“Do What I Say” Etc., Etc.
Posted by Clif Burns at 5:45 pm on May 25, 2010
Category: Criminal Penalties • DDTC • Deemed Exports • Technical Data Export
In case you can’t read the text of the “WARNING” in this RFP from the Naval Air Systems Command sent to me by an alert reader, it says:
WARNING: THIS DOCUMENT CONTAINS TECHNICAL DATA WHOSE EXPORT IS RESTRICTED BY THE ARMS EXPORT CONTROL ACT (TITLE 22, U.S.C. SEC 2751 ET SEQ) OR THE EXPORT ADMINISTRATION ACT OF 1979, AS AMENDED, (TITLE 50, U.S.C. APP 2401, ET SEQ). VIOLATIONS OF THESE EXPORT
Which is why, of course, the document is posted on the web where any foreign person in any country could download the document and obtain export-restricted technical data. I was able to download without problem all of the documents attached to the RFP.
Perhaps the contracting officer was unaware that the Internet was available outside the United States or that foreign nationals in the United States could actually access the Internet. Or did the contracting officer think that if, say, an Iranian saw this “WARNING” either a crise de conscience or fear of the long arm of U.S. law would cause him or her to heed the warning and not download the juicy details? (I have blurred the details of the RFP so as to not to assist any foreign person in locating this particular RFP, and I’m not providing a link for the same reason.)
The government regularly threatens defense contractors, universities (cf. Professor Roth), and others with huge fines and criminal penalties for disclosures of ITAR-controlled technical data, even data that is already available elsewhere on the Internet. So why haven’t I read about a raid on the Naval Air Command Systems office at the Pentagon and seen pictures of ICE carting off all their computers?
This resembles the posting last year, also as part of a solicitation of bids on a Federal contract, of TSA Standard Operating Procedures labeled as “SENSITIVE SECURITY INFORMATION”:
The information was completely harmless. But the Acting Administrator of the TSA was called before Congressional committees to explain what had happened, and the DHS Office of the Inspector General was ordered to investigate.
Another great post. We worked with a client who was bidding on military contracts for land vehicles. The client asked why they were being required to “pay attention to all this ITAR stuff” when the U.S. Army had posted the specs for the vehicles on its website, where any company in the world could access them for bid. My answer was something along the lines of your headline!
Based on my experience with our friends on the enforcement side, I’m afraid the answer to your question is too often: “Because you don’t get any notches on your pistol grips for busting the moronic gaffes of the U.S. Government.” Enforcement agents are nearly as motivated by the need to make a name for themselves with a high-profile bust as they are driven to enforce the often absurd technicalities of the law. Methinks such a bust in this case would be high-profile, but rather career-limiting for the unfortunate sap who made it. Great post – thanks for all you do.
The caveat you quote is required by DoD Directive 5230.24 to appear on all “techincal documents that are determined to contain export-controlled technical data.” There are two things to love about it:
(1) The warning purports to put readers on notice that DoD technical information is either ITAR- or EAR-controlled. C’mon, which is it? An awful lot is riding on the distinction for folks in the private sector who need to worry serious compliance risks.
(2) DoD Directive 5230.24, which dates from 1987, continues to require the citation to the now-expired Export Administration Act of 1979. Zombie law!
“Interesting comments” – From an enforcement “friend” to Jeroop… After two decades of expertise in export enforcement, I can assure you that 1) these investigations are among the most complicated to conduct due to the elements of law; most federal prosecutors are not familiar with export investigations; in some instances, agents and prosecutors shy away from the complexity of these investigations and the long-term commitment needed to perfect prosecutions. It is my experience that the dedicated personnel conducting export investigations are driven by patriotism to protect the United States and our forces abroad. Further, agents routinely conduct undercover operations with arms dealers, terrorists and other “not-so-nice” people to protect you. I add that most senior managers have never worked export investigations because of the length of time required to work the cases (i.e. an agent could work five drug cases and receive five convictions in the same time one export case would take to come to fruition). Do you get it? The more arrest/indictment/conviction statistics produced the greater opportunity to promote. Check your facts.
As a non-US person based outside the US, my business often receives documents that contain similar warnings. When we go back to the source and question the warning. The reply too often is that the marking was placed by default – that is, the US person thought it would be safer (or easier) to mark than actually finding out if the material actually needs the warning.
From time to time we are advised to just ignore the warning. We don’t, but it does cause unnecessary restriction and controls.
From the believe it or not section, DOD Contracting Officers have little responsibility when it comes to this matter;
DFARS Interim Rule effective July 21 2008 page 42277 http://edocket.access.gpo.gov/2008/E8-16673.htm
“the DFARS rule will cause requiring activities, contracting officers, offerors, and contractors to be aware that export-controlled items, including information and technology, are expected to be involved in the performance of the contract, but will not require identification of the export-controlled items.”
The rule goes on further by adding a DoD response that “agrees that this is not an area (Commodity Classification) in which DoD Contracting Officers are expected to have expertise” and “does not require contracting officers to identify specific export control classification or categories for the information or technology involved”.
Under these conditions maybe Naval Air Systems Command could have just used a statement like “Attention- This may be export controlled data – call someone”, and it would have actually given the reader a clue on what to do.
And this rule came AFTER the issue of on-line bids was brought out.
The DFAR interim rule was replaced by a final rule on April 8, 2010 (75 Fed. Reg. 18030), which effectively eliminated any duty on the part of the contracting officer to attempt a determination as to whether the contract involves subject matter that is export controlled. The final rule adopts a single new DFARs clause that puts responsibility for determining export requirements squarely back on the contractor and requires that the essential terms be “flowed down” to subcontractors. Which in effect means that DoD contractors must now worry about DCMA in addition to ICE. Regional DCMA offices have already begun to ask contractors to identify which contracts relate to export controlled materials or activities.
This comes at a time when DoD is playing with new contracting mechanisms designed to expedite hardware and services to the warfighter. Traditional contracting commands like NAVAIR are contracting out some of their work to contractors, who may be required to perform services in-theater or in adjoining countries. No telling how many export violations are being generated in these new business models.