§4703 Validation of Proprietary Data Restrictions

Summary

Contracts for goods or services that include technical data must make contractors ready to explain in writing any limits they put on the Federal Government’s right to use that data. A government contract official can look into a claimed limit if the official has good reason to doubt it and if keeping the limit would make it impractical to buy the item competitively later. If the official decides a challenge is justified, the official must tell the contractor in writing why and require a written justification within 60 days. The contractor can ask for more time. If more than one official questions the same limit, the official who started first will work with the others and the contractor to set a fair schedule for responses. If the contractor does not answer, the official must decide. If the contractor does answer, the official must decide or give a date for a decision within 60 days of getting the answer. A written claim from a contractor is treated as a formal claim under chapter 71. If the government’s challenge is finally upheld, the restriction is canceled and the contractor may have to pay the government’s review costs and fees (see 28 U.S.C. 2412(d)(2)(A)) unless special circumstances make that unfair. If the challenge is finally rejected, the government stays bound by the restriction and must pay the contractor’s fees and expenses if the government acted in bad faith.