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Restrictions in Federal Contracts
The basic provisions regarding the involvement of foreign nationals in research activities that may be subject to export control is found in section 52.215-9530 of the Federal Acquisition Regulations (FAR) which states:
- The parties acknowledge that technical data generated under this contract may be subject to export control, including disclosure to foreign nationals/representatives, whether such data is provided orally or in written form. The contractor agrees to obtain written approval from the Contracting Office (PCO) before assigning any foreign national/representative to perform work under the contract or before granting foreign nationals or their representatives access to data related to the following items/subject matter, whether such data is provided by the Government or generated under this contract.
The foreign national clause has two parts: (1) an "advisory warning" that the research may involve technical data which may be subject to export control regulations; and (2) the responsibility of the contractor to obtain permission from the contracting officer before assigning any foreign national to work on the project or to have access to certain data.
This clause alerts the contractor to its duty to protect information subject to current export laws and regulations. It also gives the contracting officer the opportunity to object if the contractor may constructively export militarily critical technology by providing such data to foreign nationals. The federal government, not a particular contractor, determines generally what data are sensitive and require protection from unauthorized export. However, the exporter must make an individual determination of whether a particular export involves such data and thereby requires an export license.
The University has taken exception to the inclusion of restrictions on the access by foreign nationals on three basic grounds:
- The foreign nationals clause is not required because other applicable laws, regulations, guidelines, and clauses, with which the University does comply, are adequate to protect the concerns of the federal government regarding the export of sensitive information.
- The inability to allow access to data by foreign nationals is a de facto restriction on the ability of the faculty to publish the results containing such data in publicly available journals or to present such data at professional meetings.
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