Pollution Prevention & Toxics , . EPA 742-B-98-QQ3
-(7409). -.' -' " ' " '" - 'Apri-1 19.98
Pilot Project Approach on Use of Non-Governmental Entities
to Implement Section 5Q3 of Executive Order 12873 on
Federal Acquisition,.Recycling and Waste Prevention
Background:
Section 503(a) of Executive Order 12873 directs EPA to "issue guidance that
recommends principles that Executive agencies should use hi 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 ffl (E)), EP"A ,
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 otiier environmental consulting
organizations - to which Executive agencies, in appropriate circumstances, may refer for
technical assistance1 hi 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
' 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.
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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
1 x
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 nreferabilitV.
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 hi 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
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1
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:
- , ' . , .^ ft-^ ".'",,-
a) Executive agencies, could examine and evaluate already existmg environmental
criteria or standards developed by non-governmental entities for products.or product'
categories (as well as for services or service categpries), 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 envirdnmental seals along with
accompanying explanation, etc.,) either displayed on the products or provided through
product literature or other materials (e,g., newsletters) hi 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 "tagged11 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
2The 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 Timiting 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)
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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 hot 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 of .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.
3The following excerpt from FTC's Guide*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
onlythetext "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 clam, 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 ^P^unuar
. product attribute or attributes for which they could be substantiated, prwded that no other deceptne
implications were created by the context. (From FTC's Guides, (a) General Environmental Benefit Claims,
. Examples), ' .
. . . . . _ ^
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'. . 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. V
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. Tt 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: 1) EPA can capture the lessons from the pilots and share them among the
Executive agencies so that there is no duplication of effort; 2) we can determine where the use
of expertise outside of the government is appropriate and useful and where it is not; and 3) 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
Use ofNon-Governmental Entities in EPP -April, 1998 Policy Letter ,
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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 ffl, [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:
1) assist Executive agencies hi 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;
2) 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; .
3) assemble a list of product categories for which eco-labelmg 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
4) 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 then- 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 l(c)
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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 qther agencies and to aid -hi the evaluation of the pilot projects. In this
way v 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 farmer information and to informEPA of pilot project efforts, please contact:
Eun-Sook Goidel, Program Manager, Environmentally Preferable Purchasing Program,
' Pollution Prevention Division, Office of Pollution Prevention and Toxics
(202)260-3296; (202)260-0178 FAX; e-mail: goidel.eunsook@epamail.epa.gov
' - - / , '
For legal issues associated with use of non-governmental entities in environmentally
preferable purchasing, please contact
Tali Zemel, Esq., OfficeVGeneral Counsel (202)564-4708; e-mail:,
Zemel.Avital@epamail.epa.gov .
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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?
Excerpted from EPA's'proposed Guidance on the Acquisition of Environmentally Preferable Products and
Services. '
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FAX BACK FORM
PLEASE INFORM EPA ABOUT YOUR PILOT PROJECT INVOLVING THE USE OF
NON-GOVERNMENTAL ENTITPS IN .
ENVERONMENTALLY PREFERABLE PURCHASING!!
Name: - . . " .' ; " . ' '" . - \ ' . > -..'.'.'
Department/Agency:
Address: . .
Address:
Phone: .. . .
FAX ; . ' . . . '. " .''-.' / ' ' '-.'.;.". .:-'.,'.-''
e-mail: " ' . . ' '. '.' . _.- , ' ' -..' ' '" .-
Type of Acquisition/Procurement: .
(e.g., small purchase,,credit card purchase, competitive bid, etc.)
Product/Service Category: -
- ' < - '
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
environmentarvalues; . .. *"* .
'-. identify products/services in a given category which meet agencies' predetermined set of environmental
performance criteria,; and , , - . .
__ other (please specify: .' )
Please FAX to: Eun-Sook Goidel . .
Program Manager ; .
Environmentally Preferable Purchasing Program , .
U.S. Environmental Protection Agency
: .''' .(202)260-0178 fax .- ' ^ . \ '
' . (202)260-3296. phone .
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Involving Third Party Entities in Environmentally Preferable Purchasing
Test an approach for leveraging proviate sector expertise to meet the goals of environmentally
preferable puchasing - basically see if the proviate sector is willing to develop environetla
standards on their own -
We need organizations to develop environmental attributes
and using those attributes develop environmental standards for specific prodcut categories
Jump start environmentally preferable purchasing through a series of pilots and this is one type
ofpilot . .
We want to do a bunch of different types of pilots to see what is feasible and to determine what is
the best way for EPA to work with standard setting groups - .
We want your feedback and your help in running some of these pilots for specific prodcut
categories .
Executive Order
Can our needs be met by groups injthis organization?
engage experts who have done standardization in other categories such as quality and
performance and have them do the same for environmental attributes
EPA wants to try to see how standards organization and their expertise can leverage
environmentally preferable purchasing - EPA doesn't have the standard setting expertise nor the
resources to push this forward .
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