10 U.S.C. § 2321 : US Code - Section 2321: Validation of proprietary data restrictions

Search 10 U.S.C. § 2321 : US Code - Section 2321: Validation of proprietary data restrictions

(a) Contracts Covered by Section. - This section applies to any
contract for supplies or services entered into by the Department of
Defense that includes provisions for the delivery of technical
data.
(b) Contractor Justification for Restrictions. - A contract
subject to this section shall provide that a contractor under the
contract and any subcontractor under the contract at any tier shall
be prepared to furnish to the contracting officer a written
justification for any use or release restriction (as defined in
subsection (i)) asserted by the contractor or subcontractor.
(c) Review of Restrictions. - (1) The Secretary of Defense shall
ensure that there is a thorough review of the appropriateness of
any use or release restriction asserted with respect to technical
data by a contractor or subcontractor at any tier under a contract
subject to this section.
(2) The review of an asserted use or release restriction under
paragraph (1) shall be conducted before the end of the three-year
period beginning on the later of -
(A) the date on which final payment is made on the contract
under which the technical data is required to be delivered; or
(B) the date on which the technical data is delivered under the
contract.
(d) Challenges to Restrictions. - (1) The Secretary of Defense
may challenge a use or release restriction asserted with respect to
technical data by a contractor or subcontractor at any tier under a
contract subject to this section if the Secretary finds that -
(A) reasonable grounds exist to question the current validity
of the asserted restriction; and
(B) the continued adherence by the United States to the
asserted restriction would make it impracticable to procure the
item to which the technical data pertain competitively at a later
time.
(2)(A) A challenge to an asserted use or release restriction may
not be made under paragraph (1) after the end of the three-year
period described in subparagraph (B) unless the technical data
involved -
(i) are publicly available;
(ii) have been furnished to the United States without
restriction; or
(iii) have been otherwise made available without restriction.
(B) The three-year period referred to in subparagraph (A) is the
three-year period beginning on the later of -
(i) the date on which final payment is made on the contract
under which the technical data are required to be delivered; or
(ii) the date on which the technical data are delivered under
the contract.
(3) If the Secretary challenges an asserted use or release
restriction under paragraph (1), the Secretary shall provide
written notice of the challenge to the contractor or subcontractor
asserting the restriction. Any such notice shall -
(A) state the specific grounds for challenging the asserted
restriction;
(B) require a response within 60 days justifying the current
validity of the asserted restriction; and
(C) state that evidence of a justification described in
paragraph (4) may be submitted.
(4) It is a justification of an asserted use or release
restriction challenged under paragraph (1) that, within the three-
year period preceding the challenge to the restriction, the
Department of Defense validated a restriction identical to the
asserted restriction if -
(A) such validation occurred after a challenge to the validated
restriction under this subsection; and
(B) the validated restriction was asserted by the same
contractor or subcontractor (or a licensee of such contractor or
subcontractor).
(e) Time for Contractors to Submit Justifications. - If a
contractor or subcontractor asserting a use or release restriction
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.
(f) Presumption of Development Exclusively at Private Expense. -
(1) Except as provided in paragraph (2), in the case of a challenge
to a use or release restriction that is asserted with respect to
technical data of a contractor or subcontractor under a contract
for commercial items, the contracting officer shall presume that
the contractor or subcontractor has justified the restriction on
the basis that the item was developed exclusively at private
expense, whether or not the contractor or subcontractor submits a
justification in response to the notice provided pursuant to
subsection (d)(3). In such a case, the challenge to the use or
release restriction may be sustained only if information provided
by the Department of Defense demonstrates that the item was not
developed exclusively at private expense.
(2) In the case of a challenge to a use or release restriction
that is asserted with respect to technical data of a contractor or
subcontractor (whether or not under a contract for commercial
items) for a major system or a subsystem or component thereof on
the basis that the major system, subsystem or component was
developed exclusively at private expense, the challenge to the use
or release restriction shall be sustained unless information
provided by the contractor or subcontractor demonstrates that the
item was developed exclusively at private expense.
(g) Decision by Contracting Officer. - (1) Upon a failure by the
contractor or subcontractor to submit any response under subsection
(d)(3), the contracting officer shall issue a decision pertaining
to the validity of the asserted restriction.
(2) After review of any justification submitted in response to
the notice provided pursuant to subsection (d)(3), the 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.
(h) Claims. - 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.).
(i) Rights and Liability Upon Final Disposition. - (1) If, upon
final disposition, the contracting officer's challenge to the use
or release restriction is sustained -
(A) the restriction shall be cancelled; and
(B) if the asserted restriction is found not to be
substantially justified, the contractor or subcontractor
asserting the restriction 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 use or release restriction 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.
(j) Use or Release Restriction Defined. - In this section, the
term "use or release restriction", with respect to technical data
delivered to the United States under a contract subject to this
section, means a restriction by the contractor or subcontractor on
the right of the United States -
(1) to use such technical data; or
(2) to release or disclose such technical data to persons
outside the Government or permit the use of such technical data
by persons outside the Government.