View all text of Part A [§ 2781 - § 2787]
§ 2786. Enhanced procurement authority to manage supply chain risk
(a) AuthoritySubject 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) RequirementsThe 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) NotificationsIf 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
(e) Delegation of authorityThe 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) DefinitionsIn this section:
(1) Appropriate congressional committeesThe term “appropriate congressional committees” means—
(A) the congressional defense committees; and
(B) the Committee on Energy and Natural Resources of the Senate and the Committee on Energy and Commerce of the House of Representatives.
(2) Covered item of supplyThe 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) Covered procurementThe 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) Covered procurement actionThe 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) Covered systemThe 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) Special exclusion action
(7) Supply chain risk
(g) Termination
(Pub. L. 107–314, div. D, title XLVIII, § 4806, as added Pub. L. 113–66, div. C, title XXXI, § 3113(a), Dec. 26, 2013, 127 Stat. 1053; amended Pub. L. 113–291, div. C, title XXXI, § 3142(s), Dec. 19, 2014, 128 Stat. 3901; Pub. L. 115–232, div. C, title XXXI, § 3117, Aug. 13, 2018, 132 Stat. 2292; Pub. L. 116–92, div. C, title XXXI, § 3133, Dec. 20, 2019, 133 Stat. 1958; Pub. L. 116–283, div. C, title XXXI, § 3161, Jan. 1, 2021, 134 Stat. 4391; Pub. L. 117–81, div. C, title XXXI, § 3119, Dec. 27, 2021, 135 Stat. 2228.)