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 5. Exceptions
A procuring agency may not always be able to purchase a designated item with
recovered materials content. RCRA section 6002(c)(1) allows a procuring agency to make an
exception to purchasing an EPA-designated item with recovered materials content based on
the following determinations:
The agency is unable to secure a satisfactory level of competition.
(1)
(2)
The item is not reasonably available within a reasonable period of time.
The item fails to meet the reasonable performance standards set forth in the
(3)
agency's specification.
The item is available only at an unreasonable price.
(4)
Section 402 of Executive Order 12873 further requires that, if a procuring agency does not
purchase an EPA-designated item with recovered materials content, it must provide a written
justification specifying one or more of the exceptions listed above.
a. Price. In previous guidelines, EPA defined an unreasonable price as a price that is
greater than the price of a competing product made from virgin materials. EPA further
interpreted the reasonable price provision of RCRA section 6002(c)(1)(C) to mean that there
is no projected or observed long-term or average increases over the price of competing virgin
items. This interpretation is supported in the preamble to OFPP Policy Letter 924 (57 FR
53364), which provides that there is no legal mandate to provide a price preference for
products containing recovered materials over similar virgin products.
b. Competition. EPA recommends that determinations of "satisfactory" competition be
made in accordance with the procuring agency's procurement requirements.
c. Availability and performance. Information on the economic and technological
feasibility of producing each designated item, including the availability and number of
manufacturers that produce the item, the ability of the item to meet Federal or national
specifications, the recovered materials content levels used by manufacturers to produce the
item, and other information can be found in the item-specific discussions in this document
and in the "RMAN for Items Designated in the Comprehensive Procurement Guideline -
supporting Analyses."
C. Promotion Program
RCRA section 6002(i)(2)(R) requires each procuring agency to adopt a program to
promote its preference to buy EPA-designated items with recovered materials content. The
promotion component of the affirmative procurement program educates staff and notifies an
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