Interviews
With the assistance of members of the Exploratory Committee, we identified contracting officers at eight universities and conducted a total of 13 interviews. We explained that the purpose of the interviews was to gather historical knowledge from staff who negotiate contracts on behalf of the universities. Through the interviews, we also sought to (a) gain a better understanding of the structure of government contract clauses addressing the ownership and disclosure of data related to health services research; and (b) consider trends over time in the appearance, nature and structure of these clauses.

Although we did not include consulting/private firms12 within the direct scope of our analysis, we did speak confidentially with staff from one firm about their contracting experience with government agencies.

Our information gathering also included an informational interview with the Council on Governmental Relations (COGR). COGR, in a joint project with the Association of American Universities (AAU), produced a report, “Restrictions on Research Awards: Troublesome Clauses,” which addresses the fact that universities across the country have reported a significant increase in sponsors including award language that either restricts the dissemination of research results or the use of foreign nationals without prior approval on certain research projects. The report can be found at www.cogr.edu/docs/TroublesomeClauses.DOC.

Finally, we conducted interviews with three government contracting officers.

University Contracting Officers: The contracting officers with whom we spoke uniformly confirmed that publication restrictions in government contracts are a chronic problem and generally a “deal-breaker” for universities. As part of the negotiation process with federal agencies, contracting officers are generally open to approving contract language which provides for a specified review and comment period (e.g. 30, 60 or 90 days). However, they will not accept contract provisions that require “prior approval” by the government before the university researcher is permitted to publish results. One modification to this position occurs in the case of multi-site research. Universities will often agree to a delay in publication to allow all sites to complete their work.

In addition to serving as the prime contractor, universities often serve as subcontractors on government-sponsored research projects. Restrictive clauses in contracts between the prime and the government agency flow down to the university subcontractor; the university typically has no direct negotiating leverage with the agency. A prime contractor may be more restrictive with a subcontractor, but not less. The contracting officers explained that whether they are serving as a prime or subcontractor on a project, restrictions on publication rights are unacceptable.

Like universities, non-profit research centers face the same contract negotiation challenges as universities. In addition to using restrictive contract language, government funders use long review delays to stall publications. The funders may also delay a publication by making repeated requests for additional analyses, which eventually cause the findings to become stale. One researcher noted that government funders may also announce conclusions from a study, which are not entirely consistent with the actual findings. Researchers are then placed in the awkward position of deciding whether to challenge their funder.

Consulting Firms: Consulting firms generally enter into “work for hire” contracts with the government. Under such arrangements, the government agency sets the publication parameters. These firms understand that they have no leverage to challenge restrictive clauses. Accordingly they generate findings that may never become public—that fact is understood from the start. The consulting/private agencies know that to the extent a federal agency is “testing the waters” with a politically charged piece of research, there is a greater likelihood that no findings will be published.

In those instances in which a consulting/private firm’s bid for a federally-funded contract includes a university as a subcontractor, negotiations change. Many universities “draw a line in the sand” and refuse to consider any publication restrictions. Other universities may, for financial reasons, be willing to find an acceptable common ground within the contract parameters. The consulting/private firms find themselves accepting or declining contracts based on university rules.

Government Contracting Officials: The government generally awards large blanket contracts, known as indefinite duration, indefinite quantity (“IDIQ”) contracts. Government officials noted that universities are generally treated the same as businesses when they bid on contracts, although they recognized the unique situation with respect to publication. One government official noted that the government tends to use contracts instead of grants when it seeks more control. Budget constraints also dictate the funding vehicle. At least one government official noted the disclosure and publication of research results is a sensitive issue under the current administration. The government has received negative feedback from university researchers for using clauses that restrict publication such as FAR clause 52.227-17, “Rights in data – special works” (not covered by the 2005 notice). One agency has recently revised its contracting process as a result of complaints from universities regarding publication restrictions. Under the new process, research is classified as “policy sensitive” or “not policy sensitive,” with the former receiving a rigorous review and approval and the latter receiving notice and comment within a reasonable period of time.