§1327 — Title 41 Public Contracts | U.S. Code

Summary

Stops most challenges to government exclusion or procurement actions under sections 1323 and 4713. Normally, those actions cannot be reviewed by agencies, the Government Accountability Office, or federal courts, except as described below and under chapter 71. If someone is told they are excluded or removed under section 1323(c)(6) or affected by a covered procurement under section 4713, they have 60 days to ask the U.S. Court of Appeals for the D.C. Circuit to review it. The court must overturn the action only if it finds the action was unreasonable or a misuse of authority, violated the Constitution, went beyond legal power, lacked substantial support in the government’s record (including classified material the court sees), or did not follow required procedures. The D.C. Circuit has the only authority to hear these claims against the United States or its agencies, although the Supreme Court may review later. For review, the government must file the administrative record. Unclassified, non‑privileged material is shared with the petitioner with protections for trade secrets. Very sensitive items — like classified material, certain security information (49 C.F.R. 1520.5), privileged law‑enforcement material, FISA‑derived material (subject to certain limits), and other legally protected information — go only to the judge in private, stay sealed, are not given to the petitioner or the public, and must be returned to the government after the case ends. The court’s decision is the only judicial remedy against the United States or its agencies for these claims, and the law does not stop the government from using other legal privileges or defenses to keep information private. "Classified information" means what the Classified Information Procedures Act calls classified, and includes material the government protects for national security and “restricted data” under the Atomic Energy Act.

Title 41, §1327

Public Contracts — Source: USLM XML via OLRC

(a)Except as provided in subsection (b) and chapter 71 of this title, and notwithstanding any other provision of law, an action taken under section 1323 or 4713 of this title, or any action taken by an executive agency to implement such an action, shall not be subject to administrative review or judicial review, including bid protests before the Government Accountability Office or in any Federal court.

(b)(1)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)The Court shall hold unlawful a covered action taken under section 1323 or 4713 of this title, in response to a petition that the court finds to be—

(A)arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B)contrary to constitutional right, power, privilege, or immunity;

(C)in excess of statutory jurisdiction, authority, or limitation, or short of statutory right;

(D)lacking substantial support in the administrative 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)The United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction over claims arising under section 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)(A)The procedures described in this paragraph shall apply to the review of a petition under this section.

(B)(i)The United States shall file with the court an administrative record, which shall consist of the information 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)All unclassified information contained in the administrative record that is not otherwise privileged or subject to statutory protections shall be provided to the petitioner with appropriate protections for any privileged or confidential trade secrets and commercial or financial information.

(iii)The following information may be included in the administrative record and shall be submitted 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 information.

(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, subsections (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)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)After the expiration of the time to seek further review, or the conclusion of further proceedings, the court shall return the administrative record, including any and all copies, to the United States.

(C)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)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)In this section, the term “classified information”—

(1)has the meaning given that term in section 1(a) of the Classified Information Procedures Act (18 U.S.C. App.); and

(2)includes—

(A)any information or material that has been determined by the United States Government 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 section 11 of the Atomic Energy Act of 1954 (42 U.S.C. 2014).

Notes & Related Subsidiaries

Editorial Notes

References in Text

The Foreign Intelligence Surveillance Act of 1978, referred to in subsec. (b)(4)(B)(iii)(IV), is Pub. L. 95–511, Oct. 25, 1978, 92 Stat. 1783, which is classified principally 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 section 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 applicable 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