Department of Agriculture Proposes Rules for Biobased Products Preference in Federal Procurements

2.11.2010 - Posted in E&B Alerts - Government Contracts

Yesterday, the Department of Agriculture (USDA) issued proposed rules to establish a preference for its 6th round of "biobased" items in federal procurements. 75 Fed. Reg. 6796 (Feb. 10, 2010). For a list of previously identified categories of products with a USDA determined minimum specified amount of biobased material, see http://www.biopreferred.gov/ProposedAndFinalItemDesignations.aspx. If the currently proposed designations are approved, the preference will become effective one-year after the publication of the final rule, and federal agencies and federal contractors will then be required to acquire the recently identified products.

Under the proposed rule, procuring agencies are generally required to purchase USDA-designated items if the purchase price exceeds $10,000 or the purchased value of such items (or functionally equivalent items) over the preceding year was $10,000 or more. Exceptions to the preference exist if the agency determines that the product (1) is not reasonably available, (2) fails to meet reasonable performance standards, or (3) is not available at reasonable price.

The USDA is proposing to designate the following items for preferred procurement, with a proposed minimum biobased content for each:

· Disposable tableware (with a minimum biobased content of 72%);

· Expanded polystryrene (EPS) foam recycling products (90%);

· Heat transfer fluids (89%);

· Ink removers and cleaners (79%);

· Mulch and compost materials (95%);

· Multipurpose lubricants (88%);

· Office paper (95%);

· Topical pain relief products (91%); and

· Turbine drip oils (87%).


Under the proposed rule, manufacturers of the specific items will "self-certify" that their products contain qualifying percentages of biobased material, or "feedstock." The USDA intends to develop a monitoring process for the certifications.

In the future, the USDA will consider additional classes of items for designation as preferred bio-based products by comparing them to program criteria developed by the USDA, and evaluating product cost, availability and performance using information obtained from a variety of sources. Comments to the proposed rule will be accepted through April 12, 2010.

For more information on the program, please contact us at (612) 236-0160. Information on the program, such as how to register products, can also be located at http://www.biopreferred.gov.