Motivation for GSA’s actions
GSA’s contemplated actions are intended to align with and support President Biden’s Executive Order on Tackling the Climate Crisis at Home and Abroad, E.O. 14008 (EO). The EO states that “it is the policy of [the Biden] Administration to lead the Nation’s effort to combat the climate crisis by example- specifically, by aligning the management of Federal procurement … and financial programs to support robust climate action.”
GSA has already taken internal policy steps toward using its significant buying power to advance the goals set forth by the EO. Specifically, GSA amended its Acquisition Manual (GSAM) in 2021 to require the consideration of content waste reduction as part of requirements planning for GSA acquisitions that require a written acquisition plan. It is GSA policy to consider supporting environmental objectives such as waste reduction, source reduction; increased material, energy, or water efficiency; or maximum practicable recovered material content. The GSAM goes on to provide that this may include considering waste reduction techniques and taking into account reduction in packaging, to include shipping packaging, when buying supplies.
GSA has stated that it will consider comments received in response to the ANPR in future rulemaking that will further amend the General Services Administration Regulation. Additionally, the comments will likely drive revisions to other GSA policies, procedures, and guidance that align with the GSAM and address the goals of the EO regarding single-use plastics.
Potential impact
The rule the ANPR foreshadows is expected to have wide-reaching impact across industries including, but certainly not limited to, pharmaceutical, scientific, and health care products; food products; hardware and telecommunications equipment; office supplies and furniture; industrial products; and construction materials. Indeed, the questions GSA posed in the ANPR suggest that a future rule addressing single-use plastics could impact many participants in the federal supply chain, including manufacturers, distributors, and resellers. While GSA expresses an interest in aiding its contractors in transitioning to using “environmentally preferable” packing and packaging, including paper-based, aluminum-based, and compostable packaging, such a transition may take a heavy toll on GSA contractors that presently use single-use plastics as an integral part of their packing and packaging methods.
Recognizing the costs and logistical complexities, GSA also seeks input on how compliance with requirements for reduced or eliminated plastic content could be verified. This suggests that a future rule could result in GSA contractors having to implement supply chain management practices and tracing plans in order to certify that products in their supply chain are free from prohibited materials. Similarly, GSA contractors may also be required to comply with reporting and monitoring standards, which are likely to result in additional increased compliance costs.
It also appears that there is a possibility for exemptions from a future GSA rule, as GSA also asks commenters to address exceptions that should be made to ensure that no harm comes to customer agency missions. This comment period therefore creates a window of opportunity for stakeholders to request a safe harbor for certain products. However, GSA is also asking for feedback about which single-use plastic items should not be offered via its federal supply schedules, which suggests that there may ultimately be outright bans on the provision of certain items by GSA contractors. So contractors already utilizing environmentally friendly packaging, or that can quickly replace single-use plastics in their offerings, may ultimately find themselves with the ability to outmaneuver competitors dependent on banned packaging products, in the pursuit of GSA contract awards.
How to submit feedback
Per the ANPR, written comments must be submitted on or before September 5, 2022 (60 days after publication in the Federal Register). Interested parties can submit their written comments through the Federal eRulemaking Portal, by searching for “GSAR Case 2022-G517,” and by selecting the link “Comment Now.” If you have additional questions about the ANPR or would like help submitting a comment, feel free to contact any of the authors of this alert or your preferred Reed Smith point of contact.
Client Alert 2022-182
