[117th Congress Public Law 183]
[From the U.S. Government Publishing Office]
[[Page 2179]]
SBIR AND STTR EXTENSION ACT OF 2022
[[Page 136 STAT. 2180]]
Public Law 117-183
117th Congress
An Act
To reauthorize the SBIR and STTR programs and pilot programs, and for
other purposes. <<NOTE: Sept. 30, 2022 - [S. 4900]>>
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, <<NOTE: SBIR and STTR
Extension Act of 2022.>>
SECTION 1. <<NOTE: 15 USC 631 note.>> SHORT TITLE.
This Act may be cited as the ``SBIR and STTR Extension Act of
2022''.
SEC. 2. <<NOTE: 15 USC 638 note.>> 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
[[Page 136 STAT. 2181]]
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) <<NOTE: Coordination.>> 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--
[[Page 136 STAT. 2182]]
``(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) <<NOTE: Definition.>> 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) <<NOTE: Deadlines. 15 USC 638 note.>> 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) <<NOTE: Deadline. Consultations. 15 USC 638 note.>>
Best practices.--Not later than 180 days after the date of
enactment of this Act, the Administrator shall--
(A) <<NOTE: Coordination.>> 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
[[Page 136 STAT. 2183]]
(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) <<NOTE: Deadline. Time period. Reports.>> 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) <<NOTE: 15 USC 638 note.>> Rule of construction.--
Nothing in subsection (vv) of section 9 of the Small Business
Act (15 U.S.C. 638), as added by paragraph (1), shall be
construed to--
(A) apply to any Federal agency with a due diligence
program that applies to the SBIR or STTR programs
required under subsection (vv) of section 9 of the Small
Business Act (15 U.S.C. 638), as added by paragraph (1),
in existence as of the date of enactment of this Act; or
(B) restrict any Federal agency from taking due
diligence measures in addition to those required under
such subsection (vv) at the Federal agency.
(c) Disclosures Regarding Ties to People's Republic of China and
Other Foreign Countries.--
(1) SBIR.--Section 9(g) of the Small Business Act (15 U.S.C.
638(g)) is amended--
(A) in paragraph (11), by striking ``and'' at the
end;
(B) in paragraph (12), by striking the period at the
end and inserting a semicolon; and
(C) by adding at the end the following:
``(13) <<NOTE: Requirement.>> 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;
[[Page 136 STAT. 2184]]
``(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) <<NOTE: Time period.>> 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) <<NOTE: Review. Determination. Records. Time
period.>> 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) <<NOTE: Requirement.>> 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) <<NOTE: Time period.>> 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
[[Page 136 STAT. 2185]]
``(G) any foreign business entity, offshore entity,
or entity outside the United States related to the small
business concern;
``(18) <<NOTE: Review. Determination. Records. Time
period.>> 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) <<NOTE: Determination.>> 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) <<NOTE: China.>> 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) <<NOTE: Determination.>> 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) <<NOTE: China.>> 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
[[Page 136 STAT. 2186]]
``(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) <<NOTE: Requirements.>> 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) <<NOTE: Repayment.>> 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) <<NOTE: Requirements.>> 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) <<NOTE: Repayment.>> 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 136 STAT. 2187]]
``(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) <<NOTE: 15 USC 638 note.>> 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) <<NOTE: Assessments.>> 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) <<NOTE: Analyses.>> 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) <<NOTE: Coordination.>> 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).
[[Page 136 STAT. 2188]]
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) <<NOTE: Deadline.>> 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) <<NOTE: Time period.>> 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) <<NOTE: Deadline.>> 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) <<NOTE: Time period. Public information.>> 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) <<NOTE: Assessment.>> 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;
[[Page 136 STAT. 2189]]
(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) <<NOTE: Assessment.>> 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) <<NOTE: Time periods.>> 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.-- <<NOTE: Determination. Effective
date.>> 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
[[Page 136 STAT. 2190]]
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) <<NOTE: Time periods.>> Progress to phase iii
success.--
``(i) <<NOTE: Requirements.>> 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.-- <<NOTE: Determination. Effective
date.>> If the head of a Federal agency determines
that a small business concern that received a
Phase I award from the agency is not meeting an
applicable increased minimum performance standard
modified under clause (i), the small business
concern may not receive more than 20 total Phase I
awards and Phase II awards under subsection (cc)
from each agency during the 1-year period
beginning on the date on which such determination
is made.
``(iii) Documentation.--
``(I) In general.--A small business
concern that is subject to an increased
minimum performance standard described
in clause (i) shall submit to the
Administrator supporting documentation
evidencing that all covered sales of the
small business concern were properly
used to meet the increased minimum
performance standard.
``(II) Covered sale defined.--In
this clause, the term `covered sale'
means a sale by a small business
concern--
``(aa) that the small
business concern claims to be
attributable to an SBIR or STTR
award;
``(bb) for which no amount
of the payment was or is made
using Federal funds;
``(cc) which the small
business concern uses to meet an
applicable increased minimum
performance standard under
clause (i); and
``(dd) that was or is
received during the 5 fiscal
years immediately preceding the
fiscal year in which the small
business concern uses
[[Page 136 STAT. 2191]]
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.-- <<NOTE: Deadline.>> 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.--
<<NOTE: Deadline.>> 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
[[Page 136 STAT. 2192]]
not meet an increased minimum
performance standard that was applicable
to such small business concern.
``(II) <<NOTE: Determination.>>
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) <<NOTE: Lists.>> 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) <<NOTE: Deadline.>> 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) <<NOTE: Deadline.>> 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--
[[Page 136 STAT. 2193]]
``(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) <<NOTE: Time period.>> 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) <<NOTE: Effective date.>>
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) <<NOTE: Assessment.>> 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) <<NOTE: Reports.>> 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) <<NOTE: Processes.>> In general.--A Federal agency
required to establish an SBIR or STTR program shall implement a
multi-level review
[[Page 136 STAT. 2194]]
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 <<NOTE: Deadline. Reports. Public information. Time
periods. Analyses.>> later than 18 months after the date of enactment
of this Act, the Comptroller General of the United States shall conduct
a study and submit to the Committee on Small Business and
Entrepreneurship of the Senate and the Committee on Small Business and
the Committee on Science, Space, and Technology of the House of
Representatives a report, which shall be made publicly available, on
small business concerns that are awarded not less than 50 Phase II
awards under the SBIR or STTR programs during the consecutive period of
10 fiscal years preceding the most recent 2 fiscal years, including, to
the extent practicable, an analysis of--
(1) the impact of the small business concerns on the SBIR
and STTR programs;
(2) the ratio of the number of Phase II awards received by
the small business concerns to the total number of Phase II
awards;
(3) the ability of the small business concerns to
commercialize and meet the tenets of the SBIR and STTR programs;
(4) the impact on new entrants and seeding technology
necessary to the Federal agency mission or commercial markets
and, with respect to the Department of Defense, whether the
types of technology the small business concerns are pursuing are
primarily hardware, software, or system components for the
warfighter;
(5) <<NOTE: Evaluation.>> an evaluation and study of
varying levels of award caps and lifetime program earning caps;
(6) <<NOTE: Assessment.>> 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) <<NOTE: Recommenda- tions.>> 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 <<NOTE: Evaluations.>> 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:
[[Page 136 STAT. 2195]]
(1) <<NOTE: Compliance.>> 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) <<NOTE: Analysis.>> 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).
Approved September 30, 2022.
LEGISLATIVE HISTORY--S. 4900:
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CONGRESSIONAL RECORD, Vol. 168 (2022):
Sept. 20, considered and passed Senate.
Sept. 28, 29, considered and passed House.
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