The 7000 Clause
In SPARCS, this DFARS provision is known as the “7000 Clause”. We dread seeing this clause because we know that it adversely impacts university investigators in several ways:
- The 7000 Clause requires that all publications and presentations resulting from the project must be submitted to the government for approval prior to release. This can limit the ability to assign graduate students who need the research results for their theses or dissertations to work on these projects.
- The 7000 Clause also triggers the loss of the Fundamental Research Exclusion to the US Export Control regulations. In general, the results of basic and applied research in science and engineering intended for publication or presentation are exempt from Export Control regulations. However, accepting any contractual restrictions on publications or presentations removes this protection. As a result, foreign nationals are restricted from working on controlled projects without a license from the U.S. Department of State.
- In most cases, the 7000 Clause arises when NC State is a subcontractor to a for-profit prime contractor. Often, the work being performed by the university is basic or applied research to yield results that the prime contractor will utilize to further develop for use in a component, device or system that meets military requirements. As anyone would reasonably expect, the DoD does not want information on these end products published. Even though the results of the preliminary research done by the university is frequently of little or no concern, the prime contractor is still required to “flow down” the 7000 Clause to the university. Companies have very little incentive to request its removal once the contract has been awarded. But in many cases, these complications can be avoided. The 7000 Clause provides the opportunity for the prime contractor and the “research performer”(i.e., NC State) to request the DoD contracting activity to evaluate the university’s proposed scope of work separately. The DoD contracting officer is authorized to determine the university’s portion of the overall project to be fundamental research; by doing so, the contracting officer gives NC State the right to publish — without removing the 7000 Clause, which will still apply for the prime contractor. This also restores the Fundamental Research Exclusion to the university’s research results, typically enabling graduate students and foreign nationals to work on these projects.
The following must be part of the proposal process:
- Proposals should include a specific request for the DoD contracting officer to review the Statement of Work to be performed by NC State separately and determine in writing that the work is Fundamental Research as provided in DFARS 252.204-7000(a)(3).
- Proposals should include a definitive statement to the prime contractor that “The research described in NC State University’s proposal is Fundamental Research as described in National Security Decision Directive 189 (21 SEP 1985) and the USD (AT&L) memoranda on Fundamental Research, dated May 24, 2010, and on Contracted Fundamental Research, dated June 26, 2008.”
- Proposals should describe and emphasize the “dual use” purpose(s) of the research. Most of the DoD-funded work undertaken by the university has applications for both the military and civilian markets. The university frequently receives SBIR and STTR project subcontracts funded by DoD that require the small-business prime contractor to provide commercialization and marketing plans. Clearly state in your proposal that the results of the research are intended for both military and civilian applications — and provide examples of end uses for civilians.
Following these suggestions during proposal submission greatly betters the chances that DoD-funded subcontracts will include a Fundamental Research Exclusion statement for NC State’s work, which will:
- allow for publications,
- allow the involvement of foreign nationals; and
- enable SPARCS to sign the subcontract without the need for lengthy negotiations over this troublesome provision.