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Barry McVay's FEDERAL CONTRACTS DISPATCH

DATE: February 11, 2000

FROM: Barry McVay, CPCM

SUBJECT: National Aeronautics and Space Administration Federal Acquisition Regulation (FAR) Supplement (NFS); Standard Clause for Export Controlled Technology

SOURCE: Federal Register, February 11, 2000, Vol. 65, No. 29, page 6915

AGENCIES: National Aeronautics and Space Administration (NASA)

ACTION: Final Rule

SYNOPSIS: NASA is amending the NFS to add NFS 1825.970, Export Control, and NFS 1852.225-70, Export Licenses, to make sure contractors and offerors understand that they are responsible for controlling export compliance in accordance with law and regulation, and that they should not rely on NASA to obtain necessary licenses in execution of the contracted work.

EFFECTIVE DATE: February 11, 2000.

FOR FURTHER INFORMATION CONTACT: Patrick Flynn, NASA, Office of Procurement, Contract Management Division (Code HK), 202-358-0460.

SUPPLEMENTAL INFORMATION: Because the potential for disclosure of dual-use technology to foreign powers is a serious concern to NASA, and because there was no standard NFS clause on this subject, NASA proposed on October 28, 1999, to add guidance at NFS 1825.970, Export Control (consisting of NFS 1825.970-1, Background, and NFS 1825.970-2, Contract Clause), and a clause at NFS 1852.225-70, Export Licenses. Because there were no comments, NASA is amending the NFS as proposed without change.

Both NFS 1825.970-1 and NFS 1852.225-70 notify NASA contractors and subcontractors that they "are subject to U.S. export control laws and regulations, including the International Traffic in Arms Regulations (ITAR), 22 CFR Parts 120 through 130, and the Export Administration Regulations (EAR), 15 CFR Parts 730 through 799. The contractor is responsible for obtaining the appropriate licenses or other approvals from the Department of State or the Department of Commerce when it exports hardware, technical data, or software, or provides technical assistance to a foreign destination or 'foreign person'...and there are no applicable or available exemptions/exceptions to the ITAR/EAR, respectively" (NFS 1825.970-1(a); the language NFS 1852.225-70(a) is similar). Furthermore, NFS 1852.225-70, which is required in "all solicitations and contracts, except in contracts with foreign entities" (NFS 1825.970-2), states that "the Contractor shall be responsible for obtaining export licenses, if required, before utilizing foreign persons in the performance of this contract...for all regulatory record keeping requirements associated with the use of licenses and license exemptions/exceptions...[and] for ensuring that the provisions of this clause apply to its subcontractors."

FOR FURTHER INFORMATION CONTACT: Barry McVay at 703-451-5953 or by e-mail to BarryMcVay@FedGovContracts.com.

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