 |
|
|
|
 |
 |
 |
|
Negotiation Options
While the federal government has the authority to propose any requirement or provision as a condition of a contract, such conditions that would violate a constitutional right of a contractor are not valid or enforceable. This limitation on the government power is particularly relevant in the case of any limits that may be imposed on the publication of unclassified information. In addition, federal agencies should not impose restrictions that are inconsistent with stated Administration and Congressional policies. Nevertheless, the bargaining leverage of a federal agency often is formidable and to resist the imposition of unacceptable terms may require considerable determination on the part of university negotiators.
A report prepared in 1987 by the Association of American Universities (AAU) entitled, National Security Controls and University Research: Information for Investigators and Administrators, provides a discussion of the options open to the investigator and university in the negotiation of unwanted or unacceptable contractual conditions. Such restrictions often are incorporated as "agency boilerplate" and may not be applicable to the specific research effort under consideration. Therefore, requesting the agency to conduct a policy level review may result in the withdrawal of certain inconsistent conditions.
In the case of restrictions that are "passed through" by industry sponsors, an agency review at the policy level may provide some relief from the terms and conditions imposed and accepted in the prime contract. A clear definition of the portion of the prime contract to be conducted by the university as a subcontractor may also allow the industry sponsor to exclude these provisions as being inapplicable to the subcontract.
As the AAU report suggests: "In the end, the protection of a free flow of scientific information will depend on the willingness of the investigator and the university to refuse restrictions that they consider unreasonable." Most items and information a university researcher wants to physically export outside the U.S. will not have a "dual use" or military application and should therefore, fall under a broad exception to the licensing requirement. However, if the item or information involves one or more of the following general categories, check the Export Administration Regulations Database and consult with Luis Vargas, Executive Director Office of Research Subjects for assistance in determining if a license might be necessary:
- nuclear materials, information and equipment;
- chemicals, micoorganisms or biotoxins (see list) which could be used for terrorist purposes;
- materials processing (anti-friction bearings, crucibles made of materials resistant to liquid actinide metals, valve bearings, generators and equipment related to nuclear material handling, piping, fittings and valves, explosives or detonators, chemical vapor deposition furnaces, robots, etc.);
- electronics development (certain components, including microprocessor microcircuits, wave pulse discharge capacitors, wave tube amplifiers, etc.);
- computers (generally, CTPs bigger than 190,000MTOPs), encryption software, telecommunications and information security;
- lasers and sensors (certain marine acoustic systems, mono- or multispectral imaging sensors designed for remote sensing, specified direct view imaging equipment, certain cameras with specified frames, readout and pixels, etc.); navigation and avionics; marine items; and
- propulsion systems, space vehicles and related equipment.
Further, no license is generally required to travel to, conduct research in and take equipment to, most foreign countries as part of your teaching and/or research responsibilities. However, OFAC restrictions apply to a limited number of embargoed entities and specially designated nationals.
OFAC restrictions limit certain activities in the Balkans, Burma, Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria, and Zimbabwe. Check for updates to the embargoed entities and the specific limitations for each country at: http://www.ustreas.gov/offices/enforcement/ofac/programs/.
In addition, OFAC programs prohibit the provision of services to countries subject to US sanctions, boycotts, etc. without a license. Such services include conducting surveys or interviews in, or transmitting on-line courses to, a boycotted country.Excluding countries under sanction, faculty who wish to take their laptops out of the country to use in a project that qualifies as fundamental research may be able to do so under the license exception for temporary export if the laptop meets the requirement for “tools of trade” and faculty retain control of the laptop at all times.
Index
 |
|