Troublesome Clauses in
Federal Research Awards
Robert Hardy, COGR
Academy Health Annual Research Meeting
Boston, Massachusetts
June 28, 2010
About COGR
• Association of research universities originally
established in 1948
• Approximately 180 current member institutions
• Staff of 5
• Board (20 members) from member institutions
• Standing Committees: Costing,
Costing Compliance,
Compliance
Contracts & Intellectual Property
• www.cogr.edu
“Troublesome
Troublesome Clauses”
Clauses
• D
Defined
fi d as sponsor restrictions
t i ti
on ability
bilit off
institution to publish or disclose research
findings ability of foreign nationals to participate
findings,
in research project without sponsor approval, or
other restrictions on project access or
dissemination of project results.
• Such restrictions raise issue of compliance with
NSDD 189, which establishes as government
policy
p
y that no restrictions should be p
placed on
the conduct or reporting of unclassified
Federally-funded research.
Background
• First examined by COGR/AAU in ’03-04.
• 20 p
participating
p
g institutions in survey
y reported
p
138 instances over a six-month period where
restrictive clauses were included in awards.
• 105 involved publication restrictions (47 involved
the dreaded DFARS 7000 clause, which is a
mandatory “flowdown” from prime contractors).
• Remaining 33 mostly involved restrictions on
foreign nationals.
Subsequent Developments
• IIssues a continuing
ti i ffocus off COGR/AAU.
COGR/AAU
• NAS Science and Security Report Committee
’07 R
Recommendations:
d ti
– 1) Research funding agencies should adhere to
NSDD 189 and implementing FAR clause;
– 2) Agencies should tell prime contractors not to pass
restrictions down to universityy subs;; and
– 3) COGR/AAU should update troublesome clause
data annually and expand to include other
restrictive
t i ti clauses,
l
particularly
ti l l data
d t on “sensitive
“
iti
but unclassified,” with results provided to OSTP.
Second Survey
• 2ndd survey involving
i
l i same 20 iinstitutions
tit ti
undertaken under auspices of the Federal
Demonstration Partnership (FDP)
(FDP).
• Covered period July ’07—January ’08.
• Participating
P ti i ti institutions
i tit ti
reported
t d 180 instances
i t
where restrictive clauses were included in
awards.
awards
• 91 involved publication restrictions (44 of which
were DFARS 7000 clause).
clause)
• 26 involved restrictions on foreign nationals.
What Changed?
• 37 involved
i
l d various
i
other
th ttypes off restrictions
t i ti
that implicate science/security:
– Intellectual property restrictions (e
(e.g.
g restrictions on
ownership of data with agencies acquiring all rights);
– SBU/FOUO or proprietary information designations;
– Background check requirements.
• Previously only contracts were reported as
containing troublesome clauses; new survey
reported 8 grants and 7 cooperative agreements
• Results: 16 Total Rejections (15 last time);39
Accepted as Proposed; 83 Negotiated
Acceptable Language (others were pending)
Agency Profiles
• Of the 180 restrictions:
–
–
–
–
–
–
–
118 DOD
11 HHS
10 NASA
7 DOE
7 DHS
6 security agencies
Other agencies reported as imposing 1—2
restrictions: GSA, EPA, Ed, Census, State, NIST,
FAA, DOT, National Labs
Conclusions from
nd
2
Survey
• Sit
Situation
ti had
h d nott iimproved
d since
i
prior
i
AAU/COGR survey.
• DOD still
till was primary
i
source off ttroublesome
bl
clauses (both direct and flowdown); DFARS
7000 clause remained a significant problem.
problem
• Frequency of publication and foreign national
restrictions encountered were very similar
similar.
• Increase in total number of troublesome clauses
reported reflected new forms of restrictions that
were not reported in original survey.
• Survey mechanism also may have been more
refined.
Bottom Line
•
•
•
•
Federal agencies appear to be e
expanding
panding the nat
nature
re
of the controls and restrictions included in terms and
conditions of awards to universities.
Consensus of AAU/COGR university working group
was that government contracting officials have
become more cautious and protective and industry
contractors more explicit and technical in terms and
conditions provided subawardees.
I d t prime
Industry
i
contractors
t t
are increasingly
i
i l adding
ddi
protective terms to university subcontracts, whether
q
by
y funding
g agency.
g
y
or not required
Spread of troublesome clauses to assistance awards
was particularly troubling.
Challenges For Universities
• N
Need
d tto preserve open university
i
it research
h
environment and academic freedom is vital.
• Core academic values of free flow of information
threatened by sponsor restrictions.
• Requirements to approve foreign nationals
conflict with campus non-discrimination policies.
• Access and dissemination restrictions mayy
subject research to export control requirements.
• Adverse effects from “walk aways.”
• Implications of increased compliance
requirements (e.g. staffing, costs).
COGR/AAU Recommendations
1.
2.
3
3.
4
4.
5.
DOD should revise its guidance to state that no
controls on publications or foreign
f
nationals should be
imposed for fundamental research at universities
((whether funded directly
y or by
y subaward).
)
DOD should discourage “home grown” award terms
and mandates.
Research funding agencies should follow NSDD
NSDD-189,
189
with the implementing FAR provision incorporated in
all university contracts for fundamental research.
OMB should
h ld iissue guidance
id
tto prohibit
hibit publication
bli ti or
foreign national restrictions in grants and agreements.
Export control compliance clauses should be restricted
to situations where agencies or contractors provide
export-controlled information to universities.
Recommendations continued
Recommendations--continued
6 F
6.
Federal
d l governmentt should
h ld iimplement
l
t ttraining
i i
program for contracting officials.
7 A government—university working group
7.
should be established to address
science/securityy issues.
8. University leadership must ensure that their
institutions have policies to address security
requirements and assure necessary training
requirements,
and education.
9 FDP should establish collaborative website to
9.
help increase understanding and negotiation of
these issues.
What Has Happened?
• The
Th G
Good
dN
News:
– DOD Undersecretary for Acquisition issued
June 2008 Memorandum on “Contracted
Fundamental Research” stating that:
• DOD policy is to follow NSDD 189; and
• DOD awards for fundamental research should not
restrict publications or foreign researchers
researchers.
– Just reissued (5/24/10) with stronger
language and specifically addresses the
subcontracted research issue.
What Has Happened?
Happened?—cont.
cont
• The Not-so-Good News;
– Previous DOD memo tended to be honored in the
breach.
– DFARS never amended to reflect guidance.
• Current DFARS prescription for mandatory flowdown
of 7000 clause directly contradicts new DOD
guidance.
guidance
• We plan to continue to work with DOD to implement
policy guidance in DFARS (Other changes to 7000
clause currently pending which would add cyber
securityy requirements
q
to p
protect the information).
)
The Problem Persists and Involves
More than DOD
• COGR institution
i tit ti recently
tl received
i d an NIH grantt
that included a “Collaborative Agreement”
requiring NIH clearance for publications
publications.
• Seems based on policy for NIH intramural
researchers with whom the PI is collaborating.
collaborating
• Same institution also received a subaward under
an NIH
NIH-funded
funded consortium where advisory
committee of PI’s must approve publications.
• Latter may be acceptable to institution (involves
group of peers); former is not.
New FDP Website Established
• FDP recently
tl announced
d the
th launching
l
hi off a new
website for reporting troublesome clauses
(http://nrc59 nas edu/clauses2/login cfm)
(http://nrc59.nas.edu/clauses2/login.cfm)
• Website planned to serve as a resource to the
FDP membership (both research institutions and
federal agencies) for improving grant and
contract negotiations.
negotiations
• The improved reporting functionality will also
allow COGR/AAU to continually monitor the
occurrence of troublesome clauses in university
g
agreements.
NAS Remains Engaged
• ’09 NAS “Beyond
“B
dF
Fortress
t
America”
A
i ” Report
R
t cites
it
COGR/AAU reports as demonstrating threats
posed to fundamental research enterprise and
U.S. national security by government restrictions
on flows of information and of people
people.
Recommends that NSDD-189 be maintained
properly
p y implemented.
p
and p
• Administration has responded to strong calls for
export
p control reform.
• NAS Science & Security Committee Chairs
remain engaged
g g with g
government p
policymakers.
y
A Word About FISMA
• FISMA and Homeland Security Presidential Directive
(HSPD)-12 set forth requirements for risk assessments
and clearances for access to federal facilities or federal
i f
information
ti or information
i f
ti systems.
t
• Requires agencies to assess the level of security risk
associated with access to the information and conduct
appropriate personnel screenings (background checks).
• HSPD-12 is not supposed to apply to researchers
working under contract who do not access federal
facilities or federal information systems.
• Some agencies (e.g. DoED) have taken an expansive
view
i
off th
the application
li ti off FISMA/HSPD 12 tto
contractors, and may apply the requirements when any
information is collected under a Federal contract.
FISMA cont
FISMA—cont.
• Based on discussions with COGR/AERA
COGR/AERA, NIH has
clarified that FISMA is not applicable to recipients of
grants, including cooperative agreements (NOT-OD-08032).
032)
• However, NIH also requires that sensitive information
participants
p
be housed
about NIH-funded research or p
only on encrypted portable electronic devices (NOT-OD08-066).
• Other agency implementing guidance appears to
confuse HSPD-12 and FISMA requirements, and to
impose the more stringent HSPD-12 screening
requirements in all cases where contractors generate
generate,
store, process or exchange data with the agency (e.g.
see NASA NFS 1804.470).
Questions/Comments?
Contact Info:
Robert Hardyy
Director, Contracts & Intellectual Property Mgt.
COGR An Association of Research Universities
COGR,
(202) 289-6655
rhardy@cogr.edu