124 STAT. 3795 PUBLIC LAW 111–350—JAN. 4, 2011 (e) DECISION ON VALIDITY OF ASSERTED RESTRICTION.— (1) NO RESPONSE SUBMITTED.—The contracting officer shall issue a decision pertaining 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 pursu- ant 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 per- taining to the validity of the asserted restriction that is submitted in writing to a contracting officer by a contractor or subcontractor at any tier is deemed to be a claim within the meaning of chapter 71 of this title. (g) FINAL DISPOSITION OF CHALLENGE.— (1) CHALLENGE IS SUSTAINED.—If the contracting officer’s challenge to the restriction on the right of the Federal Govern- ment to use technical data is sustained on final disposition— (A) the restriction is cancelled; and (B) if the asserted restriction is found not to be substan- tially justified, the contractor or subcontractor, as appro- priate, is liable to the Federal Government for payment of the cost to the Federal Government 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 Federal Government in challenging the asserted restric- tion, unless special circumstances would make the payment unjust. (2) CHALLENGE NOT SUSTAINED.—If the contracting officer’s challenge to the restriction on the right of the Federal Govern- ment to use technical data is not sustained on final disposition, the Federal Government— (A) continues to be bound by the restriction; and (B) is liable for payment to the party asserting the restric- tion 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 Federal Government is found not to be made in good faith. § 4704. Prohibition of contractors limiting subcontractor sales directly to Federal Government (a) CONTRACT RESTRICTIONS.—Each contract for the purchase of property or services made by an executive agency shall provide that the contractor will not— (1) enter into an agreement with a subcontractor under the contract that has the effect of unreasonably restricting sales by the subcontractor directly to the Federal Government of any item or process (including computer software) made or furnished by the subcontractor under the contract (or any fol- low-on production contract); or (2) otherwise act to restrict unreasonably the ability of a subcontractor to make sales described in paragraph (1) to the Federal Government. (b) RIGHTS UNDER LAW PRESERVED.—This section does not pro- hibit a contractor from asserting rights it otherwise has under law.
