10 U.S.C. § 3344 — Disclosure of identity of contractor

Page 2471 TITLE 10—ARMED FORCES § 3344 ness and efficiency of the Department of Defense, including a description of such revisions. ‘‘(c) COVERED CONTRACT DEFINED.—In this section, the term ‘covered contract’ means a contract for which the Secretary of Defense specifies the place of performance for such contract.’’ DEPARTMENT OF DEFENSE CONTRACTING DISPUTE MATTERS Pub. L. 115–232, div. A, title VIII, § 822, Aug. 13, 2018, 132 Stat. 1853, provided that: ‘‘(a) IN GENERAL.—Not later than 180 days after the date of the enactment of this Act [Aug. 13, 2018], the Secretary of Defense shall carry out a study of the fre- quency and effects of bid protests involving the same contract award or proposed award that have been filed at both the Government Accountability Office and the United States Court of Federal Claims. The study shall cover Department of Defense contracts and include, at a minimum— ‘‘(1) the number of protests that have been filed with both tribunals and results; ‘‘(2) the number of such protests where the tribu- nals differed in denying or sustaining the action; ‘‘(3) the length of time, in average time and median time— ‘‘(A) from initial filing at the Government Ac- countability Office to decision in the United States Court of Federal Claims; ‘‘(B) from filing with each tribunal to decision by such tribunal; ‘‘(C) from the time at which the basis of the pro- test is known to the time of filing in each tribunal; and ‘‘(D) in the case of an appeal from a decision of the United States Court of Federal Claims, from the date of the initial filing of the appeal to deci- sion in the appeal; ‘‘(4) the number of protests where performance was stayed or enjoined and for how long; ‘‘(5) if performance was stayed or enjoined, whether the requirement was obtained in the interim through another vehicle or in-house, or whether during the period of the stay or enjoining the requirement went unfulfilled; ‘‘(6) separately for each tribunal, the number of protests where performance was stayed or enjoined and monetary damages were awarded, which shall in- clude for how long performance was stayed or en- joined and the amount of monetary damages; ‘‘(7) whether the protestor was a large or small business; and ‘‘(8) whether the protestor was the incumbent in a prior contract for the same or similar product or service. ‘‘(b) REPORT.—Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives], the Com- mittee on the Judiciary of the Senate, and the Com- mittee on the Judiciary of the House of Representa- tives a report on the results of the study, along with re- lated recommendations for improving the expediency of the bid protest process. In preparing the report, the Secretary shall consult with the Attorney General of the United States, the Comptroller General of the United States, and the United States Court of Federal Claims. ‘‘(c) ONGOING DATA COLLECTION.—Not later than 270 days after the date of the enactment of this Act, the Secretary of Defense shall establish and continuously maintain a data repository to collect on an ongoing basis the information described in subsection (a) and any additional relevant bid protest data the Secretary determines necessary and appropriate to allow the De- partment of Defense, the Government Accountability Office, and the United States Court of Federal Claims to assess and review bid protests over time. ‘‘(d) ESTABLISHMENT OF EXPEDITED PROCESS FOR SMALL VALUE CONTRACTS.— ‘‘(1) IN GENERAL.—Not later than December 1, 2019, the Secretary of Defense shall develop a plan and schedule for an expedited bid protest process for De- partment of Defense contracts with a value of less than $100,000. ‘‘(2) CONSULTATION.—In carrying out paragraph (1), the Secretary of Defense may consult with the Gov- ernment Accountability Office and the United States Court of Federal Claims to the extent such entities may establish a similar process at their election. ‘‘(3) REPORT.—Not later than May 1, 2019, the Sec- retary of Defense shall submit to the congressional defense committees a report on the plan and schedule for implementation of the expedited bid protest proc- ess, which shall include a request for any additional authorities the Secretary determines appropriate for such efforts.’’ GUIDANCE ON USE OF TIERED EVALUATIONS OF OFFERS FOR CONTRACTS AND TASK ORDERS UNDER CONTRACTS Pub. L. 109–163, div. A, title VIII, § 816, Jan. 6, 2006, 119 Stat. 3382, provided that: ‘‘(a) GUIDANCE REQUIRED.—The Secretary of Defense shall prescribe guidance for the military departments and the Defense Agencies on the use of tiered evalua- tions of offers for contracts and for task or delivery or- ders under contracts. ‘‘(b) ELEMENTS.—The guidance prescribed under sub- section (a) shall include a prohibition on the initiation by a contracting officer of a tiered evaluation of an offer for a contract or for a task or delivery order under a contract unless the contracting officer— ‘‘(1) has conducted market research in accordance with part 10 of the Federal Acquisition Regulation in order to determine whether or not a sufficient num- ber of qualified small businesses are available to jus- tify limiting competition for the award of such con- tract or task or delivery order under applicable law and regulations; ‘‘(2) is unable, after conducting market research under paragraph (1), to make the determination de- scribed in that paragraph; and ‘‘(3) includes in the contract file a written expla- nation of why such contracting officer was unable to make such determination.’’ AUTHORIZATION OF EVALUATION FACTOR FOR DEFENSE CONTRACTORS EMPLOYING OR SUBCONTRACTING WITH MEMBERS OF THE SELECTED RESERVE OF THE RE- SERVE COMPONENTS OF THE ARMED FORCES Pub. L. 109–163, div. A, title VIII, § 819, Jan. 6, 2006, 119 Stat. 3385, as amended by Pub. L. 116–283, div. A, title VIII, § 821, Jan. 1, 2021, 134 Stat. 3753, provided that: ‘‘(a) DEFENSE CONTRACTS.—In awarding any contract for the procurement of goods or services to an entity, the Secretary of Defense is authorized to use as an evaluation factor whether the entity intends to carry out the contract using employees or individual sub- contractors who are members of the Selected Reserve of the reserve components of the Armed Forces. ‘‘(b) REGULATIONS.—The Federal Acquisition Regula- tion shall be revised as necessary to implement this section.’’ § 3344. Disclosure of identity of contractor The Secretary of Defense may disclose the identity or location of a person awarded a con- tract by the Department of Defense to any indi- vidual, including a Member of Congress, only after the Secretary makes a public announce- ment identifying the contractor. When the iden- tity of a contractor is to be made public, the Secretary shall announce publicly that the con- tract has been awarded and the identity of the contractor. (Added Pub. L. 97–295, § 1(26)(A), Oct. 12, 1982, 96 Stat. 1291, § 2316; renumbered § 3344, Pub. L. Page 2472 TITLE 10—ARMED FORCES § 3344 116–283, div. A, title XVIII, § 1818(b), Jan. 1, 2021, 134 Stat. 4188; amended Pub. L. 117–81, div. A, title XVII, § 1701(b)(7), Dec. 27, 2021, 135 Stat. 2133.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 2316 ......... 10:2304 (note). Oct. 7, 1970, Pub. L. 91–441, § 507, 84 Stat. 913. The words ‘‘company, or corporation’’ are omitted as included in ‘‘person’’ because of section 1:1. The words ‘‘On and after the date of enactment of this Act’’ are omitted as executed. The word ‘‘contractor’’ is sub- stituted for ‘‘person, company, or corporation to whom such contract has been awarded’’ and ‘‘person, com- pany, or corporation to whom any defense contract has been awarded’’ to eliminate unnecessary words. The words ‘‘and the identity of the contractor’’ are sub- stituted for ‘‘and to whom it was awarded’’ for clarity. Editorial Notes PRIOR PROVISIONS Prior sections 3351 and 3352 were renumbered sections 12211 and 12213 of this title, respectively. Prior sections 3353 and 3354 were repealed by Pub. L. 103–337, div. A, title XVI, §§ 1629(a)(1), 1691(b)(1), Oct. 5, 1994, 108 Stat. 2963, 3026, effective Oct. 1, 1996. Section 3353, added Pub. L. 85–861, § 1(80)(B), Sept. 2, 1958, 72 Stat. 1468; amended Pub. L. 86–559, § 1(8), June 30, 1960, 74 Stat. 265; Pub. L. 96–513, title II, § 205(a), Dec. 12, 1980, 94 Stat. 2881; Pub. L. 97–22, § 5(c), July 10, 1981, 95 Stat. 128; Pub. L. 98–94, title X, § 1007(c)(3), Sept. 24, 1983, 97 Stat. 662; Pub. L. 100–180, div. A, title VII, § 714(b), Dec. 4, 1987, 101 Stat. 1112; Pub. L. 103–160, div. A, title V, § 509(b), Nov. 30, 1993, 107 Stat. 1647, related to service credit upon original appointment as reserve commissioned officer in Army. See section 12207 of this title. Section 3354, acts Aug. 10, 1956, ch. 1041, 70A Stat. 194; Sept. 2, 1958, Pub. L. 85–861, § 1(80)(C), 72 Stat. 1468, re- lated to appointment of warrant officers and enlisted members of Army National Guard of United States as reserve officers. A prior section 3355, acts Aug. 10, 1956, ch. 1041, 70A Stat. 194; Sept. 2, 1958, Pub. L. 85–861, § 33(a)(22), 72 Stat. 1565, related to appointment of graduates of Reserve Of- ficers’ Training Corps as reserve commissioned officers, prior to repeal by Pub. L. 88–647, title III, § 301(5), Oct. 13, 1964, 78 Stat. 1071. See section 2106 of this title. Prior sections 3357 to 3370 were repealed by Pub. L. 103–337, div. A, title XVI, §§ 1629(a)(1), 1691(b)(1), Oct. 5, 1994, 108 Stat. 2963, 3026, effective Oct. 1, 1996. Section 3357, acts Aug. 10, 1956, ch. 1041, 70A Stat. 194; Sept. 2, 1958, Pub. L. 85–861, § 1(60), (80)(D), 72 Stat. 1462, 1468, related to eligibility for appointment as reserve officer for service in Army Reserve in Army Nurse Corps or Army Medical Specialist Corps. Section 3359, added Pub. L. 85–861, § 1(80)(E), Sept. 2, 1958, 72 Stat. 1469; amended Pub. L. 98–94, title X, § 1014(a), Sept. 24, 1983, 97 Stat. 666; Pub. L. 98–525, title V, § 521(a), Oct. 19, 1984, 98 Stat. 2522; Pub. L. 99–145, title V, § 521(a), Nov. 8, 1985, 99 Stat. 631; Pub. L. 100–180, div. A, title V, § 502(a), Dec. 4, 1987, 101 Stat. 1085; Pub. L. 101–189, div. A, title V, § 503(a), Nov. 29, 1989, 103 Stat. 1437; Pub. L. 102–484, div. A, title V, § 519(a), Oct. 23, 1992, 106 Stat. 2408; Pub. L. 103–160, div. A, title V, § 514(a), Nov. 30, 1993, 107 Stat. 1649; Pub. L. 104–106, div. A, title V, § 511(a), Feb. 10, 1996, 110 Stat. 298, related to determination of grade upon original appointment as reserve officer of Army. See section 12201 et seq. of this title. Section 3360, added Pub. L. 85–861, § 1(80)(E), Sept. 2, 1958, 72 Stat. 1469; amended Pub. L. 86–559, § 1(9), June 30, 1960, 74 Stat. 266; Pub. L. 96–513, title V, §§ 502(10), 512(4), Dec. 12, 1980, 94 Stat. 2910, 2929; Pub. L. 98–94, title X, § 1016(b), Sept. 24, 1983, 97 Stat. 668, related to service required for promotion of Reserve commis- sioned officers. See section 14001 et seq. of this title. Section 3362, added Pub. L. 85–861, § 1(80)(E), Sept. 2, 1958, 72 Stat. 1470; amended Pub. L. 86–559, § 1(10), June 30, 1960, 74 Stat. 266, related to convening of selection boards to consider Reserve commissioned officers for promotion. See section 14101 et seq. of this title. Section 3363, added Pub. L. 85–861, § 1(80)(E), Sept. 2, 1958, 72 Stat. 1470; amended Pub. L. 86–559, § 1(11), June 30, 1960, 74 Stat. 266; Pub. L. 95–485, title VIII, § 820(e)(1), Oct. 20, 1978, 92 Stat. 1627; Pub. L. 100–456, div. A, title XII, § 1234(a)(1), Sept. 29, 1988, 102 Stat. 2059, related to requirements and procedures for promotion of officers in reserve grades. See section 14301 et seq. of this title. Section 3364, added Pub. L. 85–861, § 1(80)(E), Sept. 2, 1958, 72 Stat. 1471; amended Pub. L. 86–559, § 1(12), June 30, 1960, 74 Stat. 266; Pub. L. 95–485, title VIII, § 820(e)(2)–(4), Oct. 20, 1978, 92 Stat. 1627; Pub. L. 98–525, title V, § 512, Oct. 19, 1984, 98 Stat. 2521; Pub. L. 100–456, div. A, title XII, § 1234(a)(4), Sept. 29, 1988, 102 Stat. 2059, related to commissioned reserve officers’ selection for promotion, order of promotion, zone of consideration lists, and declinations of promotion. See section 14301 et seq. of this title. Section 3365, added Pub. L. 85–861, § 1(80)(E), Sept. 2, 1958, 72 Stat. 1472, related to promotion of second lieu- tenants of Army Reserve. See section 14301 et seq. of this title. Section 3366, added Pub. L. 85–861, § 1(80)(E), Sept. 2, 1958, 72 Stat. 1472; amended Pub. L. 86–559, § 1(13), June 30, 1960, 74 Stat. 267; Pub. L. 90–130, § 1(11)(A), Nov. 8, 1967, 81 Stat. 375, related to promotion of first lieuten- ants, captains, and majors of Army Reserve or Army National Guard of United States. See section 14301 et seq. of this title. Section 3367, added Pub. L. 85–861, § 1(80)(E), Sept. 2, 1958, 72 Stat. 1473; amended Pub. L. 86–559, § 1(14), June 30, 1960, 74 Stat. 268; Pub. L. 90–130, § 1(11)(B), Nov. 8, 1967, 81 Stat. 375, related to promotion of first lieuten- ants, captains, and majors of Army Reserve to fill va- cancies. See section 14301 et seq. of this title. Section 3368, added Pub. L. 85–861, § 1(80)(E), Sept. 2, 1958, 72 Stat. 1474, related to second consideration for promotion of first lieutenants, captains, and majors of Army Reserve. See section 14301 et seq. of this title. Section 3369, added Pub. L. 85–861, § 1(80)(E), Sept. 2, 1958, 72 Stat. 1474, related to first promotion of reserve officers not assigned to unit after transfer from unit or from Army National Guard of United States. Section 3370, added Pub. L. 85–861, § 1(80)(E), Sept. 2, 1958, 72 Stat. 1474; amended Pub. L. 86–559, § 1(15), June 30, 1960, 74 Stat. 269; Nov. 8, 1967, Pub. L. 90–130, § 1(11)(C), (D), 81 Stat. 375; Pub. L. 100–456, div. A, title XII, § 1234(a)(5), Sept. 29, 1988, 102 Stat. 2059, related to promotion of officers to grade of colonel to fill vacan- cies. See section 14301 et seq. of this title. AMENDMENTS 2021—Pub. L. 116–283, § 1818(b), as amended by Pub. L. 117–81, § 1701(b)(7), renumbered section 2316 of this title as this section. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2021 AMENDMENT Amendment by Pub. L. 117–81 applicable as if in- cluded in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below. Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title. Page 2473 TITLE 10—ARMED FORCES § 3371 [§ 3345. Omitted] Editorial Notes CODIFICATION Pub. L. 116–283, div. A, title XVIII, § 1818(c), Jan. 1, 2021, 134 Stat. 4188, initially transferred section 2302e of this title to this section, to become effective Jan. 1, 2022. Pub. L. 117–81, div. A, title XVII, § 1701(v)(1)(A), Dec. 27, 2021, 135 Stat. 2154, repealed section 1818(c) of Pub. L. 116–283, effective as if included therein, which eliminated that transfer, thereby omitting this section before it took effect. Another amendment by Pub. L. 117–81 resulted in the transfer of section 2302e to sec- tion 4004 of this title. CHAPTER 244—UNDEFINITIZED CONTRACTUAL ACTIONS Sec. 3371. Undefinitized contractual actions: required description of anticipated effect on military department requirements if use of undefinitized contractual action results in delay. 3372. Undefinitized contractual actions: require- ments and limitations relating to definitization of contractual terms, speci- fications, and price. 3373. Undefinitized contractual actions: limitation on inclusion of non-urgent requirements and on modification of scope. 3374. Undefinitized contractual actions: allowable profit. 3375. Undefinitized contractual actions: time limit. 3376. [Reserved]. 3377. Inapplicability to Coast Guard and National Aeronautics and Space Administration; definitions. Statutory Notes and Related Subsidiaries IMPLEMENTATION AND ENFORCEMENT OF REQUIREMENTS APPLICABLE TO UNDEFINITIZED CONTRACTUAL ACTIONS Pub. L. 110–181, div. A, title VIII, § 809, Jan. 28, 2008, 122 Stat. 216, provided that: ‘‘(a) GUIDANCE AND INSTRUCTIONS.—Not later than 180 days after the date of the enactment of this Act [Jan. 28, 2008], the Secretary of Defense shall issue guidance, with detailed implementation instructions, for the De- partment of Defense to ensure the implementation and enforcement of requirements applicable to undefinitized contractual actions. ‘‘(b) ELEMENTS.—The guidance and instructions issued pursuant to subsection (a) shall address, at a minimum— ‘‘(1) the circumstances in which it is, and is not, ap- propriate for Department of Defense officials to use undefinitized contractual actions; ‘‘(2) approval requirements (including thresholds) for the use of undefinitized contractual actions; ‘‘(3) procedures for ensuring that timelines for the definitization of undefinitized contractual actions are met; ‘‘(4) procedures for ensuring compliance with regu- latory limitations on the obligation of funds pursu- ant to undefinitized contractual actions; ‘‘(5) procedures for ensuring compliance with regu- latory limitations on profit or fee with respect to costs incurred before the definitization of an undefinitized contractual action; and ‘‘(6) reporting requirements for undefinitized con- tractual actions that fail to meet required timelines for definitization or fail to comply with regulatory limitations on the obligation of funds or on profit or fee. ‘‘(c) REPORTS.— ‘‘(1) REPORT ON GUIDANCE AND INSTRUCTIONS.—Not later than 210 days after the date of the enactment of this Act [Jan. 28, 2008], the Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a re- port setting forth the guidance and instructions issued pursuant to subsection (a). ‘‘(2) GAO REPORT.—Not later than two years after the date of the enactment of this Act, the Comp- troller General of the United States shall submit to the congressional defense committees a report on the extent to which the guidance and instructions issued pursuant to subsection (a) have resulted in improve- ments to— ‘‘(A) the level of insight that senior Department of Defense officials have into the use of undefinitized contractual actions; ‘‘(B) the appropriate use of undefinitized contrac- tual actions; ‘‘(C) the timely definitization of undefinitized contractual actions; and ‘‘(D) the negotiation of appropriate profits and fees for undefinitized contractual actions.’’ § 3371. Undefinitized contractual actions: re- quired description of anticipated effect on military department requirements if use of undefinitized contractual action results in delay The head of an agency may not enter into an undefinitized contractual action unless the re- quest to the head of the agency for authoriza- tion of the contractual action includes a de- scription of the anticipated effect on require- ments of the military department concerned if a delay is incurred for purposes of determining contractual terms, specifications, and price be- fore performance is begun under the contractual action. (Added and amended Pub. L. 116–283, div. A, title XVIII, § 1819(a), (b), Jan. 1, 2021, 134 Stat. 4189.) Editorial Notes CODIFICATION The text of subsec. (a) of section 2326 of this title, which was transferred to this section and amended by Pub. L. 116–283, § 1819(b), was based on Pub. L. 99–500, § 101(c) [title X, § 908(d)(1)(A)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–140, and Pub. L. 99–591, § 101(c) [title X, § 908(d)(1)(A)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–140; Pub. L. 99–661, div. A, title IX, formerly title IV, § 908(d)(1)(A), Nov. 14, 1986, 100 Stat. 3920, renumbered title IX, Pub. L. 100–26, § 3(5), Apr. 21, 1987, 101 Stat. 273. Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 added identical subsections. PRIOR PROVISIONS A prior section 3371, added Pub. L. 85–861, § 1(80)(E), Sept. 2, 1958, 72 Stat. 1475, related to promotion of brig- adier generals and colonels not assigned to units, prior to repeal by Pub. L. 103–337, div. A, title XVI, §§ 1629(a)(1), 1691(b)(1), Oct. 5, 1994, 108 Stat. 2963, 3026, effective Oct. 1, 1996. See section 14301 et seq. of this title. AMENDMENTS 2021—Pub. L. 116–283, § 1819(b), transferred subsec. (a) of section 2326 of this title to this section and struck out subsec. (a) designation and heading ‘‘In General’’ at beginning. 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-