Problematic clauses may be 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 are not applicable to non-profit educational institutions governed by OMB circulars.

For academic institutions, most research is exempt from export controls under the Fundamental Research, Educational Information, and Public Domain exclusions. Delays in finalizing agreements can occur when sponsors try to add publication or access restrictions that would invalidate the Fundamental Research Exclusion (FRE).

The Research Contracts Administrators in the Office of Contracts and Grants will review and forward contracts with export control clauses to the Export Control Officer for review.

Contract Clauses Requiring Export Control Review

Below are examples of some of the most encountered clauses in contracts that will trigger further export control review:

Disclosure of Information

• 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 by the DOD program officer to allow publication and dissemination of information without restriction. The Export Control Office will review and assist in classification of fundamental research. 

Export Controlled Items

• 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. The OCG will send this to the Export Control Office for review. 

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. 

Safeguarding of Unclassified Controlled Technical Information

• DFARS 252.204-7012 (November 2013) 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. Contracts containing this clause will be forwarded by OCG to the Export Control Office for further review.

Special Works

• FAR 52.227-17 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. This will need further review by the Export Control Office.

Approval of Foreign Nationals Performing under Contract

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

Equipment and Technical Data Generated Controlled by ITAR

• AFMC 5352.227-9000 - Equipment and technical data generated controlled by ITAR. Export license required before foreign nationals can work on research project. The Export Control Office will be notified if this clause is included in the contract.

Sensitive Foreign Nations Controls

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