GUIDANCE ON PRESERVING THE FUNDAMENTAL RESEARCH EXCLUSION WHEN ENGAGING IN DEPARTMENT OF DEFENSE / OTHER MILITARY SPONSORED RESEARCH
I. Background
The Department of Defense (DoD) and other military sponsored research agreements are reviewed by the Export Control Compliance team in the Office of Research Integrity due to the risk of intersection with export control laws and regulations, particularly the International Traffic in Arms Regulations (ITAR).
Engaging in non-Fundamental Research on military sponsored projects implicates export control laws. Whereas Brown has established processes to evaluate and potentially permit the receipt of export controlled inputs in Fundamental Research projects at Brown, the conduct of ITAR-controlled, non-Fundamental Research projects is prohibited at the University.
This guidance identifies language to be included in sponsored research proposal documents when Brown is submitting as a prime or subcontractor on a DoD or other military sponsored proposal.
II. Fundamental Research
Fundamental Research is defined in 22 CFR 120.11 as:
…basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community, as distinguished from [proprietary or controlled] research the results of which are restricted for proprietary reasons or specific U.S. Government access and dissemination controls.
University research will not be considered Fundamental Research if:
- The University or its researchers accept other restrictions on publication of scientific and technical information resulting from the project or activity, or
- The research is funded by the U.S. Government and specific access and dissemination controls protecting information resulting from the research are applicable.
III. Language for Inclusion in DoD/other military sponsored proposals
ORI recommends careful review of solicitations from the DoD/other military sponsors to identify references to export controls, security restrictions, foreign national restrictions, publication restrictions, Government Furnished Information (GFI) and/or Controlled Unclassified Information (CUI). Reference to these types of restrictions or information in a DoD/other military sponsored proposal requires careful review and consideration prior to applying for the award, as they may undermine efforts to maintain the Fundamental Research Exclusion or indicate that controlled inputs/information are anticipated in the conduct of the project. Adherence to the Fundamental Research Exclusion means that the work conducted at Brown will not carry any publication, access or dissemination restrictions.
To ensure that the Fundamental Research Exclusion is preserved, certain language must be inserted into proposal documents at the time of proposal submission. Such language is not required in pre-proposal submissions, white papers, and/or Letters of Intent submitted to sponsors.
- When Brown is submitting a proposal as the anticipated prime awardee, the template language in Appendix I is to be used. Two versions of this language are presented to provide flexibility when submission of a cover letter is not permissible by the sponsor.
- When Brown is submitting a subcontract proposal and the prime awardee is another institution, the template language in Appendix II is to be used. This language must be included in the subcontractor Letter of Support provided to the prime.
IV. Developmental Items produced under DoD funded awards
Developmental items produced with DoD funding, including specially designed parts, components, accessories, and attachments may be subject to the ITAR (regardless of whether the project qualifies as Fundamental Research) unless these items are identified in the DoD agreements being developed for both civil and military applications. If the scope of work involves creating or modifying equipment or materials under a DoD agreement (grant, cooperative agreement, or contract), it is strongly recommended that the proposal documents discuss or highlight potential civil applications OR that the documents (cover letter, statement of work, or body of the proposal) include an explicit statement be included in the proposal documents (cover letter, statement of work, or body of proposal) such as:
“It is understood that any developmental items and specially designed parts, components, accessories and attachments generated under this Department of Defense agreement are being developed for both civil and military applications.”
If the funding agreement does not include this or similar language, any hardware or materials created or modified under the agreement will need to be handled as “developmental” items subject to ITAR unless Brown receives a Commodity Jurisdiction stating otherwise from the Department of State.
If an item truly does not have civil applications, the research team should not indicate that it does. In such rare circumstances, the research team must contact the Export Control Compliance Team to assess if the item and your research may be subject to control under the ITAR.
V. Template Language Examples
DoD Proposal Language when Brown is the Proposed Prime Awardee