Contract Provisions of Concern
If any of the following provisions is present (and cannot be negotiated away) in a research agreement or subcontract, a Material Transfer Agreement (MTA), or Non-
Disclosure Agreement (NDA) related to research, the agreement will trigger a additional screening and final review by the Offices of Export Compliance and General Counsel:
(a) Sponsor maintains the right to restrict or approve publication or release of research results (other than minimal delay to protect a sponsor’s confidential information or to preserve the patentability of an invention).
(b) Research data and/or other research results will be owned by the sponsor (e.g.,as sponsor’s proprietary or trade secret information).
(c) Statements that export control regulations will apply to the research.
(d) Incorporation by reference of Federal Acquisition Regulations (FARs), agency specific FARs, or other federal agency regulations, which impose specific controls on access to or dissemination of research results ).
(e) Restrictions on, or prohibitions against, the participation of research personnel based on citizenship or national origin.
(f) Statements that the sponsor anticipates providing export-controlled items or information for use in connection with the research.
(g) Equipment or encrypted software is required to be delivered as part of the project.
(h) The research project will involve the use of export-controlled items or technical information obtained from a third party.
(i)The research will take place outside the United States.
Specific U.S. Government Access and Dissemination Controls
Specific access and dissemination controls may be buried within the language of FARs, Defense Federal Acquisition Regulations (DFARs), and other agency-specific regulations included as part of a prime contract, or flowed down in a subcontract. These problematic clauses include, but are not limited to:
(a) FAR 52.227-14 (Rights in Data - General).
Grants the Government unlimited rights in data first produced or delivered under the contract. Government approval required to assert copyright in data first produced in the performance of the contract and not published in academic, technical or professional journals, symposia proceedings, or similar works. For basic or applied research suggest requesting Alternate IV to lift this restriction. Alternate IV provides the Contractor with the right to copyright data without Government permission.
(b) FAR 52.227-17 (Rights in Data - Special Works).
Prevents the release, distribution, and publication of any data originally produced in the performance of the award. This establishes controls for data generated by contractors for the Government’s internal use and represents an absolute restriction on the publication or dissemination of contractor-generated data. It should not apply to basic and applied research and should be removed
(c) DFAR 252. 204-7000 (Disclosure of Information).
States, “Contractor shall not release to anyone outside the Contractor’s organization any unclassified information, regardless of medium, pertaining to any part of this contract or any program related to this contract.” This is an example of a publication/information restriction that voids the FRE. Refer to 27.404(g)(2) & (3) and NSDD-189 as justification for getting the restriction
removed. Also, can refer to IRS Ruling 76-296. May also add alternate language that allows for review and comment on publications.
(d) DFAR 252.204-7008 (Export-Controlled Items).
States, “The Contractor shall comply with all applicable laws and regulations regarding export-controlled items, including, but not limited to, the requirement for contractors to register with the Department of State in accordance with the ITAR. The Contractor shall consult with the Department of State regarding any questions relating to compliance with the ITAR and shall consult with the Department of Commerce regarding any questions relating to compliance with the EAR.” May have to require the PI to certify that the project does not involve any items that are subject to Export Control Laws.
(e) ARL 52.004-4400 (Approval of Foreign Nationals).
All Foreign Nationals must be approved before beginning work on the project Contractor is required to divulge if any Foreign Nationals will be working on the project. Provision of name, last country of residence, citizenship information, etc. is required. This clause is commonly found in contracts involving Controlled Technology and sponsored by military agencies. May need to require the PI to certify that no Foreign Nationals will be working on the project. If no Foreign Nationals will be employed on the project, Contractor may disregard this clause. If the PI is doing basic research and the sponsor will take those results and work on the controlled technology at another location, may be able to delete this clause.
(f) ARL 52.005-4401 (Release of Information).
Includes reference to “non-releasable, unclassified information” and a requirement to “confer and consult” prior to release of information. It is unclear what the review entails. Therefore, the sponsor retains publication/information approval, which voids the FRE. 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.”
(g) AFMC 5352.227-9000 (Requirement for ITAR License).
Requires an export license prior to assigning any Foreign National to work on the project or allowing Foreign Nationals access to the work, equipment, or technical data generated by the project. Foreign Nationals make up a large portion of KU’s scientific undergraduate, graduate, post-doctoral, and visiting scholar population. Often, it is difficult to find qualified U.S. citizens to work on
these projects. Also, many students depend on these projects to complete their thesis or dissertation. Need to ask the PI if the project is basic or applied research. If yes, it may fall under an ITAR exclusion. May also ask the defense contractor if foreign students are allowed to work on the project. If yes, obtain confirmation in writing.