Troublesome Clauses

Selected Troublesome/Unacceptable Clauses Related to Information Release and Foreign Nationals1

(Note: The text of each of the clauses referenced below is reproduced after the summary.)

Clause DFAR 252.204-7000 states: “Contractor shall not release to anyone outside the Contractor’s organization any unclassified information, regardless of the medium, pertaining to any part of this contract or any program related to this contract.”

Problem:

  • Publication/information dissemination restriction
  • This DFAR Clause is included in the contract boilerplate of many DOD agencies.

Negotiation solution:

  • Get it deleted in favor of 252.204-7000, “Release of Information” (December 1991 Deviation)
  • Contractor shall be free to publish…any information…concerning the results of conclusions made pursuant to performance of this contract…provided [that we]… provide copies of publications/information to the contracting officer for review and comment at least 30 days prior to any such release.

DFAR 252.204-7000 Disclosure of Information (Dec 1991)

  1. The 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.
  2. 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.
  3. The contractor agrees to include a similar requirement in each subcontract under this contract. Subcontractors shall submit requests for authorization to release though the prime contractor to the contracting officer.

252.204-7000 Release of Information (Dec 1991) Deviation

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.

Notice of Export Controlled Items

Two versions of DFAR 252.204-7008 exist.

One: Clause DFAR 252.204-7008: Requirements for Contracts Involving Export-Controlled Items (Jul 2008).
This clause is included in R&D; and services contracts when the parties anticipate that “in the performance of this contract, the Contractor will generate or need access to export-controlled items.”

Two: DFARS 252.204-7008: Export-Controlled Items (April, 2010).
This version is simply a notice that the institution must comply with applicable US export laws.

Requirements for Contracts Involving Export-Controlled Items (JUL 2008)

(a) Definition. “Export-controlled items,” as used in this clause, means items subject to the Export Administration Regulations (EAR) (15 CFR Parts 730-774) or the International Traffic in Arms Regulations (22 CFR Parts 120-130). The term includes:

      (1) “Defense items,” defined in the Arms Export Control Act, 22 U.S.C.2778(j)(4)(A), as defense articles, defense services, and related technical data. The term “defense items” includes information and technology.

      (2) “Items,” defined in the EAR as “commodities, software, and technology,” terms that are also defined in the EAR, 15 CFR 772.1. Regarding the release of items subject to the EAR to foreign nationals within the United States, “items” only include technology and software source code (and not commodities) subject to the EAR.

(b) The parties anticipate that, in the performance of this contract, the Contractor will generate or need access to export-controlled items.

(c) The Contractor shall comply with all applicable laws and regulations regarding export-controlled items, including 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 the ITAR and with the Department of Commerce regarding any questions relating to the EAR.

(d) The Contractor's responsibility to comply with all applicable laws and regulations regarding export-controlled items exists independent of, and is not established or limited by, the information provided by this clause.

(e) Nothing in the terms of this contract is intended to change, supersede, or waive any of the requirements of applicable Federal laws, Executive orders, and regulations, including but not limited to—

    1. The Export Administration Act of 1979, as amended (50 U.S.C. App. 2401-2420);
    2. The Arms Export Control Act of 1976 (22 U.S.C. 2751 etseq.);
    3. The International Emergency Economic Powers Act (50 U.S.C. 1701-1707);
    4. The Export Administration Regulations (15 CFR Parts 730-774);
    5. The International Traffic in Arms Regulations (22 CFR Parts 120-130);
    6. Executive Order 13222, as extended;
    7. DoD Directive 2040.2, International Transfers of Technology, Goods, Services, and Munitions; and
    8. DoD Industrial Security Regulation (DoD 5220.22-R).

(f) The Contractor shall include the substance of this clause, including this paragraph (f), in all subcontracts that are expected to involve access to or generation of export-controlled items.

Close Details

Clause ARL 52.005-4401: Includes reference to “non-releasable, unclassified information” and a requirement to “confer and consult” prior to release of information.

Problem

  • This clause raises concerns in the university community regarding the inclusion of a reference to “non-releasable, unclassified information” and a requirement to “confer and consult.” There are also institutional concerns about what the breadth of the review
  • What does the review entail? This clause is the “kitchen sink” approach.
  • Review for patentable materials - Is this allowable under the university’s statutes/policies?

Negotiation solution:

  • Get it deleted in favor of alternate language: “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 52.005-4401 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 or 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.

ARL Cooperative Agreement Language Substituting for ARL 52.005-4401 Release of Information (July 2002)
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.

Close Details

Clause ARL 52.004-4400 requires: All foreign nationals must be approved before beginning work on the project. (Army Corps of Engineers) Contractor is required to divulge if any foreign nationals would be working on the program. (National Security Agency). Provision of name, last country, citizenship information, etc. required.

Problem

  • Any restriction on non-U.S. citizens or persons participating in contract activities may invalidate the Fundamental Research exclusion.
  • This clause requires contractor to submit employee’s eligibility documentation for review and approval. Many institutions consider this clause a “deal-breaker.”

Negotiation solution:

  • This is a problematic clause to dispute. These clauses are mostly seen in contracts involving controlled technology and sponsored by military agencies.
  • 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.

ARL 52.004--4400 Foreign Nationals Performing Under Contract (Feb 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.

Close Details

Air Force Acquisition Clause 5353.2279000: 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.

AFMC 5352.227-9000 EXPORT CONTROLLED DATA RESTRICTIONS (JUL 1997)

  1. For the purpose of this clause,
  2. 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 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, a foreign-owned or influenced firm, corporation or person;
  4. Foreign sources are those sources (vendors, subcontractors, and suppliers) owned and controlled by a foreign person.
  5. The Contractor shall place a clause in subcontracts containing appropriate export control restrictions, set forth in this clause.
  6. 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.
  7. 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).

Problem

  • 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.

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

Other Clauses

May be in the form of clause 52.0000—4017 Foreign Nationals, or in the form of a required contract certification. The clause requires that all foreign nationals who work on any Corps of Engineers' contract or task order shall be approved by the Headquarters Foreign Disclosure Officer or higher before beginning work on a contract/task order. This regulation includes subcontractor employees. Detailed requirements for information and documentation that must be submitted are included in the clause. The alternate form of the requirement states that by signing a contract, the Contractor certifies that no foreign nationals are working under the contract. Should this change, the individual will require clearance prior to performing any work under the contract. Foreign Nationals must be approved in writing via the issuance of a contract modification that specifically identifies them by name and nationality.

Problem:

  • Any restriction on non-U.S. citizens or persons participating in contract activities may invalidate the Fundamental Research exclusion.
  • This clause requires contractor to submit employee’s eligibility documentation for review and approval. Many institutions consider this clause a “deal-breaker.”
  • 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.

Negotiation solution:

  • 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.
  • Ask the contractor if foreign nationals are permitted to work on the project and get the answer in writing.

Army Corps of Engineers

52.0000—4017 Foreign Nationals
In accordance with 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://owww.cecer.army.mil/contracts/formindex.html for a copy of the SF-85P)

Alternate Form of Requirement

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.

Close Details

National Security Agency Prior to award (either at proposal stage or during contract negotiation), contractor is required to divulge if any foreign nationals would be working on program. If affirmative, name of person and last country of citizenship and other information must be provided (with the assumption of a background check). Foreign National Approval Clause would then be inserted in contract. If negative response is provided, no FN Clause is included in contract. However, NSA considers certification to be material and requires contractor to notify the contracting officer in writing if any of the information in the certification changes (and they will then modify the agreement to include the foreign national clause).

Problem

  • Any restriction on non-U.S. citizens or persons participating in contract activities may invalidate the Fundamental Research exclusion.
  • This clause requires contractor to submit employee’s eligibility documentation for review and approval. Many institutions consider this clause a “deal-breaker.”
  • 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.

Negotiation solution:

  • 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.
  • Ask the contractor if foreign nationals are permitted to work on the project and get the answer in writing.

National Security Agency

Section K, - Representations, Certifications

  1. 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.

Close Details

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

Problem:

  • Publication/information dissemination restriction. Any such restriction in contract may invalidate the Fundamental Research exclusion.

Negotiation solution:

  • 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.
  • Contractor shall be free to publish…any information…concerning the results of conclusions made pursuant to performance of this contract…provided [that we]… provide copies of publications/information to the contracting officer for review and comment at least 30 days prior to any such release.

Federal Aviation Administration

Civil Aviation Security Publications: The Associate Administrator for Civil Aviation Security, ACS-1, or designee, must review all research results 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 Civil 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.

Close Details

Look for clauses that may involve both foreign national and information dissemination restrictions. Universities have received these restrictions as flow-downs in contracts from industry and government laboratories. Because 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.

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 date, in order to allow Prime to comply
with its contract.

Example 2
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 to 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 is 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.

Example 3
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.

Close Details

1Information provided by University of Texas at Austin, Massachusetts Institute of Technology, and Council on Governmental Relations