necessity for such actions. DOE has examined today's rule and has 
determined that it does not preempt State law and does not have a 
substantial direct effect on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government. No further 
action is required by Executive Order 13132

G. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each agency to assess the effects of Federal regulatory 
action on State, local and tribal governments, and the private sector. 
The Department has determined that today's regulatory action does not 
impose a Federal mandate on State, local or tribal governments or on 
the private Sector.

H. Review Under the Treasury and General Government Appropriations Act, 
1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277), requires Federal agencies to issue a 
Family Policymaking Assessment for any rule or policy that may affect 
family well-being. This rulemaking will have no impact on family well-
being.

I. Review Under the Small Business Regulatory Enforcement Fairness Act 
of 1996

    As required by 5 U.S.C. 801, the Department of Energy will report 
to Congress promulgation of this rule prior to its effective date. The 
report will state that it has been determined that the rule is not a 
``major rule'' as defined by 5 U.S.C. 804(3).

J. Review Under Executive Order 13211

    Executive Order 13211, Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use, (66 FR 28355, 
May 22, 2001) requires Federal agencies to prepare and submit to the 
Office of Information and Regulatory Affairs (OIRA), Office of 
Management and Budget, a Statement of Energy Effects for any proposed 
significant energy action. A ``significant energy action'' is defined 
as any action by an agency that promulgates or is expected to lead to 
promulgation of a final rule, and that: (1) Is a significant regulatory 
action under Executive Order 12866, or any successor order; and (2) is 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy, or (3) is designated by the 
Administrator of OIRA as a significant energy action. For any proposed 
significant energy action, the agency must give a detailed statement of 
any adverse effects on energy supply, distribution, or use should the 
proposal be implemented, and of reasonable alternatives to the action 
and their expected benefits on energy supply, distribution, and use.
    Today's rule is not a significant energy action. Accordingly, DOE 
has not prepared a Statement of Energy Effects.

K. Approval by the Office of the Secretary of Energy

    Issuance of this final rule has been approved by the Office of the 
Secretary of Energy.

List of Subjects in 48 CFR Parts 923, 936 and 970

    Government procurement.

    Issued in Washington, DC, on January 28, 2003.
Richard H. Hopf,
Director, Office of Procurement and Assistance Management, Office of 
Management, Budget and Evaluation, Department of Energy.
Robert C. Braden, Jr.,
Director, Office of Procurement and Assistance Management, National 
Nuclear Security Administration.

    For the reasons set out in the preamble, DOE amends Chapter 9 of 
Title 48 of the Code of Federal Regulations as set forth below.
    1. The authority citations for Parts 923 and 936 are revised to 
read as follows:

    Authority: 42 U.S.C. 7101 et seq.; 41 U.S.C. 418b; 50 U.S.C. 
2401 et seq.

PART 923--ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND DRUG-
FREE WORKPLACE

    2. Section 923.405 is added to read as follows:


923.405  Procedures [DOE supplemental coverage--paragraph (e)].

    (e) When acquiring items designated in the EPA Comprehensive 
Procurement Guidelines, the EPA recommended percentage of recovered/
recycled content or range of content contained in the Recovered 
Materials Advisory Notice (RMAN) shall be specified in the solicitation 
and contract as the minimum percentage of recovered/recycled content or 
range of content. Acquisition of a product with recycled content 
exceeding the RMAN recommended content or range of content is 
encouraged if the product performs acceptably.


923.471  [Removed and Reserved].

    3. Section 923.471 is removed and reserved.

PART 936--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

    4. Section 936.602-70 is amended by adding paragraph (a)(8) to read 
as follows:


936.602-70  DOE selection criteria.

* * * * *
    (a) * * *

[[Page 6359]]

    (8) In addition to these requirements, consider the Architect-
Engineer firm's experience in energy efficiency, pollution prevention, 
waste reduction, and the use of recovered and environmentally 
preferable materials and other criteria at FAR 36.602-1.
* * * * *

PART 970--MANAGEMENT AND OPERATING CONTRACTS

    5. The authority citation for Part 970 continues to read as 
follows:

    Authority: 42 U.S.C. 2201; 42 U.S.C. 7101, et seq.; 50 U.S.C. 
2401 et seq.
    6. The subpart title for subpart 970.23 is revised to read as 
follows:

Subpart 970.23--Environment, Conservation, Occupational Safety, and 
Drug Free Work Place

    7. Sections 970.2304-1 and 970.2304-2 are revised to read as 
follows:


970.2304-1  General.

    The policy for the acquisition and use of EPA designated items, 
i.e., items with recovered/recycled content, is set forth at 48 CFR 
(FAR) 23.4--Use of Recovered Materials as supplemented by 48 CFR (DEAR) 
923.405(e) and by 48 CFR (FAR) 23.704, Application to Government-owned 
or leased facilities, and 48 CFR (FAR) 23.705, Contract clause.


970.2304-2  Contract clause.

    The contracting officer shall insert the clause at 48 CFR (FAR) 
52.223-10, Waste Reduction Program, and the clause at 48 CFR (DEAR) 
970.5223-2, Affirmative Procurement Program, in contracts for the 
management of DOE facilities, including national laboratories. If the 
contractor subcontracts a significant portion of the operation of the 
Government facility which includes the acquisition of items designated 
in EPA's Comprehensive Procurement Guidelines, the subcontract shall 
contain a clause substantially the same as that at 48 CFR (DEAR) 
970.5223-2. The EPA Comprehensive Procurement Guidelines identify 
products which Federal agencies and their contractors are to procure 
with recycled content pursuant to 40 CFR part 247. Examples of such 
subcontracts would be operation of the facility supply function, 
construction or remodeling at the facility, or maintenance of the 
facility motor vehicle fleet. In situations in which the facility 
management contractor can reasonably determine the amount of products 
with recovered/recycled content to be acquired under the subcontract, 
the facility management contractor is not required to flow down the 
reporting requirement of the 970.5223-2 clause. Instead, the facility 
management contractor may include the subcontract quantities in its own 
report and include an agreement in the subcontract that such products 
will be acquired with recovered/recycled content and that the 
subcontractor will advise if it is unable to procure such products with 
recovered/recycled content because the product is not available:
    (a) Competitively within a reasonable time;
    (b) At a reasonable price; or,
    (c) Within the performance requirements.

Subpart 970.52--Solicitation Provisions and Contract Clauses for 
Management and Operating Contracts

    8. Section 970.5223-2 is revised to read as follows:


970.5223-2  Affirmative procurement program.

    As prescribed in 48 CFR (DEAR) 970.2304-2, insert the following 
clause in contracts for the management and operation of DOE facilities, 
including national laboratories.

Affirmative Procurement Program--March 2003

    (a) In the performance of this contract, the Contractor shall 
comply with the requirements of Executive Order 13101 and the U.S. 
Department of Energy (DOE) Affirmative Procurement Program Guidance. 
This guidance includes requirements concerning environmentally 
preferable products and services, recycled content products and 
biobased products. This guidance is available on the Internet.
    (b) In complying with the requirements of paragraph (a) of this 
clause, the Contractor shall coordinate its activities with the DOE 
Recycling Coordinator. Reports required by paragraph (c) of this 
clause shall be submitted through the DOE Recycling Coordinator.
    (c) The Contractor shall prepare and submit reports, at the end 
of the Federal fiscal year, on matters related to the acquisition of 
items designated in EPA's Comprehensive Procurement Guidelines that 
Federal agencies and their Contractors are to procure with 
recovered/recycled content.
    (d) If the Contractor subcontracts a significant portion of the 
operation of the Government facility which includes the acquisition 
of items designated in EPA's Comprehensive Procurement Guidelines, 
the subcontract shall contain a clause substantially the same as 
this clause. The EPA Comprehensive Procurement Guidelines identify 
products which Federal agencies and their Contractors are to procure 
with recycled content pursuant to 40 CFR 247. Examples of such a 
subcontract would be operation of the facility supply function, 
construction or remodeling at the facility, or maintenance of the 
facility motor vehicle fleet. In situations in which the facility 
management contractor can reasonably determine the amount of 
products with recovered/recycled content to be acquired under the 
subcontract, the facility management contractor is not required to 
flow down the reporting requirement of this clause. Instead, the 
facility management contractor may include such quantities in its 
own report and include an agreement in the subcontract that such 
products will be acquired with recovered/recycled content and that 
the subcontractor will advise if it is unable to procure such 
products with recovered/recycled content because the product is not 
available:
    (i) Competitively within a reasonable time;
    (ii) At a reasonable price; or,
    (iii) Within the performance requirements.
    If reports are required of the subcontractor, such reports shall 
be submitted to the facility management contractor. The reports may 
be submitted at the conclusion of the subcontract term provided that 
the subcontract delivery term is not multi-year in nature. If the 
delivery term is multi-year, the subcontractor shall report its 
accomplishments for each Federal fiscal year in a manner and at a 
time or times acceptable to both parties
    (e) When this clause is used in a subcontract, the word 
``Contractor'' will be understood to mean ``subcontractor'' and the 
term ``DOE Recycling Coordinator'' will be understood to mean 
``Contractor Recycling Coordinator.''

[FR Doc. 03-2911 Filed 2-6-03; 8:45 am]
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