[Congressional Record Volume 168, Number 151 (Tuesday, September 20, 2022)]
[Senate]
[Pages S4872-S4876]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  SBIR AND STTR EXTENSION ACT OF 2022

  Mr. DURBIN. Mr. President, I ask unanimous consent that the Senate 
proceed to the immediate consideration of S. 4900, which is at the 
desk.
  The PRESIDING OFFICER. The clerk will report the bill by title.
  The legislative clerk read as follows:

       A bill (S. 4900) to reauthorize the SBIR and STTR programs 
     and pilot programs, and for other purposes.

  There being no objection, the Senate proceeded to consider the bill.
  Mr. DURBIN. I ask unanimous consent that the bill be considered read 
a third time and passed and that the motion to reconsider be considered 
made and laid upon the table.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The bill (S. 4900) was ordered to be engrossed for a third reading, 
was read the third time, and passed, as follows:

                                S. 4900

       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

[[Page S4873]]

     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--

[[Page S4874]]

       ``(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.--

[[Page S4875]]

       ``(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;

[[Page S4876]]

       (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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