Notes on 10 U.S.C. § 2321 : US Code - Notes

Search Notes on 10 U.S.C. § 2321 : US Code - Notes

(Added Pub. L. 98-525, title XII, Sec. 1216(a), Oct. 19, 1984, 98
Stat. 2597; amended Pub. L. 99-500 Sec. 101(c) [title X, Sec.
953(b)], Oct. 18, 1986, 100 Stat. 1783-82, 1783-171, and Pub. L. 99-
591, Sec. 101(c) [title X, Sec. 953(b)], Oct. 30, 1986, 100 Stat.
3341-82, 3341-171; Pub. L. 99-661, div. A, title IX, formerly title
IV, Sec. 953(b), Nov. 14, 1986, 100 Stat. 3951, renumbered title
IX, Pub. L. 100-26, Sec. 3(5), Apr. 21, 1987, 101 Stat. 273, Pub.
L. 100-26, Sec. 7(a)(5), Apr. 21, 1987, 101 Stat. 276; Pub. L. 100-
180, div. A, title XII, Sec. 1231(6), Dec. 4, 1987, 101 Stat.
1160; Pub. L. 103-35, title II, Sec. 201(g)(4), May 31, 1993, 107
Stat. 100; Pub. L. 103-355, title VIII, Sec. 8106(b), Oct. 13,
1994, 108 Stat. 3393; Pub. L. 109-364, div. A, title VIII, Sec.
802(b), Oct. 17, 2006, 120 Stat. 2313.)
REFERENCES IN TEXT
The Contract Disputes Act of 1978, referred to in subsec. (h), 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 Title 41,
Public Contracts. For complete classification of this Act to the
Code, see Short Title note set out under section 601 of Title 41
and Tables.
CODIFICATION
Pub. L. 99-591 is a corrected version of Pub. L. 99-500.
Another section 2321 of this title was contained in chapter 138
and was renumbered section 2341 of this title.
AMENDMENTS
2006 - Subsec. (f). Pub. L. 109-364 substituted "Expense" for
"Expense for Commercial Items Contracts" in heading, designated
existing provisions as par. (1), substituted "Except as provided in
paragraph (2), in" for "In", and added par. (2).
1994 - Subsecs. (f) to (j). Pub. L. 103-355 added subsec. (f) and
redesignated former subsecs. (f) to (i) as (g) to (j),
respectively.
1993 - Subsec. (d)(1)(B). Pub. L. 103-35 substituted "adherence"
for "adherance".
1987 - Subsec. (a). Pub. L. 100-26, Sec. 7(a)(5)(A)(ii), added
subsec. (a) and struck out former subsec. (a) which read as
follows: "A contract for supplies or services entered into by the
Department of Defense which provides for the delivery of technical
data shall provide that 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."
Subsec. (b). Pub. L. 100-26, Sec. 7(a)(5)(A)(ii), added subsec.
(b) and struck out former subsec. (b) which read as follows:
"(1) The Secretary of Defense shall ensure that there is a
thorough review of the appropriateness of any restriction on the
right of the United States to release or disclose technical data
delivered under a contract to persons outside the Government, or to
permit the use of such technical data by such persons. Such review
shall be conducted before the end of the three-year period
beginning on the date on which final payment is made on a contract
under which technical data is required to be delivered, or the date
on which the technical data is delivered under such contract,
whichever is later.
"(2)(A) If the Secretary determines, at any time before the end
of the three-year period beginning on the date on which final
payment is made on a contract under which technical data is
required to be delivered, or the date on which the technical data
is delivered under such contract, whichever is later, that a
challenge to a restriction is warranted, the Secretary shall
provide written notice to the contractor or subcontractor asserting
the restriction. Such a determination shall be based on a finding
by the Secretary 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. Such notice shall -
"(i) state the specific grounds for challenging the asserted
restriction;
"(ii) require a response within 60 days justifying the current
validity of the asserted restriction; and
"(iii) state that evidence of a validation by the Department of
Defense of a restriction identical to the asserted restriction
within the three-year period preceding the challenge shall serve
as justification for the asserted restriction if -
"(I) the validation occurred after a review of the validated
restriction under this subsection; and
"(II) the validated restriction was asserted by the same
contractor or subcontractor (or any licensee of such contractor
or subcontractor) to which such notice is being provided.
"(B) Notwithstanding subparagraph (A), the United States may
challenge a restriction on the release, disclosure, or use of
technical data delivered under a contract at any time if such
technical data -
"(i) is publicly available;
"(ii) has been furnished to the United States without
restriction; or
"(iii) has been otherwise made available without restriction."
Subsec. (c). Pub. L. 100-26, Sec. 7(a)(5)(A)(ii), added subsec.
(c). Former subsec. (c) redesignated (e).
Subsec. (d). Pub. L. 100-26, Sec. 7(a)(5)(A)(ii), added subsec.
(d). Former subsec. (d) redesignated (f).
Subsec. (d)(4)(A). Pub. L. 99-180, Sec. 1231(6)(A), substituted
"subsection" for "paragraph".
Subsec. (e). Pub. L. 100-26, Sec. 7(a)(5)(A)(i), (B),
redesignated former subsec. (c) as (e), inserted heading, and
substituted "If a contractor or subcontractor asserting a use or
release restriction" for "If a contractor or subcontractor
asserting a restriction subject to this section". Former subsec.
(e) redesignated (g).
Subsec. (f). Pub. L. 100-26, Sec. 7(a)(5)(A)(i), (C),
redesignated former subsec. (d) as (f), inserted heading, and
substituted "subsection (d)(3)" for "subsection (b)" in two places.
Former subsec. (f) redesignated (h).
Subsec. (g). Pub. L. 100-26, Sec. 7(a)(5)(A)(i), (D),
redesignated former subsec. (e) as (g) and inserted heading.
Subsec. (h). Pub. L. 100-26, Sec. 7(a)(5)(A)(i), (E)(i),
redesignated former subsec. (f) as (h) and inserted heading.
Subsec. (h)(1). Pub. L. 100-26, Sec. 7(a)(5)(E)(ii)-(iv),
substituted "the use or release restriction" for "the restriction
on the right of the United States to use such technical data" in
introductory provisions, struck out "on the right of the United
States to use the technical data" after "the restriction" in
subpar. (A), and substituted "asserting the restriction" for ", as
appropriate," in subpar. (B).
Subsec. (h)(2). Pub. L. 100-26, Sec. 7(a)(5)(E)(v), substituted
"the use or release restriction" for "the restriction on the right
of the United States to use such technical data" in introductory
provisions.
Subsec. (i). Pub. L. 100-180, Sec. 1231(6)(B), inserted "or
subcontractor" in introductory provisions.
Pub. L. 100-26, Sec. 7(a)(5)(F), added subsec. (i).
1986 - Subsecs. (a), (b). Pub. L. 99-500, Pub. L. 99-591, and
Pub. L. 99-661 amended generally subsecs. (a) and (b) identically.
Prior to amendment, subsecs. (a) and (b) read as follows:
"(a) A contract for supplies or services entered into by the
Department of Defense 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) 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 -
"(1) state the grounds for challenging the asserted
restriction; and
"(2) require a response within 60 days justifying the current
validity of the asserted restriction."
EFFECTIVE DATE OF 1994 AMENDMENT
For effective date and applicability of amendment by Pub. L. 103-
355, see section 10001 of Pub. L. 103-355, set out as a note under
section 251 of Title 41, Public Contracts.
EFFECTIVE DATE OF 1987 AMENDMENT
Section 12(d)(1) of Pub. L. 100-26 provided that: "The amendments
to section 2321 of title 10, United States Code, made by section
7(a)(5) shall apply to contracts for which solicitations are issued
after the end of the 210-day period beginning on October 18, 1986."
EFFECTIVE DATE OF 1986 AMENDMENT
Amendment by Pub. L. 99-500, Pub. L. 99-591, and Pub. L. 99-661
applicable to contracts for which solicitations are issued after
end of 210-day period beginning Oct. 18, 1986, see section 101(c)
of Pub. L. 99-500 and Pub. L. 99-591, and section 953(e) of Pub. L.
99-661, set out as a note under section 2320 of this title.
EFFECTIVE DATE
Section applicable with respect to solicitations issued after the
end of the one-year period beginning Oct. 19, 1984, see section
1216(c)(2) of Pub. L. 98-525, set out as a note under section 2319
of this title.