§ 253d. — Validation of proprietary data restrictions.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 41USC253d]
TITLE 41--PUBLIC CONTRACTS
CHAPTER 4--PROCUREMENT PROCEDURES
SUBCHAPTER IV--PROCUREMENT PROVISIONS
Sec. 253d. Validation of proprietary data restrictions
(a) Contracts; delivery of technical services; contents
A contract for property or services entered into by an executive
agency which provides for the delivery of technical data, shall provide
that--
(1) a contractor or subcontractor at any tier shall be prepared
to furnish to the contracting officer a written justification for
any restriction asserted by the contractor or subcontractor on the
right of the United States to use such technical data; and
(2) the contracting officer may review the validity of any
restriction asserted by the contractor or by a subcontractor under
the contract on the right of the United States to use technical data
furnished to the United States under the contract if the contracting
officer determines that reasonable grounds exist to question the
current validity of the asserted restriction and that the continued
adherence to the asserted restriction by the United States would
make it impracticable to procure the item competitively at a later
time.
(b) Review; challenge; notice
If after such review the contracting officer determines that a
challenge to the asserted restriction is warranted, the contracting
officer shall provide written notice to the contractor or subcontractor
asserting the restriction. Such notice shall state--
(1) the grounds for challenging the asserted restriction; and
(2) the requirement for a response within 60 days justifying the
current validity of the asserted restriction.
(c) Written request; additional time; schedule of responses
If a contractor or subcontractor asserting a restriction subject to
this section submits to the contracting officer a written request,
showing the need for additional time to comply with the requirement to
justify the current validity of the asserted restriction, additional
time to adequately permit the submission of such justification shall be
provided by the contracting officer as appropriate. If a party asserting
a restriction receives notices of challenges to restrictions on
technical data from more than one contracting officer, and notifies each
contracting officer of the existence of more than one challenge, the
contracting officer initiating the first in time challenge, after
consultation with the party asserting the restriction and the other
contracting officers, shall formulate a schedule of responses to each of
the challenges that will afford the party asserting the restriction with
an equitable opportunity to respond to each such challenge.
(d) Decision; validity of asserted restriction; failure to submit
response
(1) Upon a failure by the contractor or subcontractor to submit any
response under subsection (b) of this section, the contracting officer
shall issue a decision pertaining to the validity of the asserted
restriction.
(2) If a justification is submitted in response to the notice
provided pursuant to subsection (b) of this section, a contracting
officer shall within 60 days of receipt of any justification submitted,
issue a decision or notify the party asserting the restriction of the
time within which a decision will be issued.
(e) Claim; considered claim within Contract Disputes Act of 1978
If a claim pertaining to the validity of the asserted restriction is
submitted in writing to a contracting officer by a contractor or
subcontractor at any tier, such claim shall be considered a claim within
the meaning of the Contract Disputes Act of 1978 (41 U.S.C. 601 et
seq.).
(f) Challenge; use of technical data; sustained; liability of United
States for costs and fees
(1) If, upon final disposition, the contracting officer's challenge
to the restriction on the right of the United States to use such
technical data is sustained--
(A) the restriction on the right of the United States to use the
technical data shall be cancelled; and
(B) if the asserted restriction is found not to be substantially
justified, the contractor or subcontractor, as appropriate, shall be
liable to the United States for payment of the cost to the United
States of reviewing the asserted restriction and the fees and other
expenses (as defined in section 2412(d)(2)(A) of title 28) incurred
by the United States in challenging the asserted restriction, unless
special circumstances would make such payment unjust.
(2) If, upon final disposition, the contracting officer's challenge
to the restriction on the right of the United States to use such
technical data is not sustained--
(A) the United States shall continue to be bound by the
restriction; and
(B) the United States shall be liable for payment to the party
asserting the restriction for fees and other expenses (as defined in
section 2412(d)(2)(A) of title 28) incurred by the party asserting
the restriction in defending the asserted restriction if the
challenge by the United States is found not to be made in good
faith.
(June 30, 1949, ch. 288, title III, Sec. 303D, formerly Sec. 303E, as
added Pub. L. 98-577, title II, Sec. 203(a), Oct. 30, 1984, 98 Stat.
3071; renumbered Sec. 303D, Pub. L. 99-145, title XIII,
Sec. 1304(c)(4)(A), Nov. 8, 1985, 99 Stat. 742.)
References in Text
The Contract Disputes Act of 1978, referred to in subsec. (e), is
Pub. L. 95-563, Nov. 1, 1978, 92 Stat. 2383, as amended, which is
classified principally to chapter 9 (Sec. 601 et seq.) of this title.
For complete classification of this Act to the Code, see Short Title
note set out under section 601 of this title and Tables.
Effective Date
Section 203(b) of Pub. L. 98-577 provided that: ``The amendment made
by subsection (a) [enacting this section] shall apply with respect to
solicitations issued more than 60 days after the date of the enactment
of this Act [Oct. 30, 1984].''
Definitions
The definitions in section 102 of Title 40, Public Buildings,
Property, and Works, apply to this subchapter.
