10 U.S.C. § 3308 — Protests

Page 2466 TITLE 10—ARMED FORCES § 3306 Date of 2021 Amendment note preceding section 3001 of this title. § 3306. 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. (Added and amended Pub. L. 116–283, div. A, title XVIII, § 1816(c)(2)(F), (8), Jan. 1, 2021, 134 Stat. 4182, 4185.) Editorial Notes CODIFICATION The text of subsec. (b)(8) of this title, which was transferred to this section and amended by Pub. L. 116–283, § 1816(c)(1), (2)(F), (8), was based on Pub. L. 104–106, div. D, title XLI, § 4104(a)(3), Feb. 10, 1996, 110 Stat. 644. PRIOR PROVISIONS A prior section 3306, act Aug. 10, 1956, ch. 1041, 70A Stat. 190, related to promotion of officers in regular grade of colonel to grade of brigadier general, prior to repeal by Pub. L. 96–513, title II, § 204, title VII, § 701, Dec. 12, 1980, 94 Stat. 2880, 2955, effective Sept. 15, 1981. See section 619 et seq. of this title. AMENDMENTS 2021—Pub. L. 116–283, § 1816(c)(8), transferred subsec. (b)(8) of section 2305 of this title to this section and struck out par. (8) designation 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- 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. § 3307. Antitrust violations If the head of an agency considers that a bid or proposal evidences a violation of the anti- trust laws, he shall refer the bid or proposal to the Attorney General for appropriate action. (Added and amended Pub. L. 116–283, div. A, title XVIII, § 1816(c)(2)(G), (9), Jan. 1, 2021, 134 Stat. 4182, 4185.) Editorial Notes CODIFICATION The text of subsec. (b)(9) of section 2305 of this title, which was transferred to this section and amended by Pub. L. 116–283, § 1816(c)(1), (2)(G), (9), was based on Pub. L. 98–369, div. B, title VII, § 2723(b), July 18, 1984, 98 Stat. 1192; Pub. L. 99–145, title XIII, § 1303(a)(14), Nov. 8, 1985, 99 Stat. 739; Pub. L. 103–355, title I, § 1014(1), Oct. 13, 1994, 108 Stat. 3255; Pub. L. 104–106, div. D, title XLI, § 4104(a), Feb. 10, 1996, 110 Stat. 644. PRIOR PROVISIONS A prior section 3307, act Aug. 10, 1956, ch. 1041, 70A Stat. 191, related to promotion of officers in regular grade of brigadier general to grade of major general, prior to repeal by Pub. L. 96–513, title II, § 204, title VII, § 701, Dec. 12, 1980, 94 Stat. 2880, 2955, effective Sept. 15, 1981. See section 619 et seq. of this title. AMENDMENTS 2021—Pub. L. 116–283, § 1816(c)(9), transferred subsec. (b)(9) of section 2305 of this title to this section and struck out par. (9) designation 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- 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. § 3308. 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 agency, a protest is filed pursuant to the procedures in subchapter V of chapter 35 of title 31 and an actual or prospec- tive offeror so requests, a file of the protest shall be established by the procuring activity and reasonable access shall be provided to ac- tual or prospective offerors. (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 agency de- termines that a solicitation, proposed award, or award does not comply with the requirements of law or regulation, the head of the agency— (1) may take any action set out in subpara- graphs (A) through (F) of subsection (b)(1) of section 3554 of title 31; and (2) may pay costs described in paragraph (1) of section 3554(c) of title 31 within the limits referred to in paragraph (2) of such section. (Added and amended Pub. L. 116–283, div. A, title XVIII, § 1816(d), (e), Jan. 1, 2021, 134 Stat. 4185.) Editorial Notes CODIFICATION The text of subsec. (e) of section 2305 of this title, which was transferred to this section, redesignated as subsec. (a), and amended by Pub. L. 116–283, § 1816(e), was based on Pub. L. 103–355, title I, § 1015, Oct. 13, 1994, 108 Stat. 3256; Pub. L. 104–106, div. E, title LVI, § 5601(a), Feb. 10, 1996, 110 Stat. 699; Pub. L. 104–201, div. A, title X, § 1074(b)(4)(A), Sept. 23, 1996, 110 Stat. 2660. The text of subsec. (f) of section 2305 of this title, which was transferred to this section, redesignated as subsec. (b), and amended by Pub. L. 116–283, § 1816(e)(1), was based on Pub. L. 103–355, title I, § 1016, Oct. 13, 1994, 108 Stat. 3257. PRIOR PROVISIONS A prior section 3308, act Aug. 10, 1956, ch. 1041, 70A Stat. 192, related to effect of removal from rec- ommended list by President of name of any promotion- list officer or brigadier general of Regular Army who in President’s opinion is not qualified for promotion or Page 2467 TITLE 10—ARMED FORCES § 3309 who is not confirmed by Senate, prior to repeal by Pub. L. 96–513, title II, § 204, title VII, § 701, Dec. 12, 1980, 94 Stat. 2880, 2955, effective Sept. 15, 1981. See section 629 of this title. AMENDMENTS 2021—Subsec. (a). Pub. L. 116–283, § 1816(e), redesig- nated subsec. (e) of section 2305 of this title as subsec. (a) of this section and, in pars. (1) and (2), inserted headings and realigned margins. Subsec. (b). Pub. L. 116–283, § 1816(e)(1), redesignated subsec. (f) of section 2305 of this title as subsec. (b) of 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. § 3309. Prohibition on release of contractor pro- posals (a) DEFINITION.—In this section, the term ‘‘pro- posal’’ means any proposal, including a tech- nical, management, or cost proposal, submitted by a contractor in response to the requirements of a solicitation for a competitive proposal. (b) PROHIBITION.—Except as provided in sub- section (c), a proposal in the possession or con- trol of an agency named in section 3063 of this title may not be made available to any person under section 552 of title 5. (c) INAPPLICABILITY.—Subsection (b) does not apply to any proposal that is set forth or incor- porated by reference in a contract entered into between the Department and the contractor that submitted the proposal. (Added and amended Pub. L. 116–283, div. A, title XVIII, § 1816(d), (f), Jan. 1, 2021, 134 Stat. 4185.) Editorial Notes CODIFICATION The text of subsec. (g) of section 2305 of this title, which was transferred to this section and amended by Pub. L. 116–283, § 1816(f), was based on Pub. L. 104–201, div. A, title VIII, § 821(a), Sept. 23, 1996, 110 Stat. 2609; Pub. L. 106–65, div. A, title VIII, § 821, Oct. 5, 1999, 113 Stat. 714. PRIOR PROVISIONS A prior section 3309, act Aug. 10, 1956, ch. 1041, 70A Stat. 192, provided that President prescribe a system of physical examination for all commissioned officers of Regular Army in grades below brigadier general to de- termine their fitness for promotion in Regular Army, prior to repeal by Pub. L. 96–513, title II, § 204, title VII, § 701, Dec. 12, 1980, 94 Stat. 2880, 2955, effective Sept. 15, 1981. See section 624 of this title. A prior section 3310, act Aug. 10, 1956, ch. 1041, 70A Stat. 192, provided that original appointments as war- rant officers in the Regular Army were to be made from persons who have served on active duty at least one year in the Army, prior to repeal by Pub. L. 115–232, div. A, title V, § 511(a), Aug. 13, 2018, 132 Stat. 1751. A prior section 3311, acts Aug. 10, 1956, ch. 1041, 70A Stat. 192; Sept. 2, 1958, Pub. L. 85–861, § 1(60), 72 Stat. 1462, provided that with the exception of those ap- pointed as commissioned officers in Medical Corps, Dental Corps, Medical Service Corps, Veterinary Corps, Army Nurse Corps, or Army Medical Specialist Corps, women be appointed as commissioned officers in Reg- ular Army only in Women’s Army Corps, prior to repeal by Pub. L. 95–485, title VIII, § 820(d)(4), Oct. 20, 1978, 92 Stat. 1627. Prior sections 3312 to 3314 were repealed by Pub. L. 96–513, title II, § 204, title VII, § 701, Dec. 12, 1980, 94 Stat. 2880, 2955, effective Sept. 15, 1981. Section 3312, act Aug. 10, 1956, ch. 1041, 70A Stat. 193, provided that an officer who is promoted in Regular Army is considered to have accepted his promotion on date of the order announcing it, unless he expressly de- clines it, without the need to take oath of office upon promotion if his service since last taking it has been continuous. See section 626 of this title. Section 3313, act Aug. 10, 1956, ch. 1041, 70A Stat. 193, provided that in time of war or national emergency de- clared by Congress or President, President may suspend operation of provision of law relating to promotion, mandatory retirement, or separation of commissioned officers of the Regular Army. See section 123(a) and (b) of this title. Section 3314, added Pub. L. 85–861, § 1(79)(A), Sept. 2, 1958, 72 Stat. 1467, provided that promotion to a higher grade of a commissioned officer of Regular Army who is on a recommendation list awaiting promotion not be withheld or delayed because of original appointment of any other person to a commissioned grade in Regular Army and that this section does not apply to appoint- ments in Medical Corps, Dental Corps, Army Nurse Corps, or Army Medical Specialist Corps. See section 624 of this title. AMENDMENTS 2021—Pub. L. 116–283, § 1816(f)(1)(A), transferred sub- sec. (g) of section 2305 of this title to this section and struck out subsec. (g) designation and heading ‘‘Prohi- bition on Release of Contractor Proposals’’ at begin- ning. Subsec. (a). Pub. L. 116–283, § 1816(f)(1)(B), (C), (2), re- designated par. (3) of former section 2305(g) of this title as subsec. (a) of this section, moved it to the beginning, inserted heading, and substituted ‘‘In this section,’’ for ‘‘In this subsection,’’. Subsec. (b). Pub. L. 116–283, § 1816(f)(1)(B), (3), redesig- nated par. (1) of former section 2305(g) of this title as subsec. (b) of this section, inserted heading, and sub- stituted ‘‘subsection (c),’’ for ‘‘paragraph (2),’’ and ‘‘sec- tion 3063’’ for ‘‘section 2303’’. Subsec. (c). Pub. L. 116–283, § 1816(f)(1)(B), (4), redesig- nated par. (2) of former section 2305(g) of this title as subsec. (c) of this section, inserted heading, and sub- stituted ‘‘Subsection (b)’’ for ‘‘Paragraph (1)’’. 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. CHAPTER 242—SPECIFIC TYPES OF CONTRACTS Sec. 3321. Contracts awarded using procedures other than sealed-bid procedures. 3322. Cost contracts. 3323. Cost-plus contracting prohibited for military construction and military family housing projects. 3324. [Reserved]. Editorial Notes AMENDMENTS 2021—Pub. L. 117–81, div. A, title XVII, § 1701(i)(4)(A), Dec. 27, 2021, 135 Stat. 2141, amended Pub. L. 116–283,