The Department of Defense (DoD) has issued its final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to include a clause concerning contractor obligations under the ITAR and the EAR.
The final rule requires that a single clause regarding export controls be used in all solicitations and contracts, regardless of whether the contract involves export-controlled items. In addition, flowdowns are mandated at all contracting tiers.
Under the rule, “Export-controlled items” means items subject to the Export Administration Regulations (EAR) or the International Traffic in Arms Regulations (ITAR) and includes commodities, software and technology. The required clause under DFARS states “The Contractor shall comply with all applicable laws and regulations regarding export-controlled items…” The clause reiterates that compliance with export control laws and regulations exists independent of the DFARS clause.
The DoD rule does not impose new or additional obligations on contractors and simplifies contractual requirements. The flowdown requirement should serve to remind prime contractors and subcontractors of their respective export compliance obligations, including in situations involving technical data, technology or software source code governed by the “deemed export” rule where such information is released to a foreign national (who is not a “green card” holder), even if the release occurs in the U.S.
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