PRIA, Government Policy, Made Personal

Summary

The Secretary of Energy can block or change certain contract decisions and, if needed, keep some or all details secret to protect against supplier risks to important systems. The Secretary can only do this after getting a risk assessment that shows a significant supply chain threat, and after writing a formal decision that says (1) the step is needed to protect national security, (2) less strict options were not reasonably available, and (3) if secrecy is planned, the danger from telling people is greater than the danger from not telling them. The Secretary must tell the listed congressional committees within seven days of that decision, including the information required by section 3304(e)(2)(A) of title 41, a summary of the risk assessment, and a summary of why less strict options were rejected. The Secretary must notify only the parties needed to carry out the action, tell other federal buying agencies that might face the same risk as appropriate for national security, and keep those notices confidential. Courts may not review these actions. The Secretary may give this power to the Administrator for the Administration or to the Department’s Senior Procurement Executive. This authority ends on December 31, 2028. Appropriate congressional committees: the congressional defense committees and the Senate and House energy/commerce committees. Covered item of supply: an item bought for a covered system that could create supply chain risk if its integrity is lost. Covered procurement: contracting steps that include supply-chain rules or evaluations. Covered procurement action: actions like excluding a supplier, withholding subcontract consent, or directing exclusion to reduce supply chain risk. Covered system: national security systems, nuclear weapons and related items, and systems for nonproliferation/counterproliferation or stockpile surveillance. Special exclusion action: a ban up to two years on awards to a source the Secretary finds risky. Supply chain risk: danger that an adversary could tamper with or weaken a system or supply so it can be spied on, disabled, or harmed.

Title 10, §6327

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(a)Authority.—

Subject to subsection (b), the Secretary of Energy may—

(1)carry out a covered procurement action or special exclusion action; and

(2)notwithstanding any other provision of law, limit, in whole or in part, the disclosure of information relating to the basis for carrying out a covered procurement action or special exclusion action.

(b)Requirements.—

The Secretary may exercise the authority under subsection (a) only after—

(1)obtaining a risk assessment that demonstrates that there is a significant supply chain risk to a covered system;

(2)making a determination in writing, in unclassified or classified form, that—

(A)the use of the authority under subsection (a) is necessary to protect national security by reducing supply chain risk;

(B)less restrictive measures are not reasonably available to reduce the supply chain risk; and

(C)in a case in which the Secretary plans to limit disclosure of information under subsection (a)(2), the risk to national security of the disclosure of the information outweighs the risk of not disclosing the information; and

(3)submitting to the appropriate congressional committees, not later than seven days after the date on which the Secretary makes the determination under paragraph (2), a notice of such determination, in classified or unclassified form, that includes—

(A)the information required by section 3304(e)(2)(A) of title 41;

(B)a summary of the risk assessment required under paragraph (1); and

(C)a summary of the basis for the determination, including a discussion of less restrictive measures that were considered and why such measures were not reasonably available to reduce supply chain risk.

(c)Notifications.—

If the Secretary has exercised the authority under subsection (a), the Secretary shall—

(1)notify appropriate parties of the covered procurement action or special exclusion action and the basis for the action only to the extent necessary to carry out the covered procurement action or special exclusion action;

(2)notify other Federal agencies responsible for procurement that may be subject to the same or similar supply chain risk, in a manner and to the extent consistent with the requirements of national security; and

(3)ensure the confidentiality of any notifications under paragraph (1) or (2).

(d)Limitation of Review.—

No action taken by the Secretary under the authority under subsection (a) shall be subject to review in any Federal court.

(e)Delegation of Authority.—

The Secretary may delegate the authority under this section to—

(1)in the case of the Administration, the Administrator; and

(2)in the case of any other component of the Department of Energy, the Senior Procurement Executive of the Department.

(f)Definitions.—

In this section: (1)

(2)The term “covered item of supply” means an item—

(A)that is purchased for inclusion in a covered system; and

(B)the loss of integrity of which could result in a supply chain risk for a covered system.

(3)The term “covered procurement” means the following:

(A)A source selection for a covered system or a covered item of supply involving either a performance specification, as described in subsection (a)(3)(B) of section 3306 of title 41, or an evaluation factor, as described in subsection (b)(1) of such section, 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 4106(d)(3) of title 41, where the task or delivery order contract concerned includes a contract clause establishing a requirement relating to supply chain risk.

(C)Any contract action involving a contract for a covered system or a covered item of supply if the contract includes a clause establishing requirements relating to supply chain risk.

(4)The term “covered procurement action” means, with respect to an action that occurs in the course of conducting a covered procurement, any of the following:

(A)The exclusion of a source that fails to meet qualification requirements established pursuant to section 3311 of title 41 for the purpose of reducing supply chain risk in the acquisition of covered systems.

(B)The exclusion of a source that fails to achieve an acceptable rating with regard to an evaluation factor providing for the consideration of supply chain risk in the evaluation of proposals for the award of a contract or the issuance of a task or delivery order.

(C)The withholding of consent for a contractor to subcontract with a particular source or the direction to a contractor for a covered system to exclude a particular source from consideration for a subcontract under the contract.

(5)The term “covered system” means the following:

(A)National security systems (as defined in section 3552(b) of title 44) and components of such systems.

(B)Nuclear weapons and components of nuclear weapons.

(C)Items associated with the design, development, production, and maintenance of nuclear weapons or components of nuclear weapons.

(D)Items associated with the surveillance of the nuclear weapon stockpile.

(E)Items associated with the design and development of nonproliferation and counterproliferation programs and systems.

(6)The term “special exclusion action” means an action to prohibit, for a period not to exceed two years, the award of any contracts or subcontracts by the Administration or any other component of the Department of Energy related to any covered system to a source the Secretary determines to represent a supply chain risk.

(7)The term “supply chain risk” means the risk that an adversary may sabotage, maliciously introduce unwanted function, or otherwise subvert the design, integrity, manufacturing, production, distribution, installation, operation, or maintenance of a covered system or covered item of supply so as to surveil, deny, disrupt, or otherwise degrade the function, use, or operation of the system or item of supply.

(g)Termination.—

The authority under this section shall terminate on December 31, 2028.

Notes & Related Subsidiaries

Editorial Notes

Prior Provisions

A prior section 6327 was renumbered section 8327 of this title. Provisions similar to those in this section were contained in section 2786 of Title 50, War and National Defense, prior to repeal by Pub. L. 119–60, § 3111(b)(1).

Amendments

2025—Subsec. (f). Pub. L. 119–60, § 3111(d)(2)(A), struck out pars. (1) to (7) headings which corresponded to the defined term in each par.

§6327 Enhanced Procurement Authority to Manage Supply Chain Risk