12 2 STA T . 1 306PUBLIC LA W 110 – 23 4—M A Y 22 , 200 8‘ ‘ (a a ) a recomp o s e d o fth eh ig hest perce n t - age of b iobased prod u cts practicab l e
or ‘‘(bb) compl yw ith the regulations issued under section 103 of P ublic L aw 100 –5 5 6 ( 42U.S . C .6 9 14b–1). ‘‘(ii) EXCEPTION . —T he re q uirements of clause (i)( I ) to establish a procurement program and de v elop procurement specifications shall not apply to a person described in paragraph (1)( B ). ‘‘(B) FL EXI B ILIT Y .— N otwithstanding subparagraph ( A ) , a procuring agency may decide not to procure items described in that subparagraph if the procuring agency determines that the items— ‘‘(i) are not reasonably available within a reason- able period of time; ‘‘(ii) fail to meet— ‘‘(I) the performance standards set forth in the applicable specifications; or ‘‘(II) the reasonable performance standards of the procuring agencies; or ‘‘(iii) are available only at an unreasonable price. ‘‘(C) M INI MU M R E Q UIREMENT S .—Each procurement pro- gram required under this subsection shall, at a minimum— ‘‘(i) be consistent with applicable provisions of Fed- eral procurement law; ‘‘(ii) ensure that items composed of biobased prod- ucts will be purchased to the ma x imum extent prac- ticable; ‘‘(iii) include a component to promote the procure- ment program; ‘‘(iv) provide for an annual review and monitoring of the effectiveness of the procurement program; and ‘‘(v) adopt 1 of the 2 polices described in subpara- graph ( D ) or (E), or a policy substantially equivalent to either of those policies. ‘‘(D) C A SE-BY-CASE POLICY.— ‘‘(i) IN G ENERAL.—Sub j ect to subparagraph (B) and except as provided in clause (ii), a procuring agency adopting the case-by-case policy shall award a contract to the vendor offering an item composed of the highest percentage of biobased products practicable. ‘‘(ii) EXCEPTION.—Subject to subparagraph (B), an agency adopting the policy described in clause (i) may ma k e an award to a vendor offering items with less than the maximum biobased products content. ‘‘(E) MINIMUM CONTENT STAN D ARDS.—Subject to subparagraph (B), a procuring agency adopting the min- imum content standards policy shall establish minimum biobased products content specifications for awarding con- tracts in a manner that ensures that the biobased products content required is consistent with this subsection. ‘‘(F) CERTI F ICATION.—After the date specified in any applicable guidelines prepared pursuant to paragraph (3), contracting offices shall require that vendors certify that the biobased products to be used in the performance of the contract will comply with the applicable specifications or other contractual requirements.
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