FAR 23.404—Environmental management systems.
Plain-English Summary
FAR 23.404 explains when and how an agency may use an environmental management system (EMS) in federal contracting, and what happens when contractor performance affects the agency’s environmental responsibilities. The section ties EMS use to two conditions: it must align with the agency’s mission needs, and it must support implementation and progress toward Executive Order 14057 sustainability goals. It then addresses a specific contracting scenario: contractor operation of Government-owned or Government-leased facilities or vehicles where contractor activities affect the agency’s environmental management aspects. In that situation, the FAR requires the agency to put EMS requirements into the contract so the EMS can be properly implemented and roles and responsibilities are clear. It also assigns the contracting officer two duties: identify the EMS directives the contractor must follow, and ensure contractor compliance to the same extent the agency would have to comply if it were operating the facilities or vehicles itself. In practice, this section is about translating agency environmental policy into enforceable contract requirements and making sure contractor-operated operations do not create gaps in environmental compliance or accountability.
Key Rules
EMS use is discretionary
An agency may implement an environmental management system, but it is not mandatory under this section. The decision should be based on whether the EMS supports the agency’s mission needs and helps advance E.O. 14057 goals.
Contract coverage when contractors operate facilities
If the agency uses an EMS for contractor operation of Government-owned or -leased facilities or vehicles, and contractor activities affect the agency’s environmental management aspects, the contract must include EMS requirements. This ensures the EMS is actually implemented in the contractor-run environment.
Contract terms must define EMS roles
The contract must include requirements that support proper implementation and execution of EMS roles and responsibilities. In other words, the contractor’s environmental duties cannot be left vague or implied.
CO must identify applicable directives
The contracting officer must specify which EMS directives the contractor must comply with. This means the contract should point to the exact policies, procedures, standards, or instructions that govern performance.
Compliance standard matches agency obligation
The contracting officer must ensure contractor compliance to the same extent the agency would have to comply if it were operating the facilities or vehicles itself. Contractor operation does not reduce the underlying environmental compliance standard.
Responsibilities
Agency
Decide whether to implement an EMS based on mission needs and whether it supports progress toward E.O. 14057 goals. If the agency uses an EMS for contractor-operated Government-owned or -leased facilities or vehicles, ensure the procurement strategy supports inclusion of EMS requirements.
Contracting Officer
Include EMS requirements in the contract when contractor activities affect the agency’s environmental management aspects. Specify the EMS directives the contractor must follow and ensure contractor compliance to the same extent the agency would be required to comply if it operated the facilities or vehicles itself.
Contractor
Comply with the EMS requirements and the specific EMS directives incorporated into the contract. Perform operations in a way that supports the agency’s environmental management aspects and allows the agency to meet its compliance obligations.
Practical Implications
This section matters most in service contracts, base operations, logistics, fleet management, and facility operations where contractors control day-to-day environmental performance.
A common pitfall is treating EMS language as a general policy statement instead of a binding contract requirement with specific directives and responsibilities.
Another risk is failing to align the contract with the agency’s actual EMS documents, which can leave the contractor unsure what standards apply and make enforcement difficult.
Contracting officers should verify that the contract clearly identifies the applicable EMS directives and that surveillance or inspection methods are in place to check compliance.
Agencies should make sure EMS requirements are realistic, measurable, and consistent with the contractor’s operational role so compliance can be monitored and enforced effectively.
Official Regulatory Text
Agencies may implement an environmental management system (EMS) when it aligns with and supports its agency's mission needs and facilitates implementation and progress toward E.O. 14057 goals. If an agency uses an EMS for contractor operation of Government-owned or -leased facilities or vehicles, and contractor activities affect the agency's environmental management aspects— (a) EMS requirements shall be included in contracts to ensure proper implementation and execution of EMS roles and responsibilities; and (b) The contracting officer shall— (1) Specify the EMS directives with which the contractor must comply; and (2) Ensure contractor compliance to the same extent as the agency would be required to comply if the agency operated the facilities or vehicles.