Scenario

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 DataGeneral 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).

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? be more specific about the steps you would take as a government contractor to overcome the business difficulty. be practical, not theories legal part is obvious; please talk about actions, how you would negotiate and what actions you would make as a gov. contractor