B08-HT9427-26-R-E001-Attachment-L-Prohibition-Contracting-Malign-Foreign-Talent-Programs.docx

Attachment L Prohibition on Contracting with Malign Foreign Talent Programs

Section 10631 of the Chips Act of 2022 (Pub. L. 117-167) prohibits research and development awards from being made to any proposal in which a covered individual is participating in a malign foreign talent recruitment program on or after August 9, 2024. Pursuant to the draft Other Transaction Agreement for Prototype, Article 13 General Provisions, Section F Prohibition on Contracting with Malign Foreign Talent Programs, the Performer is responsible for certifying with proposal submission and on an annually basis each covered individual is made aware of the requirements of this section and complies with this prohibition.

Performers who: 1) fail to submit this form in Volume 3 of their proposal submission; 2) do not use this form, as provided herein; 3) do not provide their complete identifying information in the table below or do not completely answer all questions in this form; 4) fail to provide the Government additional information regarding this form when requested; or, 5) fail to sign this form, will be deemed noncompliant and will not receive an evaluation of their proposal.

Relevant definitions can be found at the end of this document.

Performer

Performer Unique Entity ID (UEI)

Performer Point of Contact Name

Performer Point of Contact Phone Number

Performer Point of Contact Email

Responses to disclosure questions may contain trade secrets or commercial or financial information that is privileged or confidential and is exempt from public disclosure. Such information shall be used or disclosed only for evaluation purposes or in accordance with an award between the submitter and the Government.

The information provided in response to the Disclosure Questions listed below is certified to be accurate and complete. Knowingly and willfully making any false, fictitious, or fraudulent statements or representations may be a felony under the Federal Criminal False Statement Act (18 U.S.C. Sec 1001), punishable by a fine of up to $10,000, up to five years in prison, or both.

Name of person authorized to sign: ____________________________________

Signature of person authorized: ____________________________________

Date: ______________

Disclosure Questions

1. Is any owner or covered individual of the applicant or awardee party to any malign foreign talent recruitment program?

☐ Yes ☐ No

If yes, disclose the first and last name of each owner or covered individual, identify their role (i.e., owner or covered individual), and the malign foreign talent recruitment program.

2. Is there a parent company, joint venture, or subsidiary, of the applicant or awardee that is based in or receives funding from, any foreign country of concern?

If yes, disclose the name, full address, applicant or awardee relationships (i.e., parent company, joint venture, or subsidiary) of each entity based in, or funded by, any foreign country of concern.

3. Does the applicant or awardee have any current or pending contractual or financial obligation or other agreement specific to a business arrangement, or joint venture-like arrangement with an enterprise owned by a foreign state or any foreign entity?

If yes, disclose the name of each enterprise or foreign entity, type of obligation, agreement, or arrangement ( i.e., contractual, financial, or other), description of obligation, agreement, or arrangement, and the foreign state(s) and/or the country of the foreign entity (or entities).

4. Is the applicant or awardee wholly owned in a foreign country?

If yes, disclose the foreign country.

5. Does the applicant or awardee have any venture capital or institutional investment?

If yes, proceed to question 5a. If no, proceed to question 6.

5a. Does the investing entity have a general partner or any other individual holding a leadership role who has a foreign affiliation with any foreign country of concern?

☐ Yes ☐ No ☐Unable to determine

If yes or unable to determine, disclose the venture capital or institutional investing entity's name, the percentage of ownership obtained by the investing entity, and the type of investment (i.e., equity, debt, or combination of equity and debt).

6. During the previous 5-year period, did the applicant or awardee have any technology licensing or intellectual property sales or transfers, to a foreign country of concern?

If yes, disclose the name, address, and country, of the institution or entity that licensed, purchased, or received the technology or intellectual property.

7. Is there any foreign business entity, offshore entity, or entity outside the United States related to the applicant or awardee?

If yes, disclose the entity name, relationship type (i.e., foreign business entity, offshore entity, entity outside the United States), description of the relationship to the applicant or awardee, and entity address and country.

8. Does the applicant or awardee have an owner, officer, or covered individual that has a foreign affiliation with a research institution located in a foreign country of concern?

If yes, disclose the first and last name of each owner, officer, or covered individual that has a foreign affiliation with a foreign country of concern, identify their role (i.e., owner, officer, or covered individual), and the name of the foreign research institution and the foreign country of concern where it is located.

Relevant Definitions

Covered Individual – An individual who contributes in a substantive, meaningful way to the scientific development or execution of a research and development (R&D) project proposed to be carried out with a Federally funded award from DoD. DoD has further designated covered individuals as including all proposed key personnel.

Foreign Affiliation – As defined in 15 U.S.C. § 638(e)(16), foreign affiliation means a funded or unfunded academic, professional, or institutional appointment or position with a foreign government or government-owned entity, whether full-time, part-time, or voluntary (including adjunct, visiting, or honorary). This includes appointments or positions deemed adjunct, visiting, or honorary with research institutions located in a foreign country of concern.

Foreign Country of Concern – As defined in 15 U.S.C. § 638(e)(17), foreign country of concern means the People’s Republic of China, the Democratic People’s Republic of Korea, the Russian Federation, the Islamic Republic of Iran, or any other country determined to be a country of concern by the Secretary of State.

Malign Foreign Talent Recruitment Program – As defined in 42 U.S.C § 19237, the term “malign foreign talent recruitment program” means –

(A) any program, position, or activity that includes compensation in the form of cash, in-kind compensation, including research funding, promised future compensation, complimentary foreign travel, things of non de minimis value, honorific titles, career advancement opportunities, or other types of remuneration or consideration directly provided by a foreign country at any level (national, provincial, or local) or their designee, or an entity based in, funded by, or affiliated with a foreign country, whether or not directly sponsored by the foreign country, to the targeted individual, whether directly or indirectly stated in the arrangement, contract, or other documentation at issue, in exchange for the individual –

(i) engaging in the unauthorized transfer of intellectual property, materials, data products, or other nonpublic information owned by a United States entity or developed with a Federal research and development award to the government of a foreign country or an entity based in, funded by, or affiliated with a foreign country regardless of whether that government or entity provided support for the development of the intellectual property, materials, or data products;

(ii) being required to recruit trainees or researchers to enroll in such program, position, or activity;

(iii) establishing a laboratory or company, accepting a faculty position, or undertaking any other employment or appointment in a foreign country or with an entity based in, funded by, or affiliated with a foreign country if such activities are in violation of the standard terms and conditions of a Federal research and development award;

(iv) being unable to terminate the foreign talent recruitment program contract or agreement except in extraordinary circumstances;

(v) through funding or effort related to the foreign talent recruitment program, being limited in the capacity to carry out a research and development award or required to engage in work that would result in substantial overlap or duplication with a Federal research and development award;

(vi) being required to apply for and successfully receive funding from the sponsoring foreign government's funding agencies with the sponsoring foreign organization as the recipient;

(vii) being required to omit acknowledgment of the recipient institution with which the individual is affiliated, or the Federal research agency sponsoring the research and development award, contrary to the institutional policies or standard terms and conditions of the Federal research and development award;

(viii) being required to not disclose to the Federal research agency or employing institution the participation of such individual in such program, position, or activity; or

(ix) having a conflict of interest or conflict of commitment contrary to the standard terms and conditions of the Federal research and development award; and

(B) a program that is sponsored by –

(i) a foreign country of concern or an entity based in a foreign country of concern, whether or not directly sponsored by the foreign country of concern;

(ii) an academic institution on the list developed under section 1286(c)(8) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (10 U.S.C. 2358 note; 1 Public Law 115–232); or

(iii) a foreign talent recruitment program on the list developed under section 1286(c)(9) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (10 U.S.C. 2358 note; 1 Public Law 115–232).