ATTACHMENT 3_NCST CLAUSES.pdf

NCST Contract Clauses

I. RESTRICTIONS AGAINST DISCLOSURE

The Contractor agrees, in performance of this contract, to keep all information, reports, drawings, and data (collectively “information”), whether developed, compiled or authored by the Contractor or furnished to the Contractor by anyone providing information to the Contractor in the Contractor’s performance of this contract, including but not limited to the Government, its employees, contractors or others acting on behalf of the Government, in the strictest confidence.

The Contractor agrees to exercise reasonable care to prevent the unauthorized disclosure of such information, but no less degree of care than the Contractor uses to protect its own confidential or proprietary information.

The Contractor agrees not to publish or otherwise divulge such information in whole or in part, in any manner or form, nor to authorize or permit others to publish or otherwise divulge such information, to any person or party who is not specifically designated by the COTR and authorized by the Contracting Officer, in writing, to receive such information, including but not limited to any and all public and private entities, including profit and not for profit businesses, members of the news media, associations and other government organizations, or any person employed by such an entity, including other NIST Contractors.

All requests for information from non-NIST employees shall be coordinated with NIST through the COTR. The Contractor may disclose on a “need to know” basis such information to employees of NIST directly involved in the NCST investigation, without prior authorization of the Contracting Officer. NIST employees with a “need to know” include the Lead Technical Investigator, the Associate Technical Investigator, the NIST Counsel and the COTR.

Methodology and identification of team will be disclosed in a post award meeting.

The Contractor agrees to immediately notify the Contracting Officer, in writing, in the event that the Contractor discovers or has reason to suspect a breach of this requirement. Contractor agrees to immediately notify the Contracting Officer of any request or subpoena received by the contractor to appear before any judicial or investigatory body and further agrees to cooperate with NIST should NIST, in its sole discretion, deem a protective order or other legal remedy be necessary.

A breach of these requirements may be considered a material breach of the contract. These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, right, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or

(4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling.

II. RESTRICTION AGAINST USE IN LEGAL PROCEEDINGS

The Contractor acknowledges and agrees that the work performed under this contract is in direct support of an investigation carried out under Title 15 United States Code Section 281a.

The Contractor acknowledges and agrees that no part of any data, report or finding resulting from work performed under this Contract may be admitted or used as evidence in any suit or action for damages arising out of any matter related to the investigation. Contractor agrees to be bound by the limitations of Title 15 U.S.C. 281a.

The language of 15 U.S.C. §281a provides:

Sec. 281a. Structural failures

The National Institute of Standards and Technology, on its own initiative but only after consultation with local authorities, may initiate and conduct investigations to determine the causes of structural failures in structures which are used or occupied by the general public. No part of any report resulting from such investigation shall be admitted as evidence or used in any suit or action for damages arising out of any matter mentioned in such report.

III. PROTECTION OF HUMAN SUBJECTS

Research involving human subjects is not permitted under this award unless expressly authorized by a Special Award Condition or otherwise in writing by the NIST Contracting Officer.

The Federal Policy for the Protection of Human Subjects (The Common Rule), codified by the Department of Commerce at 15 CFR Part 27, requires Contractors to maintain appropriate policies and procedures for the protection of human subjects in research. The Common Rule defines a “human subject” as a living individual about whom an investigator conducting research 1) obtains information or biospecimens through intervention or interaction with the individual, and uses, studies, or analyzes the information or biospecimens, or 2) obtains, uses, studies, analyzes, or generates identifiable private information or identifiable biospecimens.

The term “research” means a systematic investigation, including research development, testing and evaluation, designed to develop or contribute to generalizable knowledge. The Common Rule also sets forth the categories of research that may be considered exempt from this policy.

In the event it becomes evident that a human subject may be involved in this project, the Contractor shall submit appropriate documentation to the COTR for NIST institutional review and approval. This documentation may include:

(1) Documentation establishing review and approval of the project by a qualified Institutional Review Board (IRB). [NOTE: Contractors must provide documentation of continuing IRB approval by the cognizant IRB at appropriate intervals as designated by the IRB, but not less than the time period required by the Common Rule];

(2) Documentation to support an exemption for the project from The Common Rule [NOTE: this option is not available for activities that fall under 45 CFR Part 46 Subpart C];

(3) Documentation to support a request for a deferral of review for research involving human subjects beginning after year 1 of the project;

(4) Documentation of IRB approval of any modification to an IRB-approved existing protocol or informed consent form must be submitted to the COTR for NIST Institutional review and approval.

No work involving human subjects may be undertaken, conducted, or costs incurred and/or charged to the project, until the NIST Contracting Officer approves the required appropriate documentation in writing.

IV. RIGHTS IN DATA, ASSIGNMENT OF COPYRIGHT

For purposes of clause 52.227-17(c) below, contractor agrees to assign copyright to data, including reports and other copyrightable materials, first produced in performance of this contract to the United States Government, as represented by the Secretary of Commerce.

52.227-17 RIGHTS IN DATA—SPECIAL WORKS (DEC 2007)

(a) Definitions. As used in this clause-

“Data” means recorded information, regardless of form or the media on which it may be recorded. The term includes technical data and computer software. The term does not include information incidental to contract administration, such as financial, administrative, cost or pricing, or management information.

Unlimited rights” means the rights of the Government to use, disclose, reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly, in any manner and for any purpose, and to have or permit others to do so.

(b) Allocation of Rights.

(1) The Government shall have-

(i) Unlimited rights in all data delivered under this contract, and in all data first produced in the performance of this contract, except as provided in paragraph (c) of this clause.

(ii) The right to limit assertion of copyright in data first produced in the performance of this contract, and to obtain assignment of copyright in that data, in accordance with paragraph (c)(1) of this clause.

(iii) The right to limit the release and use of certain data in accordance with paragraph (d) of this clause.

(2) The Contractor shall have, to the extent permission is granted in accordance with paragraph (c)(1) of this clause, the right to assert claim to copyright subsisting in data first produced in the performance of this contract.

(c) Copyright-

(1) Data first produced in the performance of this contract.

(i) The Contractor shall not assert or authorize others to assert any claim to copyright subsisting in any data first produced in the performance of this contract without prior written permission of the Contracting Officer. When copyright is asserted, the Contractor shall affix the appropriate copyright notice of 17 U.S.C. 401 or 402 and acknowledgment of Government sponsorship (including contract number) to the data when delivered to the Government, as well as when the data are published or deposited for registration as a published work in the U.S. Copyright Office. The Contractor grants to the Government, and others acting on its behalf, a paid-up, nonexclusive, irrevocable, worldwide license for all delivered data to reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly, by or on behalf of the Government.

(ii) If the Government desires to obtain copyright in data first produced in the performance of this contract and permission has not been granted as set forth in paragraph (c)(1)(i) of this clause, the Contracting Officer shall direct the Contractor to assign (with or without registration), or obtain the assignment of, the copyright to the Government or its designated assignee.

(2) Data not first produced in the performance of this contract. The Contractor shall not, without prior written permission of the Contracting Officer, incorporate in data delivered under this contract any data not first produced in the performance of this contract and that contain the copyright notice of 17 U.S.C. 401 or 402, unless the Contractor identifies such data and grants to the Government, or acquires on its behalf, a license of the same scope as set forth in paragraph (c)(1) of this clause.

(d) Release and use restrictions. Except as otherwise specifically provided for in this contract, the Contractor shall not use, release, reproduce, distribute, or publish any data first produced in the performance of this contract, nor authorize others to do so, without written permission of the Contracting Officer.

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(e) Indemnity. The Contractor shall indemnify the Government and its officers, agents, and employees acting for the Government against any liability, including costs and expenses, incurred as the result of the violation of trade secrets, copyrights, or right of privacy or publicity, arising out of the creation, delivery, publication, or use of any data furnished under this contract; or any libelous or other unlawful matter contained in such data. The provisions of this paragraph do not apply unless the Government provides notice to the Contractor as soon as practicable of any claim or suit, affords the Contractor an opportunity under applicable laws, rules, or regulations to participate in the defense of the claim or suit, and obtains the Contractor’s consent to the settlement of any claim or suit other than as required by final decree of a court of competent jurisdiction; and these provisions do not apply to material furnished to the Contractor by the Government and incorporated in data to which this clause applies.

52.227-18 RIGHTS IN DATA—EXISTING WORKS (DEC 2007)

(a) Except as otherwise provided in this contract, the Contractor grants to the Government, and others acting on its behalf, a paid-up nonexclusive, irrevocable, worldwide license to reproduce, prepare derivative works, and perform publicly and display publicly, by or on behalf of the Government, for all the material or subject matter called for under this contract, or for which this clause is specifically made applicable.

(b) The Contractor shall indemnify the Government and its officers, agents, and employees acting for the Government against any liability, including costs and expenses, incurred as the result of (1) the violation of trade secrets, copyrights, or right of privacy or publicity, arising out of the creation, delivery, publication or use of any data furnished under this contract; or (2) any libelous or other unlawful matter contained in such data. The provisions of this paragraph do not apply unless the Government provides notice to the Contractor as soon as practicable of any claim or suit, affords the Contractor an opportunity under applicable laws, rules, or regulations to participate in the defense of the claim or suit, and obtains the Contractor’s consent to the settlement of any claim or suit other than as required by final decree of a court of competent jurisdiction; and do not apply to material furnished to the Contractor by the Government and incorporated in data to which this clause applies.

V. FLOWDOWN PROVISIONS

All goods and services ordered under this contract which are to be furnished by a subcontractor or subcontractors shall be governed by the terms and conditions set forth in this contract.

Contractor is responsible for ensuring that all subcontractor(s) are informed of this flowdown