The New ‘Buy Clean Concrete’ Guidelines Applicable to State of New York Agency Construction Contracts

Legal Alert

September 25, 2023

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The New York State Office of General Services has issued the long-awaited New York State Buy Clean Concrete guidelines applicable to certain State of New York (“NYS”) construction projects.

The guidelines “establish the minimum requirements for [NYS] agencies when developing and executing contracts involving low embodied carbon concrete and the applicability of the guidelines to State projects that involve the use of concrete."

The guidelines set forth “Maximum Global Warming Potential Limits for Low Embodied Carbon Concrete” (“GWP”). The applicable GWP limit depends on the specified compressive strength of the concrete and is measured in kilograms of carbon dioxide equivalent per cubic yard of concrete.

The guidelines direct that they apply to NYS agency contracts as follows:

Building projects with
- a contract value of at least $1 million; and
- scope of at least 50 cubic yards of concrete
Department of Transportation projects with
- a contract value of at least $3 million; and
- a concrete pay item with an estimated quantity of at least 200 cubic yards

During January 1, 2024-December 31, 2024, compliance will be voluntary.[1] Design builders and contractors will be required to submit information about the concrete supplied for comparison against the GWP limit.

Starting January 1, 2025, compliance will be mandatory. Design builders and contractors will be required to certify that the concrete supplied complies with the applicable GWP limit.

The guidelines indicate that the applicable GWP limits may be lowered on or about January 1, 2027.

We anticipate that each NYS agency to incorporate these guidelines into their standard form of contracts and specifications in some form or another.

We caution that these guidelines are minimum requirements only and that contract language governing a specific project may set forth more aggressive requirements. Also, these requirements are in addition to any other applicable law including without limitation Executive Order 22 that contained other requirements relating to decarbonization and sustainability.

If you have questions about the guidelines, including whether they impact a specific contract that has already been awarded, please contact Melissa Salsano.

A copy of the guidelines is available here.

[1] Absent contract language, agency direction or specification to the contrary.