Restricting the Right to Publish
It is NC State University policy to preserve the right of our faculty and students to freely publish the results of research performed, regardless of the funding source. Exceptions to this policy may be made if US Government research contracts require restrictions on publication or dissemination of research findings for National Security reasons. US Department of Defense (DOD) entities do this by including Defense Federal Acquisition Regulations (DFARS) clause 252.204-7000, RELEASE OF INFORMATION, to research contracts.
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 PI’s ability to assign graduate students needing 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 US State Department.
- 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 the results of which will then be utilized by the prime contractor to further develop for use in a component, device or system that meets the requirements of the military. As anyone would reasonably expect, DOD does not want information on these end products published. However, the results of the preliminary research done by the university is frequently of little or no concern, but 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.In many cases, these complications CAN be avoided! The 7000 Clause provides the opportunity for the prime contractor and the “research performer” (NCSU) to request the DOD contracting activity to evaluate the university’s proposed scope of work separately. The 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 NCSU 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 work undertaken by the university that is funded by DoD have applications for both the military and civilian markets. The university frequently receives SBIR and STTR project subcontracts funded by DoD that requires 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 civilian end uses.
By following these suggestions during proposal submission, there is a much better chance that DoD-funded subcontracts will include a Fundamental Research statement for NC State’s work that 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.
For questions or assistance, please contact Kristin Bloomquist at email@example.com or at 919-515-9336.