Reference no: EM133304749

Case: Your Principal Investigator (PI) is doing basic research in the field of remote sensing. Your institution receives a research contract from the Department of Defense (DOD) as well as a subcontract from another university in support of this work. Both agreements incorporate the following clause:

DFARS 252.204-7000 Disclosure of Information.

As prescribed in 204.404-70(a), use the following clause:

DISCLOSURE OF INFORMATION (DEC 1991)

(a) The Contractor shall not release to anyone outside the Contractor's organization any unclassified information, regardless of medium (e.g., film, tape, document), about 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 release date.

(b) 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.

(c) The Contractor agrees to include a similar requirement in each subcontract under this contract. Subcontractors shall submit requests for authorization to release through the prime contractor to the Contracting Officer.

(End of clause)

[DAC 91-2, 57 FR 14996, 4/23/92, effective 4/16/92]

Analysis and Comments

This clause could restrict publications. There is no reference to receiving restricted information.

The research to be performed falls under ITARCategoryXV The project does not involve providing Council on Governmental Relations written, or visual representation) generated by the project or the final results to any foreign national will be a deemed export and may very well require a license from the State Department before making a disclosure. If this clause is accepted as is, the PI will have to get prior approval to publish an article. Although a license would not then be required to publish that particular article in open publication, all other disclosures of technical data would still be restricted. In short, this clause should not be accepted.

In negotiating modifications to the clause you may point out that the clause does not comply with National Security Decision Directive (NSDD) 189 or the Federal Acquisition Regulations (FAR) data rights clauses for universities and colleges. NSDD 189 states, as a matter of federal policy, that papers or other publications resulting from unclassified contracted fundamental research are exempt from the prepublication controls. NSDD further states that when national security requires controls on publication, the mechanism that must be used to restrict the dissemination of information generated during federally-funded fundamental research in science, technology, and engineering at colleges, universities, and laboratories is classification. In other words, NSDD 189 stands for the proposition that no restrictions may be placed upon the conduct or reporting of federally-funded fundamental research that has not received national security classification, except as provided in applicable U.S. Statutes (NSDD189).

In negotiating the change, you should also note that NSDD 189 has been codified in the FAR 27.404, Basic Rights in Data Clause. The first sentence of 27.404(g)(2) states: (2) In contracts for basic or applied research with universities or colleges, no restrictions may be placed upon the conduct of or reporting on the results of unclassified basic or applied research, except as provided in applicable U.S. Statutes.

And in the first sentence of 27.404 (g) (3):

(3) Except for the results of basic or applied research under contracts with universities or colleges, agencies may, to the extent provided in their FAR supplements, place limitations or restrictions on the contractor's right to use, release to others, reproduce, distribute, or publish any data first produced in the performance of the contract, including a requirement to assign copyright to the Government or another party, either by adding a subparagraph (d)(3) to the Rights in Data-General clause at 52.227-14, or by express limitations or restrictions in the contract.

Export Controls and Universities: Information and Case Studies information to the government's contracting officer for review and comment at least thirty (30) days prior to any such release. There are two important elements of any prepublication review clause: (1) establish a precise time limit for the government review, and (2) limit the scope of the review to a review for the inclusion of (a) classified information, in the case of the government, and (b) to the information that could jeopardize patent rights and clearly identified proprietary or confidential information of the sponsors, in the case of private industry (provided none of the proprietary information is marked by industry as export-controlled).

Question: Do the best you can with analyzing this case and put yourself in the shoes of the government contractor. What would you do to overcome the business difficulty?