Objectionable Clauses

DFAR 242-204-7000 - Disclosure of Information (Revised August 2013)

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 in solicitations and contracts when the contractor will have access to or generate unclassified information that may be sensitive and inappropriate for release to the public. The clause 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 unless the Contracting Officer has given prior written approval; the information is otherwise in the public domain before the date of release; or The information results from or arises during the performance of a project that has been scoped and negotiated by the contracting activity with the contractor and research performer and determined in writing by the contracting officer to be fundamental research…"

The project research will be considered "Restricted" if the university doesn’t receive written approval or certification in writing from the contracting officer stating that the information results are from research that qualifies under the fundamental research exclusion.

252.204-7012 - Safeguarding of Unclassified Controlled Technical Information This DFAR Clause was issued on November 18, 2013 by the Department of Defense (DoD) to impose minimum requirements for safeguarding unclassified controlled technical information residing on contractor information technology systems and databases. This DFAR requires implementation of certain security standards if the university has access to or stores specified types of controlled technical information on its computer networks, mandates self-reporting by contractors to DoD within 72 hours of a "cyber incident," mandates maintenance of certain evidence for 90 days if a contractor or subcontractor’s network containing controlled technical information is subject to a cyber-incident, and requires a flow down throughout the supply chain to all subcontractors.

University employees are responsible for following the minimum requirements under this clause (e.g., computer off the network; determine means of delivery of information, etc.). The university can argue that the scope of the clause doesn’t apply to the contract.

252.225-7048 - Export-Controlled Items

This DFAR Clause was issued on June 2013 to ensure that the institution must comply with all applicable laws and regulations regarding export-controlled items, including, but not limited to, 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 compliance with the ITAR and shall consult with the Department of Commerce regarding any questions relating to compliance with the EAR. This clause doesn’t restrict the research project unless the scope of work doesn’t qualify a fundamental research.

FAR 52.227.17 - Rights in Data - Special Works (Dec 2007)

"(d) Release and Use Restrictions. Except as otherwise specifically provided for in this contract, the Contractor shall not use, release, reproduce, distribute, or publish any data first produced in the performance of this contract, nor authorize others to do so, without written permission of the Contracting Officer."

52.204-2 - Security Requirements (Aug 1996)

(a) This clause applies to the extent that this contract involves access to information classified "Confidential," "Secret," or "Top Secret."

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 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.