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a. Applicability to leases. One commenter inquired about the applicability of RCRA
section 6002 to designated items that are leased rather than purchased by a procuring agency.
Section 6002 applies to "any purchase or acquisition" in excess of $10,000 by a
procuring agency. The Federal Acquisition Regulation (FAR) defines "acquisition" to
include the acquiring of supplies or services (including construction) by means of a lease (48
CFR Section 2.101). Therefore, RCRA section 6002 and the procurement guidelines
developed under its authority apply to a procuring agency's lease contracts for designated
items. Under the definition of "procuring agency," lessor contractors `are subject to the
section 6002 requirements for work performed under the lease contract.
b. Applicability to contractors. Commenters inquired when RCRA section 6002
applies to contractors.
The requirements of RCRA section 6002 apply to contractors in the following
circumstances. A contractor must comply with section 6002 with respect to work performed
under the contract if the contractor is (1) contracting with a Federal agency or a state agency
which is using, appropriated Federal funds for a procurement and (2) purchasing or acquiring
a designated item whose purchase price exceeds $10,000 or the quantity of which purchased
in the previous year was $10,000 or more.
Under both circumstances, it is immaterial for purposes of the $10,000 threshold
whether the contractor purchased or acquired the designated items as a "procuring agency"
(with respect to work performed under a contract with a Federal or state agency) or in its
private capacity. All the purchases of a designated item should be aggregated in order to
determine whether the $10,000 threshold for section 6002 applicability is met. However, the
obligations of section 6002 are prospective. The contractor must determine whether the
$10,000 threshold is met only after it, is a "procuring agency." That is, purchases exceeding
the $10,000 threshold in the year prior to the year in which a contractor becomes a
"procuring agency" do not trigger section 6002(a) requirements. Furthermore, white the
contractor is subject to the section 6002 requirements once it exceeds the threshold, those
requirements apply only with respect to work-performed under the contract (i.e., when
supplying the designated item to any state or Federal agency).
For example, in Year One; Contractor X contracts to supply $500 of hydraulic mulch.
to a state. agency using appropriated Federal funds to purchase the hydraulic mulch.
Therefore, in Year One, Contractor X is a `procuring agency." During Year One,
Contractor X also purchases hydraulic mulch for its own use and to supply the requirements
of its other customers, with total purchases of hydraulic mulch exceeding $10,000. In Year
One, while Contractor X is a procuring agency, Contractor X is not subject to the section
6002 requirements for hydraulic mulch supplied to the state agency because the contract price
does not exceed $10,000. In Year Two, Contractor X is subject to section 6002
requirements for hydraulic mulch provided to the state agency for the procurement regardless
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