ULM Research and Sponsored Programs
Export Control Related Troublesome Clauses in Contracts
Since 9/11 the Federal Government has began to impose and incorporate in agreements severe restrictions on sponsored programs impacting publications, participation of foreign nationals, data and information sharing, etc. When restrictions such as these are imposed on institutions of higher education, they limit our fundamental mission - to educate and share information and discoveries obtained through research.

Often, restrictions placed on research and sponsored programs are not applicable when fundamental research is performed. However, just what "fundamental," basic," or "applied" research is, depends on the Federal Agency whose interpretation of these categories are just as diverse as numerous. Inconsistencies among federal agencies include the use of the term "Sensitive but Unclassified" which the Government will never define. One of the arguments is that although a particular work may be classified as Research and Development at the moment, the Government can not be sure of the path of the research - in case it does develop into a non-fundamental research, the Government is protected.

Some Federal Agencies will insert clauses based on the pool of funding the award comes from.  The pool of funding does not necessarily mean certain clauses do or do not apply.  Budget categories, then, may include 6.1, 6.2 or 6.3 funding. They refer to:
  • 6.1 Funding Basic Research
  • 6.2 Funding Applied Research
  • 6.3 Advanced Technology Development
The U.S. Government is aware of the University's need to publish and is not likely to impose such restrictions, although it does happen. It is more likely that the University will receive an agreement from an Industrial Sponsor receiving federal funds as the Government's Prime Award who then flows down Government's provisions to the University.

Problematic clauses:
  • 48 CFR 252.204-7000 (DFAR) – Disclosure of Information (1991)
  • ARL 52.005-4401 – Release of Information (July 2002)
  • ARL 52.004-4400 – Foreign Nationals Performing Under Contract (February 2002)
  • AFMC 5352.227-9000 - Export-Controlled Data Restrictions 
  • FAR 52.227-17 - Rights in Data - Special Works
  • FAR 52.227014 - Rights in Data - General
48 CFR 252-204-700 (DFAR) Disclosure of Information (1991)
  1. Contractor shall not release to anyone outside the Contractor’s organization any unclassified information, regardless of medium (e.g. film, tape, document), pertaining to any part of this contract or any program related to this contract, unless
    1. The Contracting Officer has given prior written approval; or
    2. The information is otherwise in the public domain before the date of release.
  1. Requests for approval shall identify the specific information to be released, the medium to be used, and the purpose for the release. The Contractor shall submit its request to the Contracting Officer at least 45 days before the proposed date for release.
  1. The contractor agrees to include a similar requirement in each subcontract under this contract. Subcontractor shall submit requests for authorization to release through the prime contractor to the Contracting Officer.
Problem - publication/information dissemination restriction.  The prescribing language indicates the clause is to be used when results of research are expected to be SBU - sensitive but unclassified.

Deviation/Negotiation solution:   
The contractor shall be free to publish, permit to be published, or distribute for public consumption, any information, oral or written, concerning the results of conclusions made pursuant to performance of this contract; provided, however, that it shall provide copies of any such publication or release of information to the government's contracting officer for review and comment at least thirty (30) days prior to any such release.
 
ARL 52.005-4401 Release of Information (July 2002)
Army regulations (AR) 530-1 and AR 360-1 prescribe Department of the Army policies for operations security (OPSEC) review prior to public release. These include:
  1. Procurement instruments and solicitations (including grants, cooperative agreements, etc.), abstracts, papers, technical reports, articles, point papers, news releases, short items to be included in other publications, academic papers on work-related subject matter, speeches, briefings, media presentations, training materials, munitions cases, environmental impact statements, and other forms of information, including film, audio tapes and video cassettes which could divulge non-releasable, unclassified information.
  2. Information posted on electronic bulletin boards, passed over unsecured electronic mail systems, or posted in a manner to the World Wide Web.
These policies are applicable to unclassified contracts/instruments as well as the classified contracts/instruments governed in this respect by DD Form 254.

Army policy is to make available to the public the maximum accurate information on Army contract/instrument relationships, industry/academic accomplishments, and scientific achievements.  In furtherance of this policy, each party agrees to confer and consult with each other prior to publication of any other disclosure of information relating to efforts under this contract/instrument.  Prior to any public publication or disclosure, each party will offer the other party ample opportunity to review the proposed publication or disclosure, to submit objections, and to file application letters for patents in a timely manner. The contractor shall allow 60 days for completion of this process.

Problem – Clause  includes reference to “non-releasable, unclassified information” and a requirement to “confer and consult” prior to release of information.  There is also institutional concern about what the breadth of the review is - referred to as a "kitchen sink issue." 

Substitution/Negotiation solution: 
Substitute with ARL Cooperative Agreement Language
Prior Review of Public Releases. The Parties agree to confer and consult with each other prior to publication or other disclosure of the results of work under this Agreement to ensure that no classified or proprietary information is released.  Prior to submitting a manuscript for publication or before any other public disclosure, each Party will offer the other Party ample opportunity (not to exceed 60 days) to review such proposed publication or disclosure, to submit objections, and to file application letters for patents in a timely manner.”

ARL 52.004-4400 Foreign Nationals Performing under Contract (February 2002)
In accordance with Title 8 U.S.C. 1324a, local Foreign Disclosure Officers (FDOs) may approve access by foreign nationals working on unclassified public domain contracts for the duration of the contract, provided the foreign nationals have appropriate work authorization documentation.

In those instances where foreign nationals are required to perform under any resultant contract and employment eligibility was not submitted with an Awardee's proposal, the employment eligibility documentation specified at 8 CFR 274a.2 shall be submitted to the Contracting Officer at least two weeks prior to the foreign national's performance for review and approval.  Awardees not employing foreign nationals in performance of any resultant contract may disregard this clause.

Army Corps of Engineers (All installations) - 52.0000-4017 Foreign Nationals
In accordance sigh Engineering Regulation (ER) 380-1-18, Section 4, all foreign nationals who work on any Corps of Engineers' contract or task order shall be approved by HQUSACE Foreign Disclosure Officer or higher before beginning work on a contract/task order.  This regulation includes subcontractor employees. The Contractor shall submit a letter to the CERL Security Officer containing the following:
  1. The Contracting Officer's Representative's Name
  2. Solicitation Number and/or Contract Number
  3. Narrative Title of the Contract
  4. A paragraph explaining what tasks the individual will be performing under the contract
  5. A list of names identifying all foreign nationals proposed for performance under the contract/task order
  6. Documentation to verify that he/she was legally admitted into the United States (US) and has authority to work and/or go to school in the US.  Such documentation may include a US Passport, Alien registration Card with photograph (INS Form i-151 or I-551), Employment Authorization Card (INS Form I-688A), INS Form 9, INS Form 20, H1B1, etc.
  7. Standard Form 85P, Questionnaire for Public trust Positions (Reference CERL website at http://www.cecer.army.mil/contracts/formindex.html for a copy of the SF
Alternatively, the Army Corps of Engineers may include the following language, instead:
By signing this award, the Contractor certifies that no foreign national is working under this contract, regardless of pay status.  Should this change, the individual will require clearance prior to performing any work under this contract.  Foreign nationals must be approved in writing via the issuance of a modification to this contract that specifically identifies them by name and nationality.  The Contractor will notify the Contracting Officer in writing providing the name and nationality and providing a copy of their VISA or other information as required.

National Security Agency
Section K, -Representations, Certifications
(d) Will non-U..S citizens be required to work on any resultant contract? Yes__ No__. If yes, please provide
     the following information on each individual: Last Name, First Name, Middle Name, Alias (if any), Place
     of birth, Date of Birth, Nationality, Employer and Address, Residence including street address, Other
     Identifying Information (i.e., passport number, visa number)
NOTICE:  This Agency may prohibit non-U.S. citizens from all or certain aspects of the work to be performed under any resulting contract.  The fact that the Offeror intends the use of non-U.S. citizens on any resulting contract will not necessarily disqualify the company from consideration nor may the non-U.S. citizens finally be prohibited from working on some or all aspects of any resultant contract.
  1. Have the responses above changed since the last submission to the Maryland Procurement Office? Yes___, No___, Not Applicable___.
THE SUCCESSFUL OFFEROR SHALL NOTIFY THE CONTRACTING OFFICER IN WRITING IF ANY OF THE ABOVE INFORMATION CHANGES DURING THE PERFORMANCE OF ANY RESULTANT CONTRACT. 

Federal Aviation Administration - Civil Aviation Security Publications
The Associate Administrator for Civil Aviation Security, ACS-1, or designee, must review all research related to civil aviation security prior to release to the general public.  This includes such items as dissertations, theses, archival and conference technical papers, technical reports, etc.  This requirement is to determine if the results contain information that may assist terrorists in undermining established security systems.

Information must be submitted by the grantee to the FAA Technical Monitor, whom then forwards the information to the Associate Administrator for Civilian Aviation Security, ACS-1 through his or her respective appropriate management official. Within 30 days of receipt by the FAA Technical Monitor, a notice of approval, declination, or a request for modification of the publication will be provided by the Office of Civil Aviation Security, ACS-1, to the FAA Technical Monitor.  This notice will then be forwarded to the grantee by the FAA technical monitor.

Subcontract Clause Examples:

Industry Sub-Prime Contract with DoD
This effort is unclassified, and access to classified material is not anticipated.  Any proposed public release of information associated with this effort should be submitted to The Prime 70 days prior to the proposed release time, in order to allow Prime to comply with its contract.

Government Laboratory (Fermilab) Sub - DOE Prime (FL 90--4/02)
In connection with any activities in the performance of this subcontract, the Subcontractor agrees to comply with any "Sensitive Foreign Nations Controls" requirement that may be attached to this subcontract, relating to those countries which may from time to time, be identified to the Subcontractor by written notice as sensitive foreign nations.  The Subcontractor shall have the right to terminate its performance under this subcontract upon at least 60 days prior written notice to fermilab if the Subcontractor determines that it is unable, without substantially interfering with its policies or without adversely impacting its performance to continue performance of the work under this subcontract as a result of such notification.  if the Subcontractor elects to terminate performance, the provisions of this subcontract regarding termination for convenience of Fermilab shall apply.  The provisions of this clause shall be included in any sub-subcontracts.

SBIR Sub-DOD Prime
Prior approval to use non-U.S. citizens to perform on this Order, at either the prime or sub-contract level must be obtained from the Contracting Officer and the Director, Intelligence and Security Directorate.  To request approval for use of non-U.S. citizens (including permanent resident aliens) in performance of this Order, a letter of request should be provided to SBIR Company containing the name of the individual, country of origin, summary of tasks to be performed and a point of contact in case there are any questions.  SBIR Company will immediately forward said requests to the Government's Contracting Officer for approval.

Problems
  • Foreign nationals make up a large portion of our scientific undergraduate, graduate, post-doc and visiting faculty population. Many times it is problematic to find U.S. citizens to work on certain projects.  Also, many students are depending on these research projects to complete thesis and dissertations.  Any restriction on non-U.S. citizens or persons participating in contract activities may invalidate the Fundamental Research exclusion.
  • Subcontracts often may involve both foreign national and information dissemination restrictions. Since the university is not the direct award recipient, negotiation of these restrictions with the federal sponsors must involve the company, and has often been unsuccessful.
Negotiation solution:  
This is a problematic clause to dispute. These clauses are mostly seen in contracts involving controlled technology and sponsored by military agencies. First, we will contact the PI and sponsor’s technical person on the project.  There is a possibility that the PI is doing the basic research and the sponsor will take those results and work on the controlled technology at another location. However, if applicable, the university will suggest the following versions to replace/modify grantor's language:
  • University's project director and/or University's project staff shall have the right to publish results of work conducted under this Agreement subject only to the protection of any intellectual property rights and proprietary information, and Government-sensitive information, after giving a copy of material intended for publication to the Government, if Government so desires, for review and comment.  University's project director and/or University's project staff agree to take such comments into consideration in the preparation of the final publication.
  • Papers or other publications resulting from unclassified contracted fundamental research are exempt from the prepublication controls and the sponsor's review requirements [insert specific clause, if applicable] of the prime contract, and the following provisions apply:
    • University's principal investigator and/or University's project staff shall have the rights to publish results of work conducted under this Agreement subject only to the protection of any intellectual property rights and proprietary information, after giving a copy of material intended for publication to the Government, if the Government so desires, for review and comment.  The Government comments may also request modifications concerning protection of Government-sensitive information, and the principal investigator and/or project staff agree to take such comments into consideration in the preparation of the final publication.
  • An abstract of documents proposed for public release together with the author's identification of the information he/she views as the [government funded] component of the proposed publication shall be presented through the Component Point-of-Contact (COPC) to the On-site Government Technical Lead for review prior to publication. if the On-site Government Technical Lead determines that the publication contains sensitive information directly related to the [government] contract, the document will be forwarded through [the] University [prime contractor] to the Government for review and clearance.

AFMC 5352.227-9000 Export-Controlled Data Restrictions (July 1997)
Export Controlled Data Restrictions in selected contract awards, requiring an export license prior to assigning any foreign national to work on the project or allowing foreign persons access to the work, equipment or technical data generated by the project.
  1. For the purpose of this clause,
    1. Foreign person is any person who is not a citizen or national of the U.S. or lawfully admitted to the U.S. for permanent residence under the Immigration and
    2. Nationality Act, and includes foreign corporations, international organizations, and foreign governments;
    3. Foreign representative is anyone, regardless of nationality or citizenship, acting as an agent, representative, official, or employee of a foreign government,
    4. a foreign-owned or influenced firm, corporation or person;
    5. Foreign sources are those sources (vendors, subcontractors, and suppliers) owned and controlled by a foreign person. 
  2. The Contractor shall place a clause in subcontracts containing appropriate export control restrictions, set forth in this clause.
  3. Nothing in this clause waives any requirement imposed by any other U.S. Government agency with respect to employment of foreign nationals or export controlled data and information.
  4. Equipment and technical data generated or delivered under this contract are controlled by the International Traffic in Arms Regulation (ITAR), 22 CFR Sections 121 through 128.  An export license is required before assigning any foreign source to perform work under this contract or before granting access to foreign persons to any equipment and technical data generated or delivered during performance (see 22 CFR Section 125).  The Contractor shall notify the Contracting Officer and obtain written approval of the Contracting Officer prior to assigning or granting access to any work, equipment, or technical data generated or delivered under this contract to foreign persons or their representatives.  The notification shall include the name and country of origin of the foreign person or representative, the specific work, equipment, or data to which the person will have access, and whether the foreign person is cleared to have access to technical data (DoD 5220.22-M, National Industrial Security Program Operating Manual (NISPOM).
Problems:
  • Foreign nationals make up a large portion of our scientific undergraduate, graduate, post-doc and visiting faculty population. Many times it is problematic to find U.S. citizens to work on certain projects.  
  • Many students are depending on these research projects to complete thesis and dissertations.
  • Any restriction on non-U.S. citizens or persons participating in contract activities may invalidate the Fundamental Research exclusion.
Negotiation solution:
  • Ask the PI if the project is fundamental research (basic or applied), an exclusion under ITAR.
  • Ask the defense contractor if foreign students are permitted to work on the project and get the answer in writing.
Problem Publication Clauses: FAR 52.227-17 - Rights in Data - Special Works & FAR 52.227014 - Rights in Data -  General

Problems:
  • FAR 52.227-17 prevents the release, distribution and publication of any data first produced in the performance of the award.
  • FAR 52.227-14 grants the Government unlimited rights in data first produced or delivered under the contract. Contractor can have the right to establish claim in copyrightable data first produced or delivered under the contract with prior expressed written consent of the Government; the right to use, release, reproduce, distribute, or publish data first produced or delivered under the contract; and the right to protect from unauthorized disclosure and to restrict disclosure.
Substitutions/Negotiation solution:
Alternate IV (December 2007) to FAR 52.227-14
As prescribed in 27.409(b)(5), substitute the following paragraph (c)(1) for paragraph (c)(1) of the basic clause:

(c) Copyright—
  1. Data first produced in the performance of the contract. Except as otherwise specifically provided in this contract, the Contractor may assert copyright in any data first produced in the performance of this contract. When asserting copyright, the Contractor shall affix the applicable copyright notice of 17 U.S.C. 401 or 402, and acknowledgment of Government sponsorship (including contract number), to the data when such data are delivered to the Government, as well as when the data are published or deposited for registration as a published work in the U.S. Copyright Office. For data other than computer software, the Contractor grants to the Government, and others acting on its behalf, a paid-up, nonexclusive, irrevocable, worldwide license for all such data to reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly, by or on behalf of the Government. For computer software, the Contractor grants to the Government and others acting on its behalf, a paid up, nonexclusive, irrevocable worldwide license for all such computer software to reproduce, prepare derivative works, and perform publicly and display publicly (but not to distribute copies to the public), by or on behalf of the Government.




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