Resources for SRAs - EC

Troublesome Contract Clauses

Troublesome clauses are encountered both at the prime contract and subcontract level. If in a subcontract, many of these clauses (which could legitimately and correctly be required/applicable to the prime contractor) are not a required flow-down and/or not applicable to non-profit educational institutions governed by OMB circulars.

For Academic institutions, the vast majority of research is shielded from export controls under the Fundamental Research, Educational Information and Public Domain exclusions. Delays in finalizing sponsored research agreements can be encountered when sponsors try to insert publication or access restrictions in agreements which would nullify the Fundamental Research Exclusion (FRE).

Summary of the most commonly encountered troublesome clauses:
(Note: This list is not inclusive and will be updated as needed.)

Two versions of DFARS 252.204-7000

DFARS 252.204-7000 (DEC 1991) - Disclosure of Information.

The clause prevents the release of any data without sponsor approval. This is an older version of the clause which can be problematic for universities. Attempt to remove or replace with current version dated AUG 2013.

DFARS 252.204-7000 (AUG 2013)

The newest version of this clause is included as boilerplate for most DOD contracts. This clause does have a section which allows publishing for fundamental research performed at U.S. academic institutions. If this clause is included, the project will need to be classified as fundamental research in writing from the DOD program officer to allow publication and dissemination of information without restriction. Contact the Export Control Officer for further review and assistance in classification of fundamental research.

Two Versions of DFARS 252.204-7008

DFARS 252.204-7008 - Requirements for Contracts Involving Export-Controlled Items (JUL 2008)

This 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." The inclusion of this clause indicates the need for export control review. Please inform the export control officer.

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. The April 2010 version will appear in many solicitations and contracts and does not indicate the presence or absence of export controlled information, so it is important to be clear which version of the clause is being applied. The April 2010 version of this clause is ok to accept.

DFARS 252.204-7004 – Drug Free Workforce (SEPT 1998)

This clause mandates drug testing for workers who have access to classified research or "other research deemed sensitive" by the contracting officer. It requires the contractor to establish a program for random drug testing of employees. The University of South Florida cannot agree to this clause. Please have it removed or substitute for FAR 52.223-6 (MAY 2001) Drug Free Workplace.

DFARS 252.204-7012 – Safegaurding of Unclassified Controlled Technical Information (NOV 2013)

This clause is mandatory in all new DOD contracts and results in the requirement of additional IT security controls if unclassified controlled technical information is exchanged during the course of the contract. This is a strong indication that the work will be export controlled and require a Technology Control Plan. Send contracts containing this clause to the Export Control Officer for further review.

FAR 52.204-2 – Security Requirements

This allows for changes to security classification during the contract performance period. Substitute Alt I specific for universities which allows for termination of contract if security classification cannot be met.

FAR 52.227-17 - Special Works

This clause prevents the release, distribution and publication of any data first produced in the performance of the award. This is considered a publication restriction which can void FRE. Substitute Alternate IV whenever possible or have removed.

ARL 52.004-4400 - Approval of Foreign Nationals Performing under Contract required. This is a foreign national restriction and voids FRE. Please inform the Export Control Office when this clause is included in a contract. A technology control plan may be required.

AFMC 5352.227-9000 - Equipment and technical data generated controlled by ITAR. Export license required before foreign nationals can work on research project. Please inform the Export Control Officer if this clause is included in a contract.

DEAR 952.204-71 - Sensitive Foreign Nations Controls (MAR 2011) - This is a foreign national restriction and voids FRE. Please inform the Export Control Office when this clause is included in a contract. A technology control plan may be required.