[Federal Register Volume 79, Number 216 (Friday, November 7, 2014)]
[Proposed Rules]
[Pages 66342-66343]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-26583]
[[Page 66342]]
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SMALL BUSINESS ADMINISTRATION
13 CFR Chapter I
RIN 3245-AG64
Small Business Innovation Research (SBIR) and Small Business
Technology Transfer (STTR) Policy Directives; Data Rights; Phase III
Award Preference; Other Clarifying Amendments
AGENCY: Small Business Administration.
ACTION: Advanced Notice of Policy Directive Amendments; request for
comments
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SUMMARY: The Small Business Administration (SBA) seeks comments from
the public on two key areas of the SBIR and STTR Policy Directives that
the SBA is considering revising: SBIR and STTR data rights, and the
Government's responsibilities with respect to SBIR and STTR Phase III
awards. The SBA intends to provide greater clarity and detail on these
issues in the Policy Directives.
DATES: Comments must be received on or before January 6, 2015.
ADDRESSES: You may submit comments, identified by RIN 3245-AG64, by any
of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Email: [email protected]. Include RIN 3245-AG64 in the
subject line of the message.
Mail/Hand Delivery/Courier: Edsel Brown, Office of
Innovation, U.S. Small Business Administration, 409 Third Street SW.,
Washington, DC 20416.
FOR FURTHER INFORMATION CONTACT: Edsel Brown Jr., Assistant Director,
Office of Technology, Office of Innovation and Investment, (202) 205-
6450 or at [email protected].
SUPPLEMENTARY INFORMATION: On August 6, 2012, SBA published a final
SBIR Policy Directive at 77 FR 46806, and a final STTR Policy Directive
at 77 FR 46855 (both available at www.sbir.gov), implementing the
various provisions of the National Defense Authorization Act for Fiscal
Year 2012 (Defense Authorization Act), Public Law 112-81, 125-Stat.
1298, related to the SBIR and STTR programs. These provisions were
specifically enacted in Section 5001, Division E of the Defense
Authorization Act, the SBIR/STTR Reauthorization Act of 2011
(Reauthorization Act), which amended the Small Business Act and made
several amendments to the SBIR and STTR Programs. Subsequent to the
publication of the SBIR and STTR final directives SBA issued clarifying
amendments on January 8, 2014 at 79 FR 1303 (SBIR) and 79 FR 1309
(STTR).
In the notices of the final directives, SBA stated it intended to
update the directives on a regular basis and to restructure and
reorganize the directives, as well as address certain policy issues
(e.g., those concerning data rights). At this time, SBA intends to
revise the SBIR and STTR policy directives to provide greater
clarification of SBIR and STTR data rights and the issues related to
SBIR and STTR Phase III work. SBA intends this clarification to provide
additional guidance to agencies regarding the implementation of the
programs, additional policy language to inform regulatory texts in the
Federal Acquisition Regulation and agency supplemental regulations, and
useful information for SBIR/STTR awardee and applicant firms.
Although the SBIR and STTR Policy Directives are intended for use
by the SBIR and STTR participating agencies, SBA believes that public
input from all parties involved in the program would be invaluable.
Therefore, before proceeding with proposed changes, SBA would like to
know from the public if there are specific concerns that SBA should
address when clarifying program policy in these identified areas.
1. SBIR/STTR Data Rights
The Small Business Act provides for SBIR and STTR awardees to
receive certain data rights. See e.g. 15 U.S.C. 638(j)(1)(B)(v)
(``retention of rights in data generated in the performance of the
contract by the small business concern;''); id. at 638(j)(2)(A) and
638(p)(2)(B)(v) (``retention by a small business concern of the rights
to data generated by the concern in the performance of an [SBIR or
STTR] award for a period of not less than 4 years;''). SBA's Policy
Directives also explain that agencies must protect from disclosure and
non-governmental use all SBIR/STTR technical data developed from work
performed under an SBIR or STTR funding agreement for a period of not
less than four years from delivery of the last deliverable under that
agreement (either Phase I, Phase II, or Federally-funded SBIR/STTR
Phase III) unless the agency obtains permission to disclose such SBIR
or STTR technical data from the awardee or applicant. See SBIR and STTR
Policy Directives, section 8(b)(2).
SBA has heard from small businesses that SBIR and STTR data has
been disclosed to large contractors in procurement specifications,
solicitations, or through reverse engineering. SBA has also received
reports that Government contractors have been unaware that SBIR and
STTR awards have special features with regard to data rights. SBA
intends to address these issues by clarifying the language on data
rights in the policy directives. SBA specifically requests comments on
the following:
The extent to which the awardee owns the data it generates
in performance of an award.
The Government's obligations to protect SBIR/STTR data
from disclosure for at least four years following the delivery of the
last deliverable of an SBIR/STTR award.
During the protection period, the Government's right to
access, review and evaluate SBIR/STTR data, but not to modify the data.
After the protection period expires, the Government's
right to use and disclose the data solely on behalf of the government,
which means that the government may use and disclose data for
competitive procurements (with non-disclosure agreements) but cannot
use the data for commercial (non-governmental) purposes.
Possible discrepancies between current FAR and agency
supplemental regulations and SBA's SBIR/STTR Policy Directives.
The feasibility and helpfulness of a short form data
rights option (especially for grant agencies). Such a short form would
be a simple agreement stating that the Government receives essentially
no rights to SBIR/STTR technical data. The simplified data rights
option would be for any agency or specific award.
2. SBIR/STTR Phase III Policy
The Small Business Act, as implemented by the SBIR and STTR Policy
Directives at section 4(c), states that a Phase III award is one that
derives from, extends, or completes efforts made under prior funding
agreements under the SBIR program--
in which commercial applications of SBIR-funded
research or research and development are funded by non-Federal
sources of capital or, for products or services intended for use by
the Federal Government, by follow-on non-SBIR Federal funding
awards; or
for which awards from non-SBIR Federal funding sources
are used for the continuation of research or research and
development that has been competitively selected using peer review
or merit-based selection procedures;
15 U.S.C. 638(e)(4)(C); see also, id. at 638(e)(6)(C).
If the government is interested in pursuing further work that was
performed under an SBIR or STTR award, the government must, to the
extent practicable, pursue that work with the SBIR or STTR awardee that
performed the earlier work.
[[Page 66343]]
In the program's recent reauthorization legislation, Congress added
the following language to the Small Business Act reinforcing the
responsibility of the government to pursue such work with the awardee
firm:
PHASE III AWARDS.--To the greatest extent practicable, Federal
agencies and Federal prime contractors shall issue Phase III awards
relating to technology, including sole source awards, to the SBIR
and STTR award recipients that developed the technology.
Id. at 638(r)(4).
SBA is concerned that there is ambiguity or misunderstanding about
how this policy governing Phase III awards should be implemented.
Agencies and awardee firms may disagree as to whether new work
qualifies as SBIR/STTR Phase III work. Additionally, even if there is
agreement that the follow-on work is Phase III work, there may be
disagreement as to how the agency is required to show preference to the
SBIR/STTR awardee for the Phase III work.
One question that has been raised is whether preference for the
Phase III work can be shown within a competitive solicitation. Another
question is how such preference can or should be shown if the SBIR or
STTR awardee would perform the Phase III work as a subcontractor to a
prime federal contractor. Finally, there may be uncertainty about the
steps that should be taken when applying the preference.
SBA intends to revise the language in the Policy Directives to
clarify these issues, that is, the responsibility of agencies with
regard to Phase III work and processes that can be used when
determining the appropriate actions in Phase III cases. To help in the
development of the revised policy guidance, SBA requests comments on
the following:
Whether SBA should define ``to the greatest extent
practicable'' with respect to when agencies shall issue these Phase III
awards; and if so, how the phrase should be defined.
Whether, if the agency elects not to issue a Phase III
sole source award to the SBIR or STTR Phase II awardee for follow-on
Phase III work, there are other ways the agency could meet this
statutory requirement.
Whether an SBIR or STTR awardee can receive the required
Phase III preference within a full and open competition.
Whether the policy directive should outline the steps an
agency must take in deciding or understanding when the Phase III
preference applies.
Authority: 15 U.S.C. 638
Dated: September 15, 2014.
Javier E. Saade,
Associate Administrator, Office of Investment and Innovation.
Maria Contreras-Sweet,
Administrator.
[FR Doc. 2014-26583 Filed 11-6-14; 8:45 am]
BILLING CODE 8025-01-P