[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 4900 Considered and Passed Senate (CPS)]
<DOC>
117th CONGRESS
2d Session
S. 4900
To reauthorize the SBIR and STTR programs and pilot programs, and for
other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
September 20, 2022
Mr. Cardin (for himself and Ms. Ernst) introduced the following bill;
which was read twice, considered, read the third time, and passed
_______________________________________________________________________
A BILL
To reauthorize the SBIR and STTR programs and pilot programs, and for
other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``SBIR and STTR Extension Act of
2022''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Administration; administrator.--The terms
``Administration'' and ``Administrator'' mean the Small
Business Administration and the Administrator thereof,
respectively.
(2) Federal agency; phase i; phase ii; phase iii; sbir;
sttr.--The terms ``Federal agency'', ``Phase I'', ``Phase II'',
``Phase III'', ``SBIR'', and ``STTR'' have the meanings given
those terms, respectively, in section 9(e) of the Small
Business Act (15 U.S.C. 638(e)).
SEC. 3. REAUTHORIZATION OF SBIR AND STTR PROGRAMS AND PILOT PROGRAMS.
Section 9 of the Small Business Act (15 U.S.C. 638) is amended by
striking ``2022'' each place that term appears and inserting ``2025''.
SEC. 4. FOREIGN RISK MANAGEMENT.
(a) Definitions.--Section 9(e) of the Small Business Act (15 U.S.C.
638(e)) is amended--
(1) in paragraph (13)(B), by striking ``and'' at the end;
(2) in paragraph (14), by striking the period at the end
and inserting a semicolon; and
(3) by adding at the end the following:
``(15) the term `covered individual' means an individual
who--
``(A) contributes in a substantive, meaningful way
to the scientific development or execution of a
research and development project proposed to be carried
out with a research and development award from a
Federal research agency; and
``(B) is designated as a covered individual by the
Federal research agency concerned;
``(16) the term `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);
``(17) the term `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;
``(18) the term `malign foreign talent recruitment program'
has the meaning given such term in section 10638 of the
Research and Development, Competition, and Innovation Act
(division B of Public Law 117-167); and
``(19) the term `federally funded award' means a Phase I,
Phase II (including a Phase II award under subsection (cc)), or
Phase III SBIR or STTR award made using a funding agreement.''.
(b) Due Diligence Program to Assess Security Risks.--
(1) In general.--Section 9 of the Small Business Act (15
U.S.C. 638) is amended by adding at the end the following:
``(vv) Due Diligence Program to Assess Security Risks.--
``(1) Establishment.--The head of each Federal agency
required to establish an SBIR or STTR program, in coordination
with the Administrator, shall establish and implement a due
diligence program to assess security risks presented by small
business concerns seeking a federally funded award.
``(2) Risks.--Each program established under paragraph (1)
shall--
``(A) assess, using a risk-based approach as
appropriate, the cybersecurity practices, patent
analysis, employee analysis, and foreign ownership of a
small business concern seeking an award, including the
financial ties and obligations (which shall include
surety, equity, and debt obligations) of the small
business concern and employees of the small business
concern to a foreign country, foreign person, or
foreign entity; and
``(B) assess awards and proposals or applications,
as applicable, using a risk-based approach as
appropriate, including through the use of open-source
analysis and analytical tools, for the nondisclosures
of information required under (g)(13).
``(3) Administrative costs.--
``(A) In general.--In addition to the amount
allocated under subsection (mm)(1), each Federal agency
required to establish an SBIR program may allocate not
more than 2 percent of the funds allocated to the SBIR
program of the Federal agency for the cost of
establishing the due diligence program required under
this subsection.
``(B) Reporting.--
``(i) In general.--Not later than December
31 of the year in which this subparagraph is
enacted, and not later than December 31 of each
year thereafter, the head of a Federal agency
that exercises the authority under subparagraph
(A) shall submit to the Committee on Small
Business and the Committee on Science, Space,
and Technology of the House of Representatives,
the Committee on Small Business and
Entrepreneurship of the Senate, and the
Administrator, for the covered year--
``(I) the total funds allowed to be
allocated for the cost of establishing
the due diligence program required
under this subsection;
``(II) the total amount of funds
obligated or expended under
subparagraph (A); and
``(III) the due diligence
activities carried out or to be carried
out using amounts allocated under
subparagraph (A).
``(ii) Annual report inclusion.--The
Administrator shall include the information
submitted by head of a Federal agency under
clause (i) in the next annual report submitted
under subsection (b)(7) after the Administrator
receives such information.
``(iii) Covered year.--In this
subparagraph, the term `covered year' means,
with respect to the information required under
clause (i), the year covered by the annual
report submitted under subsection (b)(7) in
which the Administrator is required to include
such information by clause (ii).
``(C) Termination date.--This paragraph shall
terminate on September 30, 2025.''.
(2) Implementation.--
(A) In general.--Not later than 270 days after the
date of enactment of this Act, the head of a Federal
agency required to establish an SBIR or STTR program
shall implement a due diligence program under
subsection (vv) of section 9 of the Small Business Act
(15 U.S.C. 638), as added by paragraph (1), at the
Federal agency that, to the extent practicable,
incorporates the applicable best practices disseminated
under paragraph (3).
(B) Paperwork reduction act.--Chapter 35 of title
44, United States Code (commonly known as the
``Paperwork Reduction Act''), shall not apply to the
implementation of a due diligence program under
subsection (vv) of section 9 of the Small Business Act
(15 U.S.C. 638), as added by paragraph (1).
(C) Briefing.--Not later than 30 days after the
date of enactment of this Act, and on a recurring basis
until implementation is complete, each Federal agency
required to establish a due diligence program under
subsection (vv) of section 9 of the Small Business Act
(15 U.S.C. 638), as added by paragraph (1), shall brief
the Committee on Small Business and Entrepreneurship of
the Senate and the Committee on Small Business and the
Committee on Science, Space, and Technology of the
House of Representatives on the implementation of the
due diligence program.
(3) Best practices.--Not later than 180 days after the date
of enactment of this Act, the Administrator shall--
(A) in coordination with the Director of the Office
of Science and Technology Policy and in consultation
with the Committee on Foreign Investment in the United
States, disseminate among Federal agencies required to
establish an SBIR or STTR program best practices of
those Federal agencies for due diligence programs
required under subsection (vv) of section 9 of the
Small Business Act (15 U.S.C. 638), as added by
paragraph (1); and
(B) in consultation with the Committee on Foreign
Investment in the United States, provide to Federal
agencies described in subparagraph (A) guidance on the
business relationships required to be disclosed under
paragraph (13)(G) of subsection (g) and paragraph
(17)(G) of subsection (o) of section 9 of the Small
Business Act (15 U.S.C. 638), as added by this Act.
(4) GAO study.--Not later than 1 year after the date of
enactment of this Act, and annually thereafter for 3 years, the
Comptroller General of the United States shall conduct a study
and submit to the Committee on Small Business and
Entrepreneurship and the Committee on Armed Services of the
Senate and the Committee on Small Business, the Committee on
Armed Services, and the Committee on Science, Space, and
Technology of the House of Representatives a report on the
implementation and best practices of due diligence programs
established under subsection (vv) of section 9 of the Small
Business Act (15 U.S.C. 638), as added by paragraph (1), across
Federal agencies required to establish an SBIR or STTR program.
(5) Rule of construction.--Nothing in subsection (vv) of
section 9 of the Small Business Act (15 U.S.C. 638), as added
by paragraph (1), shall be construed to--
(A) apply to any Federal agency with a due
diligence program that applies to the SBIR or STTR
programs required under subsection (vv) of section 9 of
the Small Business Act (15 U.S.C. 638), as added by
paragraph (1), in existence as of the date of enactment
of this Act; or
(B) restrict any Federal agency from taking due
diligence measures in addition to those required under
such subsection (vv) at the Federal agency.
(c) Disclosures Regarding Ties to People's Republic of China and
Other Foreign Countries.--
(1) SBIR.--Section 9(g) of the Small Business Act (15
U.S.C. 638(g)) is amended--
(A) in paragraph (11), by striking ``and'' at the
end;
(B) in paragraph (12), by striking the period at
the end and inserting a semicolon; and
(C) by adding at the end the following:
``(13) require each small business concern submitting a
proposal or application for a federally funded award to
disclose in the proposal or application--
``(A) the identity of all owners and covered
individuals of the small business concern who are a
party to any foreign talent recruitment program of any
foreign country of concern, including the People's
Republic of China;
``(B) the existence of any joint venture or
subsidiary of the small business concern that is based
in, funded by, or has a foreign affiliation with any
foreign country of concern, including the People's
Republic of China;
``(C) 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;
``(D) whether the small business concern is wholly
owned in the People's Republic of China or another
foreign country of concern;
``(E) the percentage, if any, of venture capital or
institutional investment by an entity that has a
general partner or individual holding a leadership role
in such entity who has a foreign affiliation with any
foreign country of concern, including the People's
Republic of China;
``(F) any technology licensing or intellectual
property sales to a foreign country of concern,
including the People's Republic of China, during the 5-
year period preceding submission of the proposal; and
``(G) any foreign business entity, offshore entity,
or entity outside the United States related to the
small business concern;
``(14) after reviewing the disclosures of a small business
concern under paragraph (13), and if determined appropriate by
the head of such Federal agency, request such small business
concern to provide true copies of any 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 in
effect during the 5-year period preceding submission of the
proposal with respect to which such small business concern made
such disclosures;''.
(2) STTR.--Section 9(o) of the Small Business Act (15
U.S.C. 638(o)) is amended--
(A) in paragraph (15), by striking ``and'' at the
end;
(B) in paragraph (16), by striking the period at
the end and inserting a semicolon; and
(C) by adding at the end the following:
``(17) require each small business concern submitting a
proposal or application for a federally funded award to
disclose in the proposal or application--
``(A) the identity of all owners and covered
individuals of the small business concern who are a
party to any foreign talent recruitment program of any
foreign country of concern, including the People's
Republic of China;
``(B) the existence of any joint venture or
subsidiary of the small business concern that is based
in, funded by, or has a foreign affiliation with any
foreign country of concern, including the People's
Republic of China;
``(C) 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;
``(D) whether the small business concern is wholly
owned in the People's Republic of China or another
foreign country;
``(E) the percentage, if any, of venture capital or
institutional investment by an entity that has a
general partner or individual holding a leadership role
in such entity who has a foreign affiliation with any
foreign country of concern, including the People's
Republic of China;
``(F) any technology licensing or intellectual
property sales to a foreign country of concern,
including the People's Republic of China, during the 5-
year period preceding submission of the proposal; and
``(G) any foreign business entity, offshore entity,
or entity outside the United States related to the
small business concern;
``(18) after reviewing the disclosures of a small business
concern under paragraph (17), and if determined appropriate by
the head of such Federal agency, request such small business
concern to provide true copies of any 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 in
effect during the 5-year period preceding submission of the
proposal with respect to which such small business concern made
such disclosures;''.
(d) Denial of Awards.--
(1) SBIR.--Section 9(g) of the Small Business Act (15
U.S.C. 638(g)), as amended by subsection (c)(1), is further
amended by adding at the end the following:
``(15) not make an award under the SBIR program of the
Federal agency to a small business concern if the head of the
Federal agency determines that--
``(A) the small business concern submitting the
proposal or application--
``(i) has an owner or covered individual
that is party to a malign foreign talent
recruitment program;
``(ii) has a business entity, parent
company, or subsidiary located in the People's
Republic of China or another foreign country of
concern; or
``(iii) has an owner or covered individual
that has a foreign affiliation with a research
institution located in the People's Republic of
China or another foreign country of concern;
and
``(B) the relationships and commitments described
in clauses (i) through (iii) of subparagraph (A)--
``(i) interfere with the capacity for
activities supported by the Federal agency to
be carried out;
``(ii) create duplication with activities
supported by the Federal agency;
``(iii) present concerns about conflicts of
interest;
``(iv) were not appropriately disclosed to
the Federal agency;
``(v) violate Federal law or terms and
conditions of the Federal agency; or
``(vi) pose a risk to national security;''.
(2) STTR.--Section 9(o) of the Small Business Act (15
U.S.C. 638(o)), as amended by subsection (c)(2), is further
amended by adding at the end the following:
``(19) not make an award under the STTR program of the
Federal agency to a small business concern if the head of the
Federal agency determines that--
``(A) the small business concern submitting the
proposal or application--
``(i) has an owner or covered individual
that is party to a malign foreign talent
recruitment program;
``(ii) has a business entity, parent
company, or subsidiary located in the People's
Republic of China or another foreign country of
concern; or
``(iii) has an owner or covered individual
that has a foreign affiliation with a research
institution located in the People's Republic of
China or another foreign country of concern;
and
``(B) the relationships and commitments described
in clauses (i) through (iii) of subparagraph (A)--
``(i) interfere with the capacity for
activities supported by the Federal agency to
be carried out;
``(ii) create duplication with activities
supported by the Federal agency;
``(iii) present concerns about conflicts of
interest;
``(iv) were not appropriately disclosed to
the Federal agency;
``(v) violate Federal law or terms and
conditions of the Federal agency; or
``(vi) pose a risk to national security;''.
SEC. 5. AGENCY RECOVERY AUTHORITY AND ONGOING REPORTING.
(a) SBIR.--Section 9(g) of the Small Business Act (15 U.S.C.
638(g)), as amended by section 4(d)(1), is further amended by adding at
the end the following:
``(16) require a small business concern receiving an award
under its SBIR program to repay all amounts received from the
Federal agency under the award if--
``(A) the small business concern makes a material
misstatement that the Federal agency determines poses a
risk to national security; or
``(B) there is a change in ownership, change to
entity structure, or other substantial change in
circumstances of the small business concern that the
Federal agency determines poses a risk to national
security; and
``(17) require a small business concern receiving an award
under its SBIR program to regularly report to the Federal
agency and the Administration throughout the duration of the
award on--
``(A) any change to a disclosure required under
subparagraphs (A) through (G) of paragraph (13);
``(B) any material misstatement made under
paragraph (16)(A); and
``(C) any change described in paragraph (16)(B).''.
(b) STTR.--Section 9(o) of the Small Business Act (15 U.S.C.
638(o)), as amended by section 4(d)(1), is further amended by adding at
the end the following:
``(20) require a small business concern receiving an award
under its STTR program to repay all amounts received from the
Federal agency under the award if--
``(A) the small business concern makes a material
misstatement that the Federal agency determines poses a
risk to national security; or
``(B) there is a change in ownership, change to
entity structure, or other substantial change in
circumstances of the small business concern that the
Federal agency determines poses a risk to national
security; and
``(21) require a small business concern receiving an award
under its STTR program to regularly report to the Federal
agency and the Administration throughout the duration of the
award on--
``(A) any change to a disclosure required under
subparagraphs (A) through (G) of paragraph (17);
``(B) any material misstatement made under
paragraph (20)(A); and
``(C) any change described in paragraph (20)(B).''.
(c) Paperwork Reduction Act.--Chapter 35 of title 44, United States
Code (commonly known as the ``Paperwork Reduction Act''), shall not
apply to the implementation of paragraphs (16) and (17) of subsection
(g) or paragraphs (20) and (21) of subsection (o) of section 9 of the
Small Business Act (15 U.S.C. 638), as added by subsections (a) and
(b).
SEC. 6. REPORT ON ADVERSARIAL MILITARY AND FOREIGN INFLUENCE IN THE
SBIR AND STTR PROGRAMS.
(a) Covered Agency Defined.--In this section, the term ``covered
agency'' means--
(1) the Department of Defense;
(2) the Department of Energy;
(3) the Department of Health and Human Services; or
(4) the National Science Foundation.
(b) Requirement.--
(1) In general.--Except as provided in paragraph (2), not
later than 180 days after the date of enactment of this Act,
the head of each covered agency shall submit a report assessing
the adversarial military and foreign influences in the SBIR and
STTR programs at the covered agency to--
(A) the Committee on Armed Services, the Committee
on Small Business and Entrepreneurship, and the
Committee on Commerce, Science, and Transportation of
the Senate; and
(B) the Committee on Armed Services, the Committee
on Small Business, and the Committee on Science, Space,
and Technology of the House of Representatives.
(2) Department of health and human services.--The Secretary
of Health and Human Services shall submit 2 reports under
paragraph (1)--
(A) 1 assessing the adversarial military and
foreign influences in the SBIR and STTR programs of the
National Institutes of Health; and
(B) 1 assessing the adversarial military and
foreign influences in the SBIR and STTR programs of the
Department of Health and Human Services other than
those of the National Institutes of Health.
(c) Contents.--Each report submitted by a covered agency under
subsection (b) shall include an analysis of--
(1) the national security and research and integrity risks
of the SBIR and STTR programs of the covered agency; and
(2) the capability of such covered agency to identify and
mitigate such risks.
(d) Form.--Each report submitted under subsection (b) shall be in
unclassified form, but may include a classified annex.
(e) Independent Entity Contracting.--The head of each covered
agency, in coordination with the heads of other Federal agencies, as
appropriate, may enter into a contract with an independent entity to
prepare a report required under subsection (b).
SEC. 7. PROGRAM ON INNOVATION OPEN TOPICS.
(a) In General.--Section 9 of the Small Business Act (15 U.S.C.
638), as amended by this Act, is further amended--
(1) in subsection (b)(7)--
(A) in subparagraph (G), by striking ``and'' at the
end; and
(B) by adding at the end the following:
``(I) the number of applications submitted to each
Federal agency participating in the SBIR or STTR
program in innovation open topics as compared to
conventional topics, and how many small business
concerns receive funding from open topics compared to
conventional topics;
``(J) the total number and dollar amount, and
average size, of awards made by each Federal agency
participating in the SBIR or STTR program, by phase,
from--
``(i) open topics; and
``(ii) conventional topics;''; and
(2) by adding at the end the following:
``(ww) Program on Innovation Open Topics.--
``(1) Establishment.--Not later than 180 days after the
date of enactment of this subsection, the Secretary of Defense
shall establish innovation open topic activities using the SBIR
and STTR programs of the Department of Defense in order to--
``(A) increase the transition of commercial
technology to the Department of Defense;
``(B) expand the small business nontraditional
industrial base;
``(C) increase commercialization derived from
investments of the Department of Defense; and
``(D) expand the ability for qualifying small
business concerns to propose technology solutions to
meet the needs of the Department of Defense.
``(2) Frequency.--The Secretary of Defense shall conduct
not less than 1 open topic announcement at each component of
the Department of Defense per fiscal year.
``(3) Briefing.--Not later than 180 days after the date of
enactment of this subsection, the Secretary of Defense shall
provide a briefing on the establishment of the program required
under paragraph (1) to--
``(A) the Committee on Armed Services and the
Committee on Small Business and Entrepreneurship of the
Senate; and
``(B) the Committee on Small Business, the
Committee on Armed Services, and the Committee on
Science, Space, and Technology of the House of
Representatives.''.
(b) GAO Report.--Not later than 1 year after the date of enactment
of this Act, and annually thereafter for 3 years, the Comptroller
General of the United States shall submit to Congress and issue a
publicly available report comparing open topics and conventional topics
under the SBIR and STTR programs that includes, to the extent
practicable--
(1) an assessment of the percentage of small business
concerns that progress from Phase I to Phase II awards, then to
Phase III awards;
(2) the number of awards under the SBIR and STTR programs
made to first-time applicants and first-time awardees;
(3) the number of awards under the SBIR and STTR programs
made to non-traditional small business concerns, including
those owned by women, minorities, and veterans;
(4) a description of outreach and assistance efforts by the
Department of Defense to encourage and prepare new and diverse
small business concerns to participate in the program
established under subsection (ww) of section 9 of the Small
Business Act (15 U.S.C. 638), as added by subsection (a);
(5) the length of time to review and disburse awards under
such subsection (ww), evaluated in a manner enabling normalized
comparisons of such times taken by each Federal agency that is
required to establish an SBIR or STTR program and offers open
topics;
(6) the ratio, and an assessment, of the amount of funding
allocated towards open topics as compared to conventional
topics at each Federal agency that is required to establish an
SBIR or STTR program and offers open topics; and
(7) a comparison of the types of technology and end users
funded under open topics compared to the types of technology
and end users funded under conventional topics.
SEC. 8. INCREASED MINIMUM PERFORMANCE STANDARDS FOR EXPERIENCED FIRMS.
Section 9 of the Small Business Act (15 U.S.C. 638), as amended by
this Act, is further amended--
(1) in subsection (b)(7), by adding at the end the
following:
``(K) the minimum performance standards established
under subsection (qq), including any applicable
modifications under paragraph (3) of such subsection,
and the number of small business concerns that did not
meet those minimum performance standards, provided that
the Administrator does not publish any personally
identifiable information, the identity of each such
small business concern, or any otherwise sensitive
information; and
``(L) the aggregate number and dollar amount of
SBIR and STTR awards made pursuant to waivers under
subsection (qq)(3)(E), provided that the Administrator
does not publish any personally identifiable
information, the identity of each such small business
concern, or any otherwise sensitive information;''; and
(2) in subsection (qq)--
(A) by redesignating paragraphs (3) and (4) as
paragraphs (4) and (5), respectively;
(B) by inserting after paragraph (2) the following:
``(3) Increased minimum performance standards for
experienced firms.--
``(A) Progress to phase ii success.--
``(i) In general.--With respect to a small
business concern that received or receives more
than 50 Phase I awards during a covered period,
each minimum performance standard established
under paragraph (1)(A)(ii) shall be doubled for
such covered period.
``(ii) Consequence of failure to meet
standard.--If the head of a Federal agency
determines that a small business concern that
received a Phase I award from the Federal
agency is not meeting an applicable increased
minimum performance standard modified under
clause (i), the small business concern may not
receive more than 20 total Phase I awards and
Phase II awards under subsection (cc) from each
Federal agency during the 1-year period
beginning on the date on which such
determination is made.
``(iii) Covered period defined.--In this
subparagraph, the term `covered period' means a
consecutive period of 5 fiscal years preceding
the most recent fiscal year.
``(B) Progress to phase iii success.--
``(i) In general.--Each minimum performance
standard established under paragraph (2)(A)(ii)
shall--
``(I) with respect to a small
business concern that received or
receives more than 50 Phase II awards
during a covered period, require an
average of $250,000 of aggregate sales
and investments per Phase II award
received during such covered period;
and
``(II) with respect to a small
business concern that received or
receives more than 100 Phase II awards
during a covered period, require an
average of $450,000 of aggregate sales
and investments per Phase II award
received during such covered period.
``(ii) Consequence of failure to meet
standard.--If the head of a Federal agency
determines that a small business concern that
received a Phase I award from the agency is not
meeting an applicable increased minimum
performance standard modified under clause (i),
the small business concern may not receive more
than 20 total Phase I awards and Phase II
awards under subsection (cc) from each agency
during the 1-year period beginning on the date
on which such determination is made.
``(iii) Documentation.--
``(I) In general.--A small business
concern that is subject to an increased
minimum performance standard described
in clause (i) shall submit to the
Administrator supporting documentation
evidencing that all covered sales of
the small business concern were
properly used to meet the increased
minimum performance standard.
``(II) Covered sale defined.--In
this clause, the term `covered sale'
means a sale by a small business
concern--
``(aa) that the small
business concern claims to be
attributable to an SBIR or STTR
award;
``(bb) for which no amount
of the payment was or is made
using Federal funds;
``(cc) which the small
business concern uses to meet
an applicable increased minimum
performance standard under
clause (i); and
``(dd) that was or is
received during the 5 fiscal
years immediately preceding the
fiscal year in which the small
business concern uses the sale
to meet the increased minimum
performance standard.
``(iv) Covered period defined.--In this
subparagraph, the term `covered period' means a
consecutive period of 10 fiscal years preceding
the most recent 2 fiscal years.
``(C) Patents for increased minimum performance
standards.--A small business concern with respect to
which an increased minimum performance standard under
subparagraph (B) applies may not meet the increased
minimum performance standard by obtaining patents.
``(D) Effective date.--Subparagraphs (A) through
(C) shall take effect on April 1, 2023.
``(E) Waiver.--
``(i) In general.--The Administrator may,
upon the request of a senior official of a
Federal agency, grant a waiver with respect to
a topic for the SBIR or STTR program of the
Federal agency if--
``(I) the topic is critical to the
mission of the Federal agency or
relates to national security; and
``(II) the official submits to the
Administrator a request for the waiver
in accordance with clause (iii).
``(ii) Waiver effects.--If the
Administration grants a waiver with respect to
a topic for the SBIR or STTR program of a
Federal agency, subparagraphs (A)(ii) and
(B)(ii) shall not prohibit any covered small
business concern from receiving an SBIR or STTR
award under such topic.
``(iii) Agency request and congressional
notification.--Not later than 15 days before
the release of a solicitation including a topic
for which a senior official of a Federal agency
is requesting a waiver under clause (i), the
senior official shall submit to the
Administrator, the Committee on Small Business
and the Committee on Science, Space, and
Technology of the House of Representatives, and
the Committee on Small Business and
Entrepreneurship of the Senate a request for
the waiver.
``(iv) Administrator determination and
congressional notification.--Not later than 15
days after receiving a request for a waiver
under clause (i), the Administrator shall make
a determination with respect to the request and
notify the senior official at the Federal
agency that made the request, the Committee on
Small Business and the Committee on Science,
Space, and Technology of the House of
Representatives, and the Committee on Small
Business and Entrepreneurship of the Senate of
the determination.
``(v) Definitions.--In this subparagraph:
``(I) Covered small business
concern.--The term `covered small
business concern' means a small
business concern that is subject to the
consequences under subparagraph (A)(ii)
or (B)(ii) pursuant to a determination
by the head of a Federal agency that
such small business concern did not
meet an increased minimum performance
standard that was applicable to such
small business concern.
``(II) Senior official.--The term
`senior official' means an individual
appointed to a position in a Federal
agency that is classified above GS-15
pursuant section 5108 of title 5,
United States Code, or any equivalent
position, as determined by the
Administrator.
``(F) Reporting.--
``(i) In general.--Not later than July 1,
2023, and annually thereafter, the
Administrator shall submit to Congress a list
of the small business concerns that did not
meet--
``(I) an applicable minimum
performance standard established under
paragraph (1)(A)(ii) or (2)(A)(ii); or
``(II) an applicable increased
minimum performance standard.
``(ii) Waivers.--Each list submitted under
clause (i) shall identify each small business
concern that received an SBIR or STTR award
pursuant to a waiver granted under subparagraph
(E) by the Administrator during the period
covered by the list.
``(iii) Confidentiality.--Each list
submitted under clause (i) shall be
confidential and exempt from disclosure under
section 552(b)(3) of title 5, United States
Code (commonly known as the `Freedom of
Information Act').
``(G) Implementation.--Not later than April 1,
2023, the Administration shall implement the increased
minimum performance standards under this paragraph.
``(H) Rules of construction.--Nothing in this
paragraph shall be construed--
``(i) to prohibit a small business concern
from participating in a Phase I (or Phase II if
under the authority of subsection (cc)) of an
SBIR or STTR program under paragraph (1)(B) or
(2)(B) solely on the basis of a determination
by the head of a Federal agency that the small
business concern is not meeting an increased
minimum performance standard; or
``(ii) to prevent the head of a Federal
agency from implementing more restrictive
limitations on the number of federally funded
Phase I awards and direct to Phase II awards
under subsection (cc) that may be awarded to a
small business concern than the limitations
described in subparagraphs (A)(ii) and (B)(ii).
``(I) Termination.--This paragraph shall terminate
on September 30, 2025.'';
(C) in paragraph (5), as so redesignated, by
striking ``paragraph (3)(A)'' and inserting ``paragraph
(4)(A)''; and
(D) by adding at the end the following:
``(6) Inspector general audit.--Not later than 1 year after
the date on which the Administrator implements the increased
minimum performance standards under paragraph (3), and
periodically thereafter, the Inspector General of the
Administration shall--
``(A) conduct an audit on whether the small
business concerns subject to increased minimum
performance standards under paragraph (3)(B) verified--
``(i) the sales by and investments in the
small business concerns--
``(I) during the 5 fiscal years
immediately preceding the fiscal year
in which the small business concern
used such sales and investments to meet
an applicable increased performance
standard; and
``(II) as a direct result of a
Phase I award or Phase II award made
under subsection (cc) during the
covered period (as defined in paragraph
(3)(B)(iv)), consistent with the
definition of Phase III, as applicable;
``(ii) any third-party revenue the small
business concerns list as investments or
incomes to meet the increased minimum
performance standard--
``(I) is a direct result of a Phase
I award or Phase II award made under
subsection (cc) during the covered
period (as defined in paragraph
(3)(B)(iv)); and
``(II) consistent with the
requirements of the Administrator as in
effect on September 30, 2022, or any
successor requirements; and
``(iii) any dollar amounts such small
business concerns list as investments or income
to meet such increased minimum performance
standard the providence of which is unclear and
that is not directly attributable to a Phase I
award or Phase II award made under subsection
(cc) during the covered period (as defined in
paragraph (3)(B)(iv)), consistent with the
definition of Phase III, as applicable;
``(B) assess the self-certification requirements
for the minimum performance standards established under
paragraph (2)(A)(ii) and the increased minimum
performance standards under paragraph (3)(B); and
``(C) submit to the Committee on Small Business and
Entrepreneurship of the Senate and the Committee on
Small Business and the Committee on Science, Space, and
Technology of the House of Representatives a report on
the audit conducted under subparagraph (A) and the
assessment conducted under subparagraph (B).
``(7) Increased minimum performance standard defined.--In
this subsection, the term `increased minimum performance
standard' means a minimum performance standard established
under paragraph (1)(A)(ii) or (2)(A)(ii) as modified under
subparagraph (A) or (B), respectively, of paragraph (3) with
respect to a small business concern.''.
SEC. 9. PROHIBITION AGAINST WRITING SOLICITATION TOPICS.
(a) In General.--Section 9 of the Small Business Act (15 U.S.C.
638), as amended by this Act, is further amended by adding at the end
the following subsection:
``(xx) Additional Provisions Relating to Solicitation Topics.--
``(1) In general.--A Federal agency required to establish
an SBIR or STTR program shall implement a multi-level review
and approval process within the Federal agency for solicitation
topics to ensure adequate competition and that no private
individual or entity is shaping the requirements for
eligibility for the solicitation topic after the selection of
the solicitation topic, except that the Federal agency may
amend the requirements to clarify the solicitation topic.
``(2) Referral.--A Federal agency that does not comply with
paragraph (1) shall be referred to the Inspector General of the
Administration for further investigation.''.
SEC. 10. GAO STUDY ON MULTIPLE AWARD WINNERS.
Not later than 18 months after the date of enactment of this Act,
the Comptroller General of the United States shall conduct a study and
submit to the Committee on Small Business and Entrepreneurship of the
Senate and the Committee on Small Business and the Committee on
Science, Space, and Technology of the House of Representatives a
report, which shall be made publicly available, on small business
concerns that are awarded not less than 50 Phase II awards under the
SBIR or STTR programs during the consecutive period of 10 fiscal years
preceding the most recent 2 fiscal years, including, to the extent
practicable, an analysis of--
(1) the impact of the small business concerns on the SBIR
and STTR programs;
(2) the ratio of the number of Phase II awards received by
the small business concerns to the total number of Phase II
awards;
(3) the ability of the small business concerns to
commercialize and meet the tenets of the SBIR and STTR
programs;
(4) the impact on new entrants and seeding technology
necessary to the Federal agency mission or commercial markets
and, with respect to the Department of Defense, whether the
types of technology the small business concerns are pursuing
are primarily hardware, software, or system components for the
warfighter;
(5) an evaluation and study of varying levels of award caps
and lifetime program earning caps;
(6) an assessment of the increased minimum performance
standards under paragraph (3) of section 9(qq) of the Small
Business Act (15 U.S.C. 638(qq)), as added by section 8, on the
behavior of those concerns and on the SBIR and STTR programs,
and whether to continue such increased minimum performance
standards; and
(7) recommendations on whether alternative minimum
performance standards under section 9(qq) of the Small Business
Act (15 U.S.C. 638(qq)) should be considered, and the extent to
which such alternative minimum performance standards preserve
the competitive, merit-based foundation of the SBIR and STTR
programs.
SEC. 11. GAO REPORT ON SUBCONTRACTING IN SBIR AND STTR PROGRAMS.
Not later than 1 year after the date of the enactment of this Act,
the Comptroller General of the United States shall submit to the
Committee on Small Business and Entrepreneurship of the Senate and the
Committee on Small Business and the Committee on Science, Space, and
Technology of the House of Representatives a report evaluating, to the
extent practicable, the following:
(1) The extent to which SBIR awardees and STTR awardees are
in compliance with the Federal Funding Accountability and
Transparency Act (31 U.S.C. 6101 note).
(2) The extent to which SBIR awardees and STTR awardees
enter into subcontracting agreements with respect to an SBIR or
STTR award.
(3) The total number and dollar amount of subcontracts
entered into between an SBIR awardee or an STTR awardee and a
concern that is not a small business concern (including such
concerns that are defense contractors) with respect to an SBIR
or STTR award.
(4) A description of the type and purpose of subcontracting
agreements described in paragraph (2).
(5) An analysis of whether the use of subcontracts by an
SBIR awardee or an STTR awardee is consistent with the purposes
of section 9 of the Small Business Act (15 U.S.C. 638).
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