10 U.S.C. § 3782 — Technical data: challenges to contractor

Page 2556 TITLE 10—ARMED FORCES § 3782 Subsec. (b). Pub. L. 116–283, § 1833(h)(1), (3), trans- ferred subsec. (b) of section 2321 of this title to this sec- tion and substituted ‘‘this subchapter’’ for ‘‘this sec- tion’’ and ‘‘(as defined in section 3786 of this title) as- serted’’ for ‘‘(as defined in subsection (i)) asserted’’. Subsec. (c). Pub. L. 116–283, § 1833(h)(1), (4)(A), (C), transferred subsec. (c) of section 2321 of this title to this section and realigned margins of pars. (1) and (2). Subsec. (c)(1). Pub. L. 116–283, § 1833(h)(4)(B), sub- stituted ‘‘this subchapter’’ for ‘‘this section’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed im- plementation and applicability of existing law, see sec- tion 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title. § 3782. Technical data: challenges to contractor restrictions (a) CHALLENGES BY SECRETARY OF DEFENSE.— The Secretary of Defense may challenge a use or release restriction asserted with respect to tech- nical data by a contractor or subcontractor at any tier under a contract subject to this sub- chapter if the Secretary finds that— (1) reasonable grounds exist to question the current validity of the asserted restriction; and (2) 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. (b) TIME LIMIT FOR CHALLENGES; EXCEPTIONS.— (1) A challenge to a use or release restriction asserted by the contractor in accordance with applicable regulations may not be made under subsection (a) after the end of the six-year pe- riod described in paragraph (2) unless the tech- nical data involved— (A) are publicly available; (B) have been furnished to the United States without restriction; (C) have been otherwise made available without restriction; or (D) are the subject of a fraudulently as- serted use or release restriction. (2) The six-year period referred to in para- graph (1) is the six-year period beginning on the later of— (A) the date on which final payment is made on the contract under which the tech- nical data are required to be delivered; or (B) the date on which the technical data are delivered under the contract. (c) WRITTEN NOTICE TO CONTRACTOR OR SUBCON- TRACTOR.—If the Secretary challenges an as- serted use or release restriction under sub- section (a), the Secretary shall provide written notice of the challenge to the contractor or sub- contractor asserting the restriction. Any such notice shall— (1) state the specific grounds for challenging the asserted restriction; (2) require a response within 60 days justi- fying the current validity of the asserted re- striction; and (3) state that evidence of a justification de- scribed in subsection (d) may be submitted. (d) JUSTIFICATION.—It is a justification of an asserted use or release restriction challenged under subsection (a) that, within the three-year period preceding the challenge to the restric- tion, the Department of Defense validated a re- striction identical to the asserted restriction if— (1) such validation occurred after a chal- lenge to the validated restriction under this section; and (2) the validated restriction was asserted by the same contractor or subcontractor (or a li- censee of such contractor or subcontractor). (Added and amended Pub. L. 116–283, div. A, title XVIII, § 1833(g), (i), Jan. 1, 2021, 134 Stat. 4231.) Editorial Notes CODIFICATION The text of subsec. (d) of section 2321 of this title, which was transferred to this section and amended by Pub. L. 116–283, § 1833(i), was based on Pub. L. 100–26, § 7(a)(5)(A)(ii), Apr. 21, 1987, 101 Stat. 276; Pub. L. 100–180, div. A, title XII, § 1231(6)(A), Dec. 4, 1987, 101 Stat. 1160; Pub. L. 103–35, title II, § 201(g)(4), May 31, 1993, 107 Stat. 100; Pub. L. 111–383, div. A, title VIII, § 824(c), Jan. 7, 2011, 124 Stat. 4269; Pub. L. 112–81, div. A, title VIII, § 815(b), Dec. 31, 2011, 125 Stat. 1492. PRIOR PROVISIONS A prior section 3782, act Aug. 10, 1956, ch. 1041, 70A Stat. 218; Pub. L. 86–616, § 2(a), July 12, 1960, 74 Stat. 387, provided for boards of inquiry, composed of three or more officers, to be convened at such places as Sec- retary of the Army prescribes, to receive evidence and make findings and recommendations whether an offi- cer, required to show cause under section 3781 of this title, should be retained on active list of Regular Army, prior to repeal by Pub. L. 96–513, title II, § 213, title VII, § 701, Dec. 12, 1980, 94 Stat. 2885, 2955, effective Sept. 15, 1981. See section 1182 of this title. AMENDMENTS 2021—Pub. L. 116–283, § 1833(i)(1)(A), transferred sub- sec. (d) of section 2321 of this title to this section and struck out subsec. (d) designation and heading ‘‘Chal- lenges to Restrictions’’ at beginning. Subsec. (a). Pub. L. 116–283, § 1833(i)(1)(B), (2), redesig- nated par. (1) of section 2321(d) of this title as subsec. (a) of this section, inserted heading, substituted ‘‘this subchapter’’ for ‘‘this section’’ in introductory provi- sions, and redesignated subpars. (A) and (B) as pars. (1) and (2), respectively. Subsec. (b). Pub. L. 116–283, § 1833(i)(1)(B), (3)(A), (B), redesignated par. (2) of section 2321(d) of this title as subsec. (b) of this section, inserted heading, and redes- ignated subpars. (A) and (B) as pars. (1) and (2), respec- tively, and realigned margins. Subsec. (b)(1). Pub. L. 116–283, § 1833(i)(3)(C), sub- stituted ‘‘subsection (a)’’ for ‘‘paragraph (1)’’ and ‘‘paragraph (2)’’ for ‘‘subparagraph (B)’’ in introductory provisions and redesignated cls. (i) to (iv) as subpars. (A) to (D), respectively. Subsec. (b)(2). Pub. L. 116–283, § 1833(i)(3)(D), sub- stituted ‘‘paragraph (1)’’ for ‘‘subparagraph (A)’’ in in- troductory provisions and redesignated cls. (i) and (ii) as subpars. (A) and (B), respectively. Subsec. (c). Pub. L. 116–283, § 1833(i)(1)(B), (4)(A)–(C), redesignated par. (3) of section 2321(d) of this title as subsec. (c) of this section, inserted heading, substituted ‘‘subsection (a)’’ for ‘‘paragraph (1)’’ in introductory provisions, and redesignated subpars. (A) to (C) as pars. (1) to (3), respectively. Subsec. (c)(3). Pub. L. 116–283, § 1833(i)(4)(D), sub- stituted ‘‘subsection (d)’’ for ‘‘paragraph (4)’’. Page 2557 TITLE 10—ARMED FORCES § 3784 Subsec. (d). Pub. L. 116–283, § 1833(i)(1)(B), (5)(A)–(C), redesignated par. (4) of section 2321(d) of this title as subsec. (d) of this section, inserted heading, substituted ‘‘subsection (a)’’ for ‘‘paragraph (1)’’ in introductory provisions, and redesignated subparagraphs (A) and (B) as pars. (1) and (2), respectively. Subsec. (d)(1). Pub. L. 116–283, § 1833(i)(5)(D), sub- stituted ‘‘this section’’ for ‘‘this subsection’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed im- plementation and applicability of existing law, see sec- tion 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title. § 3783. Technical data: time for contractors to submit justifications (a) ADDITIONAL TIME TO SUBMIT JUSTIFICA- TIONS.—If a contractor or subcontractor assert- ing 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 ade- quately permit the submission of such justifica- tion shall be provided by the contracting officer as appropriate. (b) MULTIPLE CHALLENGES; SCHEDULE OF RE- SPONSES.—If a party asserting a restriction re- ceives 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 as- serting 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. (Added and amended Pub. L. 116–283, div. A, title XVIII, § 1833(g), (j), Jan. 1, 2021, 134 Stat. 4231, 4232.) Editorial Notes CODIFICATION The text of subsec. (e) of section 2321 of this title, which was transferred to this section and amended by Pub. L. 116–283, § 1833(j), was based on Pub. L. 98–525, title XII, § 1216(a), Oct. 19, 1984, 98 Stat. 2597; Pub. L. 100–26, § 7(a)(5)(A)(i), (B), Apr. 21, 1987, 101 Stat. 276, 277. PRIOR PROVISIONS A prior section 3783, act Aug. 10, 1956, ch. 1041, 70A Stat. 218; Pub. L. 86–616, § 2(a), July 12, 1960, 74 Stat. 387, provided for boards of review, composed of three or more officers, to be convened by Secretary of the Army, at such places as he prescribes, to review records of cases of officers recommended by boards of inquiry for removal from active list of Regular Army, prior to repeal by Pub. L. 96–513, title II, § 213, title VII, § 701, Dec. 12, 1980, 94 Stat. 2885, 2955, effective Sept. 15, 1981. AMENDMENTS 2021—Pub. L. 116–283, § 1833(j), transferred subsec. (e) of section 2321 of this title to this section, struck out subsec. (e) designation and heading ‘‘Time for Contrac- tors to Submit Justifications’’ at beginning, and des- ignated first and second sentences of existing provi- sions as subsecs. (a) and (b), respectively, and inserted headings. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed im- plementation and applicability of existing law, see sec- tion 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title. § 3784. Technical data under contracts for com- mercial items: presumption of development exclusively at private expense In the case of a challenge to a use or release restriction that is asserted with respect to tech- nical data of a contractor or subcontractor under a contract for commercial products, the contracting officer shall presume that the con- tractor or subcontractor has justified the re- striction on the basis that the commercial prod- uct was developed exclusively at private ex- pense, whether or not the contractor or subcon- tractor submits a justification in response to the notice provided pursuant to section 3782(c) of this title. 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 commercial prod- uct was not developed exclusively at private ex- pense. (Added and amended Pub. L. 116–283, div. A, title XVIII, § 1833(g), (k), Jan. 1, 2021, 134 Stat. 4231, 4233.) Editorial Notes CODIFICATION The text of subsec. (f) of section 2321 of this title, which was transferred to this section and amended by Pub. L. 116–283, § 1833(k), was based on Pub. L. 103–355, title VIII, § 8106(b)(2), Oct. 13, 1994, 108 Stat. 3394; Pub. L. 109–364, div. A, title VIII, § 802(b), Oct. 17, 2006, 120 Stat. 2313; Pub. L. 110–181, div. A, title VIII, § 815(a)(2), Jan. 28, 2008, 122 Stat. 223; Pub. L. 113–291, div. A, title X, § 1071(a)(5), Dec. 19, 2014, 128 Stat. 3504; Pub. L. 114–92, div. A, title VIII, § 813(a), Nov. 25, 2015, 129 Stat. 891; Pub. L. 115–232, div. A, title VIII, §§ 836(c)(8), 865, Aug. 13, 2018, 132 Stat. 1866, 1901, as amended by Pub. L. 116–283, div. A, title X, § 1081(d)(4)(B)(ii), Jan. 1, 2021, 134 Stat. 3874; Pub. L. 117–81, div. A, title X, § 1081(a)(28), Dec. 27, 2021, 135 Stat. 1921. PRIOR PROVISIONS A prior section 3784, act Aug. 10, 1956, ch. 1041, 70A Stat. 219; Pub. L. 86–616, § 2(a), July 12, 1960, 74 Stat. 387, authorized Secretary of the Army to remove an officer from active list of Regular Army if his removal is rec- ommended by a board of review and provided that deci- sion of Secretary in such a case is final and conclusive, prior to repeal by Pub. L. 96–513, title II, § 213, title VII, § 701, Dec. 12, 1980, 94 Stat. 2885, 2955, effective Sept. 15, 1981. See section 1184 of this title. AMENDMENTS 2021—Pub. L. 116–283, § 1833(k), transferred subsec. (f) of section 2321 of this title to this section, struck out subsec. (f) designation and heading ‘‘Presumption of Development Exclusively at Private Expense’’ at begin- ning, and substituted ‘‘section 3782(c) of this title’’ for ‘‘subsection (d)(3)’’.