§ 3785. Technical data: decision by contracting officer; claims; rights and liability upon final disposition

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(a)Decision by Contracting Officer.—

(1)Upon failure by the contractor or subcontractor to submit any response under section 3782(c) of this title, the contracting officer shall issue a decision pertaining to the validity of the asserted restriction.

(2)After review of any justification submitted in response to the notice provided pursuant to section 3782(c) of this title, the contracting officer shall, within 60 days of receipt of any justification submitted, issue a decision or notify the party asserting the restriction of the time within which a decision will be issued.

(b)Claims.— If a claim pertaining to the validity of the asserted restriction is submitted in writing to a contracting officer by a contractor or subcontractor at any tier, such claim shall be considered a claim within the meaning of chapter 71 of title 41.

(c)Rights and Liability Upon Final Disposition.—

(1)If, upon final disposition, the contracting officer’s challenge to the use or release restriction is sustained—

(A)the restriction shall be cancelled; and

(B)if the asserted restriction is found not to be substantially justified, the contractor or subcontractor asserting the restriction shall be liable to the United States for payment of the cost to the United States of reviewing the asserted restriction and the fees and other expenses (as defined in section 2412(d)(2)(A) of title 28) incurred by the United States in challenging the asserted restriction, unless special circumstances would make such payment unjust.

(2)If, upon final disposition, the contracting officer’s challenge to the use or release restriction is not sustained—

(A)the United States shall continue to be bound by the restriction; and

(B)the United States shall be liable for payment to the party asserting the restriction for fees and other expenses (as defined in section 2412(d)(2)(A) of title 28) incurred by the party asserting the restriction in defending the asserted restriction if the challenge by the United States is found not to be made in good faith.

(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1833(g), (l), Jan. 1, 2021, 134 Stat. 4231, 4233.)

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