41 U.S.C. § 4701 — Determinations and decisions

Page 138 TITLE 41—PUBLIC CONTRACTS § 4701 in connection with the decision, shall be pre- pared and be retained in the files of the execu- tive agency. (f) NOTICE.—The head of each executive agency shall prescribe procedures to ensure that, before the head of the executive agency decides to re- duce or suspend payments in the case of a con- tractor under subsection (c), the contractor is afforded notice of the proposed reduction or sus- pension and an opportunity to submit matters to the executive agency in response to the pro- posed reduction or suspension. (g) REVIEW.—Not later than 180 days after the date on which the head of an executive agency reduces or suspends payments to a contractor under subsection (c), the remedy coordination official of the executive agency shall— (1) review the determination of fraud on which the reduction or suspension is based; and (2) transmit a recommendation to the head of the executive agency whether the suspen- sion or reduction should continue. (h) REPORT.—The head of each executive agen- cy who receives recommendations made by the remedy coordination official of the executive agency to reduce or suspend payments under subsection (c) during a fiscal year shall prepare for that year a report that contains the rec- ommendations, the actions taken on the rec- ommendations and the reasons for those ac- tions, and an assessment of the effects of those actions on the Federal Government. The report shall be available to any Member of Congress on request. (i) RESTRICTION ON DELEGATION.—The head of an executive agency may not delegate respon- sibilities under this section to an individual in a position below level IV of the Executive Sched- ule. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3792.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 4506 ............ 41:255(g). June 30, 1949, ch. 288, title III, § 305(g), as added Pub. L. 103–355, title II, § 2051(e), Oct. 13, 1994, 108 Stat. 3305, as amended Pub. L. 104–106, title XLIII, § 4321(a)(4), Feb. 10, 1996, 110 Stat. 671. CHAPTER 47—MISCELLANEOUS Sec. 4701. Determinations and decisions. 4702. Prohibition on release of contractor pro- posals. 4703. Validation of proprietary data restrictions. 4704. Prohibition of contractors limiting subcon- tractor sales directly to Federal Govern- ment. 4705. Protection of contractor employees from re- prisal for disclosure of certain information. 4706. Examination of facilities and records of con- tractor. 4707. Remission of liquidated damages. 4708. Payment of reimbursable indirect costs in cost-type research and development con- tracts with educational institutions. 4709. Implementation of electronic commerce capa- bility. Sec. 4710. Limitations on tiering of subcontractors. 4711. Linking of award and incentive fees to acqui- sition outcomes. 4712. Enhancement of contractor protection from reprisal for disclosure of certain informa- tion. 4713. Authorities relating to mitigating supply chain risks in the procurement of covered articles. 4714. Prohibition on criminal history inquiries by contractors prior to conditional offer. Editorial Notes AMENDMENTS 2019—Pub. L. 116–92, div. A, title XI, § 1123(a)(2), Dec. 20, 2019, 133 Stat. 1612, added item 4714. 2018—Pub. L. 115–390, title II, § 203(b), Dec. 21, 2018, 132 Stat. 5192, added item 4713. 2016—Pub. L. 114–261, § 1(a)(3)(B), Dec. 14, 2016, 130 Stat. 1362, added item 4712 and struck out former item 4712 ‘‘Pilot program for enhancement of contractor pro- tection from reprisal for disclosure of certain informa- tion’’. 2013—Pub. L. 112–239, div. A, title VIII, § 828(a)(2), Jan. 2, 2013, 126 Stat. 1840, added item 4712. § 4701. Determinations and decisions (a) INDIVIDUAL OR CLASS DETERMINATIONS AND DECISIONS AUTHORIZED.— (1) IN GENERAL.—Determinations and deci- sions required to be made under this division by the head of an executive agency or provided in this division or chapters 1 to 11 of title 40 to be made by the Administrator of General Services or other agency head may be made for an individual purchase or contract or, ex- cept for determinations or decisions made under sections 3105, 3301, 3303 to 3305, 3306(a)–(e), and 3308, chapter 37, and section 4702 of this title or to the extent expressly pro- hibited by another law, for a class of purchases or contracts. (2) DELEGATION.—Except as provided in sec- tion 3304(a)(7) of this title, and except as pro- vided in section 121(d)(1) and (2) of title 40 with respect to the Administrator of General Serv- ices, the agency head, in the discretion and subject to the direction of the agency head, may delegate powers provided by this division or chapters 1 to 11 of title 40, including the making of determinations and decisions de- scribed in paragraph (1), to other officers or of- ficials of the agency. (3) FINALITY.—The determinations and deci- sions are final. (b) WRITTEN FINDINGS.— (1) BASIS FOR CERTAIN DETERMINATIONS.— Each determination or decision under section 3901, 3905, 4503, or 4706(d)(2)(B) of this title shall be based on a written finding by the indi- vidual making the determination or decision. A finding under section 4503 or 4706(d)(2)(B) shall set out facts and circumstances that sup- port the determination or decision. (2) FINALITY.—Each finding referred to in paragraph (1) is final. (3) MAINTAINING COPIES OF FINDINGS.—The head of an executive agency shall maintain for a period of not less than 6 years a copy of each finding referred to in paragraph (1) that is made by an individual in that executive agen- Page 139 TITLE 41—PUBLIC CONTRACTS § 4703 cy. The period begins on the date of the deter- mination or decision to which the finding re- lates. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3793.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 4701 ............ 41:257. June 30, 1949, ch. 288, title III, § 307, 63 Stat. 396; Pub. L. 85–800, § 5, Aug. 28, 1958, 72 Stat. 967; Pub. L. 89–343, §§ 3, 4, Nov. 8, 1965, 79 Stat. 1303; Pub. L. 98–369, title VII, § 2714(a)(4), July 18, 1984, 98 Stat. 1184; Pub. L. 104–106, title XLIII, § 4321(e)(6), Feb. 10, 1996, 110 Stat. 675; Pub. L. 104–316, title I, § 121(c), Oct. 19, 1996, 110 Stat. 3836. 41:262. June 30, 1949, ch. 288, title III, § 312, as added Pub. L. 103–355, title I, § 1553, Oct. 13, 1994, 108 Stat. 3300. § 4702. Prohibition on release of contractor pro- posals (a) DEFINITION.—In this section, the term ‘‘pro- posal’’ means a proposal, including a technical, management, or cost proposal, submitted by a contractor in response to the requirements of a solicitation for a competitive proposal. (b) PROHIBITION.—A proposal in the possession or control of an executive agency may not be made available to any person under section 552 of title 5. (c) NONAPPLICATION.—Subsection (b) does not apply to a proposal that is set forth or incor- porated by reference in a contract entered into between the agency and the contractor that sub- mitted the proposal. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3794.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 4702(a) ........ 41:253b(m)(3). June 30, 1949, ch. 288, title III, § 303B(m), as added Pub. L. 104–201, title VIII, § 821(b), Sept. 23, 1996, 110 Stat. 2609. 4702(b) ........ 41:253b(m)(1). 4702(c) ........ 41:253b(m)(2). In subsection (b), the words ‘‘Except as provided in paragraph (2)’’ are omitted as unnecessary. § 4703. Validation of proprietary data restrictions (a) CONTRACT THAT PROVIDES FOR DELIVERY OF TECHNICAL DATA.—A contract for property or services entered into by an executive agency that provides for the delivery of technical data shall provide that— (1) a contractor or subcontractor at any tier shall be prepared to furnish to the contracting officer a written justification for any restric- tion the contractor or subcontractor asserts on the right of the Federal Government to use the data; and (2) the contracting officer may review the validity of a restriction the contractor or sub- contractor asserts under the contract on the right of the Federal Government to use tech- nical data furnished to the Federal Govern- ment under the contract if the contracting of- ficer determines that reasonable grounds exist to question the current validity of the as- serted restriction and that the continued ad- herence to the asserted restriction by the Fed- eral Government would make it impracticable to procure the item competitively at a later time. (b) CHALLENGE OF RESTRICTION.—If after a re- view the contracting officer determines that a challenge to the asserted restriction is war- ranted, the contracting officer shall provide written notice to the contractor or subcon- tractor asserting the restriction. The notice shall state— (1) the grounds for challenging the asserted restriction; and (2) the requirement for a response within 60 days justifying the current validity of the as- serted restriction. (c) ADDITIONAL TIME FOR RESPONSES.—If a con- tractor or subcontractor asserting a restriction subject to this section submits to the con- tracting officer a written request showing the need for additional time to comply with the re- quirement to justify the current validity of the asserted restriction, the contracting officer shall provide appropriate additional time to ade- quately permit the justification to be sub- mitted. (d) MULTIPLE CHALLENGES.—If a party assert- ing a restriction receives notices of challenges to restrictions on technical data from more than one contracting officer, and notifies each con- tracting officer of the existence of more than one challenge, the contracting officer initiating the earliest challenge, after consultation with the party asserting the restriction and the other contracting officers, shall formulate a schedule of responses to each of the challenges that will afford the party asserting the restriction with an equitable opportunity to respond to each challenge. (e) DECISION ON VALIDITY OF ASSERTED RE- STRICTION.— (1) NO RESPONSE SUBMITTED.—The con- tracting officer shall issue a decision per- taining to the validity of the asserted restric- tion if the contractor or subcontractor does not submit a response under subsection (b). (2) RESPONSE SUBMITTED.—Within 60 days of receipt of a justification submitted in response to the notice provided pursuant to subsection (b), a contracting officer shall issue a decision or notify the party asserting the restriction of the time within which a decision will be issued. (f) CLAIM DEEMED CLAIM WITHIN CHAPTER 71.— A claim pertaining to the validity of the as- serted restriction that is submitted in writing to a contracting officer by a contractor or subcon- tractor at any tier is deemed to be a claim with- in the meaning of chapter 71 of this title. (g) FINAL DISPOSITION OF CHALLENGE.— (1) CHALLENGE IS SUSTAINED.—If the con- tracting officer’s challenge to the restriction on the right of the Federal Government to use technical data is sustained on final disposi- tion— (A) the restriction is cancelled; and (B) if the asserted restriction is found not to be substantially justified, the contractor