[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 4900 Enrolled Bill (ENR)]
S.4900
One Hundred Seventeenth Congress
of the
United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Monday,
the third day of January, two thousand and twenty two
An Act
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).
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.