[Federal Register Volume 88, Number 67 (Friday, April 7, 2023)]
[Proposed Rules]
[Pages 20822-20829]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-06420]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 2, 4, 6, 27, and 52

[FAR Case 2020-010, Docket No. FAR-2020-0010, Sequence No. 1]
RIN 9000-AO12


Federal Acquisition Regulation: Small Business Innovation 
Research and Technology Transfer Programs

AGENCY: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Proposed rule.

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SUMMARY: DoD, GSA and NASA are proposing to amend the Federal 
Acquisition Regulation (FAR) to implement changes related to data 
rights in the Small Business Administration's Policy Directive for the 
Small Business Innovation Research (SBIR) and Small Business Technology 
Transfer (STTR) Programs, published in the Federal Register on April 2, 
2019. In addition, this proposed rule would implement competition 
requirements unique to Phase II and III awards under the SBIR/STTR 
Programs.

DATES: Interested parties should submit written comments to the 
Regulatory Secretariat Division at the address shown below on or before 
June 6, 2023 to be considered in the formation of the final rule.

ADDRESSES: Submit comments in response to FAR Case 2020-010 to the 
Federal eRulemaking portal at https://www.regulations.gov by searching 
for ``FAR Case 2020-010''. Select the link ``Comment Now'' that 
corresponds with ``FAR Case 2020-010''. Follow the instructions 
provided on the ``Comment Now'' screen. Please include your name,

[[Page 20823]]

company name (if any), and ``FAR Case 2020-010'' on your attached 
document. If your comment cannot be submitted using https://www.regulations.gov, call or email the points of contact in the FOR 
FURTHER INFORMATION CONTACT section of this document for alternate 
instructions.
    Instructions: Please submit comments only and cite ``FAR Case 2020-
010'' in all correspondence related to this case. Comments received 
generally will be posted without change to https://www.regulations.gov, 
including any personal and/or business confidential information 
provided. Public comments may be submitted as an individual, as an 
organization, or anonymously (see frequently asked questions at https://www.regulations.gov/faq). To confirm receipt of your comment(s), 
please check https://www.regulations.gov, approximately two to three 
days after submission to verify posting.

FOR FURTHER INFORMATION CONTACT: For clarification of content, contact 
Ms. Mahruba Uddowla, Procurement Analyst, at 703-605-2868, or by email 
at [email protected]. For information pertaining to status, 
publication schedules, or alternative instructions for submitting 
comments if https://www.regulations.gov cannot be used, contact the 
Regulatory Secretariat Division at 202-501-4755 or [email protected]. 
Please cite FAR Case 2020-010.

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD, GSA, and NASA are proposing to amend the FAR to implement 
changes related to data rights that are necessary to comply with the 
Small Business Administration's SBIR and STTR Policy Directive (PD) 
published in the Federal Register on April 2, 2019 (84 FR 12794). In 
addition, this rule implements competition requirements unique to Phase 
II and III awards under the SBIR/STTR Programs.
    Prior to the April 2019 revision, the PD, FAR, and Defense Federal 
Acquisition Regulation Supplement (DFARS) each had different 
terminology and data rights allocations for SBIR/STTR data. The 
inconsistencies may have led to confusion and placed an unnecessary 
burden on small businesses because they had to operate under three 
different interpretations of the same programs. The revisions to the PD 
were intended to create uniformity and clarity regarding the 
Government's rights in SBIR/STTR data. To achieve this objective, the 
FAR must be updated to adopt the terminology, definitions, and data 
rights allocations described in the most recent update of the SBIR/STTR 
PD.

II. Discussion and Analysis

    The proposed rule reflects SBA's updated SBIR/STTR PD terminology, 
revisions to the data rights afforded to the Government and the 
extension of the SBIR/STTR data rights protection period from a minimum 
of 4 years to 20 years. The rule also clarifies direction for 
contracting officers pertaining to document retention and competition 
requirements. A summary of the proposed changes follows:

A. FAR Part 2

    The definitions for ``computer database'' and ``computer software'' 
are revised in FAR part 2 to harmonize terminology that applies to the 
SBIR/STTR programs with terminology used in the rest of the FAR and 
DFARS. These definitions reflect those used in SBA's SBIR/STTR PD to 
the greatest extent possible. In some instances, similar language has 
been used to convey the intent of the PD for contracting officers. As a 
conforming change to the revised definition for ``computer software,'' 
a separate definition for ``computer program'' is added to FAR part 2.

B. FAR Part 4

    Due to the expansion of the SBIR/STTR data rights protection period 
from a minimum of 4 years after acceptance of all items under the 
contract to 20 years after the date of award, a new records retention 
category is proposed at FAR 4.805(c)(9) for contracts involving SBIR/
STTR data rights. The proposed addition would require SBIR/STTR 
contracts that contain the revised FAR clause 52.227-20, Rights in 
Data-SBIR/STTR Programs, to be retained for 20 years after award rather 
than 6 years after final payment, to coincide with the new protection 
period.

C. FAR Part 6

    The proposed rule adds text at FAR 6.302-5, Authorized or required 
by statute, to clarify that contracting officers may award sole-source 
actions under Phase III of the SBIR/STTR programs without further 
justification based upon the statutory authority in the Small Business 
Act (15 U.S.C. 638(r)(4)). Guidance is also provided for instances when 
Phase II sole-source actions may be awarded without justification (15 
U.S.C. 638(ff) and the SBA PD).

D. FAR Part 27

    Changes were made to the definitions of ``data'' and ``unlimited 
rights'' at FAR 27.401 to reflect the SBIR/STTR PD definitions. The 
definition of ``unlimited rights'' was revised to no longer specify 
data that can be performed or displayed publicly. The revision does not 
remove the Government's ability to perform publicly or display 
publicly; the revision is made to cover the Government's right to 
perform and display both in public settings and non-public settings.
    A new section is created in subpart 27.4 to cover the SBIR and STTR 
programs. It would give basic information on the program. It would also 
provide instructions to contracting officers that are specific to 
contracts awarded under the SBIR/STTR programs. The instructions relate 
to the procedures of negotiating a different protection period than the 
new minimum period of 20 years after award as well as the requirements 
associated with further release or disclosure of SBIR/STTR data outside 
the Government. As a result of the creation of this new section, the 
current section of 27.409 is proposed to be renumbered as 27.410.
    The SBIR/STTR PD made several revisions to the SBIR/STTR program 
which are reflected in the prescription at newly-designated FAR 
27.410(h).

E. FAR Part 52

    The definitions at FAR clauses 52.227-14, Rights in Data-General; 
52.227-17, Rights in Data-Special Works; and 52.227-20, Rights in Data-
SBIR/STTR Programs, are revised to reflect the updated 2.101 and 27.401 
definitions--see Section II. A and D of this preamble.
    FAR clause 52.227-20, Rights in Data-SBIR/STTR Programs, is revised 
in the title to become ``Rights in Data--Small Business Innovation 
Research (SBIR) and Small Business Technology Transfer (STTR) 
Programs'', and to add definitions for ``Government purpose,'' 
``Government purpose rights,'' ``Operations, maintenance, installation, 
or training purposes (OMIT) data,'' ``SBIR/STTR computer software 
rights,'' ``SBIR/STTR protection period,'' ``SBIR/STTR technical 
data,'' and ``SBIR/STTR technical data rights.'' These definitions 
reflect those used in SBA's SBIR/STTR PD to the greatest extent 
possible. In some instances, different language has been used to 
harmonize terminology that applies to the SBIR/STTR programs with 
terminology used in the rest of the FAR and DFARS. Also, in some 
instances additional or different language is used in the definition to 
provide further clarity to contracting officers and contractors. 
Regardless of

[[Page 20824]]

whether the definitions proposed for the FAR are the same or different 
from the definitions in the PD, the intent is for the FAR definitions 
to be consistent with the SBIR/STTR PD.
    The terms ``SBIR data'' and ``SBIR rights'' in FAR clause 52.227-20 
have been updated as ``SBIR/STTR data'' and ``SBIR/STTR data rights'', 
and to reflect both SBIR/STTR programs. The definitions of the two 
terms have been updated to be consistent with the SBIR and STTR PD. The 
definition of ``technical data'' is not being revised in the FAR since 
the FAR definition is statutory (41 U.S.C. 116). SBA has confirmed that 
the ``technical data'' definition in the SBIR and STTR PD was not 
intended to differ from the statutory definition. Language is also 
added at 52.227-20(b) to clarify that the SBIR/STTR data rights 
provided in the clause are to be interpreted consistent with the SBIR 
and STTR PD. However, if there is inconsistency between the FAR clause 
and the SBIR and STTR PD, the clause governs; this is standard protocol 
in the FAR. If there are substantive changes to the PD in the future, 
DoD, GSA, and NASA will pursue rulemaking to update the FAR 
accordingly.
    The Rights Notice in FAR clause 52.227-20(d) is revised to reflect 
the fact that the clause now covers both SBIR/STTR programs and to 
reflect the increase in the protection period from 4 years after 
acceptance of all items under the contract to 20 years after the date 
of award. As a logistical matter that will promote compliance with the 
protection period, the Notice is revised to require inclusion of the 
contract award date. The Notice is also revised to reflect the new 
terminology and definitions added to the clause.
    Consistent with the SBIR/STTR PD, FAR clause 52.227-20 is also 
revised to authorize contractors and contracting officers to negotiate 
a different protection period, after award of the contract. The clause 
at paragraph (d)(2) will require contractors, in such a scenario, to 
update their Rights Notice to reflect the negotiated protection period.
    Conforming changes are proposed for all the clauses and provisions 
prescribed in FAR subpart 27.4, due to the renumbering of the section 
containing the prescriptions from 27.409 to 27.410.

III. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold (SAT) and for Commercial Products (Including Commercially 
Available Off-the-Shelf (COTS) Items) or for Commercial Services

    This rule amends the clauses at FAR 52.227-14, Rights in Data--
General, 52.227-17, Rights in Data--Special Works, and 52.227-20, 
Rights in Data--SBIR/STTR Programs, but this rule does not change the 
applicability of these existing clauses included in contracts valued at 
or below the SAT, or for commercial products (including COTS items) and 
commercial services.

IV. Expected Impact of the Rule

    This rule is expected to impact the contractors awarded contracts 
under the SBIR/STTR programs and subject to FAR clause 52.227-20, which 
addresses data rights.
    Contractors awarded contracts under the SBIR/STTR programs will 
benefit from having a single FAR clause that will uniformly govern 
awards under both programs, provide for a longer protection period, and 
use consistent terminology across the programs and other contract 
awards outside the programs that are subject to the FAR or DFARS.
    The FAR does not currently contain a clause applicable to contracts 
awarded under the STTR program. SBA has combined the SBIR and STTR 
policy directives into a single document, which makes it easier for 
this proposed rule to update the FAR SBIR clause to cover both 
programs. Currently in the FAR, the period of time during which the 
Government is obligated to protect a contractor's SBIR/STTR data 
against unauthorized use and disclosure, i.e., protection period, is 
four years. Consistent with the SBIR/STTR PD, this proposed rule seeks 
to increase the protection period to 20 years. The longer protection 
period incentivizes the Government to make subsequent awards, under 
phases II and III, to the small business that developed the technology 
under a phase I award. Therefore, small businesses are incentivized to 
participate in the SBIR/STTR programs in the first place. An added 
benefit of the 20-year protection period is that it covers the 
timeframe necessary for many technologies to be commercialized and 
mirrors the length of the patent protection period. In addition, this 
rule is expected to reduce confusion and burden on small businesses by 
adopting the updates to the SBIR/STTR PD, which in turn created 
uniformity and clarity regarding contractors' and the Government's 
rights in SBIR/STTR data.
    This rule is also expected to benefit contractors that participate 
under the SBIR/STTR programs by clarifying for contracting officers the 
authority to make sole-source awards under phases II and III under the 
programs. Clarifying the authority should drive greater use of the 
programs by the Government and perhaps greater participation by small 
businesses.
    On the Government side, the rule is expected to reduce burden on 
contracting officers by clarifying that further justification is not 
necessary when using the sole-source authority provided under the SBIR/
STTR programs. This is also expected to reduce the burden and confusion 
on contracting officers because the protection period will have a clear 
start and end date. Previously, the start date was four years from the 
date of acceptance of all deliverables. The triggers for the protection 
period were not always clear. This proposed rule changes the start date 
of the protection period to the date of award, which is something that 
is clearly noted on the contract itself. Therefore there is no reason 
for confusion. The proposed rule also provides explicit direction on 
the records retention period for contracts subject to the FAR clause. 
This will benefit the Government by ensuring contract files are 
retained long enough for the Government to comply with the data rights 
requirements, enforce its data rights, and defend itself in the event 
of litigation.

V. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This is not a significant regulatory action and, therefore, was not 
subject to review under section 6(b) of E.O. 12866, Regulatory Planning 
and Review, dated September 30, 1993.

VI. Regulatory Flexibility Act

    DoD, GSA, and NASA do not expect this rule to have a significant 
economic impact on a substantial number of small entities within the 
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601-612, because 
small business contractors

[[Page 20825]]

under the SBIR/STTR Programs represent less than one percent of all 
small businesses that are looking for Federal contract opportunities. 
However, an Initial Regulatory Flexibility Analysis (IRFA) has been 
performed and is summarized as follows:

    DoD, GSA, and NASA are proposing to revise the FAR to implement 
changes related to data rights in the Small Business 
Administration's Policy Directive for the Small Business Innovation 
Research (SBIR) and Small Business Technology Transfer (STTR) 
Programs, published in the Federal Register on April 2, 2019 (84 FR 
12794).
    The objective of this rule is to update the FAR coverage related 
to the SBIR and STTR Programs to be consistent with the 2019 changes 
SBA made to the Policy Directive governing those Programs. In 
addition, this rule is intended to implement competition 
requirements unique to Phase II and III awards under the SBIR/STTR 
Programs.
    Section 9 of the Small Business Act (15 U.S.C. 638) requires SBA 
to issue a policy directive setting forth guidance to the Federal 
agencies participating in the SBIR/STTR Programs. In addition, 15 
U.S.C. 638(r)(4) authorizes sole-source awards under phase III of 
the SBIR and STTR Programs.
    Prior to SBA's 2019 revision of the Policy Directive, there were 
different terminology and data rights allocations for SBIR/STTR data 
contained in SBA's Policy Directive, the FAR, and DoD's supplement 
to the FAR, the Defense Federal Acquisition Regulation Supplement. 
This inconsistency may have led to confusion and created a burden on 
small businesses to understand three different data rights regimes 
for the same programs. SBA's intent when revising the data rights 
provisions of the Policy Directive was to create uniformity and 
clarity regarding the Government's rights in SBIR/STTR data. To 
achieve this goal the FAR must be updated to adopt the terminology, 
definitions, and data rights allocations described in the most 
recent update of the Policy Directive.
    The proposed rule is not expected to have a significant economic 
impact on a substantial number of small entities within the meaning 
of the Regulatory Flexibility Act, 5 U.S.C. 601-612. As of January 
2022, there were over 415,000 small business registrants in the 
System for Award Management. This rule will impact entities awarded 
contracts under the SBIR/STTR Programs. Based on data from the 
Federal Procurement Data System (FPDS) for fiscal years 2020 through 
2022, there were approximately 12,736 contract awards made to 4,961 
unique entities under the SBIR and STTR Programs. Of those 4,961 
unique entities, 4,882 were small businesses. While past awards 
under the SBIR and STTR Programs are not a perfect indicator of all 
small entities that may be impacted by this rule (i.e., there may be 
more, fewer, or different small entities that receive future awards 
under the Programs than the entities that received the awards in the 
past), considering the combined data from three fiscal years is a 
reasonable estimator of the scope/scale of the rule's likely impact. 
The 4,882 small business contractors under the SBIR and STTR 
Programs represent approximately 1 percent of all small businesses 
that are looking for Federal contract opportunities.
    Of the limited number of small businesses to which this rule 
will apply, there is expected to be positive economic impact. Beyond 
standardizing and clarifying terminology, this rule also implements 
the change in the Policy Directive, which extends the data rights 
protection period from 4 years to 20 years. This longer protection 
period benefits small businesses by providing the timeframe 
necessary for many technologies to be commercialized and by 
mirroring the length of the patent protection period.
    This proposed rule does not include any new substantive 
reporting, recordkeeping, or other compliance requirements for small 
businesses. The rule does not impose additional information 
collection requirements to the paperwork burden previously approved 
by the Office of Management and Budget (OMB) under the Paperwork 
Reduction Act (44 U.S.C. 3501-3521), Control Number 9000-0090, 
Rights in Data and Copyrights. The existing information collection 
already accounts for the reporting associated with the requirement 
to affix a notice to SBIR/STTR data delivered under the contract. 
The notice already requires the contractor to fill in the contract 
and subcontract number; this rule proposes the notice to also 
include a fill-in for the contract award date. The burden associated 
with the additional fill-in is considered de minimis.
    The rule does not duplicate, overlap, or conflict with any other 
Federal rules.
    DoD, GSA, and NASA were unable to identify any alternatives to 
the rule that would reduce the impact on small entities and still 
implement requirements consistent with the 2019 SBA Policy 
Directive.

    The Regulatory Secretariat Division has submitted a copy of the 
IRFA to the Chief Counsel for Advocacy of the Small Business 
Administration. A copy of the IRFA may be obtained from the Regulatory 
Secretariat Division. DoD, GSA, and NASA invite comments from small 
business concerns and other interested parties on the expected impact 
of this rule on small entities.
    DoD, GSA, and NASA will also consider comments from small entities 
concerning the existing regulations in subparts affected by the rule in 
accordance with 5 U.S.C. 610. Interested parties must submit such 
comments separately and should cite 5 U.S.C. 610 (FAR Case 2020-010), 
in correspondence.

VII. Paperwork Reduction Act

    This rule affects the information collection requirements in the 
clause at FAR 52.227-20, currently approved under OMB Control Number 
9000-0090, Rights in Data and Copyrights, in accordance with the 
Paperwork Reduction Act (44 U.S.C. 3501-3521). The impact, however, is 
negligible. The existing information collection already accounts for 
the reporting associated with the requirement to affix a notice to 
SBIR/STTR data delivered under the contract. The notice already 
requires the contractor to fill in the contract and subcontract number; 
this rule proposes the notice to also include a fill-in for the 
contract award date. The burden associated with the additional fill-in 
is considered de minimis.

List of Subjects in 48 CFR Parts 2, 4, 6, 27, and 52

    Government procurement.

William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of 
Acquisition Policy, Office of Government-wide Policy.

    Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 2, 4, 
6, 27, and 52 as set forth below:

0
1. The authority citation for 48 CFR parts 2, 4, 6, 27, and 52 
continues to read as follows:

    Authority:  40 U.S.C. 121(c); 10 U.S.C. chapter 4 and 10 U.S.C. 
chapter 137 legacy provisions (see 10 U.S.C. 3016); and 51 U.S.C. 
20113.

PART 2--DEFINITIONS OF WORDS AND TERMS

0
2. Amend section 2.101, in paragraph (b)(2), by:
0
a. Revising the definition ``Computer database or database'';
0
b. Adding in alphabetic order the definition ``Computer program''; and
0
c. Revising the definition ``Computer software''.
    The addition and revisions read as follows:


2.101  Definitions.

* * * * *
    (b) * * *
    (2) * * *
* * * * *
    Computer database or database means a collection of data recorded 
in a form capable of being processed by a computer. The term does not 
include computer software.
    Computer program means a set of instructions, rules, or routines 
recorded in a form that is capable of causing a computer to perform a 
specific operation or series of operations.
    Computer software means computer programs, source code, source code 
listings, object code listings, design details, algorithms, processes, 
flow charts, formulae, and related material that would enable the 
software to be reproduced, recreated, or recompiled.

[[Page 20826]]

Computer software does not include computer databases or computer 
software documentation.
* * * * *

PART 4--ADMINISTRATIVE AND INFORMATION MATTERS

0
3. Amend section 4.805 by revising paragraphs (c) introductory text and 
(c)(1) and adding paragraph (c)(9) to read as follows:


4.805  Storage, handling, and contract files.

* * * * *
    (c) An agency that requires a shorter retention period than those 
identified in Table 4-1, except for contracts involving data rights 
under the Small Business Innovation Research (SBIR) Program or Small 
Business Technology Transfer (STTR) Program (see paragraph (c)(1) of 
this section for minimum contract retention period), shall request 
approval from NARA through the agency's records officer.

                      Table 4-1--Retention Periods
------------------------------------------------------------------------
                 Record                          Retention period
------------------------------------------------------------------------
(1) Contracts (and related records or    6 years after final payment.
 documents, including successful and
 unsuccessful proposals, except see
 paragraph (c)(2) of this section
 regarding contractor payrolls
 submitted under construction contracts
 and see paragraph (c)(9) of this
 section regarding contracts under the
 SBIR Program or STTR Program.).
 
                              * * * * * * *
(9) Contracts involving SBIR/STTR data   20 years after contract award,
 rights which include FAR clause 52.227-  or at the end of the
 20.                                      protection period as specified
                                          in FAR 52.227-20 as it appears
                                          in the contract, whichever is
                                          later.
------------------------------------------------------------------------

PART 6--COMPETITION REQUIREMENTS

0
4. Amend section 6.203 by revising the second sentence of paragraph (a) 
to read as follows:


6.203  Set-asides for small business concerns.

    (a) * * * This includes contract actions conducted under the Small 
Business Innovation Research (SBIR) or Small Business Technology 
Transfer (STTR) Program established under 15 U.S.C. 638.
* * * * *
0
5. Amend section 6.302-5 by adding paragraph (b)(8), and revising 
paragraph (c)(2)(i) to read as follows:


6.302-5  Authorized or required by statute.

* * * * *
    (b) * * *
    (8)(i) Sole-source awards under phase III of the Small Business 
Innovation Research (SBIR) or Small Business Technology Transfer (STTR) 
programs (15 U.S.C. 638(r)(4)).
    (ii) One sequential sole-source award under phase II if the award 
follows a competitive phase II award (15 U.S.C. 638(ff) and section 
(4)(b)(5) of the SBA ``Small Business Innovation Research (SBIR) and 
Small Business Technology Transfer (STTR) Program Policy Directive'' 
(published April 2, 2019; see https://www.sbir.gov), as amended).
    (c) * * *
    (2) * * *
    (i) Contracts awarded under paragraph (a)(2)(ii), (b)(2), or (b)(8) 
of this section;
* * * * *

PART 27--PATENTS, DATA, AND COPYRIGHTS

0
6. Amend section 27.401 by revising the first sentence in the 
definition ``Data'', and revising the definition ``Unlimited rights'' 
to read as follows:


27.401  Definitions.

* * * * *
    Data means all recorded information, regardless of the form, method 
of recording, or the media on which it may be recorded. * * *
* * * * *
    Unlimited rights means the rights of the Government to use, modify, 
prepare derivative works, reproduce, release, perform, display, 
disclose, or distribute data in whole or in part, in any manner and for 
any purpose whatsoever, and to have or permit others to do so.


27.409  [Redesignated as section 27.410]

0
7. Redesignate section 27.409 as section 27.410.
0
8. Add a new section 27.409 to read as follows:


27.409  Small Business Innovation Research (SBIR) and Small Business 
Technology Transfer (STTR) programs.

    (a) The purpose of the SBIR and STTR programs is to strengthen the 
role of innovative small business concerns in Federally-funded research 
or research and development. Certain agencies are required to 
participate in the SBIR/STTR programs.
    (b) The SBIR and STTR programs are authorized by 15 U.S.C. 638. The 
statute directs the Small Business Administration (SBA) to issue a 
Policy Directive. SBA published its Policy Directive in the Federal 
Register; SBA keeps the Policy Directive updated by publishing 
revisions in the Federal Register. The current Policy Directive is 
available online at https://www.sbir.gov.
    (c) The programs have three phases of awards. The purpose of Phase 
I awards is to establish technical merit, feasibility, and commercial 
potential. Phase II awards continue the research and development 
efforts initiated in Phase I. The purpose of Phase III awards is to 
pursue commercialization objectives for future sale or use by the 
Federal Government or commercial markets.
    (d) Solicitations and contracts awarded under the SBIR/STTR 
programs must include clause 52.227-20, Rights in Data--Small Business 
Innovation Research (SBIR) and Small Business Technology Transfer 
(STTR) Programs (see 27.410(h)).
    (1) The period of time during which the Government is obligated to 
protect SBIR/STTR data against unauthorized use and disclosure, i.e., 
the SBIR/STTR protection period, begins at award of a SBIR/STTR 
contract and ends not less than 20 years from that date. After award of 
the contract, the contractor and the contracting officer may negotiate 
a different SBIR/STTR protection period. If a different SBIR/STTR 
protection period is negotiated, paragraph (d) of clause 52.227-20 
requires the contractor to revise the SBIR/STTR Rights Notice to 
reflect the negotiated protection period.
    (2) With regard to the release or disclosure of SBIR/STTR data 
outside the Government, as referenced in the definitions of ``SBIR/STTR 
computer

[[Page 20827]]

software rights'' and ``SBIR/STTR technical data rights'' in paragraph 
(a) of clause 52.227-20, contracting officers shall require prohibition 
against further use and disclosure by support service contractors or 
their subcontractors (e.g., by using a nondisclosure agreement). For 
terms required to be included in the prohibition, consult section 8(c) 
of the Small Business Innovation Research (SBIR) and Small Business 
Technology Transfer (STTR) Program Policy Directive (84 FR 12794, April 
2, 2019; see https://www.sbir.gov), as amended.
0
9. Amend the newly redesignated section 27.410 by revising paragraph 
(h) to read as follows:


27.410  Solicitation provisions and contract clauses

* * * * *
    (h) If the contract is a SBIR or STTR contract, insert the clause 
at 52.227-20, Rights in Data--Small Business Innovation Research (SBIR) 
and Small Business Technology Transfer (STTR) Programs, in all Phase I, 
Phase II, and Phase III contracts awarded under the SBIR or STTR 
Program established pursuant to 15 U.S.C. 638. This clause implements 
15 U.S.C. 638 and the Small Business Administration's ``Small Business 
Innovation Research (SBIR) and Small Business Technology Transfer 
(STTR) Program Policy Directive'' (84 FR 12794, April 2, 2019; see 
https://www.sbir.gov).
* * * * *

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
10. Amend section 52.227-14 by--
0
a. Removing from the introductory text the phrase ``27.409'' and adding 
``27.410'' in its place;
0
b. Revising the date of the clause;
0
c. In paragraph (a):
0
i. Revising the definition ``Computer database or database'';
0
ii. Adding in alphabetical order the definition ``Computer program'';
0
iii. Revising the definition ``Computer software'';
0
iv. Revising the first sentence in the definition of ``Data'';
0
v. Revising the definition ``Unlimited rights''; and
0
d. Removing from the introductory text of Alternate I through V the 
phrase ``27.409'' and adding ``27.410'' in its place.
    The revisions and addition read as follows:


52.227-14  Rights in Data--General

* * * * *
Rights in Data--General (Date)
    (a) * * *
    Computer database or database means a collection of data recorded 
in a form capable of being processed by a computer. The term does not 
include computer software.
    Computer program means a set of instructions, rules, or routines 
recorded in a form that is capable of causing a computer to perform a 
specific operation or series of operations.
    Computer software means computer programs, source code, source code 
listings, object code listings, design details, algorithms, processes, 
flow charts, formulae, and related material that would enable the 
software to be reproduced, recreated, or recompiled. Computer software 
does not include computer databases or computer software documentation.
    Data means all recorded information, regardless of the form, method 
of recording, or the media on which it may be recorded. * * *
* * * * *
    Unlimited rights means the rights of the Government to use, modify, 
prepare derivative works, reproduce, release, perform, display, 
disclose, or distribute data in whole or in part, in any manner and for 
any purpose whatsoever, and to have or permit others to do so.
* * * * *


52.227-15  [Amended]

0
11. Amend section 52.227-15 by removing from the introductory text 
``27.409'' and adding ``27.410'' in its place.


52.227-16  [Amended]

0
12. Amend section 52.227-16 by removing from the introductory text the 
phrase ``27.409'' and adding ``27.410'' in its place.
0
13. Amend section 52.227-17 by--
0
a. Removing from the introductory text the phrase ``27.409'' and adding 
``27.410'' in its place;
0
b. Revising the date of the clause;
0
c. In paragraph (a):
0
i. Revising the first sentence in the definition of ``Data''; and
0
ii. Revising the definition ``Unlimited rights''.
    The revisions read as follows:


52.227-17  Rights in Data--Special Works.

* * * * *
Rights in Data--Special Works (Date)
    (a) * * *
    Data means all recorded information, regardless of the form, method 
of recording, or the media on which it may be recorded. * * *
* * * * *
    Unlimited rights means the rights of the Government to use, modify, 
prepare derivative works, reproduce, release, perform, display, 
disclose, or distribute data in whole or in part, in any manner and for 
any purpose whatsoever, and to have or permit others to do so.
* * * * *


52.227-18  [Amended]

0
14. Amend section 52.227-18 by removing from the introductory text the 
phrase ``27.409'' and adding ``27.410'' in its place.


52.227-19  [Amended]

0
15. Amend section 52.227-19 by removing from the introductory text the 
phrase ``27.409'' and adding ``27.410'' in its place.
0
16. Amend section 52.227-20 by--
0
a. Revising the section heading;
0
b. Removing from the introductory text the phrase ``27.409'' and adding 
``27.410'' in its place;
0
c. Revising the date and title of the clause;
0
d. In paragraph (a):
0
i. Revising the definition ``Computer database or database'';
0
ii. Adding in alphabetic order the definition ``Computer program'';
0
iii. Revising the definition ``Computer software'';
0
iv. Revising the first sentence in the definition of ``Data'';
0
v. Adding in alphabetic order the definitions ``Government purpose'', 
``Government purpose rights'', ``Operations, maintenance, installation, 
or training purposes (OMIT) data'', and ``SBIR/STTR computer software 
rights'';
0
vi. Revising the paragraph headings and text of the definitions of 
``SBIR data'' and ``SBIR rights'';
0
vii. Adding in alphabetic order the definitions ``SBIR/STTR protection 
period'', ``SBIR/STTR technical data'', and ``SBIR/STTR technical data 
rights''; and
0
viii. Revising the definition of ``Unlimited rights'';
0
e. In paragraph (b):
0
i. Redesignating paragraphs (b)(1) and (2) as paragraphs (b)(2) and 
(3), and adding a new paragraph (b)(1);
0
ii. In the newly redesignated paragraph (b)(2) revising the 
introductory text, and paragraphs (b)(2)(iii) and (b)(2)(iv);
0
iii. In the newly redesignated paragraph (b)(3)(ii) removing the phrase 
``SBIR rights in SBIR data'' and adding ``SBIR/STTR data rights in 
SBIR/STTR data'' in its place; and
0
iv. In the newly redesignated paragraph (b)(3)(iii) removing the phrase 
``SBIR rights'' and adding ``SBIR/STTR data rights'' in its place;
0
f. Revising paragraph (d);

[[Page 20828]]

0
g. Removing from paragraph (f) the phrase ``(b)(1)(i)'' and adding 
``(b)(2)(i)'' in its place; and
0
h. Revising the paragraph (g) heading.
    The revisions and additions read as follows:


52.227-20  Rights in Data--Small Business Innovation Research (SBIR) 
and Small Business Technology Transfer (STTR) Programs.

* * * * *
Rights in Data--Small Business Innovation Research (SBIR) and Small 
Business Technology Transfer (STTR) Programs (DATE)
    (a) * * *
    Computer database or database means a collection of data recorded 
in a form capable of being processed by a computer. The term does not 
include computer software.
    Computer program means a set of instructions, rules, or routines 
recorded in a form that is capable of causing a computer to perform a 
specific operation or series of operations.
    Computer software means computer programs, source code, source code 
listings, object code listings, design details, algorithms, processes, 
flow charts, formulae, and related material that would enable the 
software to be reproduced, recreated, or recompiled. Computer software 
does not include computer databases or computer software documentation.
* * * * *
    Data means all recorded information, regardless of the form, method 
of recording, or the media on which it may be recorded. * * *
* * * * *
    Government purpose means any activity in which the U.S. Government 
or a Federally Funded Research and Development Center is a party, 
including cooperative agreements with international or multi-national 
defense organizations or sales or transfers by the U.S. Government to 
foreign governments or international organizations. Government purposes 
include competitive procurement, but do not include the rights to use, 
modify, reproduce, release, perform, display, or disclose technical 
data or computer software for commercial purposes or authorize others 
to do so.
    Government purpose rights means the Government's royalty-free 
license, after the SBIR/STTR protection period, to use, modify, 
reproduce, release, perform, display, or disclose SBIR/STTR data within 
the Government without restriction; and release or disclose SBIR/STTR 
data outside the Government and authorize persons to whom release or 
disclosure has been made to use, modify, reproduce, release, perform, 
display, or disclose that data for Government purposes.
* * * * *
    Operations, maintenance, installation, or training purposes (OMIT) 
data means data that is necessary for operation, maintenance, 
installation, or training purposes (but not including detailed 
manufacturing or process data).
* * * * *
    SBIR/STTR computer software rights means the Government's rights 
during the SBIR/STTR protection period (for the Government's rights 
after the protection period see the definition of ``government purpose 
rights'' in this clause) to--
    (1) Use, modify, reproduce, release, perform, display, or disclose 
SBIR/STTR data that are computer software within the Government for the 
following purposes:
    (i) Use in Government computer(s);
    (ii) Archival or backup;
    (iii) Modify, adapt, or combine with other computer software, 
provided that the modified, adapted or combined portion of the software 
incorporating any of the delivered, restricted computer software shall 
be subject to the same SBIR/STTR computer software rights; or
    (iv) Distribute to another agency if, prior to the distribution, 
the Contractor is notified of the distribution and the identity of the 
recipient, and a copy of the SBIR/STTR computer software rights is 
provided to the recipient.
    (2) Release or disclose SBIR/STTR data that are computer software 
outside the Government to support service contractors or their 
subcontractors for purposes described in paragraphs (1)(i) through 
(1)(iii) of this definition, including evaluation, repair, overhaul, 
and adaptation, combination, or integration with other computer 
software, and subject to prohibition against further use and 
disclosure.
    SBIR/STTR data means all data first produced by a Contractor in the 
performance of an SBIR or STTR award, including technical data and 
computer software developed or generated in the performance of an SBIR 
or STTR award. The term does not include publicly available 
information, information otherwise available to the Government, or 
information incidental to contract administration, such as financial, 
administrative, cost or pricing or management information.
    SBIR/STTR data rights means the Government's royalty-free license 
rights in properly marked SBIR/STTR data during the SBIR/STTR 
protection period as follows: SBIR/STTR technical data rights and SBIR/
STTR computer software rights. Upon expiration of the protection period 
for SBIR/STTR data, the Government has government purpose rights in 
perpetuity in the SBIR/STTR data, and is relieved of disclosure 
prohibitions related to such government purposes and assumes no 
liability for unauthorized use of these data by third parties.
    SBIR/STTR protection period means the period of time during which 
the Government is obligated to protect SBIR/STTR data against 
unauthorized use and disclosure in accordance with SBIR/STTR data 
rights. The SBIR/STTR protection period begins at award of an SBIR or 
STTR contract and ends not less than 20 years from that date, unless 
negotiated otherwise after award. (See section 8(b)(4) of the SBIR and 
STTR Policy Directive, https://www.sbir.gov).
    SBIR/STTR technical data means SBIR/STTR data that is technical 
data.
    SBIR/STTR technical data rights means the Government's rights to 
use SBIR/STTR technical data during the SBIR/STTR protection period 
(for the Government's rights after the protection period see the 
definition of ``government purpose rights'' in this clause) to--
    (1) Use, modify, reproduce, release, perform, display, or disclose 
SBIR/STTR technical data within the Government, except for procurement, 
manufacturing, or commercial purposes without written permission of the 
Contractor; and
    (2) Release or disclose outside the Government, subject to 
prohibition against further use and disclosure (e.g., nondisclosure 
agreement), for the following purposes:
    (i) Use (except for manufacturing, procurement or commercial use) 
by Government support service contractors in performance of a 
Government support services contract for internal Government use, i.e., 
furnishing independent and impartial advice or technical assistance 
directly to the Government in support of the Government's management 
and oversight of the program or effort to which such technical data or 
computer software relates, such as providing evaluation, diagnosis, or 
modification;
    (ii) Evaluation; or
    (iii) Release to a foreign government, if required to serve the 
interests of the U.S. Government, for informational and evaluation 
purposes.
* * * * *
    Unlimited rights means the rights of the Government to use, modify, 
prepare derivative works, reproduce, release,

[[Page 20829]]

perform, display, disclose, or distribute data in whole or in part, in 
any manner and for any purpose whatsoever, and to have or permit others 
to do so.
    (b) Allocation of rights.(1) The SBIR/STTR data rights are to be 
interpreted consistent with SBA's SBIR and STTR policy directive. 
However, if there is an inconsistency between this clause and the SBIR 
and STTR policy directive, this clause governs.
    (2) Except as provided in paragraph (c) of this clause regarding 
copyright, the Government shall have unlimited rights both during and 
after the protection period in--
* * * * *
    (iii) Data delivered under this contract (except for restricted 
computer software) that constitute manuals or instructional and 
training material for installation, operation, or routine maintenance 
and repair of items, components, or processes delivered or furnished 
for use under this contract, i.e., OMIT data; and
    (iv) All other data delivered under this contract unless provided 
otherwise for SBIR/STTR data in accordance with paragraph (d) of this 
clause or for limited rights data or restricted computer software in 
accordance with paragraph (f) of this clause.
* * * * *
    (d) Rights to and marking of SBIR/STTR data. (1) The Contractor is 
authorized to affix the following ``SBIR/STTR Data Rights Notice'' to 
SBIR/STTR data delivered under this contract and the Government will 
treat the data, subject to the provisions of paragraphs (e) and (f) of 
this clause, in accordance with the notice:
SBIR/STTR Data Rights Notice (DATE)
    These SBIR/STTR data are furnished with SBIR/STTR data rights under 
Contract number _, date of award _ (and subcontract number _, if 
appropriate). For a period of 20 years, starting from the date of 
award, the Government will have SBIR/STTR technical data rights or 
SBIR/STTR computer software rights in these data as defined in 
paragraph (a) of the clause 52.227-20 Rights in Data--Small Business 
Innovation Research (SBIR) and Small Business Technology Transfer 
(STTR) Programs, included in the above identified contract, and they 
shall not be disclosed outside the Government (including disclosure for 
procurement purposes) during such period without permission of the 
Contractor (unless specifically permitted elsewhere in the contract 
pursuant to post-award negotiations), except that, subject to the 
foregoing use and disclosure prohibitions, these data may be disclosed 
for use by support Contractors. After the SBIR/STTR protection period 
ends, the Government has Government purpose rights in this data as 
defined in paragraph (a) of 52.227-20. This notice shall be affixed to 
any reproductions of these data, in whole or in part.
(End of Notice)
    (2) If the Contractor and the contracting officer negotiate a 
different SBIR/STTR protection period after award of the contract, the 
Contractor shall revise the SBIR/STTR Data Rights Notice to reflect the 
negotiated protection period.
    (3) The Government's sole obligation with respect to any SBIR/STTR 
data shall be as set forth in this paragraph (d).
* * * * *
    (g) Subcontracts. * * *
* * * * *


52.227-21  [Amended]

0
17. Amend section 52.227-21 by removing from the introductory text 
``27.409'' and adding ``27.410'' in its place.


52.227-22  [Amended]

0
18. Amend section 52.227-22 by removing from the introductory text 
``27.409'' and adding ``27.410'' in its place.


52.227-23  [Amended]

0
19. Amend section 52.227-23 by removing from the introductory text 
``27.409'' and adding ``27.410'' in its place.

[FR Doc. 2023-06420 Filed 4-6-23; 8:45 am]
BILLING CODE 6820-EP-P