
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 2002]
[CITE: 10USC2321]

 
                         TITLE 10--ARMED FORCES
 
                    Subtitle A--General Military Law
 
                PART IV--SERVICE, SUPPLY, AND PROCUREMENT
 
                   CHAPTER 137--PROCUREMENT GENERALLY
 
Sec. 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 for 
Commercial Items Contracts.--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.
    (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.

(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.)

                       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

    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.

                  Section Referred to in Other Sections

    This section is referred to in section 2320 of this title.
