Environmental Obligations Hiding in Plain Sight (Properties Magazine)

Christopher W. St. Marie, Malek A. Khawam

As many contractors know, whenever doing federal projects there might be a nagging feeling in the back of your mind.  What exactly does my contract say?  What type of plan do I need to address environmental concerns? You might even wonder, what are my environmental concerns? In an attempt to ease your mind, you flip through your Task Order or contract.  At first glance the contract seems innocuous, but hiding in plain sight are the dreaded “Clauses Incorporated by Reference” under the Federal Acquisition Regulation (FAR).  Federal contracts tend to involve a lot more than initially meets the eye.  Among those things include a thicket of environmental law ranging from Clean Water to Fish and Wildlife.  It is incredibly important to look at your contract in detail to see what environmental obligations lie in the fine print. 

Environmental Regulations Incorporated by Reference

Most government contracts contain any number of FAR provisions that are incorporated into your contract by reference without setting forth the full text of the FAR provision.  Indeed, hiding beneath a string of headers may be requirements related to everything from Pollution Prevention (FAR 52.223-5) to Protection of Existing Vegetation, Structures, Equipment, Utilities, and Improvements (FAR 52.236-9).  Not only do these provisions require a contractor to cross reference the FAR to determine its obligations under the contract, many of the cited provisions in turn reference additional statutory framework that is likewise incorporated into your contract.  For example, Pollution Prevention and Right to Know Information (FAR 52.223-5) states that “Federal facilities are required to comply with the provisions of the . . . the Pollution Prevention Act of 1990 (PPA) (42 U.S.C.13101-13109).”  As a result, what first appears in your contract as simple heading may actually incorporate the entire Pollution Prevention Act by reference.  The sheer volume of statutory rules that may be incorporated into your contract can be too much to fit onto a ream of paper.  As a result, it is incumbent upon a contractor to do the leg work and know what environmental issues are applicable to each project.

Environmental Protection Plans

Thankfully, a contractor’s Environmental Protection Plan (EPP) on applicable projects is an opportunity for a contractor to discuss known environmental issues or other environmental concerns that may be applicable to a federal project. An EPP typically requires a contractor to meet with the contracting officer to discuss environmental concerns that might arise on a project. This is the time for a contractor to review the contract, understanding which provisions have been incorporated by reference, and develop a plan to address those issues or concerns so that you are in compliance with the thicket of regulations that might be attached to your contract. 

In particular, in your general overview, your EPP should very clearly set forth each set of regulations that are addressed in the plan to ensure that you and the contracting offer are on the same page in terms of your obligations. Providing a list of the laws and regulations that are applicable to the project in your EPP both shows that you have grasp on project requirements and a solid plan in place to ensure that your work on the project is compliant with all environmental regulations. Your contracting officer can then review and discuss how or if your plan needs to be adjusted to account for any other environmental concerns.

Beware, however, that your EPP does not excuse you from any of your obligations under FAR, including any of those incorporated by reference. Again, to the extent a FAR provision related to environmental regulation is incorporated by reference into the contract, but does not appear in your EPP, a contractor is still required to follow all the terms of the contract. In other words, the obligations of the contract stay with the contractor, even after the parties have agreed to an Environmental Protection Plan.

The best time to address any of these environmental concerns is almost always before a dispute arises.  Look under every nook and cranny of your contract, find what regulations apply, and address them head on with your contracting officer. You will be doing right by your business and will be ensuring the health, welfare, and preservation of the environment.

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