Sustainable Procurement Update: Spring 2024
Client Alert | 2 min read | 05.20.24
During the month of April, the Biden administration has continued to leverage federal procurement in pursuit of ambitious environmental sustainability policy goals. The most recent round of new regulations and initiatives finds the administration seeking to strengthen purchasing mandates of sustainable goods and services, as well as laying the groundwork for significant restrictions on the federal procurement of products containing per- and polyfluoroalkyl substances (PFAS).
Sustainable Products and Services – On April 22, 2024, the Department of Defense, General Services Administration, and National Aeronautics and Space Administration, released a final rule instructing federal agencies “to procure sustainable products and services to the maximum extent practicable.” The rule defines “sustainable products and services” as products containing recovered materials, bio-based products, energy- and energy-efficient products, or items included on the Environmental Protection Agency Recommendations of Specifications, Standards, and Ecolabels list.
The final rule creates a presumption that procurement of sustainable goods and services is practicable unless an agency justifies that it cannot acquire products or services “(i) within a reasonable performance schedule; (ii) that meet reasonable performance requirements; or (iii) at a reasonable price.” Additionally, limited exceptions exist for certain defense procurements and contracts performed outside the United States, and heads of agencies are authorized to issue an exemption in the interest of national security and other limited circumstances. Moving forward, the final rule mandates the inclusion of a new omnibus clause implementing these sustainability requirements in all solicitations and contracts (subject to the exceptions and exemptions identified above), including ones at or below the simplified acquisition threshold (SAT) and for commercial products, including commercially available off-the-shelf (COTS) items, and services.
This final rule is effective May 22, 2024.
Reducing PFAS in Federal Procurement – On April 16, 2024, GSA published a Request for Information seeking public comment on reducing or even eliminating procurement of products with PFAS through GSA contract solutions. Acting in furtherance of Executive Order 14057 and the Office of Management and Budget Memo M-22-06, which directed federal agencies to prioritize procurement of non-PFAS products, GSA is seeking public input on a range of questions, including:
- What product areas should GSA exclude at this time and why?
- What is the potential impact on domestic manufacturing if GSA establishes PFAS reduction requirements that reduce or prohibit PFAS, or eliminate them entirely?
- How long should GSA give contractors to reduce PFAS?
- What type of exception process should GSA consider?
- Would it be more impactful for GSA to target a specific product type or chemical signature in products to meet the goal of reducing or eliminating PFAS?
- How would a reduction or elimination of PFAS containing products impact your company's ability to compete?
This follows a GSA announcement on April 8, 2024, requiring government contractors to only purchase and use non-PFAS cleaning products in all federal buildings within GSA’s property portfolio.
The government contracting community should pay close attention to these mounting actions that will directly impact the way manufacturers and service providers do business with the federal government moving forward.
Contacts
Insights
Client Alert | 5 min read | 12.12.25
Eleventh Circuit Hears Argument on False Claims Act Qui Tam Constitutionality
On the morning of December 12, 2025, the Eleventh Circuit heard argument in United States ex rel. Zafirov v. Florida Medical Associates, LLC, et al., No. 24-13581 (11th Cir. 2025). This case concerns the constitutionality of the False Claims Act (FCA) qui tam provisions and a groundbreaking September 2024 opinion in which the United States District Court for the Middle District of Florida held that the FCA’s qui tam provisions were unconstitutional under Article II. See United States ex rel. Zafirov v. Fla. Med. Assocs., LLC, 751 F. Supp. 3d 1293 (M.D. Fla. 2024). That decision, penned by District Judge Kathryn Kimball Mizelle, was the first success story for a legal theory that has been gaining steam ever since Justices Thomas, Barrett, and Kavanaugh indicated they would be willing to consider arguments about the constitutionality of the qui tam provisions in U.S. ex rel. Polansky v. Exec. Health Res., 599 U.S. 419 (2023). In her opinion, Judge Mizelle held (1) qui tam relators are officers of the U.S. who must be appointed under the Appointments Clause; and (2) historical practice treating qui tam and similar relators as less than “officers” for constitutional purposes was not enough to save the qui tam provisions from the fundamental Article II infirmity the court identified. That ruling was appealed and, after full briefing, including by the government and a bevy of amici, the litigants stepped up to the plate this morning for oral argument.
Client Alert | 8 min read | 12.11.25
Director Squires Revamps the Workings of the U.S. Patent Office
Client Alert | 8 min read | 12.10.25
Creativity You Can Use: CJEU Clarifies Copyright for Applied Art
Client Alert | 4 min read | 12.10.25
Federal Court Strikes Down Interior Order Suspending Wind Energy Development
