Non-Statutory Sustainability Requirements refer to environmental and sustainability-related provisions that were not mandated by law or regulation, but were previously recommended or encouraged by the General Services Administration (GSA) as part of its commitment to sustainable procurement. These voluntary or discretionary requirements were often included in GSA solicitations, statements of work, or contract guidance documents to promote environmentally responsible purchasing decisions.
However, recent updates to the GSA Multiple Award Schedule (MAS) program have led to the removal or exclusion of these non-statutory sustainability elements from official contract documentation. This change reflects a shift toward focusing exclusively on statutorily required sustainability standards, thereby streamlining compliance obligations and reducing ambiguity for contractors.
Understanding what constitutes a non-statutory requirement, and the implications of its removal, is important for vendors, contracting officers, and sustainability advocates operating within the federal procurement landscape.
Differentiating Statutory vs. Non-Statutory Requirements
In federal acquisition, sustainability mandates can be divided into two primary categories:
- Statutory Requirements: These are obligations established by law, executive order, or regulation. Examples include the Energy Policy Act, Resource Conservation and Recovery Act (RCRA), or FAR Subpart 23. They are enforceable and must be met by contractors under specific circumstances.
- Non-Statutory Requirements: These are not required by law, but may be recommended or encouraged by agencies like GSA. They often reflect emerging best practices, pilot programs, or agency sustainability goals.
For example, while statutory law might require that certain electronic products be ENERGY STAR® certified, a non-statutory requirement might suggest that packaging be recyclable or that vendors adopt environmental management systems — without such criteria being codified in regulation.
Examples of Non-Statutory Sustainability Requirements
Before their removal, non-statutory sustainability requirements often appeared in solicitations or guidance documents as preferred practices. They may have included:
- Encouragement to use minimal or recyclable packaging materials
- Suggestions for offering remanufactured or refurbished products
- Requests to provide products with low volatile organic compound (VOC) emissions
- Preference for third-party sustainability certifications, such as EPEAT or Cradle to Cradle, beyond those required by law
- Voluntary reporting of corporate sustainability metrics
- Encouragement to reduce greenhouse gas emissions in product manufacturing or delivery
These requirements were typically framed in non-mandatory language, using terms like “should,” “may,” or “encouraged,” as opposed to “shall” or “must.” Still, their presence influenced vendor behavior, especially for those seeking to align with GSA’s environmental leadership goals or to strengthen their position in competitive evaluations.
Why GSA Removed Non-Statutory Sustainability Requirements
In recent solicitation refreshes, GSA made the decision to remove non-statutory sustainability language from the MAS solicitation documents. This change was motivated by several key factors:
- Consistency and Clarity: GSA aimed to eliminate ambiguity and ensure that only enforceable, legally mandated requirements remain part of the official solicitation language. This helps contractors understand exactly what is required and reduces confusion over expectations.
- Legal Risk Mitigation: Including voluntary or non-binding sustainability provisions in solicitations raised concerns about enforceability, fairness in evaluation, and the risk of protest or legal challenge. Removing them reduces compliance risk.
- Focus on Statutory Compliance: By prioritizing sustainability provisions required by law or executive order, GSA reinforces a compliance-first approach while still enabling agencies and vendors to pursue additional sustainability initiatives independently.
- Vendor Feedback: Some vendors reported confusion or perceived inconsistency in how non-statutory requirements were interpreted during proposal evaluation or post-award administration. The removal creates a more level playing field.
This change reflects a broader federal trend toward simplifying acquisition documents and aligning procurement language more tightly with codified requirements.
What This Means for Contractors
For vendors, the removal of non-statutory sustainability requirements means that only legally mandated green procurement provisions must now be addressed in proposals. This may reduce the documentation burden and simplify the offer preparation process, particularly for small businesses or firms new to federal contracting.
However, contractors should not interpret this change as a signal that sustainability is no longer important to GSA. On the contrary, GSA continues to support federal environmental objectives, including:
- Reducing greenhouse gas emissions
- Procuring sustainable products and services
- Encouraging innovation in green technologies
Vendors who choose to exceed the statutory minimum and voluntarily offer environmentally preferable solutions may still gain a competitive advantage, especially in task orders where agencies emphasize sustainability or where evaluation factors allow for such differentiation.
How Agencies Can Still Promote Sustainability
Although GSA removed non-statutory sustainability requirements from its base MAS solicitations, individual agencies retain the authority to incorporate environmental preferences into their task order-level requirements — provided they do not conflict with federal acquisition rules.
Contracting officers may still:
- Include evaluation factors for environmental performance in RFQs or RFPs
- Specify statutorily compliant sustainable products at the task order level
- Reference agency-specific green procurement goals in scopes of work
- Use Environmental Product Declarations (EPDs) or Life Cycle Assessments (LCAs) where appropriate
In this way, sustainability remains an active part of the acquisition conversation — even if the non-statutory language is no longer part of the standard MAS solicitation.
Implications for Sustainability-Minded Vendors
For vendors with a strong sustainability profile, the removal of non-statutory language from GSA contracts should be viewed not as a limitation, but as an opportunity to differentiate voluntarily. Some strategies include:
- Highlighting green certifications or initiatives in company capability statements
- Voluntarily offering sustainable alternatives even when not required
- Including sustainability achievements in past performance narratives
- Developing internal environmental policies that can be referenced in proposals
- Using eco-friendly packaging or carbon-neutral delivery services as added value
While such practices may no longer be required at the contract level, they still resonate with buyers — especially those at agencies with ambitious environmental mandates.
Future of Sustainability in Federal Procurement
The removal of non-statutory sustainability requirements does not signal a retreat from environmental goals within federal procurement. On the contrary, GSA and other agencies are actively working to modernize green purchasing frameworks and align procurement policies with climate and equity initiatives, including:
- Executive Order 14057: Catalyzing Clean Energy Industries and Jobs
- The Federal Sustainability Plan
- GSA’s Green Procurement Compilation and Category Management initiatives
Future updates to the MAS program may reintroduce sustainability provisions — but likely in the form of statutorily backed or Executive Order–driven requirements that meet the criteria for inclusion in official solicitation language.
Vendors should remain alert to these shifts and treat sustainability as a strategic differentiator, even in the absence of formal solicitation language.
Conclusion
Non-Statutory Sustainability Requirements once served as a soft policy tool used by GSA to encourage greener purchasing behaviors across the federal marketplace. Though not enforceable by law, they shaped how vendors approached packaging, materials, emissions, and other environmental factors in their offers.
With their removal from the MAS solicitation, the emphasis has shifted back to statutory compliance, bringing clarity and consistency to the procurement process. Still, sustainability remains a critical issue — and one that forward-thinking contractors can continue to champion as part of their value proposition to federal buyers.
