Selected
Troublesome/Unacceptable Clauses Related to
Information Release and
Foreign Nationals
*This resource was created by the MIT Office of Sponsored Programs (OSP)
Jada Bruner Gailey
Oklahoma State University Office of
University Research Services
(Note: The text of each of the
clauses referenced below is reproduced after the summary.)
DFAR
This DFAR Clause is included in the contract boilerplate of many DOD
agencies. Originally issued in 1987 and
then updated in 1991 but without substantive changes. The prescribing language
indicates the clause is to be used when results of research are expected to be
SBU (sensitive but unclassified). Continues to be a problem for many universities. Clause states that “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….”At least one institution has seen
deviation language, but it definitely is not DOD wide and it’s not clear
whether the deviation will be accepted by any specific DOD installation. The deviation follows the clause reproduced
on the next page.
This July 2002 version is an improvement over the August 2001 version
but still raises concerns in the university community regarding the
inclusion of a reference to “non-releasable, unclassified information” and a
requirement to “confer and
consult,” as well as what the (OPSEC) review entails. There are also institutional concerns about
what the breadth of the review (a “kitchen sink issue”). Language in
Clause requires contractor to submit employee’s eligibility documentation
for review and approval. Prior
version was notification only. This is a
step backwards and many institutions consider it a “dealbreaker.”
Army Core of Engineers (All Installations)
Language
included in contract. 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.
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).
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, conference technical papers, etc. This requirement is to determine if the
results contain information that may assist terrorists in undermining
established security systems.
May involve both foreign national
and information dissemination restrictions. Universities
have received these restrictions as flowdowns in
contracts from industry, government laboratories and SBIR primes. 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.
DFAR
(a) 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.
(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 though the prime contractor to the Contracting
Officer.
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.
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.
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.
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
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:
a.
The Contracting Officer's
Representative's Name
b.
Solicitation Number and/or
Contract Number
c. Narrative Title of the Contract
d. A paragraph explaining what tasks the individual will be performing
under the contract
e. A
list of names identifying all foreign nationals proposed for
performance under the contract/task order
f.
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 (
(
g. 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.
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.
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.
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,
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,
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,
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.
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 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.
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.
Additional examples received by MIT:
Prime contract did not include the problem DFARS (7000 clause), but
did include the following:
UNVERSITY’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.
The University requested modified language which
makes it clear that the government cannot actually control the publication of
sensitive research results. The prime contractor agreed. The
following language is substituted:
Papers or other publications resulting
from unclassified contracted fundamental research are exempt from the
prepublication controls and the review requirements of Section H-6 of the prime
contract, and the following provisions apply:
University’s principal
investigator 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, 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.
Navy sponsor: very large,
multi-year contract, partially classified, with a state university as prime
Problem DFARS applies, but
university prime had negotiated somewhat less onerous terms, as follows:
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 (CPOC) 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.