41 U.S.C. § 1327 — Judicial review procedures

Page 31 TITLE 41—PUBLIC CONTRACTS § 1327 § 1325. Annual report Not later than December 31 of each year, the Chairperson of the Council shall submit to the appropriate congressional committees and lead- ership a report on the activities of the Council during the preceding 12-month period. (Added Pub. L. 115–390, title II, § 202(a), Dec. 21, 2018, 132 Stat. 5184.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 90 days after Dec. 21, 2018, and appli- cable to contracts that are awarded before, on, or after that date, see section 202(c) of Pub. L. 115–390, set out as a note under section 1321 of this title. Title II of Pub. L. 115–390 effective 90 days after Dec. 21, 2018, see section 205 of Pub. L. 115–390, set out as a note under section 1321 of this title. § 1326. Requirements for executive agencies (a) IN GENERAL.—The head of each executive agency shall be responsible for— (1) assessing the supply chain risk posed by the acquisition and use of covered articles and avoiding, mitigating, accepting, or transfer- ring that risk, as appropriate and consistent with the standards, guidelines, and practices identified by the Council under section 1323(a)(1); and (2) prioritizing supply chain risk assess- ments conducted under paragraph (1) based on the criticality of the mission, system, compo- nent, service, or asset. (b) INCLUSIONS.—The responsibility for assess- ing supply chain risk described in subsection (a) includes— (1) developing an overall supply chain risk management strategy and implementation plan and policies and processes to guide and govern supply chain risk management activi- ties; (2) integrating supply chain risk manage- ment practices throughout the life cycle of the system, component, service, or asset; (3) limiting, avoiding, mitigating, accepting, or transferring any identified risk; (4) sharing relevant information with other executive agencies as determined appropriate by the Council in a manner consistent with section 1323(a) of this title; (5) reporting on progress and effectiveness of the agency’s supply chain risk management consistent with guidance issued by the Office of Management and Budget and the Council; and (6) ensuring that all relevant information, including classified information, with respect to acquisitions of covered articles that may pose a supply chain risk, consistent with sec- tion 1323(a) of this title, is incorporated into existing processes of the agency for con- ducting assessments described in subsection (a) and ongoing management of acquisition programs, including any identification, inves- tigation, mitigation, or remediation needs. (c) INTERAGENCY ACQUISITIONS.— (1) IN GENERAL.—Except as provided in para- graph (2), in the case of an interagency acqui- sition, subsection (a) shall be carried out by the head of the executive agency whose funds are being used to procure the covered article. (2) ASSISTED ACQUISITIONS.—In an assisted acquisition, the parties to the acquisition shall determine, as part of the interagency agreement governing the acquisition, which agency is responsible for carrying out sub- section (a). (3) DEFINITIONS.—In this subsection, the terms ‘‘assisted acquisition’’ and ‘‘interagency acquisition’’ have the meanings given those terms in section 2.101 of title 48, Code of Fed- eral Regulations (or any corresponding similar regulation or ruling). (d) ASSISTANCE.—The Secretary of Homeland Security may— (1) assist executive agencies in conducting risk assessments described in subsection (a) and implementing mitigation requirements for information and communications technology; and (2) provide such additional guidance or tools as are necessary to support actions taken by executive agencies. (Added Pub. L. 115–390, title II, § 202(a), Dec. 21, 2018, 132 Stat. 5184.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 90 days after Dec. 21, 2018, and appli- cable to contracts that are awarded before, on, or after that date, see section 202(c) of Pub. L. 115–390, set out as a note under section 1321 of this title. Title II of Pub. L. 115–390 effective 90 days after Dec. 21, 2018, see section 205 of Pub. L. 115–390, set out as a note under section 1321 of this title. § 1327. Judicial review procedures (a) IN GENERAL.—Except as provided in sub- section (b) and chapter 71 of this title, and not- withstanding any other provision of law, an ac- tion taken under section 1323 or 4713 of this title, or any action taken by an executive agen- cy to implement such an action, shall not be subject to administrative review or judicial re- view, including bid protests before the Govern- ment Accountability Office or in any Federal court. (b) PETITIONS.— (1) IN GENERAL.—Not later than 60 days after a party is notified of an exclusion or removal order under section 1323(c)(6) of this title or a covered procurement action under section 4713 of this title, the party may file a petition for judicial review in the United States Court of Appeals for the District of Columbia Circuit claiming that the issuance of the exclusion or removal order or covered procurement action is unlawful. (2) STANDARD OF REVIEW.—The Court shall hold unlawful a covered action taken under sections 1323 or 4713 of this title, in response to a petition that the court finds to be— (A) arbitrary, capricious, an abuse of dis- cretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, au- thority, or limitation, or short of statutory right; Page 32 TITLE 41—PUBLIC CONTRACTS § 1328 (D) lacking substantial support in the ad- ministrative record taken as a whole or in classified information submitted to the court under paragraph (3); or (E) not in accord with procedures required by law. (3) EXCLUSIVE JURISDICTION.—The United States Court of Appeals for the District of Co- lumbia Circuit shall have exclusive jurisdic- tion over claims arising under sections 1323(c)(5) or 4713 of this title against the United States, any United States department or agency, or any component or official of any such department or agency, subject to review by the Supreme Court of the United States under section 1254 of title 28. (4) ADMINISTRATIVE RECORD AND PROCE- DURES.— (A) IN GENERAL.—The procedures described in this paragraph shall apply to the review of a petition under this section. (B) ADMINISTRATIVE RECORD.— (i) FILING OF RECORD.—The United States shall file with the court an administrative record, which shall consist of the informa- tion that the appropriate official relied upon in issuing an exclusion or removal order under section 1323(c)(5) or a covered procurement action under section 4713 of this title. (ii) UNCLASSIFIED, NONPRIVILEGED INFOR- MATION.—All unclassified information con- tained in the administrative record that is not otherwise privileged or subject to stat- utory protections shall be provided to the petitioner with appropriate protections for any privileged or confidential trade secrets and commercial or financial information. (iii) IN CAMERA AND EX PARTE.—The fol- lowing information may be included in the administrative record and shall be sub- mitted only to the court ex parte and in camera: (I) Classified information. (II) Sensitive security information, as defined by section 1520.5 of title 49, Code of Federal Regulations. (III) Privileged law enforcement infor- mation. (IV) Information obtained or derived from any activity authorized under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), except that, with respect to such information, sub- sections (c), (e), (f), (g), and (h) of section 106 (50 U.S.C. 1806), subsections (d), (f), (g), (h), and (i) of section 305 (50 U.S.C. 1825), subsections (c), (e), (f), (g), and (h) of section 405 (50 U.S.C. 1845), and section 706 (50 U.S.C. 1881e) of that Act shall not apply. (V) Information subject to privilege or protections under any other provision of law. (iv) UNDER SEAL.—Any information that is part of the administrative record filed ex parte and in camera under clause (iii), or cited by the court in any decision, shall be treated by the court consistent with the provisions of this subparagraph and shall remain under seal and preserved in the records of the court to be made available consistent with the above provisions in the event of further proceedings. In no event shall such information be released to the petitioner or as part of the public record. (v) RETURN.—After the expiration of the time to seek further review, or the conclu- sion of further proceedings, the court shall return the administrative record, includ- ing any and all copies, to the United States. (C) EXCLUSIVE REMEDY.—A determination by the court under this subsection shall be the exclusive judicial remedy for any claim described in this section against the United States, any United States department or agency, or any component or official of any such department or agency. (D) RULE OF CONSTRUCTION.—Nothing in this section shall be construed as limiting, superseding, or preventing the invocation of, any privileges or defenses that are otherwise available at law or in equity to protect against the disclosure of information. (c) DEFINITION.—In this section, the term ‘‘classified information’’— (1) has the meaning given that term in sec- tion 1(a) of the Classified Information Proce- dures Act (18 U.S.C. App.); and (2) includes— (A) any information or material that has been determined by the United States Gov- ernment pursuant to an Executive order, statute, or regulation to require protection against unauthorized disclosure for reasons of national security; and (B) any restricted data, as defined in sec- tion 11 of the Atomic Energy Act of 1954 (42 U.S.C. 2014). (Added Pub. L. 115–390, title II, § 202(a), Dec. 21, 2018, 132 Stat. 5185.) Editorial Notes REFERENCES IN TEXT The Foreign Intelligence Surveillance Act of 1978, re- ferred to in subsec. (b)(4)(B)(iii)(IV), is Pub. L. 95–511, Oct. 25, 1978, 92 Stat. 1783, which is classified prin- cipally to chapter 36 (§ 1801 et seq.) of Title 50, War and National Defense. For complete classification of this Act to the Code, see Short Title note set out under sec- tion 1801 of Title 50 and Tables. The Classified Information Procedures Act, referred to in subsec. (c)(1), is Pub. L. 96–456, Oct. 15, 1980, 94 Stat. 2025, which is set out in the Appendix to Title 18, Crimes and Criminal Procedure. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 90 days after Dec. 21, 2018, and appli- cable to contracts that are awarded before, on, or after that date, see section 202(c) of Pub. L. 115–390, set out as a note under section 1321 of this title. Title II of Pub. L. 115–390 effective 90 days after Dec. 21, 2018, see section 205 of Pub. L. 115–390, set out as a note under section 1321 of this title. § 1328. Termination This subchapter shall terminate on December 31, 2033.