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Code of Federal Regulations Title 41. Public Contracts and Property Management § 41.201.303 Issuing removal orders and exclusion orders and other related activities

Current as of January 02, 2025 | Updated by Findlaw Staff

(a)(1) Consideration of and issuance of exclusion and removal orders. The Secretary of Homeland Security, the Secretary of Defense, and the Director of National Intelligence shall review the FASC's recommendations and accompanying information and materials provided by the FASC pursuant to § 201.201, together with any information submitted by a source pursuant to § 201.202, and determine whether to issue an order based upon such recommendation.

(2) Administrative record. The administrative record for judicial review of an exclusion or removal order issued pursuant to 41 U.S.C. 1323(c)(6) shall, subject to the limitations set forth in 41 U.S.C. 1327(b)(4)(B)(ii)-(v), consist only of:

(i) The recommendation issued pursuant to 41 U.S.C. 1323(c)(2);

(ii) The notice of recommendation and review issued pursuant to 41 U.S.C. 1323(c)(3);

(iii) Any information and argument in opposition to the recommendation submitted by the source pursuant to 41 U.S.C. 1323(c)(3)(C);

(iv) The exclusion or removal order issued pursuant to 41 U.S.C. 1323(c)(5) and any information or materials directly relied upon by the official identified in paragraphs (b) through (d) of this section, as applicable, in issuing the exclusion or removal order;  and

(v) The notification to the source issued pursuant to 41 U.S.C. 1323(c)(6)(A).

(3) Other information. Other information or material collected by, shared with, or created by the FASC or its member agencies shall not be included in the administrative record unless the official identified in paragraphs (b) through (d) of this section, as applicable, directly relied on that information or material in issuing the exclusion or removal order.

(b) Secretary of Homeland Security. The Secretary of Homeland Security shall issue removal or exclusion orders applicable only to civilian agencies, to the extent not covered by paragraph (c) or (d) of this section.

(c) Secretary of Defense. The Secretary of Defense shall issue removal or exclusion orders applicable only to the Department of Defense including national security systems other than sensitive compartmented information systems.

(d) Director of National Intelligence. The Director of National Intelligence shall issue removal or exclusion orders applicable only to the Intelligence Community and sensitive compartmented information systems, to the extent not covered by paragraph (c) in this section.

(e) Applicability of issued orders to Non–Federal entities. An exclusion order and a removal order may affect non-federal entities, including as follows:

(1) An exclusion order may require the exclusion of sources or covered articles from any executive agency procurement action, including but not limited to source selection and consent for a contractor to subcontract. To the extent required by the exclusion order, agencies shall exclude the source or covered articles, as applicable, from being supplied by any prime contractor and subcontractor at any tier.

(2) A removal order may require removal of the covered article(s) from an executive agency information system owned and operated by an agency;  from an information system operated by a contractor on behalf of an agency;  and from other contractor information systems to the extent that the removal order applies to contractor equipment or systems within the scope of “information technology,” as defined at herein.

(f) Notification of issued exclusion and removal orders. The official who issued the exclusion or removal order:

(1) Shall, upon issuance of an exclusion or removal order pursuant to paragraph (a) of this section:

(i) Notify any source named in the order of the exclusion or removal order;  and to the extent consistent with national security and law enforcement interests, information that forms the basis for the order;

(ii) Provide classified or unclassified notice of the exclusion or removal order to the appropriate congressional committees and leadership;

(iii) Provide the exclusion or removal order to the ISA;

(iv) Notify the Interagency Suspension and Debarment Committee about the exclusion or removal order.

(2) May provide the exclusion order or removal order to other persons, including public disclosure, as the official deems appropriate and to the extent consistent with national security and law enforcement interests.

(g) Delegation. The officials identified in paragraph (a) of this section may not delegate the authority to issue exclusion and removal orders to an official below the level one level below the Deputy Secretary or Principal Deputy Director level, except that the Secretary of Defense may delegate authority for removal orders to the Commander of U.S. Cyber Command, who may not re-delegate such authority to an official below the level of the Deputy Commander.

(h) Removal from Federal supply contracts. If the officials identified in paragraphs (b) through (d) of this section, or their delegate, issue orders collectively resulting in a government-wide exclusion, the Administrator for General Services and officials at other executive agencies responsible for management of the Federal Supply Schedules, government-wide acquisition contracts and multi-agency contracts shall facilitate implementation of such orders by removing the covered articles or sources identified in the orders from such contracts.

(i) Annual review of issued orders. The officials identified in paragraphs (b) through (d) of this section shall review all issued exclusion and removal orders not less frequently than annually pursuant to procedures established by the FASC.

(j) Modification or rescission of issued orders. The officials identified in paragraphs (b) through (d) of this section may modify or rescind an issued exclusion or removal order, provided that a modified order shall not apply more broadly than the order before the modification.

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Cite this article: FindLaw.com - Code of Federal Regulations Title 41. Public Contracts and Property Management § 41.201.303 Issuing removal orders and exclusion orders and other related activities - last updated January 02, 2025 | https://codes.findlaw.com/cfr/title-41-public-contracts-and-property-management/cfr-sect-41-201-303/

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