41 U.S.C. § 3708 — Protests

Page 111 TITLE 41—PUBLIC CONTRACTS § 3708 HISTORICAL AND REVISION NOTES—CONTINUED Revised Section Source (U.S. Code) Source (Statutes at Large) 3704(c) ........ 41:253b(e)(2). 3704(d) ........ 41:253b(e)(3). 3704(e) ........ 41:253b(e)(4). 3704(f) ........ 41:253b(e)(5). 3704(g) ........ 41:253b(g) (related to 41:253b(e)). June 30, 1949, ch. 288, title III, § 303B(g) (related to § 303B(e)), as added Pub. L. 104–106, title XLI, § 4104(b)(3), Feb. 10, 1996, 110 Stat. 645. Editorial Notes AMENDMENTS 2018—Subsec. (c)(5). Pub. L. 115–232 substituted ‘‘com- mercial product’’ for ‘‘commercial item’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2018 AMENDMENT Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amend- ment; Savings Provision note under section 453b of Title 6, Domestic Security. § 3705. Pre-award debriefings (a) REQUEST FOR DEBRIEFING.—When the con- tracting officer excludes an offeror submitting a competitive proposal from the competitive range (or otherwise excludes that offeror from further consideration prior to the final source selection decision), the excluded offeror may re- quest in writing, within 3 days after the date on which the excluded offeror receives notice of its exclusion, a debriefing prior to award. (b) WHEN DEBRIEFING TO BE CONDUCTED.—The contracting officer shall make every effort to debrief the unsuccessful offeror as soon as prac- ticable but may refuse the request for a debrief- ing if it is not in the best interests of the Fed- eral Government to conduct a debriefing at that time. (c) PRECONDITION FOR POST-AWARD DEBRIEF- ING.—The contracting officer is required to de- brief an excluded offeror in accordance with sec- tion 3704 of this title only if that offeror re- quested and was refused a pre-award debriefing under subsections (a) and (b). (d) INFORMATION TO BE PROVIDED.—The de- briefing conducted under this section shall in- clude— (1) the executive agency’s evaluation of the significant elements in the offeror’s offer; (2) a summary of the rationale for the offeror’s exclusion; and (3) reasonable responses to relevant ques- tions posed by the debriefed offeror as to whether source selection procedures set forth in the solicitation, applicable regulations, and other applicable authorities were followed by the executive agency. (e) INFORMATION NOT TO BE DISCLOSED.—The debriefing conducted pursuant to this section may not disclose the number or identity of other offerors and shall not disclose information about the content, ranking, or evaluation of other offerors’ proposals. (f) SUMMARY TO BE INCLUDED IN FILE.—The contracting officer shall include a summary of the debriefing in the contract file. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3772.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 3705(a) ........ 41:253b(f)(1) (1st sen- tence). June 30, 1949, ch. 288, title III, § 303B(f), (g) (related to § 303B(f)), as added Pub. L. 104–106, title XLI, § 4104(b)(3), Feb. 10, 1996, 110 Stat. 645. 3705(b) ........ 41:253b(f)(1) (last sentence). 3705(c) ........ 41:253b(f)(2). 3705(d) ........ 41:253b(f)(3). 3705(e) ........ 41:253b(f)(4). 3705(f) ........ 41:253b(g) (related to 41:253b(f)). § 3706. Encouragement of alternative dispute res- olution The Federal Acquisition Regulation shall in- clude a provision encouraging the use of alter- native dispute resolution techniques to provide informal, expeditious, and inexpensive proce- dures for an offeror to consider using before fil- ing a protest, prior to the award of a contract, of the exclusion of the offeror from the competi- tive range (or otherwise from further consider- ation) for that contract. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3773.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 3706 ............ 41:253b(h). June 30, 1949, ch. 288, title III, § 303B(h), as added Pub. L. 104–106, title XLI, § 4104(b)(3), Feb. 10, 1996, 110 Stat. 645. § 3707. Antitrust violations If the agency head considers that a bid or pro- posal evidences a violation of the antitrust laws, the agency head shall refer the bid or proposal to the Attorney General for appropriate action. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3773.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 3707 ............ 41:253b(i). June 30, 1949, ch. 288, title III, § 303B(i), formerly § 303B(e), as added Pub. L. 98–369, title VII, § 2711(a)(2), July 18, 1984, 98 Stat. 1180; redesignated as § 303B(f), Pub. L. 103–355, title I, § 1064(1), Oct. 13, 1994, 108 Stat. 3268; redes- ignated as § 303B(i), Pub. L. 104–106, title XLI, § 4104(b)(2), Feb. 10, 1996, 110 Stat. 645. § 3708. Protests (a) PROTEST FILE.— (1) ESTABLISHMENT AND ACCESS.—If, in the case of a solicitation for a contract issued by, or an award or proposed award of a contract by, the head of an executive agency, a protest is filed pursuant to the procedures in sub- chapter V of chapter 35 of title 31, and an ac- tual or prospective offeror requests, a file of the protest shall be established by the pro- curing activity and reasonable access shall be provided to actual or prospective offerors. Page 112 TITLE 41—PUBLIC CONTRACTS § 3708 (2) REDACTED INFORMATION.—Information ex- empt from disclosure under section 552 of title 5 may be redacted in a file established pursu- ant to paragraph (1) unless an applicable pro- tective order provides otherwise. (b) AGENCY ACTIONS ON PROTESTS.—If, in con- nection with a protest, the head of an executive agency determines that a solicitation, proposed award, or award does not comply with the re- quirements of law or regulation, the head of the executive agency may— (1) take any action set out in subparagraphs (A) to (F) of subsection (b)(1) of section 3554 of title 31; and (2) pay costs described in paragraph (1) of section 3554(c) of title 31 within the limits re- ferred to in paragraph (2) of section 3554(c). (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3773.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 3708(a) ........ 41:253b(k). June 30, 1949, ch. 288, title III, § 303B(k), formerly § 303B(h), as added Pub. L. 103–355, title I, § 1065, Oct. 13, 1994, 108 Stat. 3269; re- designated as § 303B(k), Pub. L. 104–106, title XLI, § 4104(b)(2), Feb. 10, 1996, 110 Stat. 645; Pub. L. 104–106, title XLI, § 5607(c), Feb. 10, 1996, 110 Stat. 701, as amended Pub. L. 104–201, title X, § 1074(b)(7) (less effective date), Sept. 23, 1996, 110 Stat. 2660. 3708(b) ........ 41:253b(l). June 30, 1949, ch. 288, title III, § 303B(l), formerly § 303B(i), as added Pub. L. 103–355, title I, § 1066, Oct. 13, 1994, 108 Stat. 3269; re- designated as § 303B(l), Pub. L. 104–106, title XLI, § 4104(b)(2), Feb. 10, 1996, 110 Stat. 645. CHAPTER 39—SPECIFIC TYPES OF CONTRACTS Sec. 3901. Contracts awarded using procedures other than sealed-bid procedures. 3902. Severable services contracts for periods cross- ing fiscal years. 3903. Multiyear contracts. 3904. Contract authority for severable services con- tracts and multiyear contracts. 3905. Cost contracts. 3906. Cost-reimbursement contracts. Statutory Notes and Related Subsidiaries SEPARABILITY Act June 30, 1949, ch. 288, title VI, § 604, formerly title V, § 504, 63 Stat. 403, renumbered by act Sept. 5, 1950, ch. 849, § 6(a), (b), 64 Stat. 583, provided that: ‘‘If any provi- sion of this Act [see Tables for classification], or the application thereof to any person or circumstances, is held invalid, the remainder of this Act, and the applica- tion of such provision to other persons or cir- cumstances, shall not be affected thereby.’’ AMERICAN SECURITY DRONES Pub. L. 118–31, div. A, title XVIII, subtitle B, Dec. 22, 2023, 137 Stat. 691, provided that: ‘‘SEC. 1821. SHORT TITLE. ‘‘This subtitle may be cited as the ‘American Secu- rity Drone Act of 2023’. ‘‘SEC. 1822. DEFINITIONS. ‘‘In this subtitle: ‘‘(1) COVERED FOREIGN ENTITY.—The term ‘covered foreign entity’ means an entity included on a list de- veloped and maintained by the Federal Acquisition Security Council and published in the System for Award Management (SAM). This list will include en- tities in the following categories: ‘‘(A) An entity included on the Consolidated Screening List. ‘‘(B) Any entity that is subject to extrajudicial direction from a foreign government, as determined by the Secretary of Homeland Security. ‘‘(C) Any entity the Secretary of Homeland Secu- rity, in coordination with the Attorney General, Director of National Intelligence, and the Sec- retary of Defense, determines poses a national secu- rity risk. ‘‘(D) Any entity domiciled in the People’s Repub- lic of China or subject to influence or control by the Government of the People’s Republic of China or the Communist Party of the People’s Republic of China, as determined by the Secretary of Homeland Security. ‘‘(E) Any subsidiary or affiliate of an entity de- scribed in subparagraphs (A) through (D). ‘‘(2) COVERED UNMANNED AIRCRAFT SYSTEM.—The term ‘covered unmanned aircraft system’ has the meaning given the term ‘unmanned aircraft system’ in section 44801 of title 49, United States Code. ‘‘(3) INTELLIGENCE; INTELLIGENCE COMMUNITY.—The terms ‘intelligence’ and ‘intelligence community’ have the meanings given those terms in section 3 of the National Security Act of 1947 (50 U.S.C. 3003). ‘‘SEC. 1823. PROHIBITION ON PROCUREMENT OF COVERED UNMANNED AIRCRAFT SYSTEMS FROM COVERED FOREIGN ENTITIES. ‘‘(a) IN GENERAL.—Except as provided under sub- sections (b) through (f), the head of an executive agen- cy may not procure any covered unmanned aircraft sys- tem that is manufactured or assembled by a covered foreign entity, which includes associated elements re- lated to the collection and transmission of sensitive in- formation (consisting of communication links and the components that control the unmanned aircraft) that enable the operator to operate the aircraft in the Na- tional Airspace System. The Federal Acquisition Secu- rity Council, in coordination with the Secretary of Transportation, shall develop and update a list of asso- ciated elements. ‘‘(b) EXEMPTION.—The Secretary of Homeland Secu- rity, the Secretary of Defense, the Secretary of State, and the Attorney General are exempt from the restric- tion under subsection (a) if the procurement is required in the national interest of the United States and— ‘‘(1) is for the sole purposes of research, evaluation, training, testing, or analysis for electronic warfare, information warfare operations, cybersecurity, or de- velopment of unmanned aircraft system or counter- unmanned aircraft system technology; ‘‘(2) is for the sole purposes of conducting counterterrorism or counterintelligence activities, protective missions, or Federal criminal or national security investigations, including forensic examina- tions, or for electronic warfare, information warfare operations, cybersecurity, or development of an un- manned aircraft system or counter-unmanned air- craft system technology; or ‘‘(3) is an unmanned aircraft system that, as pro- cured or as modified after procurement but before operational use, can no longer transfer to, or download data from, a covered foreign entity and oth- erwise poses no national security cybersecurity risks as determined by the exempting official. ‘‘(c) DEPARTMENT OF TRANSPORTATION AND FEDERAL AVIATION ADMINISTRATION EXEMPTION.—The Secretary of Transportation is exempt from the restriction under subsection (a) if the operation or procurement is deemed to support the safe, secure, or efficient oper- ation of the National Airspace System or maintenance of public safety, including activities carried out under