The Biden Administration has prioritized addressing the
environmental and health issues posed by the use of perfluoroalkyl
or polyfluoroalkyl substances (PFAS), including use by federal
agencies and the military. The Environmental Protection Agency
(EPA) is already developing policy that applies to the procurement
of products that contain PFAS. This is likely just the start of a
broader effort to regulate PFAS in federal procurement. In an
interesting twist, the administration is now opposing what it views
as overly aggressive and thus unrealistic policies to combat PFAS.
This remains a dynamic area and likely will remain so for the
foreseeable future. In the meantime, it will be important for
contractors to monitor the PFAS requirements and restrictions that
currently apply to their contracts and track the policies developed
that are likely to drive future changes to those requirements and
restrictions.1
Focusing on PFAS in Procurement: EO 14057
President Biden issued Executive Order 14057,
Catalyzing Clean Energy Industries and Jobs Through Federal
Sustainability (the EO), in December 2021. Section 208 of the
EO discusses Sustainable Acquisition and Procurement. That section
contains a directive that “Agencies shall … incentivize
markets for sustainable products and services by prioritizing
products that can be reused, refurbished, or recycled; … and, to
the maximum extent practicable, purchasing sustainable products and
services identified or recommended by the Environmental Protection
Agency (EPA).” The EO was accompanied by a memo to guide
agency compliance with the EO. The memo stated that “agencies
should prioritize substitutes for products that
contain” PFAS and that, “[t]o the maximum extent
practicable and consistent with statutory mandates, agencies should
avoid the procurement of PFAS-containing covered
items.”
Push for More Restrictive Rules
The Council on Environmental Quality (CEQ), the body within the
Executive Office of the President that coordinates the
government’s environment related efforts, is developing
Implementing Instructions for the EO. The Environmental Working
Group (EWG), an environmental non-governmental organization,
recently met with CEQ and the Office of Management and Budget’s
Office of Information and Regulatory Affairs (OIRA) to discuss
their ideas for the direction that federal procurement policy
should take when it comes to PFAS. EWG recommends that the
Implementing Instructions require the General Services
Administration (GSA) to incorporate specific requirements into new
and existing contracts under the Federal Supply Schedule (FSS),
which is a huge, government-wide program for the procurement of
commercial products and services. In particular, EWG believes that
the FSS program should include only contracts for products without
added PFAS as a class in product categories with safer
alternatives, and contracts for non-conforming products should be
phased out. EWG is also advocating for revisions to the Federal
Acquisition Regulations (FAR) that would result in broader
imposition of these requirements throughout the federal procurement
system. And EWG recommends that the Implementing Instructions
should make clear that products identified through government or
“third party” certifications recommended by EPA—for
example, under EPA’s
Recommendations of Specifications, Standards, and Ecolabels for
Federal Purchasing—should consider PFAS as a class of
contaminants as opposed to a focus on individual PFAS. The
EPA’s recommendations help US federal government purchasers
utilize private sector standards and ecolabels to identify and
procure environmentally preferable products and services. Being
that the Federal government’s procurement budget is over $650
billion, the needs of Federal purchasers influence what is
available for other purchasers to buy as well. The move to
eliminate all PFAS from procured products would likely have impacts
on the private sector marketplace as well.
If the White House were to adopt EWG’s recommendations, such
adoption would mark a significant shift in procurement policy that
could have profound impacts on procuring agencies and many
government contractors.
Challenges Implementing Restrictive PFAS Standards
Efforts to restrict procurement of certain PFAS-containing
products is not new. In the Fiscal Year 2020
National Defense Authorization Act, Congress set a 2024
phaseout deadline for firefighting foam containing PFAS, along with
a closer deadline of January 2023 for the Secretary of the Navy to
“publish a military specification for a fluorine-free
fire-fighting agent for use at all military installations and
ensure that such agent is available for use by not later than
October 1, 2023.” Firefighting foam has been a policy focus
because the foams used at military bases have historically
contained PFAS, and PFAS has been found in the soil and groundwater
in areas near military installations that have used the
firefighting foams. To date, DOD has identified
six “viable” substitutes for firefighting foam made with
PFAS. Each of these potential alternatives, however, has
significant drawbacks that prevent fully phasing out firefighting
foam made with PFAS. Some of the alternatives are significantly
higher cost and others require reliance on engineering controls
rather than direct fire suppression. For now, DOD has concluded
“no single technology is suitable for every
situation.”
DOD’s challenges with firefighting foam are anecdotal in a
sense, but they likely presage the types of challenges that DOD and
other agencies will experience when transitioning away from PFAS in
the near term and would face if an absolute prohibition were to be
imposed. DOD’s experience with firefighting foam is likely one
of the primary reasons why the White House opposed provisions that
would increase restrictions on the procurement of items containing
PFAS when proposed in the House version of the FY 2023 National
Defense Authorization Act. In a Statement of Policy
in response to the bill, the White House stated:
The Administration is concerned that [provisions] which would
prohibit DoD from procuring a wide range of items that may contain
PFAS and would significantly increase the number of PFAS to which
the existing prohibition would apply (from two PFAS to hundreds of
PFAS currently in commerce), would cause operational strains. DoD
is collaborating with others across the Administration to implement
President Biden’s Executive Order on Catalyzing Clean Energy
Industries and Jobs through Federal Sustainability, including
efforts to avoid procurement of products containing PFAS while
ensuring we meet the needs of service members.
The statement indicates that the Administration is currently
mindful about taking a measured approach to PFAS restrictions and
the importance of accounting for the potential operational
implications of restrictive policies.
Adding to the complexity of the issue is the focus on treating
all PFAS as a class, and therefore trying to eliminate all PFAS
from federal procurement. The Organisation for Economic
Co-operation and Development (OECD) has stated that “[t]he
term ‘PFASs’ is a broad, general, non-specific term, which
does not inform whether a compound is harmful or not, but only
communicates that the compounds under this term share the same
trait for having a fully fluorinated methyl or methylene carbon
moiety.” The upshot is that a substance containing PFAS does
not necessarily pose any harm or risk of harm. In turn, an approach
that covers all PFAS containing substances is arguably too broad,
as some of those substances may not pose any risk and thus the
downsides of restricting them are not warranted. Indeed, a blanket
prohibition would undermine numerous critical priorities of the
Biden Administration. For example, the Administration encouraged
the passage of the CHIPS Act, which promoted domestic production of
semiconductors. PFAS are vital to semiconductor manufacturing, and
restricting procurement of PFAS-containing
products—particularly using a broad and/or vague definition
of PFAS—would be unworkable when considering how reliant our
national defense is on technology containing semiconductors.
FAR Implementation on the horizon?
FAR 23.703(b)(1) already directs agencies in their acquisition
planning to “maximize the utilization of environmentally
preferable products and services (based on EPA-issued
guidance).” With limited exceptions, like EnergySTAR and
EPEAT, this does not translate directly into firm contractual
requirements. There otherwise is no FAR clause that requires an
offeror to certify that it will deliver products that fall under
one of the EPA-approved programs, such as those approving products
that do not contain PFAS. In the short term, companies may see
non-standard clauses mandating delivery of products that meet the
EPA guidance. The FAR Council has opened FAR Case 2022-006 to
implement aspects of the EO and the associated OMB memo. This is
expected to be a broad rulemaking that revamps FAR Part 23 and
specifically addresses PFAS. It remains to be seen if there will be
a separate clause dedicated to PFAS or, more likely, whether PFAS
will be incorporated into a broader framework.
Conclusion
The intersection between environmental policy and federal
procurement is garnering more and more attention these days, and
the PFAS policies are a perfect example of the challenges that will
continue to arise with increasing frequency. There inevitably will
be tension between policies favoring limiting the use of substances
containing PFAS and the fundamental procurement policies that focus
on acquiring products and services that meet the government’s
needs at reasonable prices. For now, there are few, if any, bright
line rules at the contract level. Whether the policy continues to
be implemented through preferences or ultimately takes the form of
prohibitions, contractors will face complex challenges. PFAS are
used in semiconductors, batteries, gaskets, seals, coatings, and
other materials utilized in military, medical, aerospace, and
energy applications, among numerous others. The vast array of
applications that rely on PFAS and that are essential to national
security, public safety, and other aspects of everyday life appears
to not be lost on the Administration. However, the White House must
address competing policy issues and it is vital for any entity that
works with the federal government to ensure that the relevant
policymakers are aware of the consequences of restricting PFAS
products from federal procurement. Accordingly, now is the time for
interested stakeholders to consider the EO and the developing
policies in this area.
Footnote
1. Companies should review solicitations and their
contracts and understand any clauses that impose requirements or
restrictions related to PFAS. Those could take the form of explicit
restrictions through rogue clauses, or they could be imposed
through the broader clauses associated with Federal Acquisition
Regulation Part 23.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
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