10 U.S.C. § 3249 — Advocates for competition

Page 2456 TITLE 10—ARMED FORCES § 3249 In subsection (a)(1), the word ‘‘may’’ is substituted for the words ‘‘is authorized to’’. The words ‘‘rules and * * * to be observed’’ are omitted as surplusage. In subsection (a)(2), the word ‘‘undertaking’’ is sub- stituted for the words ‘‘to the effect that he or they un- dertake’’. The words ‘‘make a contract’’ are inserted for clarity. The words ‘‘in the premises’’ are omitted as surplusage. The words ‘‘for the performance of the con- tract’’ are substituted for the words ‘‘to furnish the supplies proposed or to perform the service required’’. In subsection (b), the word ‘‘duly’’ is omitted as sur- plusage. The words ‘‘with good and sufficient security for the proper fulfillment of its terms’’ are omitted as covered by subsection (a)(2). The words ‘‘the pre- scribed’’ are inserted before the word ‘‘bond’’. Subsection (b)(1) is substituted for the words ‘‘pro- ceed to contract with some other person to furnish the supplies or perform the services required’’. In subsection (b)(2) the word ‘‘charge’’ is substituted for the words ‘‘forthwith cause * * * to be charged’’. The words ‘‘a contract is made with the other person’’ are substituted for the words ‘‘he may have contracted with another party to furnish the supplies or perform the service for the whole period of the proposal’’. The words ‘‘guarantor or’’ are omitted as surplusage. The words ‘‘this difference being’’ are substituted for the words ‘‘and the sum may be’’. The words ‘‘of debt’’ are omitted, since that action no longer exists. The words ‘‘the bidder and his guarantors, jointly or severally’’ are substituted for the words ‘‘either or all of such per- sons’’. In subsection (c), the words ‘‘Proceedings under this section are’’ are inserted for clarity. The words ‘‘unless exempted therefrom under section 481(a) of that title’’ are inserted to preserve the possibility of exemption of proceedings under the revised section from the provi- sions of the Federal Property and Administrative Serv- ices Act of 1949, as amended. Editorial Notes AMENDMENTS 2021—Pub. L. 116–283 renumbered section 2381 of this title as this section. 2002—Subsec. (c). Pub. L. 107–217 substituted ‘‘section 121 of title 40’’ for ‘‘section 205 of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 486)’’ and ‘‘section 501(a)(2) of title 40’’ for ‘‘section 201(a) of that Act (40 U.S.C. 481(a))’’. 1994—Subsec. (a). Pub. L. 103–355 substituted ‘‘The Secretary of Defense may— ‘‘(1) prescribe regulations for the preparation, sub- mission, and opening of bids for contracts; and’’ for ‘‘The Secretary of a military department may— ‘‘(1) prescribe regulations for the preparation, sub- mission, and opening of bids for contracts with that department; and’’. 1984—Subsec. (c). Pub. L. 98–525 substituted ‘‘section 205 of the Federal Property and Administrative Serv- ices Act of 1949 (40 U.S.C. 486)’’ for ‘‘section 486 of title 40’’ and ‘‘section 201(a) of that Act (40 U.S.C. 481(a))’’ for ‘‘section 481(a) of this title’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2021 AMENDMENT 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. § 3249. Advocates for competition Each advocate for competition designated pur- suant to section 1705(a) of title 41 for an agency named in section 3063 of this title shall be a gen- eral or flag officer if a member of the armed forces or in a position classified above GS–15 pursuant to section 5108 of title 5, if a civilian employee and shall be designated to serve for a minimum of two years. (Added Pub. L. 98–525, title XII, § 1216(a), Oct. 19, 1984, 98 Stat. 2593, § 2318; amended Pub. L. 100–26, § 7(d)(4), Apr. 21, 1987, 101 Stat. 281; Pub. L. 102–25, title VII, § 701(f)(1), Apr. 6, 1991, 105 Stat. 115; Pub. L. 103–355, title I, § 1031, Oct. 13, 1994, 108 Stat. 3260; Pub. L. 111–350, § 5(b)(17), Jan. 4, 2011, 124 Stat. 3843; Pub. L. 112–239, div. A, title X, § 1076(f)(24), Jan. 2, 2013, 126 Stat. 1953; Pub. L. 115–232, div. A, title VIII, § 811(d), Aug. 13, 2018, 132 Stat. 1845; renumbered § 3249 and amended Pub. L. 116–283, div. A, title XVIII, § 1813(f), Jan. 1, 2021, 134 Stat. 4181.) Editorial Notes PRIOR PROVISIONS A prior section 3251 was renumbered section 7131 of this title. AMENDMENTS 2021—Pub. L. 116–283, § 1813(f), renumbered section 2318 of this title as this section and substituted ‘‘section 3063’’ for ‘‘section 2303(a)’’. 2018—Pub. L. 115–232 substituted ‘‘Each advocate for competition designated pursuant to section 1705(a) of title 41 for’’ for ‘‘(b) Each advocate for competition of’’ and ‘‘in a position classified above GS–15 pursuant to section 5108 of title 5’’ for ‘‘a grade GS–16 or above under the General Schedule (or in a comparable or higher position under another schedule)’’ and struck out subsec. (a) which related to designation of an offi- cer or employee of the Defense Logistics Agency to serve as the advocate for competition of the agency. 2013—Subsec. (a)(2). Pub. L. 112–239 substituted ‘‘sub- sections (b) and (c) of section 1705’’ for ‘‘section 1705(b) and (c)’’. 2011—Subsec. (a)(1). Pub. L. 111–350, § 5(b)(17)(A), sub- stituted ‘‘section 1705(a) of title 41’’ for ‘‘section 20(a) of the Office of Federal Procurement Policy Act (41 U.S.C. 418(a))’’. Subsec. (a)(2). Pub. L. 111–350, § 5(b)(17)(B), substituted ‘‘section 1705(b) and (c) of title 41’’ for ‘‘sections 20(b) and 20(c) of the Office of Federal Procurement Policy Act (41 U.S.C. 418(b), (c))’’. 1994—Subsec. (c). Pub. L. 103–355 struck out subsec. (c) which read as follows: ‘‘Each advocate for competi- tion of an agency of the Department of Defense shall transmit to the Secretary of Defense a report describ- ing his activities during the preceding year. The report of each advocate for competition shall be included in the annual report of the Secretary of Defense required by section 23 of the Office of Federal Procurement Pol- icy Act (41 U.S.C. 419), in the form in which it was sub- mitted to the Secretary.’’ 1991—Subsec. (c). Pub. L. 102–25 substituted ‘‘section 23’’ for ‘‘section 21’’. 1987—Subsec. (a)(1). Pub. L. 100–26, § 7(d)(4)(A), in- serted ‘‘(41 U.S.C. 418(a))’’ after ‘‘Policy Act’’. Subsec. (a)(2). Pub. L. 100–26, § 7(d)(4)(B), inserted ‘‘(41 U.S.C. 418(b), (c))’’ after ‘‘Policy Act’’. Subsec. (c). Pub. L. 100–26, § 7(d)(4)(C), inserted ‘‘(41 U.S.C. 419)’’ after ‘‘Policy Act’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2021 AMENDMENT 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. EFFECTIVE DATE Pub. L. 98–525, title XII, § 1216(c)(1), Oct. 19, 1984, 98 Stat. 2599, provided that: ‘‘Section 2318 of title 10, Page 2457 TITLE 10—ARMED FORCES § 3252 United States Code [now 10 U.S.C. 3249] (as added by subsection (a)), shall take effect on April 1, 1985.’’ § 3252. Requirements for information relating to supply chain risk (a) AUTHORITY.—Subject to subsection (b), the head of a covered agency may— (1) carry out a covered procurement action; and (2) limit, notwithstanding any other provi- sion of law, in whole or in part, the disclosure of information relating to the basis for car- rying out a covered procurement action. (b) DETERMINATION AND NOTIFICATION.—The head of a covered agency may exercise the au- thority provided in subsection (a) only after— (1) consulting with procurement or other rel- evant officials of the covered agency; (2) making a determination in writing, in unclassified or classified form, that— (A) use of the authority in subsection (a)(1) is necessary to protect national security by reducing supply chain risk; (B) less intrusive measures are not reason- ably available to reduce such supply chain risk; and (C) in a case where the head of the covered agency plans to limit disclosure of informa- tion under subsection (a)(2), the risk to na- tional security due to the disclosure of such information outweighs the risk due to not disclosing such information; and (3) providing a classified or unclassified no- tice of the determination made under para- graph (2) to the appropriate congressional committees, which notice shall include— (A) a summary of the risk assessment that serves as the basis for the written deter- mination required by paragraph (2); and (B) a summary of the basis for the deter- mination, including a discussion of less in- trusive measures that were considered and why they were not reasonably available to reduce supply chain risk. (c) LIMITATION ON DISCLOSURE.—If the head of a covered agency has exercised the authority provided in subsection (a)(2) to limit disclosure of information— (1) no action undertaken by the agency head under such authority shall be subject to re- view in a bid protest before the Government Accountability Office or in any Federal court; and (2) the agency head shall— (A) notify appropriate parties of a covered procurement action and the basis for such action only to the extent necessary to effec- tuate the covered procurement action; (B) notify other Department of Defense components or other Federal agencies re- sponsible for procurements that may be sub- ject to the same or similar supply chain risk, in a manner and to the extent con- sistent with the requirements of national se- curity; and (C) ensure the confidentiality of any such notifications. (d) DEFINITIONS.—In this section: (1) HEAD OF A COVERED AGENCY.—The term ‘‘head of a covered agency’’ means each of the following: (A) The Secretary of Defense. (B) The Secretary of the Army. (C) The Secretary of the Navy. (D) The Secretary of the Air Force. (2) COVERED PROCUREMENT ACTION.—The term ‘‘covered procurement action’’ means any of the following actions, if the action takes place in the course of conducting a covered procure- ment: (A) The exclusion of a source that fails to meet qualification standards established in accordance with the requirements of section 3243 of this title for the purpose of reducing supply chain risk in the acquisition of cov- ered systems. (B) The exclusion of a source that fails to achieve an acceptable rating with regard to an evaluation factor providing for the con- sideration of supply chain risk in the evalua- tion of proposals for the award of a contract or the issuance of a task or delivery order. (C) The decision to withhold consent for a contractor to subcontract with a particular source or to direct a contractor for a covered system to exclude a particular source from consideration for a subcontract under the contract. (3) COVERED PROCUREMENT.—The term ‘‘cov- ered procurement’’ means— (A) a source selection for a covered system or a covered item of supply involving either a performance specification, as provided in section 3206(a)(3)(B) of this title, or an eval- uation factor, as provided in section 3206(b)(1) of this title, relating to supply chain risk; (B) the consideration of proposals for and issuance of a task or delivery order for a covered system or a covered item of supply, as provided in section 3406(d)(3) of this title, where the task or delivery order contract concerned includes a contract clause estab- lishing a requirement relating to supply chain risk; or (C) any contract action involving a con- tract for a covered system or a covered item of supply where such contract includes a clause establishing requirements relating to supply chain risk. (4) SUPPLY CHAIN RISK.—The term ‘‘supply chain risk’’ means the risk that an adversary may sabotage, maliciously introduce un- wanted function, or otherwise subvert the de- sign, integrity, manufacturing, production, distribution, installation, operation, or main- tenance of a covered system so as to surveil, deny, disrupt, or otherwise degrade the func- tion, use, or operation of such system. (5) COVERED SYSTEM.—The term ‘‘covered system’’ means a national security system, as that term is defined in section 3552(b)(6) of title 44. (6) COVERED ITEM OF SUPPLY.—The term ‘‘covered item of supply’’ means an item of in- formation technology (as that term is defined in section 11101 of title 40) that is purchased for inclusion in a covered system, and the loss of integrity of which could result in a supply chain risk for a covered system.