[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).
____________________