Procurement

Purchasing Review of Terms and Condition:

When purchasing scientific or technical equipment, a source of vendor may include language indicating that the item is subject to U.S. Export Controls. This language does not necessarily mean that the item is a controlled item. The language may come in a form similar to the sample language below:

Purchaser certifies that if products purchased pursuant to such purchase order are directly or indirectly exported, re-exported or transferred, Purchaser shall comply with all applicable global export control laws and regulations, including but not limited to regulations implemented under the Wassenaar Arrangement or other multilateral export control regimes, the U.S. Export Administration Regulations (EAR), and U.S. International Traffic in Arms Regulations (ITAR). In particular, Purchaser declares that it will not: (1) use the products for any end-use activities restricted under Part 744 of the EAR or any equivalent end use based restrictions (to the extent applicable to the country or end user); or (2) export, re-export or transfer the products to any person, entity, and/or country, in each case without first obtaining written authorization from the applicable government agency (if required).

If similar language is found, the Cardholder or Account Manager should send an email to the RIC at exportcontrol@txstate.edu along with a description of the item being purchased, the name of the Texas State employee and department requesting the purchase so that a review can be conducted to determine if the item(s) is/are controlled.

Occasionally a source or vendor may provide information about the particular product’s export control status. Most commonly, this information will take the form of an export control classification number (ECCN).

For example, vendor may state that a particular item is controlled by 6A005. If this information is provided, the Cardholder or Account Manager should send an email to the RIC at exportcontrol@txstate.edu along with a description of the item being purchased, the name of the Texas State employee and department requesting the purchase.

The RIC will review the purchasing documents and determine if a Technology Control Plan is warranted. If warranted, the RIC will work directly with the department and/or Texas State employee to develop and implement this plan.

Occasionally, Purchasing and Strategic Sourcing may discover information stating that the item(s) being purchased are subject to the ITAR, USML, or MTCR. This information may contain any of the foregoing acronyms, and it may also contain a specific category or paragraph (i.e. This item is found on the USML Cat. VIII). This type of information indicates that the article involved could be a defense article. The purchase should be halted and the RIC should be notified in the event that this type of language is in a purchasing contract. RIC will work directly with the department and/or Texas State employee to develop and implement a Technology Control Plan to safeguard the item(s).

It is also possible that a vendor may provide language indicating that the equipment is not for public purchase. Contract terms may specify that the equipment is not approved for public consumption, unlimited distribution, etc. In the event that this type of language is included in a contract it should be flagged and sent to the RIC for review, as this may be a vendor’s way of indicating that there are export control restrictions on the particular item.

Included in the Purchase Order Standard Terms and Conditions are two sections with export control language.

1. ECCN REPORTING REQUIREMENT: Contractor acknowledges that providing goods and services under this Purchase Order is subject to compliance with all applicable United States laws, regulations, or orders, including those that may relate to the export of technical data or equipment, such as International Traffic in Arms Regulations ("ITAR") and/or Export Administration Act/Regulations ("EAR"). Contractor agrees to comply with all such laws, regulations and orders as currently in effect or hereafter amended. Contractor shall not disclose any export-controlled information, or provide any export-controlled equipment or materials to Texas State without prior written notice. In the event that Texas State agrees to receive such export-controlled information, equipment or materials, Contractor shall: (i) include the Export Control Classification Number (ECCN) on the packing documentation, and, (ii) send an electronic copy of the ECCN number and packing documentation to: exportcontrol@txstate.edu.
2. ELIGIBILITY FOR PARTICIPATION IN GOVERNMENT PROGRAMS:  Each party represents that neither it nor any of its management or any other employees or independent contractors or Principals as defined in CFR Section 180.995 who will have any involvement in the services or products supplied under this Agreement, have been excluded from participation in any government healthcare program, debarred from or under any other federal program (including but not limited to debarment under the Generic Drug Enforcement Act), or convicted of any offense defined in 42 U.S.C. Section 1320a-7, and that each party, its employees and independent contractors are not otherwise ineligible for participation in federal healthcare programs. Further, each party represents that it is not aware of any such pending action(s) (including criminal actions) against each party or its employees or independent contractors. Each party shall notify the other immediately upon becoming aware of any pending or final action in any of these areas.