15 U.S.C. § 638 — Research and development

Page 922 TITLE 15—COMMERCE AND TRADE § 637d (3) the term ‘‘Government procurement con- tract’’ means any contract for the procure- ment of any goods or services by any Federal agency. (Pub. L. 95–507, title II, § 224(a), Oct. 24, 1978, 92 Stat. 1772; Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814.) Editorial Notes REFERENCES IN TEXT This Act, referred to in text, means Pub. L. 95–507, Oct. 24, 1978, 92 Stat. 1757. For complete classification of this Act to the Code, see Tables. CODIFICATION Section was not enacted as part of the Small Busi- ness Act which comprises this chapter. AMENDMENTS 2004—Par. (2). Pub. L. 108–271 substituted ‘‘Govern- ment Accountability Office’’ for ‘‘General Accounting Office’’. § 637d. Subcontracting plan reports (1) Reporting requirements Not later than 1 year after January 2, 2013, the Administrator of the Small Business Adminis- tration shall take such actions as are necessary to ensure that the electronic subcontracting re- porting system established by the Administra- tion to carry out the requirement of section 637(d)(6)(E) of this title is modified to ensure that it can identify entities that fail to submit required reports. (2) Annual report Not later than March 31 of each year, the Ad- ministrator of the Small Business Administra- tion shall provide the Committee on Small Busi- ness of the House of Representatives and the Committee on Small Business and Entrepre- neurship of the Senate a report, based on data available through existing systems, that sets forth, by agency (and to the extent practicable, by type of goal or plan), the following informa- tion: (A) the percentage of entities required to submit reports pursuant to section 637(d)(6) of this title that filed such reports and that failed to file such reports during the prior fis- cal year; (B) the percentage of entities filing such re- ports that met, exceeded, or failed to meet goals set forth in their subcontracting plans during the prior fiscal year; and (C) the aggregate value by which such enti- ties exceeded, or failed to meet, their subcon- tracting goals during the prior fiscal year. (Pub. L. 112–239, div. A, title XVI, § 1653(b), Jan. 2, 2013, 126 Stat. 2082.) Editorial Notes CODIFICATION Section was enacted as part of the National Defense Authorization Act for Fiscal Year 2013, and not as part of the Small Business Act which comprises this chap- ter. § 638. Research and development (a) Declaration of policy Research and development are major factors in the growth and progress of industry and the national economy. The expense of carrying on research and development programs is beyond the means of many small-business concerns, and such concerns are handicapped in obtaining the benefits of research and development programs conducted at Government expense. These small- business concerns are thereby placed at a com- petitive disadvantage. This weakens the com- petitive free enterprise system and prevents the orderly development of the national economy. It is the policy of the Congress that assistance be given to small-business concerns to enable them to undertake and to obtain the benefits of re- search and development in order to maintain and strengthen the competitive free enterprise system and the national economy. (b) Assistance to small-business concerns It shall be the duty of the Administration, and it is empowered— (1) to assist small-business concerns to ob- tain Government contracts for research and development; (2) to assist small-business concerns to ob- tain the benefits of research and development performed under Government contracts or at Government expense; (3) to provide technical assistance to small- business concerns to accomplish the purposes of this section; (4) to develop and maintain a source file and an information program to assure each quali- fied and interested small business concern the opportunity to participate in Federal agency small business innovation research programs and small business technology transfer pro- grams; (5) to coordinate with participating agencies a schedule for release of SBIR and STTR so- licitations, and to prepare a master release schedule so as to maximize small businesses’ opportunities to respond to solicitations; (6) to independently survey and monitor the operation of SBIR and STTR programs within participating Federal agencies; (7) to report not less than annually to the Committee on Small Business of the Senate, and to the Committee on Science and the Committee on Small Business of the House of Representatives, on the SBIR and STTR pro- grams of the Federal agencies and the Admin- istration’s information and monitoring efforts related to the SBIR and STTR programs, in- cluding— (A) the data on output and outcomes col- lected pursuant to subsections (g)(8) and (o)(9); (B) the number of proposals received from, and the number and total amount of awards to, HUBZone small business concerns and firms with venture capital, hedge fund, or private equity firm investment (including those majority-owned by multiple venture capital operating companies, hedge funds, or private equity firms) under each of the SBIR and STTR programs; Page 923 TITLE 15—COMMERCE AND TRADE § 638 (C) a description of the extent to which each Federal agency is increasing outreach and awards to firms owned and controlled by women or by socially or economically dis- advantaged individuals under each of the SBIR and STTR programs; (D) general information about the imple- mentation of, and compliance with the allo- cation of funds required under, subsection (dd) for firms owned in majority part by ven- ture capital operating companies, hedge funds, or private equity firms and partici- pating in the SBIR program; (E) a detailed description of appeals of Phase III awards and notices of noncompli- ance with the SBIR Policy Directive and the STTR Policy Directive filed by the Adminis- trator with Federal agencies; (F) an accounting of funds, initiatives, and outcomes under the Commercialization Readiness Program; (G) a description of the extent to which Federal agencies are providing in a timely manner information needed to maintain the database described in subsection (k); (H) with respect to a Federal agency to which subsection (f)(1) or (n)(1) applies, whether the Federal agency has complied with the applicable subsection for the year covered by the report; (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 re- ceive 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; (K) the minimum performance standards established under subsection (qq), including any applicable modifications under para- graph (3) of such subsection, and the number of small business concerns that did not meet those minimum performance standards, pro- vided that the Administrator does not pub- lish any personally identifiable information, the identity of each such small business con- cern, or any otherwise sensitive informa- tion; and (L) the aggregate number and dollar amount of SBIR and STTR awards made pur- suant to waivers under subsection (qq)(3)(E), provided that the Administrator does not publish any personally identifiable informa- tion, the identity of each such small busi- ness concern, or any otherwise sensitive in- formation; (8) to provide for and fully implement the te- nets of Executive Order No. 13329 (Encouraging Innovation in Manufacturing); (9) to coordinate the implementation of elec- tronic databases at each of the Federal agen- cies participating in the SBIR program or the STTR program, including the technical ability of the participating agencies to electronically share data; and (10) to consult, where appropriate, with per- sonnel from the relevant Federal agency to as- sist small business concerns participating in a SBIR or STTR program with commercializing research developed under such a program be- fore such small business concern is awarded a contract from such Federal agency. (c) Consultation and cooperation with Govern- ment agencies; studies and recommendations The Administration is authorized to consult and cooperate with all Government agencies and to make studies and recommendations to such agencies, and such agencies are authorized and directed to cooperate with the Administration in order to carry out and to accomplish the pur- poses of this section. (d) Joint programs; approval of agreements; withdrawal of approval; publication in Fed- eral Register (1) The Administrator is authorized to consult with representatives of small-business concerns with a view to assisting and encouraging such firms to undertake joint programs for research and development carried out through such cor- porate or other mechanism as may be most ap- propriate for the purpose. Such joint programs may, among other things, include the following purposes: (A) to construct, acquire, or establish lab- oratories and other facilities for the conduct of research; (B) to undertake and utilize applied re- search; (C) to collect research information related to a particular industry and disseminate it to participating members; (D) to conduct applied research on a pro- tected, proprietary, and contractual basis with member or nonmember firms, Government agencies, and others; (E) to prosecute applications for patents and render patent services for participating mem- bers; and (F) to negotiate and grant licenses under patents held under the joint program, and to establish corporations designed to exploit par- ticular patents obtained by it. (2) The Administrator may, after consultation with the Attorney General and the Chairman of the Federal Trade Commission, and with the prior written approval of the Attorney General, approve any agreement between small-business firms providing for a joint program of research and development, if the Administrator finds that the joint program proposed will maintain and strengthen the free enterprise system and the economy of the Nation. The Administrator or the Attorney General may at any time with- draw his approval of the agreement and the joint program of research and development cov- ered thereby, if he finds that the agreement or the joint program carried on under it is no longer in the best interests of the competitive free enterprise system and the economy of the Nation. A copy of the statement of any such finding and approval intended to be within the coverage of this subsection, and a copy of any modification or withdrawal of approval, shall be published in the Federal Register. The authority Page 924 TITLE 15—COMMERCE AND TRADE § 638 conferred by this subsection on the Adminis- trator shall not be delegated by him. (3) No act or omission to act pursuant to and within the scope of any joint program for re- search and development, under an agreement ap- proved by the Administrator under this sub- section, shall be construed to be within the pro- hibitions of the antitrust laws or the Federal Trade Commission Act [15 U.S.C. 41 et seq.]. Upon publication in the Federal Register of the notice of withdrawal of his approval of the agreement granted under this subsection, either by the Administrator or by the Attorney Gen- eral, the provisions of this subsection shall not apply to any subsequent act or omission to act by reason of such agreement or approval. (e) Definitions For the purpose of this section— (1) the term ‘‘extramural budget’’ means the sum of the total obligations minus amounts obligated for such activities by employees of the agency in or through Government-owned, Government-operated facilities, except that for the Department of Energy it shall not in- clude amounts obligated for atomic energy de- fense programs solely for weapons activities or for naval reactor programs, and except that for the Agency for International Development it shall not include amounts obligated solely for general institutional support of inter- national research centers or for grants to for- eign countries; (2) the term ‘‘Federal agency’’ means an ex- ecutive agency as defined in section 105 of title 5 or a military department as defined in sec- tion 102 of such title, except that it does not include any agency within the Intelligence Community (as the term is defined in section 3.4(f) of Executive Order 12333 or its successor orders); (3) the term ‘‘funding agreement’’ means any contract, grant, or cooperative agreement en- tered into between any Federal agency and any small business for the performance of ex- perimental, developmental, or research work funded in whole or in part by the Federal Gov- ernment; (4) the term ‘‘Small Business Innovation Re- search Program’’ or ‘‘SBIR’’ means a program under which a portion of a Federal agency’s research or research and development effort is reserved for award to small business concerns through a uniform process having— (A) a first phase for determining, insofar as possible, the scientific and technical merit and feasibility of ideas that appear to have commercial potential, as described in subparagraph (B), submitted pursuant to SBIR program solicitations; (B) a second phase, which shall not include any invitation, pre-screening, or pre-selec- tion process for eligibility for Phase II, that will further develop proposals which meet particular program needs, in which awards shall be made based on the scientific and technical merit and feasibility of the pro- posals, as evidenced by the first phase, con- sidering, among other things, the proposal’s commercial potential, as evidenced by— (i) the small business concern’s record of successfully commercializing SBIR or other research; (ii) the existence of second phase funding commitments from private sector or non- SBIR funding sources; (iii) the existence of third phase, follow- on commitments for the subject of the re- search; and (iv) the presence of other indicators of the commercial potential of the idea; and (C) where appropriate, a third phase for work that derives from, extends, or com- pletes efforts made under prior funding agreements under the SBIR program— (i) in which commercial applications of SBIR-funded research or research and de- velopment are funded by non-Federal sources of capital or, for products or serv- ices intended for use by the Federal Gov- ernment, by follow-on non-SBIR Federal funding awards; or (ii) 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; (5) the term ‘‘research’’ or ‘‘research and de- velopment’’ means any activity which is (A) a systematic, intensive study directed toward greater knowledge or understanding of the subject studied; (B) a systematic study di- rected specifically toward applying new knowledge to meet a recognized need; or (C) a systematic application of knowledge toward the production of useful materials, devices, and systems or methods, including design, de- velopment, and improvement of prototypes and new processes to meet specific require- ments; (6) the term ‘‘Small Business Technology Transfer Program’’ or ‘‘STTR’’ means a pro- gram under which a portion of a Federal agen- cy’s extramural research or research and de- velopment effort is reserved for award to small business concerns for cooperative research and development through a uniform process hav- ing— (A) a first phase, to determine, to the ex- tent possible, the scientific, technical, and commercial merit and feasibility of ideas submitted pursuant to STTR program solici- tations; (B) a second phase, which shall not include any invitation, pre-screening, or pre-selec- tion process for eligibility for Phase II, that will further develop proposals that meet par- ticular program needs, in which awards shall be made based on the scientific, technical, and commercial merit and feasibility of the idea, as evidenced by the first phase and by other relevant information; and (C) where appropriate, a third phase for work that derives from, extends, or com- pletes efforts made under prior funding agreements under the STTR program— (i) in which commercial applications of STTR-funded research or research and de- velopment are funded by non-Federal sources of capital or, for products or serv- ices intended for use by the Federal Gov- ernment, by follow-on non-STTR Federal funding awards; and Page 925 TITLE 15—COMMERCE AND TRADE § 638 1 See References in Text note below. (ii) for which awards from non-STTR Federal funding sources are used for the continuation of research or research and development that has been competitively selected using peer review or scientific re- view criteria; (7) the term ‘‘cooperative research and de- velopment’’ means research or research and development conducted jointly by a small business concern and a research institution in which not less than 40 percent of the work is performed by the small business concern, and not less than 30 percent of the work is per- formed by the research institution; (8) the term ‘‘research institution’’ means a nonprofit institution, as defined in section 3703(5) 1 of this title, and includes federally funded research and development centers, as identified by the National Scientific Founda- tion in accordance with the governmentwide Federal Acquisition Regulation issued in ac- cordance with section 1303(a)(1) of title 41 (or any successor regulation thereto); (9) the term ‘‘commercial applications’’ shall not be construed to exclude testing and eval- uation of products, services, or technologies for use in technical or weapons systems, and further, awards for testing and evaluation of products, services, or technologies for use in technical or weapons systems may be made in either Phase II or Phase III of the Small Busi- ness Innovation Research Program and of the Small Business Technology Transfer Program, as defined in this subsection; (10) the term ‘‘commercialization’’ means— (A) the process of developing products, processes, technologies, or services; and (B) the production and delivery (whether by the originating party or by others) of products, processes, technologies, or services for sale to or use by the Federal Government or commercial markets; (11) the term ‘‘Phase I’’ means— (A) with respect to the SBIR program, the first phase described in paragraph (4)(A); and (B) with respect to the STTR program, the first phase described in paragraph (6)(A); (12) the term ‘‘Phase II’’ means— (A) with respect to the SBIR program, the second phase described in paragraph (4)(B); and (B) with respect to the STTR program, the second phase described in paragraph (6)(B); (13) the term ‘‘Phase III’’ means— (A) with respect to the SBIR program, the third phase described in paragraph (4)(C); and (B) with respect to the STTR program, the third phase described in paragraph (6)(C); (14) the term ‘‘senior procurement execu- tive’’ means an official designated under sec- tion 1702(c) of title 41 as the senior procure- ment executive of a Federal agency partici- pating in a SBIR or STTR program; (15) the term ‘‘covered individual’’ means an individual who— (A) contributes in a substantive, meaning- ful way to the scientific development or exe- cution of a research and development project proposed to be carried out with a research and development award from a Federal re- search 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 en- tity, whether full-time, part-time, or vol- untary (including adjunct, visiting, or hon- orary); (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 recruit- ment program’’ has the meaning given such term in section 19237 of title 42; 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. (f) Federal agency expenditures for SBIR pro- gram (1) Required expenditure amounts Except as provided in paragraph (2)(B), each Federal agency which has an extramural budg- et for research or research and development in excess of $100,000,000 for fiscal year 1992, or any fiscal year thereafter, shall expend with small business concerns— (A) not less than 1.5 percent of such budget in each of fiscal years 1993 and 1994; (B) not less than 2.0 percent of such budget in each of fiscal years 1995 and 1996; (C) not less than 2.5 percent of such budget in each of fiscal years 1997 through 2011; (D) not less than 2.6 percent of such budget in fiscal year 2012; (E) not less than 2.7 percent of such budget in fiscal year 2013; (F) not less than 2.8 percent of such budget in fiscal year 2014; (G) not less than 2.9 percent of such budget in fiscal year 2015; (H) not less than 3.0 percent of such budget in fiscal year 2016; and (I) not less than 3.2 percent of such budget in fiscal year 2017 and each fiscal year there- after, specifically in connection with SBIR programs which meet the requirements of this section, policy directives, and regulations issued under this section. (2) Limitations A Federal agency shall not— (A) use any of its SBIR budget established pursuant to paragraph (1) for the purpose of funding administrative costs of the program, including costs associated with salaries and expenses; or (B) make available for the purpose of meeting the requirements of paragraph (1) Page 926 TITLE 15—COMMERCE AND TRADE § 638 2 So in original. Probably should be ‘‘investor;’’. an amount of its extramural budget for basic research which exceeds the percentages spec- ified in paragraph (1). (3) Exclusion of certain funding agreements Funding agreements with small business concerns for research or research and develop- ment which result from competitive or single source selections other than an SBIR program shall not be considered to meet any portion of the percentage requirements of paragraph (1). (4) Rule of construction Nothing in this subsection may be construed to prohibit a Federal agency from expending with small business concerns an amount of the extramural budget for research or research and development of the agency that exceeds the amount required under paragraph (1). (g) Administration of small business innovation research programs by Federal agencies re- quired to establish such programs Each Federal agency required by subsection (f) to establish a small business innovation re- search program shall, in accordance with this chapter and regulations issued hereunder— (1) unilaterally determine categories of projects to be in its SBIR program; (2) issue small business innovation research solicitations in accordance with a schedule de- termined cooperatively with the Small Busi- ness Administration; (3) unilaterally determine research topics within the agency’s SBIR solicitations, giving special consideration to broad research topics and to topics that further 1 or more critical technologies, as identified by— (A) the National Critical Technologies Panel (or its successor) in the 1991 report re- quired under section 6683 1 of title 42, and in subsequent reports issued under that author- ity; or (B) the Secretary of Defense, in the 1992 re- port issued in accordance with section 2522 1 of title 10, and in subsequent reports issued under that authority; (4)(A) unilaterally receive and evaluate pro- posals resulting from SBIR proposals; and (B) make a final decision on each proposal submitted under the SBIR program— (i) not later than 1 year after the date on which the applicable solicitation closes, if with respect to the National Institutes of Health or the National Science Foundation, or 90 days after the date on which the appli- cable solicitation closes, if with respect to any other participating agency; or (ii) if the Administrator authorizes an ex- tension with respect to a solicitation, not later than 90 days after the date that would otherwise be applicable to the agency under clause (i); (5) subject to subsection (l), unilaterally se- lect awardees for its SBIR funding agreements and inform each awardee under such an agree- ment, to the extent possible, of the expenses of the awardee that will be allowable under the funding agreement; (6) administer its own SBIR funding agree- ments (or delegate such administration to an- other agency); (7) make payments to recipients of SBIR funding agreements on the basis of progress toward or completion of the funding agree- ment requirements and, in all cases, make payment to recipients under such agreements in full, subject to audit, on or before the last day of the 12-month period beginning on the date of completion of such requirements; (8) collect annually, and maintain in a com- mon format in accordance with the simplified reporting requirements under subsection (v), such information from awardees as is nec- essary to assess the SBIR program, including information necessary to maintain the data- base described in subsection (k), including— (A) whether an awardee— (i) has venture capital, hedge fund, or private equity firm investment or is ma- jority-owned by multiple venture capital operating companies, hedge funds, or pri- vate equity firms and, if so— (I) the amount of venture capital, hedge fund, or private equity firm in- vestment that the awardee has received as of the date of the award; and (II) the amount of additional capital that the awardee has invested in the SBIR technology; (ii) has an investor that— (I) is an individual who is not a citizen of the United States or a lawful perma- nent resident of the United States and, if so, the name of any such individual; or (II) is a person that is not an indi- vidual and is not organized under the laws of a State or the United States and, if so, the name of any such person; (iii) is owned by a woman or has a woman as a principal investigator; 2 (iv) is owned by a socially or economi- cally disadvantaged individual or has a so- cially or economically disadvantaged indi- vidual as a principal investigator; 2 (v) is a faculty member or a student of an institution of higher education, as that term is defined in section 1001 of title 20; or (vi) is located in a State described in subsection (u)(3); (B) a justification statement from the agency, if an awardee receives an award in an amount that is more than the award guidelines under this section; and (C) data with respect to the Federal and State Technology Partnership Program (FAST Program); (9) make an annual report on the SBIR pro- gram to the Small Business Administration and the Office of Science and Technology Pol- icy; (10) include, as part of its annual perform- ance plan as required by subsections (a) and (b) of section 1115 of title 31, a section on its SBIR program, which section shall describe whether or not the Federal agency complied with the requirements of subsection (f) for the year covered by that plan and include a jus- Page 927 TITLE 15—COMMERCE AND TRADE § 638 3 So in original. tification for failure to comply (if applica- ble),,3 and shall submit such section to the Committee on Small Business of the Senate, and the Committee on Science and the Com- mittee on Small Business of the House of Rep- resentatives; (11) provide for and fully implement the te- nets of Executive Order No. 13329 (Encouraging Innovation in Manufacturing); (12) provide timely notice to the Adminis- trator of any case or controversy before any Federal judicial or administrative tribunal concerning the SBIR program of the Federal agency; (13) require each small business concern sub- mitting a proposal or application for a feder- ally 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 re- cruitment 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 con- cern, including the People’s Republic of China; (C) any current or pending contractual or financial obligation or other agreement spe- cific to a business arrangement, or joint ven- ture-like arrangement with an enterprise owned by a foreign state or any foreign enti- ty; (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 cap- ital or institutional investment by an entity that has a general partner or individual holding a leadership role in such entity who has a foreign affiliation with any foreign country of concern, including the People’s Republic of China; (F) any technology licensing or intellec- tual property sales to a foreign country of concern, including the People’s Republic of China, during the 5-year period preceding submission of the proposal; and (G) any foreign business entity, offshore entity, or entity outside the United States related to the small business concern; (14) after reviewing the disclosures of a small business concern under paragraph (13), and if determined appropriate by the head of such Federal agency, request such small busi- ness concern to provide true copies of any con- tractual or financial obligation or other agree- ment specific to a business arrangement, or joint-venture like arrangement with an enter- prise owned by a foreign state or any foreign entity in effect during the 5-year period pre- ceding submission of the proposal with respect to which such small business concern made such disclosures; (15) not make an award under the SBIR pro- gram of the Federal agency to a small busi- ness concern if the head of the Federal agency determines that— (A) the small business concern submitting the proposal or application— (i) has an owner or covered individual that is party to a malign foreign talent re- cruitment program; (ii) has a business entity, parent com- pany, or subsidiary located in the People’s Republic of China or another foreign coun- try of concern; or (iii) has an owner or covered individual that has a foreign affiliation with a re- search institution located in the People’s Republic of China or another foreign coun- try of concern; and (B) the relationships and commitments de- scribed in clauses (i) through (iii) of subpara- graph (A)— (i) interfere with the capacity for activi- ties 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 con- ditions of the Federal agency; or (vi) pose a risk to national security; (16) require a small business concern receiv- ing 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 busi- ness concern that the Federal agency deter- mines poses a risk to national security; and (17) require a small business concern receiv- ing an award under its SBIR program to regu- larly report to the Federal agency and the Ad- ministration throughout the duration of the award on— (A) any change to a disclosure required under subparagraphs (A) through (G) of para- graph (13); (B) any material misstatement made under paragraph (16)(A); and (C) any change described in paragraph (16)(B). (h) Establishment of goals for funding agree- ments for research or research and develop- ment to small business concerns by agencies having budgets for research and develop- ment In addition to the requirements of subsection (f), each Federal agency which has a budget for research or research and development in excess of $20,000,000 for any fiscal year beginning with fiscal year 1983 or subsequent fiscal year shall establish goals specifically for funding agree- ments for research or research and development to small business concerns, and no goal estab- Page 928 TITLE 15—COMMERCE AND TRADE § 638 4 So in original. Probably should be ‘‘subparagraph (B)’’. lished under this subsection shall be less than the percentage of the agency’s research or re- search and development budget expended under funding agreements with small business con- cerns in the immediately preceding fiscal year. (i) Annual reporting (1) In general Each Federal agency required by this sec- tion to have an SBIR program or to establish goals shall report annually to the Small Busi- ness Administration the number of awards (in- cluding awards under subsection (y)) pursuant to grants, contracts, or cooperative agree- ments over $10,000 in amount and the dollar value of all such awards, identifying SBIR awards and comparing the number and amount of such awards with awards to other than small business concerns. (2) Calculation of extramural budget (A) Methodology Not later than 4 months after the date of the enactment of each appropriations Act for a Federal agency required by this section to have an SBIR program, the Federal agen- cy shall submit to the Administrator a re- port, which shall include a description of the methodology used for calculating the amount of the extramural budget of that Federal agency. (B) Administrator’s analysis The Administrator shall include an anal- ysis of the methodology received from each Federal agency referred to in subparagraph (A) in the report required by subsection (b)(7). (j) Small Business Administration policy direc- tives for the general conduct of small busi- ness innovation research programs (1) Policy directives The Small Business Administration, after consultation with the Administrator of the Of- fice of Federal Procurement Policy, the Direc- tor of the Office of Science and Technology Policy, and the Intergovernmental Affairs Di- vision of the Office of Management and Budg- et, shall, within one hundred and twenty days of July 22, 1982, issue policy directives for the general conduct of the SBIR programs within the Federal Government, including providing for— (A) simplified, standardized, and timely SBIR solicitations; (B) a simplified, standardized funding proc- ess which provides for (i) the timely receipt and review of proposals; (ii) outside peer re- view for at least Phase II proposals, if appro- priate; (iii) protection of proprietary infor- mation provided in proposals; (iv) selection of awardees; (v) retention of rights in data generated in the performance of the contract by the small business concern; (vi) transfer of title to property provided by the agency to the small business concern if such a transfer would be more cost effective than recovery of the property by the agency; (vii) cost sharing; and (viii) cost principles and payment schedules; (C) exemptions from the regulations under paragraph (2) 4 if national security or intel- ligence functions clearly would be jeopard- ized; (D) minimizing regulatory burden associ- ated with participation in the SBIR program for the small business concern which will stimulate the cost-effective conduct of Fed- eral research and development and the like- lihood of commercialization of the results of research and development conducted under the SBIR program; (E) simplified, standardized, and timely annual report on the SBIR program to the Small Business Administration and the Of- fice of Science and Technology Policy; (F) standardized and orderly withdrawal from program participation by an agency having a SBIR program; at the discretion of the Administration, such directives may re- quire a phased withdrawal over a period of time sufficient in duration to minimize any adverse impact on small business concerns; and (G) the voluntary participation in a SBIR program by a Federal agency not required to establish such a program pursuant to sub- section (f). (2) Modifications Not later than 90 days after October 28, 1992, the Administrator shall modify the policy di- rectives issued pursuant to this subsection to provide for— (A) retention by a small business concern of the rights to data generated by the con- cern in the performance of an SBIR award for a period of not less than 4 years; (B) continued use by a small business con- cern participating in Phase III of the SBIR program, as a directed bailment, of any property transferred by a Federal agency to the small business concern in Phase II of an SBIR program for a period of not less than 2 years, beginning on the initial date of the concern’s participation in Phase III of such program; (C) procedures to ensure, to the extent practicable, that an agency which intends to pursue research, development, or production of a technology developed by a small busi- ness concern under an SBIR program enters into follow-on, non-SBIR funding agree- ments with the small business concern for such research, development, or production; (D) an increase to $150,000 in the amount of funds which an agency may award in Phase I of an SBIR program, and to $1,000,000 in Phase II of an SBIR program, and an adjust- ment of such amounts every year for infla- tion; (E) a process for notifying the partici- pating SBIR agencies and potential SBIR participants of the 1991, 1992, and the current critical technologies, as identified— (i) by the National Critical Technologies Panel (or its successor), in accordance with section 6683 1 of title 42; or (ii) by the Secretary of Defense, in ac- cordance with section 2522 1 of title 10; Page 929 TITLE 15—COMMERCE AND TRADE § 638 (F) enhanced outreach efforts to increase the participation of socially and economi- cally disadvantaged small business concerns, as defined in section 637(a)(4) of this title, and the participation of small businesses that are 51 percent owned and controlled by women in technological innovation and in SBIR programs, including Phase III of such programs, and the collection of data to docu- ment such participation; (G) technical and programmatic guidance to encourage agencies to develop gap-fund- ing programs to address the delay between an award for Phase I of an SBIR program and the application for and extension of an award for Phase II of such program; (H) procedures to ensure that a small busi- ness concern that submits a proposal for a funding agreement for Phase I of an SBIR program and that has received more than 15 Phase II SBIR awards during the preceding 5 fiscal years is able to demonstrate the ex- tent to which it was able to secure Phase III funding to develop concepts resulting from previous Phase II SBIR awards; and (I) procedures to ensure that agencies par- ticipating in the SBIR program retain the information submitted under subparagraph (H) at least until the Government Account- ability Office submits the report required under section 105 of the Small Business Re- search and Development Enhancement Act of 1992. (3) Additional modifications Not later than 120 days after December 21, 2000, the Administrator shall modify the pol- icy directives issued pursuant to this sub- section— (A) to clarify that the rights provided for under paragraph (2)(A) apply to all Federal funding awards under this section, including Phase I, Phase II, and Phase III; (B) to provide for the requirement of a suc- cinct commercialization plan with each ap- plication for a Phase II award that is moving toward commercialization; (C) to require agencies to report to the Ad- ministration, not less frequently than annu- ally, all instances in which an agency pur- sued research, development, or production of a technology developed by a small business concern using an award made under the SBIR program of that agency, and deter- mined that it was not practicable to enter into a follow-on non-SBIR program funding agreement with the small business concern, which report shall include, at a minimum— (i) the reasons why the follow-on funding agreement with the small business concern was not practicable; (ii) the identity of the entity with which the agency contracted to perform the re- search, development, or production; and (iii) a description of the type of funding agreement under which the research, de- velopment, or production was obtained; and (D) to implement subsection (v), including establishing standardized procedures for the provision of information pursuant to sub- section (k)(3). (4) Modifications relating to procurement cen- ter representatives Upon the enactment of this paragraph, the Administrator shall modify the policy direc- tives issued pursuant to this subsection to re- quire procurement center representatives (as described in section 644(l) of this title) to con- sult with the appropriate personnel from the relevant Federal agency, to assist small busi- ness concerns participating in the SBIR pro- gram, particularly in Phase III. (k) Database (1) Public database Not later than 180 days after December 21, 2000, the Administrator shall develop, main- tain, and make available to the public a searchable, up-to-date, electronic database that includes— (A) the name, size, location, and an identi- fying number assigned by the Administrator, of each small business concern that has re- ceived a Phase I or Phase II SBIR or STTR award from a Federal agency; (B) a description of each Phase I or Phase II SBIR or STTR award received by that small business concern, including— (i) an abstract of the project funded by the award, excluding any proprietary in- formation so identified by the small busi- ness concern; (ii) the Federal agency making the award; and (iii) the date and amount of the award; (C) an identification of any business con- cern or subsidiary established for the com- mercial application of a product or service for which an SBIR or STTR award is made; (D) information regarding mentors and Mentoring Networks, as required by section 657e(d) of this title; (E) with respect to assistance under the STTR program only— (i) whether the small business concern or the research institution initiated their collaboration on each assisted STTR project; (ii) whether the small business concern or the research institution originated any technology relating to the assisted STTR project; (iii) the length of time it took to nego- tiate any licensing agreement between the small business concern and the research institution under each assisted STTR project; and (iv) how the proceeds from commer- cialization, marketing, or sale of tech- nology resulting from each assisted STTR project were allocated (by percentage) be- tween the small business concern and the research institution; and (F) for each small business concern that has received a Phase I or Phase II SBIR or STTR award from a Federal agency, whether the small business concern— (i) has venture capital, hedge fund, or private equity firm investment and, if so, whether the small business concern is reg- istered as majority-owned by multiple ven- Page 930 TITLE 15—COMMERCE AND TRADE § 638 ture capital operating companies, hedge funds, or private equity firms as required under subsection (dd)(3); (ii) is owned by a woman or has a woman as a principal investigator; 2 (iii) is owned by a socially or economi- cally disadvantaged individual or has a so- cially or economically disadvantaged indi- vidual as a principal investigator; 2 (iv) is owned by a faculty member or a student of an institution of higher edu- cation, as that term is defined in section 1001 of title 20; or (v) received assistance under the Federal and State Technology Partnership Pro- gram (FAST Program). (2) Government database Not later than 90 days after December 31, 2011, the Administrator, in consultation with Federal agencies required to have an SBIR program pursuant to subsection (f)(1) or an STTR program pursuant to subsection (n)(1), shall develop and maintain a database to be used exclusively for SBIR and STTR program evaluation that— (A) contains for each small business con- cern that applies for, submits a proposal for, or receives an award under Phase I or Phase II of the SBIR program or the STTR pro- gram— (i) the name, size, and location of, and the identifying number assigned by the Administration to, the small business con- cern; (ii) an abstract of the applicable project; (iii) the specific aims of the project; (iv) the number of employees of the small business concern; (v) the names and titles of the key indi- viduals that will carry out the project, the position each key individual holds in the small business concern, and contact infor- mation for each key individual; (vi) the percentage of effort each indi- vidual described in clause (v) will con- tribute to the project; (vii) whether the small business concern is majority-owned by multiple venture capital operating companies, hedge funds, or private equity firms; and (viii) the Federal agency to which the application is made and contact informa- tion for the person or office within the Federal agency that is responsible for re- viewing applications and making awards under the SBIR program or the STTR pro- gram; (B) contains for each Phase II award made by a Federal agency— (i) information collected in accordance with paragraph (3) on revenue from the sale of new products or services resulting from the research conducted under the award; (ii) information collected in accordance with paragraph (3) on additional invest- ment from any source, other than Phase I or Phase II SBIR or STTR awards, to fur- ther the research and development con- ducted under the award; and (iii) any other information received in connection with the award that the Ad- ministrator, in conjunction with the SBIR and STTR program managers of Federal agencies, considers relevant and appro- priate; (C) includes any narrative information that a small business concern receiving a Phase II award voluntarily submits to fur- ther describe the outputs and outcomes of its awards; (D) includes, for each awardee— (i) the name, size, and location of, and any identifying number assigned by the Administrator to, the awardee; (ii) whether the awardee has venture capital, hedge fund, or private equity firm investment and, if so— (I) the amount of venture capital, hedge fund, or private equity firm in- vestment as of the date of the award; (II) the percentage of ownership of the awardee held by a venture capital oper- ating company, hedge fund, or private equity firm, including whether the awardee is majority-owned by multiple venture capital operating companies, hedge funds, or private equity firms; and (III) the amount of additional capital that the awardee has invested in the SBIR or STTR technology, which infor- mation shall be collected on an annual basis; (iii) the names and locations of any af- filiates of the awardee; (iv) the number of employees of the awardee; (v) the number of employees of the affili- ates of the awardee; and (vi) the names of, and the percentage of ownership of the awardee held by— (I) any individual who is not a citizen of the United States or a lawful perma- nent resident of the United States; or (II) any person that is not an indi- vidual and is not organized under the laws of a State or the United States; (E) includes any other data collected by or available to any Federal agency that such agency considers may be useful for SBIR or STTR program evaluation; (F) is available for use solely for program evaluation purposes by the Federal Govern- ment or, in accordance with policy direc- tives issued by the Administration, by other authorized persons who are subject to a use and nondisclosure agreement with the Fed- eral Government covering the use of the database; and (G) includes a timely and accurate list of any individual or small business concern that has participated in the SBIR program or STTR program that has been— (i) convicted of a fraud-related crime in- volving funding received under the SBIR program or STTR program; or (ii) found civilly liable for a fraud-re- lated violation involving funding received under the SBIR program or STTR pro- gram. Page 931 TITLE 15—COMMERCE AND TRADE § 638 (3) Updating information for database (A) In general A small business concern applying for a Phase II award under this section shall be required to update information in the data- base established under this subsection for any prior Phase II award received by that small business concern. In complying with this paragraph, a small business concern may apportion sales or additional invest- ment information relating to more than one Phase II award among those awards, if it notes the apportionment for each award. (B) Annual updates upon termination A small business concern receiving a Phase II award under this section shall— (i) update information in the database concerning that award at the termination of the award period; and (ii) be requested to voluntarily update such information annually thereafter for a period of 5 years. (C) Government database Not later than 60 days after the date estab- lished by a Federal agency for submitting applications or proposals for a Phase I or Phase II award under the SBIR program or STTR program, the head of the Federal agency shall submit to the Administrator the data required under paragraph (2) with respect to each small business concern that applies or submits a proposal for the Phase I or Phase II award. (4) Protection of information Information provided under paragraph (2) shall be considered privileged and confidential and not subject to disclosure pursuant to sec- tion 552 of title 5. (5) Rule of construction Inclusion of information in the database under this subsection shall not be considered to be publication for purposes of subsection (a) or (b) of section 102 of title 35. (l) Reporting of awards made from single pro- posal, to multiple award winners, or to crit- ical technology topics (1) Single proposal If a Federal agency required to establish an SBIR program under subsection (f) makes an award with respect to an SBIR solicitation topic or subtopic for which the agency re- ceived only 1 proposal, the agency shall pro- vide written justification for making the award in its next quarterly report to the Ad- ministration and in the agency’s next annual report required under subsection (g)(8). (2) Multiple awards An agency referred to in paragraph (1) shall include in its next annual report required under subsection (g)(8) an accounting of the awards the agency has made for Phase I of an SBIR program during the reporting period to entities that have received more than 15 awards for Phase II of an SBIR program during the preceding 5 fiscal years. (3) Critical technology awards An agency referred to in paragraph (1) shall include in its next annual report required under subsection (g)(8), an accounting of the number of awards it has made to critical tech- nology topics, as defined in subsection (g)(3), including an identification of the specific crit- ical technologies topics, and the percentage by number and dollar amount of the agency’s total SBIR awards to such critical technology topics. (m) Termination The authorization to carry out the Small Business Innovation Research Program estab- lished under this section shall terminate on Sep- tember 30, 2025. (n) Required expenditures for STTR by Federal agencies (1) Required expenditure amounts (A) In general With respect to each fiscal year through fiscal year 2025, each Federal agency that has an extramural budget for research, or re- search and development, in excess of $1,000,000,000 for that fiscal year, shall ex- pend with small business concerns not less than the percentage of that extramural budget specified in subparagraph (B), specifi- cally in connection with STTR programs that meet the requirements of this section and any policy directives and regulations issued under this section. (B) Expenditure amounts The percentage of the extramural budget required to be expended by an agency in ac- cordance with subparagraph (A) shall be— (i) 0.15 percent for each fiscal year through fiscal year 2003; (ii) 0.3 percent for each of fiscal years 2004 through 2011; (iii) 0.35 percent for each of fiscal years 2012 and 2013; (iv) 0.40 percent for each of fiscal years 2014 and 2015; and (v) 0.45 percent for fiscal year 2016 and each fiscal year thereafter. (2) Limitations A Federal agency shall not— (A) use any of its STTR budget established pursuant to paragraph (1) for the purpose of funding administrative costs of the program, including costs associated with salaries and expenses, or, in the case of a small business concern or a research institution, costs asso- ciated with salaries, expenses, and adminis- trative overhead (other than those direct or indirect costs allowable under guidelines of the Office of Management and Budget and the governmentwide Federal Acquisition Regulation issued in accordance with sec- tion 1303(a)(1) of title 41); or (B) make available for the purpose of meeting the requirements of paragraph (1) an amount of its extramural budget for basic research which exceeds the percentage speci- fied in paragraph (1). (3) Exclusion of certain funding agreements Funding agreements with small business concerns for research or research and develop- ment which result from competitive or single Page 932 TITLE 15—COMMERCE AND TRADE § 638 source selections other than an STTR program shall not be considered to meet any portion of the percentage requirements of paragraph (1). (o) Federal agency STTR authority Each Federal agency required to establish an STTR program in accordance with subsection (n) and regulations issued under this chapter, shall— (1) unilaterally determine categories of projects to be included in its STTR program; (2) issue STTR solicitations in accordance with a schedule determined cooperatively with the Administration; (3) unilaterally determine research topics within the agency’s STTR solicitations, giving special consideration to broad research topics and to topics that further 1 or more critical technologies, as identified— (A) by the National Critical Technologies Panel (or its successor) in reports required under section 6683 1 of title 42; or (B) by the Secretary of Defense, in accord- ance with section 2522 1 of title 10; (4)(A) unilaterally receive and evaluate pro- posals resulting from STTR solicitations; and (B) make a final decision on each proposal submitted under the STTR program— (i) not later than 1 year after the date on which the applicable solicitation closes, if with respect to the National Institutes of Health or the National Science Foundation, or 90 days after the date on which the appli- cable solicitation closes, if with respect to any other participating agency; or (ii) if the Administrator authorizes an ex- tension for a solicitation, not later than 90 days after the date that would be applicable to the agency under clause (i); (5) unilaterally select awardees for its STTR funding agreements and inform each awardee under such an agreement, to the extent pos- sible, of the expenses of the awardee that will be allowable under the funding agreement; (6) administer its own STTR funding agree- ments (or delegate such administration to an- other agency); (7) make payments to recipients of STTR funding agreements on the basis of progress toward or completion of the funding agree- ment requirements and, in all cases, make payment to recipients under such agreements in full, subject to audit, on or before the last day of the 12-month period beginning on the date of the completion of such requirements; (8) include, as part of its annual performance plan as required by subsections (a) and (b) of section 1115 of title 31, a section on its STTR program, which section shall describe whether or not the Federal agency complied with the requirements of subsection (n) for the year covered by that plan and include a justifica- tion for failure to comply (if applicable),,3 and shall submit such section to the Committee on Small Business of the Senate, and the Com- mittee on Science and the Committee on Small Business of the House of Representa- tives; (9) collect annually, and maintain in a com- mon format in accordance with the simplified reporting requirements under subsection (v), such information from applicants and award- ees as is necessary to assess the STTR pro- gram outputs and outcomes, including infor- mation necessary to maintain the database de- scribed in subsection (k), including— (A) whether an applicant or awardee— (i) has venture capital, hedge fund, or private equity firm investment or is ma- jority-owned by multiple venture capital operating companies, hedge funds, or pri- vate equity firms and, if so— (I) the amount of venture capital, hedge fund, or private equity firm in- vestment that the applicant or awardee has received as of the date of the appli- cation or award, as applicable; and (II) the amount of additional capital that the applicant or awardee has in- vested in the STTR technology; (ii) has an investor that— (I) is an individual who is not a citizen of the United States or a lawful perma- nent resident of the United States and, if so, the name of any such individual; or (II) is a person that is not an indi- vidual and is not organized under the laws of a State or the United States and, if so, the name of any such person; (iii) is owned by a woman or has a woman as a principal investigator; 2 (iv) is owned by a socially or economi- cally disadvantaged individual or has a so- cially or economically disadvantaged indi- vidual as a principal investigator; 2 (v) is a faculty member or a student of an institution of higher education, as that term is defined in section 1001 of title 20; or (vi) is located in a State in which the total value of contracts awarded to small business concerns under all STTR pro- grams is less than the total value of con- tracts awarded to small business concerns in a majority of other States, as deter- mined by the Administrator in biennial fiscal years, beginning with fiscal year 2008, based on the most recent statistics compiled by the Administrator; (B) if an awardee receives an award in an amount that is more than the award guide- lines under this section, a statement from the agency that justifies the award amount; and (C) data with respect to the Federal and State Technology Partnership Program (FAST Program); (10) submit an annual report on the STTR program to the Administration and the Office of Science and Technology Policy; (11) adopt the agreement developed by the Administrator under subsection (w) as the agency’s model agreement for allocating be- tween small business concerns and research institutions intellectual property rights and rights, if any, to carry out follow-on research, development, or commercialization; (12) develop, in consultation with the Office of Federal Procurement Policy and the Office Page 933 TITLE 15—COMMERCE AND TRADE § 638 of Government Ethics, procedures to ensure that federally funded research and develop- ment centers (as defined in subsection (e)(8)) that participate in STTR agreements— (A) are free from organizational conflicts of interests relative to the STTR program; (B) do not use privileged information gained through work performed for an STTR agency or private access to STTR agency personnel in the development of an STTR proposal; and (C) use outside peer review, as appropriate; (13) not later than July 31, 1993, develop pro- cedures for assessing the commercial merit and feasibility of STTR proposals, as evi- denced by— (A) the small business concern’s record of successfully commercializing STTR or other research; (B) the existence of Phase II funding com- mitments from private sector or non-STTR funding sources; (C) the existence of Phase III follow-on commitments for the subject of the re- search; and (D) the presence of other indicators of the commercial potential of the idea; (14) implement an outreach program to re- search institutions and small business con- cerns for the purpose of enhancing its STTR program, in conjunction with any such out- reach done for purposes of the SBIR program; (15) provide for and fully implement the te- nets of Executive Order No. 13329 (Encouraging Innovation in Manufacturing); (16) provide timely notice to the Adminis- trator of any case or controversy before any Federal judicial or administrative tribunal concerning the STTR program of the Federal agency; (17) require each small business concern sub- mitting a proposal or application for a feder- ally 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 re- cruitment 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 con- cern, including the People’s Republic of China; (C) any current or pending contractual or financial obligation or other agreement spe- cific to a business arrangement, or joint ven- ture-like arrangement with an enterprise owned by a foreign state or any foreign enti- ty; (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 cap- ital or institutional investment by an entity that has a general partner or individual holding a leadership role in such entity who has a foreign affiliation with any foreign country of concern, including the People’s Republic of China; (F) any technology licensing or intellec- tual property sales to a foreign country of concern, including the People’s Republic of China, during the 5-year period preceding submission of the proposal; and (G) any foreign business entity, offshore entity, or entity outside the United States related to the small business concern; (18) after reviewing the disclosures of a small business concern under paragraph (17), and if determined appropriate by the head of such Federal agency, request such small busi- ness concern to provide true copies of any con- tractual or financial obligation or other agree- ment specific to a business arrangement, or joint-venture like arrangement with an enter- prise owned by a foreign state or any foreign entity in effect during the 5-year period pre- ceding submission of the proposal with respect to which such small business concern made such disclosures; (19) not make an award under the STTR pro- gram of the Federal agency to a small busi- ness concern if the head of the Federal agency determines that— (A) the small business concern submitting the proposal or application— (i) has an owner or covered individual that is party to a malign foreign talent re- cruitment program; (ii) has a business entity, parent com- pany, or subsidiary located in the People’s Republic of China or another foreign coun- try of concern; or (iii) has an owner or covered individual that has a foreign affiliation with a re- search institution located in the People’s Republic of China or another foreign coun- try of concern; and (B) the relationships and commitments de- scribed in clauses (i) through (iii) of subpara- graph (A)— (i) interfere with the capacity for activi- ties 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 con- ditions of the Federal agency; or (vi) pose a risk to national security; (20) require a small business concern receiv- ing 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 busi- ness concern that the Federal agency deter- mines poses a risk to national security; and (21) require a small business concern receiv- ing an award under its STTR program to regu- Page 934 TITLE 15—COMMERCE AND TRADE § 638 larly report to the Federal agency and the Ad- ministration throughout the duration of the award on— (A) any change to a disclosure required under subparagraphs (A) through (G) of para- graph (17); (B) any material misstatement made under paragraph (20)(A); and (C) any change described in paragraph (20)(B). (p) STTR policy directive (1) Issuance The Administrator shall issue a policy direc- tive for the general conduct of the STTR pro- grams within the Federal Government. Such policy directive shall be issued after consulta- tion with— (A) the heads of each of the Federal agen- cies required by subsection (n) to establish an STTR program; (B) the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office; and (C) the Director of the Office of Federal Procurement Policy. (2) Contents The policy directive required by paragraph (1) shall provide for— (A) simplified, standardized, and timely STTR solicitations; (B) a simplified, standardized funding proc- ess that provides for— (i) the timely receipt and review of pro- posals; (ii) outside peer review, if appropriate; (iii) protection of proprietary informa- tion provided in proposals; (iv) selection of awardees; (v) retention by a small business concern of the rights to data generated by the con- cern in the performance of an STTR award for a period of not less than 4 years; (vi) continued use by a small business concern, as a directed bailment, of any property transferred by a Federal agency to the small business concern in Phase II of the STTR program for a period of not less than 2 years, beginning on the initial date of the concern’s participation in Phase III of such program; (vii) cost sharing; (viii) cost principles and payment sched- ules; and (ix) 1-year awards for Phase I of an STTR program, generally not to exceed $150,000, and 2-year awards for Phase II of an STTR program, generally not to exceed $1,000,000, (each of which the Administrator shall ad- just for inflation annually) greater or less- er amounts to be awarded at the discretion of the awarding agency, and shorter or longer periods of time to be approved at the discretion of the awarding agency where appropriate for a particular project; (C) minimizing regulatory burdens associ- ated with participation in STTR programs; (D) guidelines for a model agreement, to be used by all agencies, for allocating between small business concerns and research insti- tutions intellectual property rights and rights, if any, to carry out follow-on re- search, development, or commercialization; (E) procedures to ensure that— (i) a recipient of an STTR award is a small business concern, as defined in sec- tion 632 of this title and the regulations promulgated thereunder; and (ii) such small business concern exercises management and control of the perform- ance of the STTR funding agreement pur- suant to a business plan providing for the commercialization of the technology that is the subject matter of the award; (F) procedures to ensure, to the extent practicable, that an agency which intends to pursue research, development, or production of a technology developed by a small busi- ness concern under an STTR program enters into follow-on, non-STTR funding agree- ments with the small business concern for such research, development, or production; and (G) procedures to ensure that procurement center representatives (as described in sec- tion 644(l) of this title)— (i) consult with the appropriate per- sonnel from the relevant Federal agency, to assist small business concerns partici- pating in the STTR program, particularly in Phase III; (ii) provide technical assistance to such concerns to submit a bid for an award of a Federal contract; and (iii) consult with the appropriate per- sonnel from the relevant Federal agency in providing the assistance described in clause (i). (3) Modifications Not later than 120 days after October 15, 2001, the Administrator shall modify the policy di- rective issued pursuant to this subsection to clarify that the rights provided for under para- graph (2)(B)(v) apply to all Federal funding awards under this section, including Phase I, Phase II, and Phase III. (q) Discretionary technical and business assist- ance (1) In general Each Federal agency required by this sec- tion to conduct an SBIR program or STTR program may enter into an agreement with 1 or more vendors selected under paragraph (2)(A) to provide small business concerns en- gaged in SBIR or STTR projects with tech- nical and business assistance services, such as access to a network of scientists and engineers engaged in a wide range of technologies, as- sistance with product sales, intellectual prop- erty protections, market research, market validation, and development of regulatory plans and manufacturing plans, or access to technical and business literature available through on-line data bases, for the purpose of assisting such concerns in— (A) making better technical decisions con- cerning such projects; (B) solving technical problems which arise during the conduct of such projects; Page 935 TITLE 15—COMMERCE AND TRADE § 638 (C) minimizing technical risks associated with such projects; and (D) developing and commercializing new commercial products and processes resulting from such projects, including intellectual property protections. (2) Vendor selection (A) In general Each agency may select 1 or more vendors from which small business concerns may ob- tain assistance in meeting the goals listed in paragraph (1) for a term not to exceed 5 years. Such selection shall be competitive and shall utilize merit-based criteria. (B) Selection by small business concern A small business concern may, by contract or otherwise, select 1 or more vendors to as- sist the small business concern in meeting the goals listed in paragraph (1). (3) Additional technical assistance (A) Phase I A Federal agency described in paragraph (1) may— (i) provide to the recipient of a Phase I SBIR or STTR award, through a vendor se- lected under paragraph (2)(A), the services described in paragraph (1), in an amount equal to not more than $6,500 per year; or (ii) authorize the recipient of a Phase I SBIR or STTR award to purchase the serv- ices described in paragraph (1), in an amount equal to not more than $6,500 per year, which shall be in addition to the amount of the recipient’s award. (B) Phase II A Federal agency described in paragraph (1) may— (i) provide to the recipient of a Phase II SBIR or STTR award, through a vendor se- lected under paragraph (2)(A), the services described in paragraph (1), in an amount equal to not more than $50,000 per project; or (ii) authorize the recipient of a Phase II SBIR or STTR award to purchase the serv- ices described in paragraph (1), in an amount equal to not more than $50,000 per project, which may, as determined appro- priate by the head of the Federal agency, be included as part of the recipient’s award or be in addition to the amount of the re- cipient’s award. (C) Flexibility In carrying out subparagraphs (A) and (B), each Federal agency shall provide the allow- able amounts to a recipient that meets the eligibility requirements under the applicable subparagraph, if the recipient requests to seek technical or business assistance from an individual or entity other than a vendor selected under paragraph (2)(A) by the Fed- eral agency. Business-related services aimed at improving the commercialization success of a small business concern may be obtained from an entity, such as a public or private organization or an agency of or other entity established or funded by a State that facili- tates or accelerates the commercialization of technologies or assists in the creation and growth of private enterprises that are com- mercializing technology. (D) Limitation A Federal agency may not— (i) use the amounts authorized under subparagraph (A) or (B) unless 1 or more vendors selected under paragraph (2)(A) provides the technical or business assist- ance to the recipient; or (ii) enter a contract with a vendor under paragraph (2)(A) under which the amount provided for technical or business assist- ance is based on total number of Phase I or Phase II awards. (E) Multiple award recipients The Administrator shall establish a limit on the amount of technical and business as- sistance services that may be received or purchased under subparagraph (B) by a small business concern that has received multiple Phase II SBIR or STTR awards for a fiscal year. (4) Annual reporting (A) In general A small business concern that receives technical or business assistance from a ven- dor under this subsection during a fiscal year shall submit to the Federal agency con- tracting with the vendor a description of the technical or business assistance provided and the benefits and results of the technical or business assistance provided. (B) Use of existing reporting mechanism The information required under subpara- graph (A) shall be collected by a Federal agency as part of a report required to be sub- mitted by small business concerns engaged in SBIR or STTR projects of the Federal agency for which the requirement was in ef- fect on August 13, 2018. (r) Phase III agreements, competitive proce- dures, and justification for awards (1) In general In the case of a small business concern that is awarded a funding agreement for Phase II of an SBIR or STTR program, a Federal agency may enter into a Phase III agreement with that business concern for additional work to be performed during or after the Phase II pe- riod. The Phase II funding agreement with the small business concern may, at the discretion of the agency awarding the agreement, set out the procedures applicable to Phase III agree- ments with that agency or any other agency. (2) Definition In this subsection, the term ‘‘Phase III agreement’’ means a follow-on, non-SBIR or non-STTR funded contract as described in paragraph (4)(C) or paragraph (6)(C) of sub- section (e). (3) Intellectual property rights Each funding agreement under an SBIR or STTR program shall include provisions setting forth the respective rights of the United Page 936 TITLE 15—COMMERCE AND TRADE § 638 States and the small business concern with re- spect to intellectual property rights and with respect to any right to carry out follow-on re- search. (4) Competitive procedures and justification for awards To the greatest extent practicable, Federal agencies and Federal prime contractors shall— (A) consider an award under the SBIR pro- gram or the STTR program to satisfy the re- quirements under sections 3201 through 3205 of title 10 and any other applicable competi- tion requirements; and (B) issue, without further justification, Phase III awards relating to technology, in- cluding sole source awards, to the SBIR and STTR award recipients that developed the technology. (s) Competitive selection procedures for SBIR and STTR programs All funds awarded, appropriated, or otherwise made available in accordance with subsection (f) or (n) must be awarded pursuant to competitive and merit-based selection procedures. (t) Inclusion in strategic plans Program information relating to the SBIR and STTR programs shall be included by each Fed- eral agency in any update or revision required of the Federal agency under section 306(b) of title 5. (u) Coordination of technology development pro- grams (1) Definition of technology development pro- gram In this subsection, the term ‘‘technology de- velopment program’’ means— (A) the Experimental Program to Stimu- late Competitive Research of the National Science Foundation, as established under section 1862g of title 42; (B) the Defense Experimental Program to Stimulate Competitive Research of the De- partment of Defense; (C) the Experimental Program to Stimu- late Competitive Research of the Depart- ment of Energy; (D) the Experimental Program to Stimu- late Competitive Research of the Environ- mental Protection Agency; (E) the Experimental Program to Stimu- late Competitive Research of the National Aeronautics and Space Administration; (F) the Institutional Development Award Program of the National Institutes of Health; and (G) the National Research Initiative Com- petitive Grants Program of the Department of Agriculture. (2) Coordination requirements Each Federal agency that is subject to sub- section (f) and that has established a tech- nology development program may, in each fis- cal year, review for funding under that tech- nology development program— (A) any proposal to provide outreach and assistance to one or more small business concerns interested in participating in the SBIR program, including any proposal to make a grant or loan to a company to pay a portion or all of the cost of developing an SBIR proposal, from an entity, organization, or individual located in— (i) a State that is eligible to participate in that program; or (ii) a State described in paragraph (3); or (B) any proposal for Phase I of the SBIR program, if the proposal, though meri- torious, is not funded through the SBIR pro- gram for that fiscal year due to funding re- straints, from a small business concern lo- cated in— (i) a State that is eligible to participate in a technology development program; or (ii) a State described in paragraph (3). (3) Additionally eligible State A State referred to in subparagraph (A)(ii) or (B)(ii) of paragraph (2) is a State in which the total value of contracts awarded to small business concerns under all SBIR programs is less than the total value of contracts awarded to small business concerns in a majority of other States, as determined by the Adminis- trator in biennial fiscal years, beginning with fiscal year 2000, based on the most recent sta- tistics compiled by the Administrator. (v) Reducing paperwork and compliance burden (1) Standardization of reporting requirements The Administrator shall work with the Fed- eral agencies required by this section to have an SBIR or STTR program to standardize re- porting requirements for the collection of data from SBIR or STTR applicants and awardees, including data for inclusion in the database under subsection (k), taking into consider- ation the unique needs of each agency, and to the extent possible, permitting the updating of previously reported information by electronic means. Such requirements shall be designed to minimize the burden on small businesses. (2) Simplification of application and award process Not later than 1 year after December 31, 2011, and after a period of public comment, the Administrator shall issue regulations or guidelines, taking into consideration the unique needs of each Federal agency, to ensure that each Federal agency required to carry out an SBIR program or STTR program sim- plifies and standardizes the program proposal, selection, contracting, compliance, and audit procedures for the SBIR program or STTR pro- gram of the Federal agency (including proce- dures relating to overhead rates for applicants and documentation requirements) to reduce the paperwork and regulatory compliance bur- den on small business concerns applying to and participating in the SBIR program or STTR program. (w) STTR model agreement for intellectual prop- erty rights (1) In general The Administrator shall promulgate regula- tions establishing a single model agreement for use in the STTR program that allocates Page 937 TITLE 15—COMMERCE AND TRADE § 638 between small business concerns and research institutions intellectual property rights and rights, if any, to carry out follow-on research, development, or commercialization. (2) Opportunity for comment In promulgating regulations under para- graph (1), the Administrator shall provide to affected agencies, small business concerns, re- search institutions, and other interested par- ties the opportunity to submit written com- ments. (x) Research and development focus (1) Revision and update of criteria and proce- dures of identification In carrying out subsection (g), the Secretary of Defense shall, not less often than once every 4 years, revise and update the criteria and procedures utilized to identify areas of the research and development efforts of the De- partment of Defense which are suitable for the provision of funds under the Small Business Innovation Research Program and the Small Business Technology Transfer Program. (2) Utilization of plans The criteria and procedures described in paragraph (1) shall be developed through the use of the most current versions of the fol- lowing plans: (A) The Joint Warfighting Science and Technology Plan required under section 270 of the National Defense Authorization Act for Fiscal Year 1997 (Public Law 104–201; 10 U.S.C. 2501 note).1 (B) The Defense Technology Area Plan of the Department of Defense. (C) The Basic Research Plan of the Depart- ment of Defense. (3) Input in identification of areas of effort The criteria and procedures described in paragraph (1) shall include input in the identi- fication of areas of research and development efforts described in that paragraph from De- partment of Defense program managers (PMs) and program executive officers (PEOs). (y) Commercialization Readiness Program (1) In general The Secretary of Defense and the Secretary of each military department is authorized to create and administer a ‘‘Commercialization Readiness Program’’ to accelerate the transi- tion of technologies, products, and services de- veloped under the Small Business Innovation Research Program or Small Business Tech- nology Transfer Program to Phase III, includ- ing the acquisition process. The authority to create and administer a Commercialization Readiness Program under this subsection may not be construed to eliminate or replace any other SBIR program or STTR program that enhances the insertion or transition of SBIR or STTR technologies, including any such pro- gram in effect on January 6, 2006. (2) Identification of research programs for ac- celerated transition to acquisition process In carrying out the Commercialization Readiness Program, the Secretary of Defense and the Secretary of each military department shall identify research programs of the Small Business Innovation Research Program or Small Business Technology Transfer Program that have the potential for rapid transitioning to Phase III and into the acquisition process. (3) Limitation No research program may be identified under paragraph (2) unless the Secretary of the military department concerned certifies in writing that the successful transition of the program to Phase III and into the acquisition process is expected to meet high priority mili- tary requirements of such military depart- ment. (4) Funding (A) In general The Secretary of Defense and each Sec- retary of a military department may use not more than an amount equal to 1 percent of the funds available to the Department of De- fense or the military department pursuant to the Small Business Innovation Research Program for payment of expenses incurred to administer the Commercialization Readi- ness Program under this subsection. (B) Limitations The funds described in subparagraph (A)— (i) shall not be subject to the limitations on the use of funds in subsection (f)(2); and (ii) shall not be used to make Phase III awards. (5) Insertion incentives For any contract with a value of not less than $100,000,000, the Secretary of Defense is authorized to— (A) establish goals for the transition of Phase III technologies in subcontracting plans; and (B) require a prime contractor on such a contract to report the number and dollar amount of contracts entered into by that prime contractor for Phase III SBIR or STTR projects. (6) Goal for SBIR and STTR technology inser- tion The Secretary of Defense shall— (A) set a goal to increase the number of Phase II SBIR contracts and the number of Phase II STTR contracts awarded by the Secretary that lead to technology transition into programs of record or fielded systems; (B) use incentives in effect on December 31, 2011, or create new incentives, to encour- age agency program managers and prime contractors to meet the goal under subpara- graph (A); and (C) submit to the Administrator for inclu- sion in the annual report under subsection (b)(7)— (i) the number and percentage of Phase II SBIR and STTR contracts awarded by the Secretary that led to technology tran- sition into programs of record or fielded systems; (ii) information on the status of each project that received funding through the Page 938 TITLE 15—COMMERCE AND TRADE § 638 Commercialization Readiness Program and efforts to transition those projects into programs of record or fielded systems; and (iii) a description of each incentive that has been used by the Secretary under sub- paragraph (B) and the effectiveness of that incentive with respect to meeting the goal under subparagraph (A). (z) Encouraging innovation in energy efficiency (1) Federal agency energy-related priority In carrying out its duties under this section relating to SBIR and STTR solicitations by Federal departments and agencies, the Admin- istrator shall— (A) ensure that such departments and agencies give high priority to small business concerns that participate in or conduct en- ergy efficiency or renewable energy system research and development projects; and (B) include in the annual report to Con- gress under subsection (b)(7) a determination of whether the priority described in subpara- graph (A) is being carried out. (2) Consultation required The Administrator shall consult with the heads of other Federal departments and agen- cies in determining whether priority has been given to small business concerns that partici- pate in or conduct energy efficiency or renew- able energy system research and development projects, as required by this subsection. (3) Guidelines The Administrator shall, as soon as is prac- ticable after December 19, 2007, issue guide- lines and directives to assist Federal agencies in meeting the requirements of this sub- section. (4) Definitions In this subsection— (A) the term ‘‘biomass’’— (i) means any organic material that is available on a renewable or recurring basis, including— (I) agricultural crops; (II) trees grown for energy production; (III) wood waste and wood residues; (IV) plants (including aquatic plants and grasses); (V) residues; (VI) fibers; (VII) animal wastes and other waste materials; and (VIII) fats, oils, and greases (including recycled fats, oils, and greases); and (ii) does not include— (I) paper that is commonly recycled; or (II) unsegregated solid waste; (B) the term ‘‘energy efficiency project’’ means the installation or upgrading of equipment that results in a significant re- duction in energy usage; and (C) the term ‘‘renewable energy system’’ means a system of energy derived from— (i) a wind, solar, biomass (including bio- diesel), or geothermal source; or (ii) hydrogen derived from biomass or water using an energy source described in clause (i). (aa) Limitation on size of awards (1) Limitation No Federal agency may issue an award under the SBIR program or the STTR program if the size of the award exceeds the award guidelines established under this section by more than 50 percent. (2) Maintenance of information Participating agencies shall maintain infor- mation on awards exceeding the guidelines es- tablished under this section, including— (A) the amount of each award; (B) a justification for exceeding the guide- lines for each award; (C) the identity and location of each award recipient; and (D) whether an award recipient has re- ceived any venture capital, hedge fund, or private equity firm investment and, if so, whether the recipient is majority-owned by multiple venture capital operating compa- nies, hedge funds, or private equity firms. (3) Reports The Administrator shall include the infor- mation described in paragraph (2) in the an- nual report of the Administrator to Congress. (4) Waiver for specific topic Upon the receipt of an application from a Federal agency, the Administrator may grant a waiver from the requirement under para- graph (1) with respect to a specific topic (but not for the agency as a whole) for a fiscal year if the Administrator determines, based on the information contained in the application from the agency, that— (A) the requirement under paragraph (1) will interfere with the ability of the agency to fulfill its research mission through the SBIR program or the STTR program; and (B) the agency will minimize, to the max- imum extent possible, the number of awards that do not satisfy the requirement under paragraph (1) to preserve the nature and in- tent of the SBIR program and the STTR pro- gram. (5) Rule of construction Nothing in this subsection shall be con- strued to prevent a Federal agency from supplementing an award under the SBIR pro- gram or the STTR program using funds of the Federal agency that are not part of the SBIR program or the STTR program of the Federal agency. (bb) Subsequent Phase II awards (1) Agency flexibility A small business concern that received a Phase I award from a Federal agency under this section shall be eligible to receive a sub- sequent Phase II award from another Federal agency, if the head of each relevant Federal agency or the relevant component of the Fed- eral agency makes a written determination that the topics of the relevant awards are the same and both agencies report the awards to the Administrator for inclusion in the public database under subsection (k). (2) SBIR and STTR program flexibility A small business concern that received a Phase I award under this section under the Page 939 TITLE 15—COMMERCE AND TRADE § 638 SBIR program or the STTR program may re- ceive a subsequent Phase II award in either the SBIR program or the STTR program and the participating agency or agencies shall re- port the awards to the Administrator for in- clusion in the public database under sub- section (k). (3) Preventing duplicative awards The head of a Federal agency shall verify that any activity to be performed with respect to a project with a Phase I or Phase II SBIR or STTR award has not been funded under the SBIR program or STTR program of another Federal agency. (cc) Phase flexibility During fiscal years 2012 through 2025, the Na- tional Institutes of Health, the Department of Defense, and the Department of Education may each provide to a small business concern an award under Phase II of the SBIR program with respect to a project, without regard to whether the small business concern was provided an award under Phase I of an SBIR program with respect to such project, if the head of the appli- cable agency determines that the small business concern has completed the determinations de- scribed in subsection (e)(4)(A) with respect to such project despite not having been provided a Phase I award. (dd) Participation of small business concerns majority-owned by venture capital operating companies, hedge funds, or private equity firms in the SBIR program (1) Authority Upon providing a written determination de- scribed in paragraph (2) to the Administrator, the Committee on Small Business and Entre- preneurship of the Senate, and the Committee on Small Business and the Committee on Science, Space, and Technology of the House of Representatives, not later than 30 days be- fore the date on which any such award is made— (A) the Director of the National Institutes of Health, the Secretary of Energy, and the Director of the National Science Foundation may award not more than 25 percent of the funds allocated for the SBIR program of the applicable Federal agency to small business concerns that are owned in majority part by multiple venture capital operating compa- nies, hedge funds, or private equity firms through competitive, merit-based procedures that are open to all eligible small business concerns; and (B) the head of a Federal agency other than a Federal agency described in subpara- graph (A) that participates in the SBIR pro- gram may award not more than 15 percent of the funds allocated for the SBIR program of the Federal agency to small business con- cerns that are owned in majority part by multiple venture capital operating compa- nies, hedge funds, or private equity firms through competitive, merit-based procedures that are open to all eligible small business concerns. (2) Determination A written determination described in this paragraph is a written determination by the head of a Federal agency that explains how the use of the authority under paragraph (1) will— (A) induce additional venture capital, hedge fund, or private equity firm funding of small business innovations; (B) substantially contribute to the mission of the Federal agency; (C) demonstrate a need for public research; and (D) otherwise fulfill the capital needs of small business concerns for additional fi- nancing for SBIR projects. (3) Registration A small business concern that is majority- owned by multiple venture capital operating companies, hedge funds, or private equity firms and qualified for participation in the program authorized under paragraph (1) shall— (A) register with the Administrator on the date that the small business concern sub- mits an application for an award under the SBIR program; and (B) indicate in any SBIR proposal that the small business concern is registered under subparagraph (A) as majority-owned by mul- tiple venture capital operating companies, hedge funds, or private equity firms. (4) Compliance (A) In general The head of a Federal agency that makes an award under this subsection during a fis- cal year shall collect and submit to the Ad- ministrator data relating to the number and dollar amount of Phase I awards, Phase II awards, and any other category of awards by the Federal agency under the SBIR program during that fiscal year. (B) Annual reporting The Administrator shall include as part of each annual report by the Administration under subsection (b)(7) any data submitted under subparagraph (A) and a discussion of the compliance of each Federal agency that makes an award under this subsection dur- ing the fiscal year with the maximum per- centages under paragraph (1). (5) Enforcement If a Federal agency awards more than the percent of the funds allocated for the SBIR program of the Federal agency authorized under paragraph (1) for a purpose described in paragraph (1), the head of the Federal agency shall transfer an amount equal to the amount awarded in excess of the amount authorized under paragraph (1) to the funds for general SBIR programs from the non-SBIR and non- STTR research and development funds of the Federal agency not later than 180 days after the date on which the Federal agency made the award that caused the total awarded under paragraph (1) to be more than the amount au- thorized under paragraph (1) for a purpose de- scribed in paragraph (1). Page 940 TITLE 15—COMMERCE AND TRADE § 638 (6) Final decisions on applications under the SBIR program (A) Definition In this paragraph, the term ‘‘covered small business concern’’ means a small business concern that— (i) was not majority-owned by multiple venture capital operating companies, hedge funds, or private equity firms on the date on which the small business concern submitted an application in response to a solicitation under the SBIR programs; and (ii) on the date of the award under the SBIR program is majority-owned by mul- tiple venture capital operating companies, hedge funds, or private equity firms. (B) In general If a Federal agency does not make an award under a solicitation under the SBIR program before the date that is 9 months after the date on which the period for sub- mitting applications under the solicitation ends— (i) a covered small business concern is el- igible to receive the award, without regard to whether the covered small business con- cern meets the requirements for receiving an award under the SBIR program for a small business concern that is majority- owned by multiple venture capital oper- ating companies, hedge funds, or private equity firms, if the covered small business concern meets all other requirements for such an award; and (ii) the head of the Federal agency shall transfer an amount equal to any amount awarded to a covered small business con- cern under the solicitation to the funds for general SBIR programs from the non-SBIR and non-STTR research and development funds of the Federal agency, not later than 90 days after the date on which the Federal agency makes the award. (7) Evaluation criteria A Federal agency may not use investment of venture capital or investment from hedge funds or private equity firms as a criterion for the award of contracts under the SBIR pro- gram or STTR program. (ee) Collaborating with Federal laboratories and research and development centers (1) Authorization Subject to the limitations under this sec- tion, the head of each participating Federal agency may make SBIR and STTR awards to any eligible small business concern that— (A) intends to enter into an agreement with a Federal laboratory or federally fund- ed research and development center for por- tions of the activities to be performed under that award; or (B) has entered into a cooperative research and development agreement (as defined in section 3710a(d) of this title) with a Federal laboratory. (2) Prohibition No Federal agency shall— (A) condition an SBIR or STTR award upon entering into agreement with any Fed- eral laboratory or any federally funded lab- oratory or research and development center for any portion of the activities to be per- formed under that award; (B) approve an agreement between a small business concern receiving an SBIR or STTR award and a Federal laboratory or federally funded laboratory or research and develop- ment center, if the small business concern performs a lesser portion of the activities to be performed under that award than required by this section and by the SBIR Policy Di- rective and the STTR Policy Directive of the Administrator; or (C) approve an agreement that violates any provision, including any data rights pro- tections provision, of this section or the SBIR and the STTR Policy Directives. (3) Implementation Not later than 180 days after December 31, 2011, the Administrator shall modify the SBIR Policy Directive and the STTR Policy Direc- tive issued under this section to ensure that small business concerns— (A) have the flexibility to use the re- sources of the Federal laboratories or feder- ally funded research and development cen- ters; and (B) are not mandated to enter into agree- ment with any Federal laboratory or any federally funded laboratory or research and development center as a condition of an award. (4) Advance payment If a small business concern receiving an award under this section enters into an agree- ment with a Federal laboratory or federally funded research and development center for portions of the activities to be performed under that award, the Federal laboratory or federally funded research and development center may not require advance payment from the small business concern in an amount greater than the amount necessary to pay for 30 days of such activities. (ff) Additional SBIR and STTR awards (1) Express authority for awarding a sequen- tial Phase II award A small business concern that receives a Phase II SBIR award or a Phase II STTR award for a project remains eligible to receive 1 additional Phase II SBIR award or Phase II STTR award for continued work on that project. (2) Preventing duplicative awards The head of a Federal agency shall verify that any activity to be performed with respect to a project with a Phase I or Phase II SBIR or STTR award has not been funded under the SBIR program or STTR program of another Federal agency. (gg) Pilot program (1) Authorization The head of each covered Federal agency may allocate not more than 10 percent of the Page 941 TITLE 15—COMMERCE AND TRADE § 638 funds allocated to the SBIR program and the STTR program of the covered Federal agen- cy— (A) for awards for technology develop- ment, testing, evaluation, and commer- cialization assistance for SBIR and STTR Phase II technologies; or (B) to support the progress of research, re- search and development, and commercializa- tion conducted under the SBIR or STTR pro- grams to Phase III. (2) Application by Federal agency (A) In general A covered Federal agency may not estab- lish a pilot program unless the covered Fed- eral agency makes a written application to the Administrator, not later than 90 days be- fore the first day of the fiscal year in which the pilot program is to be established, that describes a compelling reason that addi- tional investment in SBIR or STTR tech- nologies is necessary, including unusually high regulatory, systems integration, or other costs relating to development or man- ufacturing of identifiable, highly promising small business technologies or a class of such technologies expected to substantially advance the mission of the agency. (B) Determination The Administrator shall— (i) make a determination regarding an application submitted under subparagraph (A) not later than 30 days before the first day of the fiscal year for which the appli- cation is submitted; (ii) publish the determination in the Federal Register; and (iii) make a copy of the determination and any related materials available to the Committee on Small Business and Entre- preneurship of the Senate and the Com- mittee on Small Business and the Com- mittee on Science, Space, and Technology of the House of Representatives. (3) Maximum amount of award The head of a covered Federal agency may not make an award under a pilot program in excess of 3 times the dollar amounts generally established for Phase II awards under sub- section (j)(2)(D) or (p)(2)(B)(ix). (4) Registration Any applicant that receives an award under a pilot program shall register with the Admin- istrator in a registry that is available to the public. (5) Award criteria or consideration When making an award under this section, the head of a covered Federal agency shall give consideration to whether the technology to be supported by the award is likely to be manufactured in the United States. (6) Report The head of each covered Federal agency shall include in the annual report of the cov- ered Federal agency to the Administrator an analysis of the various activities considered for inclusion in the pilot program of the cov- ered Federal agency and a statement of the reasons why each activity considered was in- cluded or not included, as the case may be. (7) Termination The authority to establish a pilot program under this section expires at the end of fiscal year 2025. (8) Definitions In this subsection— (A) the term ‘‘covered Federal agency’’— (i) means a Federal agency participating in the SBIR program or the STTR pro- gram; and (ii) does not include the Department of Defense; and (B) the term ‘‘pilot program’’ means each program established under paragraph (1). (hh) Timing of release of funding (1) In general Federal agencies participating in the SBIR program or STTR program shall, to the extent possible, shorten the amount of time between the provision of notice of an award under the SBIR program or STTR program and the sub- sequent release of funding with respect to the award. (2) Pilot program to accelerate Department of Defense SBIR and STTR awards (A) In general Not later than 1 year after August 13, 2018, the Under Secretary of Defense for Research and Engineering, acting through the Direc- tor of Defense Procurement and Acquisition Policy of the Department of Defense, shall establish a pilot program to reduce the time for awards under the SBIR and STTR pro- grams of the Department of Defense, under which the Department of Defense shall— (i) develop simplified and standardized procedures and model contracts through- out the Department of Defense for Phase I, Phase II, and Phase III SBIR awards; (ii) for Phase I SBIR and STTR awards, reduce the amount of time between solici- tation closure and award; (iii) for Phase II SBIR and STTR awards, reduce the amount of time between the end of a Phase I award and the start of the Phase II award; (iv) for Phase II SBIR and STTR awards that skip Phase I, reduce the amount of time between solicitation closure and award; (v) for sequential Phase II SBIR and STTR awards, reduce the amount of time between Phase II awards; and (vi) reduce the award times described in clauses (ii), (iii), (iv), and (v) to be as close to 90 days as possible. (B) Consultation In carrying out the pilot program under subparagraph (A), the Director of Defense Procurement and Acquisition Policy of the Department of Defense shall consult with the Director of the Office of Small Business Programs of the Department of Defense. (C) Termination The pilot program under subparagraph (A) shall terminate on September 30, 2025. Page 942 TITLE 15—COMMERCE AND TRADE § 638 (ii) Reporting on timing (1) In general Federal agencies participating in the SBIR program or STTR program shall provide to the Administrator, for the annual report on the SBIR and STTR program under subsection (b)(7), the average amount of time the agency takes to make a final decision on proposals submitted under such programs, the average amount of time the agency takes to release funding with respect to an award under such programs, and the goals established to reduce such amounts. (2) Comptroller General reports The Comptroller General of the United States shall submit to the Committee on Small Business and Entrepreneurship of the Senate, the Committee on Armed Services of the Senate, the Committee on Small Business of the House of Representatives, and the Com- mittee on Armed Services of the House of Rep- resentatives— (A) not later than 1 year after August 13, 2018, and every year thereafter for 3 years, a report that— (i) provides the average and median amount of time that each component of the Department of Defense with an SBIR or STTR program takes to review and make a final decision on proposals sub- mitted under the program; and (ii) compares that average and median amount of time with that of other Federal agencies participating in the SBIR or STTR program; and (B) not later than December 5, 2021, a re- port that— (i) includes the information described in subparagraph (A); (ii) assesses where each Federal agency participating in the SBIR or STTR pro- gram needs improvement with respect to the proposal review and award times under the program; (iii) identifies best practices for short- ening the proposal review and award times under the SBIR and STTR programs, in- cluding the pros and cons of using con- tracts compared to grants; and (iv) analyzes the efficacy of the pilot program established under subsection (hh)(2). (jj) Phase 0 Proof of Concept Partnership pilot program (1) In general The Director of the National Institutes of Health may use $5,000,000 of the funds allo- cated under subsection (n)(1) for a Proof of Concept Partnership pilot program to accel- erate the creation of small businesses and the commercialization of research innovations from qualifying institutions. To implement this program, the Director shall award, through a competitive, merit-based process, grants to qualifying institutions. These grants shall only be used to administer Proof of Con- cept Partnership awards in conformity with this subsection. (2) Definitions In this subsection— (A) the term ‘‘Director’’ means the Direc- tor of the National Institutes of Health; (B) the term ‘‘pilot program’’ refers to the Proof of Concept Partnership pilot program; and (C) the terms ‘‘qualifying institution’’ and ‘‘institution’’ mean a university or other re- search institution that participates in the National Institutes of Health’s STTR pro- gram. (3) Proof of Concept Partnerships (A) In general A Proof of Concept Partnership shall be set up by a qualifying institution to award grants to individual researchers. These grants should provide researchers with the initial investment and the resources to sup- port the proof of concept work and commer- cialization mentoring needed to translate promising research projects and tech- nologies into a viable company. This work may include technical validations, market research, clarifying intellectual property rights position and strategy, and inves- tigating commercial or business opportuni- ties. (B) Award guidelines The administrator of a Proof of Concept Partnership program shall award grants in accordance with the following guidelines: (i) The Proof of Concept Partnership shall use a market-focused project man- agement oversight process, including— (I) a rigorous, diverse review board comprised of local experts in translational and proof of concept re- search, including industry, start-up, ven- ture capital, technical, financial, and business experts and university tech- nology transfer officials; (II) technology validation milestones focused on market feasibility; (III) simple reporting effective at re- directing projects; and (IV) the willingness to reallocate fund- ing from failing projects to those with more potential. (ii) Not more than $100,000 shall be awarded towards an individual proposal. (C) Educational resources and guidance The administrator of a Proof of Concept Partnership program shall make educational resources and guidance available to re- searchers attempting to commercialize their innovations. (4) Awards (A) Size of award The Director may make awards to a quali- fying institution for up to $1,000,000 per year for up to 4 years. (B) Award criteria In determining which qualifying institu- tions receive pilot program grants, the Di- rector shall consider, in addition to any Page 943 TITLE 15—COMMERCE AND TRADE § 638 other criteria the Director determines nec- essary, the extent to which qualifying insti- tutions— (i) have an established and proven tech- nology transfer or commercialization of- fice and have a plan for engaging that of- fice in the program’s implementation; (ii) have demonstrated a commitment to local and regional economic development; (iii) are located in diverse geographies and are of diverse sizes; (iv) can assemble project management boards comprised of industry, start-up, venture capital, technical, financial, and business experts; (v) have an intellectual property rights strategy or office; and (vi) demonstrate a plan for sustain- ability beyond the duration of the funding award. (5) Limitations The funds for the pilot program shall not be used— (A) for basic research, but to evaluate the commercial potential of existing discoveries, including— (i) proof of concept research or prototype development; and (ii) activities that contribute to deter- mining a project’s commercialization path, to include technical validations, market research, clarifying intellectual property rights, and investigating com- mercial and business opportunities; or (B) to fund the acquisition of research equipment or supplies unrelated to commer- cialization activities. (6) Evaluative report The Director shall submit to the Committee on Science, Space, and Technology and the Committee on Small Business of the House of Representatives and the Committee on Small Business and Entrepreneurship of the Senate an evaluative report regarding the activities of the pilot program. The report shall in- clude— (A) a detailed description of the institu- tional and proposal selection process; (B) an accounting of the funds used in the pilot program; (C) a detailed description of the pilot pro- gram, including incentives and activities un- dertaken by review board experts; (D) a detailed compilation of results achieved by the pilot program, including the number of small business concerns included and the number of business packages devel- oped, and the number of projects that pro- gressed into subsequent STTR phases; and (E) an analysis of the program’s effective- ness with supporting data. (7) Sunset The pilot program under this subsection shall terminate at the end of fiscal year 2025. (kk) Phase III reporting The annual SBIR or STTR report to Congress by the Administration under subsection (b)(7) shall include, for each Phase III award— (1) the name of the agency or component of the agency or the non-Federal source of cap- ital making the Phase III award; (2) the name of the small business concern or individual receiving the Phase III award; and (3) the dollar amount of the Phase III award. (ll) Consent to release contact information to or- ganizations (1) Enabling concern to give consent Each Federal agency required by this sec- tion to conduct an SBIR program or an STTR program shall enable a small business concern that is an SBIR applicant or an STTR appli- cant to indicate to the Federal agency wheth- er the Federal agency has the consent of the concern to— (A) identify the concern to appropriate local and State-level economic development organizations as an SBIR applicant or an STTR applicant; and (B) release the contact information of the concern to such organizations. (2) Rules The Administrator shall establish rules to implement this subsection. The rules shall in- clude a requirement that a Federal agency in- clude in the SBIR and STTR application a pro- vision through which the applicant can indi- cate consent for purposes of paragraph (1). (mm) Assistance for administrative, oversight, and contract processing costs (1) In general Subject to paragraph (3) and until Sep- tember 30, 2025, the Administrator shall allow each Federal agency required to conduct an SBIR program to use not more than 3 percent of the funds allocated to the SBIR program of the Federal agency for— (A) the administration of the SBIR pro- gram or the STTR program of the Federal agency; (B) the provision of outreach and technical assistance relating to the SBIR program or STTR program of the Federal agency, in- cluding technical assistance site visits, per- sonnel interviews, and national conferences; (C) the implementation of commercializa- tion and outreach initiatives that were not in effect on December 31, 2011; (D) carrying out the program under sub- section (y); (E) activities relating to oversight and congressional reporting, including waste, fraud, and abuse prevention activities; (F) targeted reviews of recipients of awards under the SBIR program or STTR program of the Federal agency that the head of the Federal agency determines are at high risk for fraud, waste, or abuse to ensure compliance with requirements of the SBIR program or STTR program, respectively; (G) the implementation of oversight and quality control measures, including verification of reports and invoices and cost reviews; (H) carrying out subsection (dd); (I) contract processing costs relating to the SBIR program or STTR program of the Federal agency; Page 944 TITLE 15—COMMERCE AND TRADE § 638 (J) funding for additional personnel and assistance with application reviews; and (K) funding for improvements that in- crease commonality across data systems, re- duce redundancy, and improve data over- sight and accuracy. (2) Outreach and technical assistance (A) In general Except as provided in subparagraph (B), a Federal agency participating in the program under this subsection shall use a portion of the funds authorized for uses under para- graph (1) to carry out the policy directive re- quired under subsection (j)(2)(F) and to in- crease the participation of States with re- spect to which a low level of SBIR awards have historically been awarded. (B) Waiver A Federal agency may request the Admin- istrator to waive the requirement contained in subparagraph (A). Such request shall in- clude an explanation of why the waiver is necessary. The Administrator may grant the waiver based on a determination that the agency has demonstrated a sufficient need for the waiver, that the outreach objectives of the agency are being met, and that there is increased participation by States with re- spect to which a low level of SBIR awards have historically been awarded. (3) Performance criteria A Federal agency may not use funds as au- thorized under paragraph (1) until after the ef- fective date of performance criteria, which the Administrator shall establish, to measure any benefits of using funds as authorized under paragraph (1) and to assess continuation of the authority under paragraph (1). (4) Rules Not later than 180 days after December 31, 2011, the Administrator shall issue rules to carry out this subsection. (5) Coordination with IG Each Federal agency shall coordinate the ac- tivities funded under subparagraph (E), (F), or (G) of paragraph (1) with their respective In- spectors General, when appropriate, and each Federal agency that allocates more than $50,000,000 to the SBIR program of the Federal agency for a fiscal year may share such fund- ing with its Inspector General when the In- spector General performs such activities. (6) Reporting The Administrator shall collect data and provide to the Committee on Small Business and Entrepreneurship of the Senate and the Committee on Small Business, the Committee on Science, Space, and Technology, and the Committee on Appropriations of the House of Representatives a report on the use of funds under this subsection, including funds used to achieve the objectives of paragraph (2)(A) and any use of the waiver authority under para- graph (2)(B). (nn) Annual report on SBIR and STTR program goals (1) Development of metrics The head of each Federal agency required to participate in the SBIR program or the STTR program shall develop metrics to evaluate the effectiveness and the benefit to the people of the United States of the SBIR program and the STTR program of the Federal agency that— (A) are science-based and statistically driven; (B) reflect the mission of the Federal agen- cy; and (C) include factors relating to the eco- nomic impact of the programs. (2) Evaluation The head of each Federal agency described in paragraph (1) shall conduct an annual eval- uation using the metrics developed under paragraph (1) of— (A) the SBIR program and the STTR pro- gram of the Federal agency; and (B) the benefits to the people of the United States of the SBIR program and the STTR program of the Federal agency. (3) Report (A) In general The head of each Federal agency described in paragraph (1) shall submit to the appro- priate committees of Congress and the Ad- ministrator an annual report describing in detail the results of an evaluation conducted under paragraph (2). (B) Public availability of report The head of each Federal agency described in paragraph (1) shall make each report sub- mitted under subparagraph (A) available to the public online. (C) Definition In this paragraph, the term ‘‘appropriate committees of Congress’’ means— (i) the Committee on Small Business and Entrepreneurship of the Senate; and (ii) the Committee on Small Business and the Committee on Science, Space, and Technology of the House of Representa- tives. (oo) Competitive selection procedures for SBIR and STTR programs All funds awarded, appropriated, or otherwise made available in accordance with subsection (f) or (n) must be awarded pursuant to competitive and merit-based selection procedures. (pp) Limitation on pilot programs (1) Existing pilot programs The Administrator may only carry out a covered pilot program that is in operation on December 31, 2011, during the 3-year period be- ginning on such date. (2) New pilot programs The Administrator may only carry out a covered pilot program established after De- cember 31, 2011— (A) during the 3-year period beginning on the date on which such program is estab- lished; and Page 945 TITLE 15—COMMERCE AND TRADE § 638 (B) if such program does not continue and is not based on, in any manner, a previously established covered pilot program. (3) Covered pilot program defined In this subsection, the term ‘‘covered pilot program’’ means any initiative, project, inno- vation, or other activity— (A) established by the Administrator; (B) relating to an SBIR or STTR program; and (C) not specifically authorized by law. (qq) Minimum standards for participation (1) Progress to Phase II success (A) Establishment of system and minimum commercialization rate Not later than 1 year after December 31, 2011, the head of each Federal agency par- ticipating in the SBIR or STTR program shall— (i) establish a system to measure, where appropriate, the success of small business concerns with respect to the receipt of Phase II SBIR or STTR awards for projects that have received Phase I SBIR or STTR awards; (ii) establish a minimum performance standard for small business concerns with respect to the receipt of Phase II SBIR or STTR awards for projects that have re- ceived Phase I SBIR or STTR awards; and (iii) begin evaluating, each fiscal year, whether each small business concern that received a Phase I SBIR or STTR award from the agency meets the minimum per- formance standard established under clause (ii). (B) Consequence of failure to meet minimum commercialization rate If the head of a Federal agency determines that a small business concern that received a Phase I SBIR or STTR award from the agency is not meeting the minimum per- formance standard established under sub- paragraph (A)(ii), such concern may not par- ticipate in Phase I (or Phase II if under the authority of subsection (cc)) of the SBIR or STTR program of that agency during the 1- year period beginning on the date on which such determination is made. (2) Progress to Phase III success (A) Establishment of system and minimum commercialization rate Not later than 2 years after December 31, 2011, the head of each Federal agency par- ticipating in the SBIR or STTR program shall— (i) establish a system to measure, where appropriate, the success of small business concerns with respect to the receipt of Phase III SBIR or STTR awards for projects that have received Phase I SBIR or STTR awards; (ii) establish a minimum performance standard for small business concerns with respect to the receipt of Phase III SBIR or STTR awards for projects that have re- ceived Phase I SBIR or STTR awards; and (iii) begin evaluating, each fiscal year, whether each small business concern that received a Phase I SBIR or STTR award from the agency meets the minimum per- formance standard established under clause (ii). (B) Consequence of failure to meet minimum commercialization rate If the head of a Federal agency determines that a small business concern that received a Phase I SBIR or STTR award from the agency is not meeting the minimum per- formance standard established under sub- paragraph (A)(ii), such concern may not par- ticipate in Phase I (or Phase II if under the authority of subsection (cc)) of the SBIR or STTR program of that agency during the 1- year period beginning on the date on which such determination is made. (3) Increased minimum performance standards for experienced firms (A) Progress to Phase II success (i) In general With respect to a small business concern that received or receives more than 50 Phase I awards during a covered period, each minimum performance standard es- tablished under paragraph (1)(A)(ii) shall be doubled for such covered period. (ii) Consequence of failure to meet stand- ard If the head of a Federal agency deter- mines that a small business concern that received a Phase I award from the Federal agency is not meeting an applicable in- creased minimum performance standard modified under clause (i), the small busi- ness 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 fis- cal year. (B) Progress to Phase III success (i) In general Each minimum performance standard es- tablished 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 cov- ered period; and (II) with respect to a small business concern that received or receives more than 100 Phase II awards during a cov- ered period, require an average of $450,000 of aggregate sales and investments per Phase II award received during such cov- ered period. Page 946 TITLE 15—COMMERCE AND TRADE § 638 (ii) Consequence of failure to meet stand- ard If the head of a Federal agency deter- mines 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 con- cern 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 sub- ject to an increased minimum perform- ance standard described in clause (i) shall submit to the Administrator sup- porting documentation evidencing that all covered sales of the small business concern were properly used to meet the increased minimum performance stand- ard. (II) Covered sale defined In this clause, the term ‘‘covered sale’’ means a sale by a small business con- cern— (aa) that the small business concern claims to be attributable to an SBIR or STTR award; (bb) for which no amount of the pay- ment was or is made using Federal funds; (cc) which the small business con- cern uses to meet an applicable in- creased minimum performance stand- ard under clause (i); and (dd) that was or is received during the 5 fiscal years immediately pre- ceding the fiscal year in which the small business concern uses the sale to meet the increased minimum perform- ance 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 perform- ance standards A small business concern with respect to which an increased minimum performance standard under subparagraph (B) applies may not meet the increased minimum per- formance 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 re- quest of a senior official of a Federal agen- cy, grant a waiver with respect to a topic for the SBIR or STTR program of the Fed- eral agency if— (I) the topic is critical to the mission of the Federal agency or relates to na- tional security; and (II) the official submits to the Admin- istrator a request for the waiver in ac- cordance 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, sub- paragraphs (A)(ii) and (B)(ii) shall not pro- hibit any covered small business concern from receiving an SBIR or STTR award under such topic. (iii) Agency request and congressional noti- fication 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 Admin- istrator, the Committee on Small Business and the Committee on Science, Space, and Technology of the House of Representa- tives, and the Committee on Small Busi- ness and Entrepreneurship of the Senate a request for the waiver. (iv) Administrator determination and con- gressional notification Not later than 15 days after receiving a request for a waiver under clause (i), the Administrator shall make a determination with respect to the request and notify the senior official at the Federal agency that made the request, the Committee on Small Business and the Committee on Science, Space, and Technology of the House of Representatives, and the Committee on Small Business and Entrepreneurship of the Senate of the determination. (v) Definitions In this subparagraph: (I) Covered small business concern The term ‘‘covered small business con- cern’’ 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 Fed- eral agency that such small business concern did not meet an increased min- imum performance standard that was ap- plicable to such small business concern. (II) Senior official The term ‘‘senior official’’ means an individual appointed to a position in a Federal agency that is classified above GS–15 pursuant section 5108 of title 5, or any equivalent position, as determined by the Administrator. (F) Reporting (i) In general Not later than July 1, 2023, and annually thereafter, the Administrator shall submit to Congress a list of the small business concerns that did not meet— (I) an applicable minimum perform- ance standard established under para- graph (1)(A)(ii) or (2)(A)(ii); or Page 947 TITLE 15—COMMERCE AND TRADE § 638 (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 (commonly known as the ‘‘Freedom of Information Act’’). (G) Implementation Not later than April 1, 2023, the Adminis- tration shall implement the increased min- imum performance standards under this paragraph. (H) Rules of construction Nothing in this paragraph shall be con- strued— (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 para- graph (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 per- formance standard; or (ii) to prevent the head of a Federal agency from implementing more restric- tive 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 subpara- graphs (A)(ii) and (B)(ii). (I) Termination This paragraph shall terminate on Sep- tember 30, 2025. (4) Administration oversight (A) Approval and publication of systems and minimum performance standards Each system and minimum performance standard established under paragraph (1) or paragraph (2) shall be submitted by the head of the applicable Federal agency to the Ad- ministrator and shall be subject to the ap- proval of the Administrator. In making a de- termination with respect to approval, the Administrator shall ensure that the min- imum performance standard exceeds a de minimis level. The Administrator shall pub- lish on the Internet Web site of the Adminis- tration the systems and minimum perform- ance standards approved. (B) Submission of evaluation results by agen- cy The head of each covered Federal agency shall submit to the Administrator the re- sults of each evaluation conducted under paragraph (1) or paragraph (2). (5) Requirement of notice and comment Each system and minimum performance standard established under paragraph (1) or paragraph (2) and each approval provided by the Administrator under paragraph (4)(A), at least 60 days before becoming effective, shall be preceded by the provision of notice of and an opportunity for public comment on such system, standard, or approval. (6) Inspector general audit Not later than 1 year after the date on which the Administrator implements the increased minimum performance standards under para- graph (3), and periodically thereafter, the In- spector General of the Administration shall— (A) conduct an audit on whether the small business concerns subject to increased min- imum performance standards under para- graph (3)(B) verified— (i) the sales by and investments in the small business concerns— (I) during the 5 fiscal years imme- diately preceding the fiscal year in which the small business concern used such sales and investments to meet an applicable increased performance stand- ard; and (II) as a direct result of a Phase I award or Phase II award made under sub- section (cc) during the covered period (as defined in paragraph (3)(B)(iv)), con- sistent with the definition of Phase III, as applicable; (ii) any third-party revenue the small business concerns list as investments or incomes to meet the increased minimum performance standard— (I) is a direct result of a Phase I award or Phase II award made under subsection (cc) during the covered period (as defined in paragraph (3)(B)(iv)); and (II) consistent with the requirements of the Administrator as in effect on Sep- tember 30, 2022, or any successor require- ments; and (iii) any dollar amounts such small busi- ness concerns list as investments or in- come to meet such increased minimum performance standard the providence of which is unclear and that is not directly attributable to a Phase I award or Phase II award made under subsection (cc) during the covered period (as defined in paragraph (3)(B)(iv)), consistent with the definition of Phase III, as applicable; (B) assess the self-certification require- ments for the minimum performance stand- ards established under paragraph (2)(A)(ii) and the increased minimum performance standards under paragraph (3)(B); and (C) submit to the Committee on Small Business and Entrepreneurship of the Senate and the Committee on Small Business and the Committee on Science, Space, and Tech- nology of the House of Representatives a re- port on the audit conducted under subpara- graph (A) and the assessment conducted under subparagraph (B). (7) Increased minimum performance standard defined In this subsection, the term ‘‘increased min- imum performance standard’’ means a min- Page 948 TITLE 15—COMMERCE AND TRADE § 638 imum 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. (rr) Publication of certain information In order to increase the number of small busi- nesses receiving awards under the SBIR or STTR programs of participating agencies, and to simplify the application process for such awards, the Administrator shall establish and maintain a public Internet Web site on which the Administrator shall publish such informa- tion relating to notice of and application for awards under the SBIR program and STTR pro- gram of each participating Federal agency as the Administrator determines appropriate. (ss) Report on enhancement of manufacturing activities Not later than October 1, 2013, and annually thereafter, the head of each Federal agency that makes more than $50,000,000 in awards under the SBIR and STTR programs of the agency com- bined shall submit to the Administrator, for in- clusion in the annual report required under sub- section (b)(7), information that includes— (1) a description of efforts undertaken by the head of the Federal agency to enhance United States manufacturing activities; (2) a comprehensive description of the ac- tions undertaken each year by the head of the Federal agency in carrying out the SBIR or STTR program of the agency in support of Ex- ecutive Order 13329 (69 Fed. Reg. 9181; relating to encouraging innovation in manufacturing); (3) an assessment of the effectiveness of the actions described in paragraph (2) at enhanc- ing the research and development of United States manufacturing technologies and proc- esses; (4) a description of efforts by vendors se- lected to provide discretionary technical as- sistance under subsection (q)(1) to help SBIR and STTR concerns manufacture in the United States; and (5) recommendations that the program man- agers of the SBIR or STTR program of the agency consider appropriate for additional ac- tions to increase the effectiveness of enhanc- ing manufacturing activities. (tt) Outstanding reports and evaluations (1) In general Not later than March 30, 2019, the Adminis- trator shall submit to the Committee on Small Business and Entrepreneurship of the Senate, the Committee on Small Business of the House of Representatives, and the Com- mittee on Science, Space, and Technology of the House of Representatives— (A) each report, evaluation, or analysis, as applicable, described in subsection (b)(7), (g)(9), (o)(10), (y)(6)(C), (gg)(6), (jj)(6), and (mm)(6); and (B) metrics regarding, and an evaluation of, the authority provided to the National Institutes of Health, the Department of De- fense, and the Department of Education under subsection (cc). (2) Information required Not later than December 31, 2018, the head of each agency that is responsible for carrying out a provision described in subparagraph (A) or (B) of paragraph (1) shall submit to the Ad- ministrator any information that is necessary for the Administrator to carry out the respon- sibilities of the Administrator under that paragraph. (uu) Commercialization assistance pilot pro- grams (1) Pilot programs implemented (A) In general Except as provided in subparagraph (B), not later than one year after August 13, 2018, a covered agency shall implement a com- mercialization assistance pilot program, under which an eligible entity may receive a subsequent Phase II SBIR award. (B) Exception If the Administrator determines that a covered agency has a program that is suffi- ciently similar to the commercialization as- sistance pilot program established under this subsection, such covered agency shall not be required to implement a commer- cialization assistance pilot program under this subsection. (2) Percent of agency funds The head of each covered agency may allo- cate not more than 5 percent of the funds allo- cated to the SBIR program of the covered agency for the purpose of making a subsequent Phase II SBIR award under the commercializa- tion assistance pilot program. (3) Termination A commercialization assistance pilot pro- gram established under this subsection shall terminate on September 30, 2025. (4) Application To be selected to receive a subsequent Phase II SBIR award under a commercialization as- sistance pilot program, an eligible entity shall submit to the covered agency implementing such pilot program an application at such time, in such manner, and containing such in- formation as the covered agency may require, including— (A) an updated Phase II commercialization plan; and (B) the source and amount of the matching funding required under paragraph (5). (5) Matching funding (A) In general The Administrator shall require, as a con- dition of any subsequent Phase II SBIR award made to an eligible entity under this subsection, that a matching amount (exclud- ing any fees collected by the eligible entity receiving such award) equal to the amount of such award be provided from an eligible third-party investor. (B) Ineligible sources An eligible entity may not use funding from ineligible sources to meet the match- ing requirement of subparagraph (A). Page 949 TITLE 15—COMMERCE AND TRADE § 638 (6) Award A subsequent Phase II SBIR award made to an eligible entity under this subsection— (A) may not exceed the limitation de- scribed under subsection (aa)(1); and (B) shall be disbursed during Phase II. (7) Use of funds The funds awarded to an eligible entity under this subsection may only be used for re- search and development activities that build on eligible entity’s Phase II program and en- sure the research funded under such Phase II is rapidly progressing towards commercializa- tion. (8) Selection In selecting eligible entities to participate in a commercialization assistance pilot pro- gram under this subsection, the head of a cov- ered agency shall consider— (A) the extent to which such award could aid the eligible entity in commercializing the research funded under the eligible enti- ty’s Phase II program; (B) whether the updated Phase II commer- cialization plan submitted under paragraph (4) provides a sound approach for estab- lishing technical feasibility that could lead to commercialization of such research; (C) whether the proposed activities to be conducted under such updated Phase II com- mercialization plan further improve the likelihood that such research will provide societal benefits; (D) whether the small business concern has progressed satisfactorily in Phase II to jus- tify receipt of a subsequent Phase II SBIR award; (E) the expectations of the eligible third- party investor that provides matching fund- ing under paragraph (5); and (F) the likelihood that the proposed activi- ties to be conducted under such updated Phase II commercialization plan using matching funding provided by such eligible third-party investor will lead to commercial and societal benefit. (9) Evaluation report Not later than 6 years after August 13, 2018, the Comptroller General of the United States shall submit to the Committee on Science, Space, and Technology and the Committee on Small Business of the House of Representa- tives, and the Committee on Small Business and Entrepreneurship of the Senate, a report including— (A) a summary of the activities of com- mercialization assistance pilot programs carried out under this subsection; (B) a detailed compilation of results achieved by such commercialization assist- ance pilot programs, including the number of eligible entities that received awards under such programs; (C) the rate at which each eligible entity that received a subsequent Phase II SBIR award under this subsection commercialized research of the recipient; (D) the growth in employment and revenue of eligible entities that is attributable to participation in a commercialization assist- ance pilot program; (E) a comparison of commercialization success of eligible entities participating in a commercialization assistance pilot program with recipients of an additional Phase II SBIR award under subsection (ff); (F) demographic information, such as eth- nicity and geographic location, of eligible entities participating in a commercializa- tion assistance pilot program; (G) an accounting of the funds used at each covered agency that implements a commer- cialization assistance pilot program under this subsection; (H) the amount of matching funding pro- vided by eligible third-party investors, set forth separately by source of funding; (I) an analysis of the effectiveness of the commercialization assistance pilot program implemented by each covered agency; and (J) recommendations for improvements to the commercialization assistance pilot pro- gram. (10) Definitions For purposes of this subsection: (A) Covered agency The term ‘‘covered agency’’ means a Fed- eral agency required to have an SBIR pro- gram. (B) Eligible entity The term ‘‘eligible entity’’ means a small business concern that has received a Phase II award under an SBIR program and an ad- ditional Phase II SBIR award under sub- section (ff) from the covered agency to which such small business concern is apply- ing for a subsequent Phase II SBIR award. (C) Eligible third-party investor The term ‘‘eligible third-party investor’’ means a small business concern other than an eligible entity, a venture capital firm, an individual investor, a non-SBIR Federal, State or local government, or any combina- tion thereof. (D) Ineligible sources The term ‘‘ineligible sources’’ means the following: (i) The eligible entity’s internal research and development funds. (ii) Funding in forms other than cash, such as in-kind or other intangible assets. (iii) Funding from the owners of the eli- gible entity, or the family members or af- filiates of such owners. (iv) Funding attained through loans or other forms of debt obligations. (E) Subsequent Phase II SBIR award The term ‘‘subsequent Phase II SBIR award’’ means an award granted to an eligi- ble entity under this subsection to carry out further commercialization activities for re- search conducted pursuant to an SBIR pro- gram. (vv) Due diligence program to assess security risks (1) Establishment The head of each Federal agency required to establish an SBIR or STTR program, in co- Page 950 TITLE 15—COMMERCE AND TRADE § 638 5 So in original. Probably should be preceded by ‘‘subsection’’. ordination with the Administrator, shall es- tablish and implement a due diligence pro- gram 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 for- eign ownership of a small business concern seeking an award, including the financial ties and obligations (which shall include sur- ety, 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 applica- tions, as applicable, using a risk-based ap- proach as appropriate, including through the use of open-source analysis and analytical tools, for the nondisclosures of information required under (g)(13).5 (3) Administrative costs (A) In general In addition to the amount allocated under subsection (mm)(1), each Federal agency re- quired to establish an SBIR program may al- locate not more than 2 percent of the funds allocated to the SBIR program of the Fed- eral 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 sub- paragraph (A) shall submit to the Com- mittee on Small Business and the Com- mittee on Science, Space, and Technology of the House of Representatives, the Com- mittee on Small Business and Entrepre- neurship of the Senate, and the Adminis- trator, for the covered year— (I) the total funds allowed to be allo- cated for the cost of establishing the due diligence program required under this subsection; (II) the total amount of funds obli- gated or expended under subparagraph (A); and (III) the due diligence activities car- ried out or to be carried out using amounts allocated under subparagraph (A). (ii) Annual report inclusion The Administrator shall include the in- formation 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 in- formation. (iii) Covered year In this subparagraph, the term ‘‘covered year’’ means, with respect to the informa- tion required under clause (i), the year covered by the annual report submitted under subsection (b)(7) in which the Ad- ministrator is required to include such in- formation by clause (ii). (C) Termination date This paragraph shall terminate on Sep- tember 30, 2025. (ww) Program on innovation open topics (1) Establishment Not later than 180 days after September 30, 2022, 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 nontradi- tional industrial base; (C) increase commercialization derived from investments of the Department of De- fense; and (D) expand the ability for qualifying small business concerns to propose technology so- lutions to meet the needs of the Department of Defense. (2) Frequency The Secretary of Defense shall conduct not less than 1 open topic announcement at each component of the Department of Defense per fiscal year. (3) Briefing Not later than 180 days after September 30, 2022, 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 En- trepreneurship of the Senate; and (B) the Committee on Small Business, the Committee on Armed Services, and the Com- mittee on Science, Space, and Technology of the House of Representatives. (xx) Additional provisions relating to solicitation topics (1) In general A Federal agency required to establish an SBIR or STTR program shall implement a multi-level review and approval process within the Federal agency for solicitation topics to ensure adequate competition and that no pri- vate individual or entity is shaping the re- quirements 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 solici- tation 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 in- vestigation. Page 951 TITLE 15—COMMERCE AND TRADE § 638 (yy) Pilot program for the participation of mili- tary research and educational institutions in the STTR program (1) In general Not later than 180 days after December 23, 2024, the Secretary of Defense shall establish a pilot program to enable any undergraduate, graduate, or postgraduate degree-granting military research or educational institution established under title 10 to participate in the STTR program of the Department of Defense. (2) Sunset The authority to carry out the pilot pro- gram under this subsection shall end on Sep- tember 30, 2025. (zz) Budget calculation pilot program (1) Pilot (A) In general In order to more rapidly estimate alloca- tions for the SBIR and STTR programs of the Department of Defense, the Secretary of Defense shall conduct a budget calculation pilot program that requires the calculation of total expenditures for the SBIR and STTR programs in the Department of Defense and determination of related allocations in ac- cordance with subparagraphs (B) and (C), and paragraph (2), respectively. (B) SBIR program Beginning in fiscal year 2025, the Depart- ment of Defense shall calculate required budget expenditures for its SBIR program as not less than 3.25 percent of the average of the total research, development, test, and evaluation extramural budget of the Depart- ment for the 2 most recent fully obligated fiscal year budgets. (C) STTR program Beginning in fiscal year 2025, the Depart- ment of Defense shall calculate required budget expenditures for its STTR program as not less than 0.46 percent of the average of the total research, development, test, and evaluation extramural budget of the Depart- ment for the 2 most recent fully obligated fiscal year budgets. (2) Allocations Not later than 30 days after the date of en- actment of an appropriations bill for the De- partment of Defense for a fiscal year, the De- partment shall determine and make adjust- ments for actual allocations related to the SBIR and STTR programs of the Department. (3) Sunset The pilot program under this subsection shall terminate on September 30, 2025. (Pub. L. 85–536, § 2[9], July 18, 1958, 72 Stat. 391; Pub. L. 97–219, §§ 3–5, July 22, 1982, 96 Stat. 217, 218, 221; Pub. L. 99–443, §§ 1, 2, Oct. 6, 1986, 100 Stat. 1120; Pub. L. 100–590, title I, § 108, Nov. 3, 1988, 102 Stat. 2994; Pub. L. 102–484, div. D, title XLII, § 4237(d), Oct. 23, 1992, 106 Stat. 2692; Pub. L. 102–564, title I, §§ 103, 104, title II, § 202(a)–(c), title III, §§ 301(a), 305, Oct. 28, 1992, 106 Stat. 4250, 4254, 4256, 4257, 4261, 4262; Pub. L. 103–403, title VI, § 607, Oct. 22, 1994, 108 Stat. 4204; Pub. L. 104–208, div. D, title I, § 110, Sept. 30, 1996, 110 Stat. 3009–733; Pub. L. 105–135, title V, § 501, Dec. 2, 1997, 111 Stat. 2620; Pub. L. 106–113, div. B, § 1000(a)(9) [title IV, § 4732(b)(5)], Nov. 29, 1999, 113 Stat. 1536, 1501A–583; Pub. L. 106–554, § 1(a)(9) [title I, §§ 103–107, 109, 110, 111(c), 113, 114(b)], Dec. 21, 2000, 114 Stat. 2763, 2763A–669, 2763A–673, 2763A–679, 2763A–681; Pub. L. 107–50, §§ 2, 3(a), 4–7, Oct. 15, 2001, 115 Stat. 263–265; Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814; Pub. L. 109–163, div. A, title II, § 252, Jan. 6, 2006, 119 Stat. 3177; Pub. L. 110–140, title XII, § 1203(e), Dec. 19, 2007, 121 Stat. 1771; Pub. L. 111–84, div. A, title VIII, §§ 847(a), (b), 848, Oct. 28, 2009, 123 Stat. 2420, 2421; Pub. L. 111–383, div. A, title X, § 1075(l), Jan. 7, 2011, 124 Stat. 4378; Pub. L. 112–17, §§ 3, 4, June 1, 2011, 125 Stat. 221, 222; Pub. L. 112–81, div. A, title X, § 1067(a), div. E, title LI, §§ 5101–5107(a), 5108–5111, 5121–5123, 5125–5127, 5131–5135, 5138, 5140, 5141(a), (b)(1), (3), 5144, 5161, 5162, 5164–5167, Dec. 31, 2011, 125 Stat. 1589, 1824–1827, 1832–1836, 1838–1842, 1844–1847, 1851–1854, 1857–1861; Pub. L. 112–239, div. A, title X, § 1076(a)(20)(A), title XVI, § 1615(a), (b), Jan. 2, 2013, 126 Stat. 1949, 2066; Pub. L. 114–92, div. A, title VIII, § 873(h), formerly § 873(e), Nov. 25, 2015, 129 Stat. 940, renumbered § 873(h), Pub. L. 114–328, div. A, title VIII, § 896(3), Dec. 23, 2016, 130 Stat. 2326; Pub. L. 114–328, div. A, title XVIII, § 1834, Dec. 23, 2016, 130 Stat. 2661; Pub. L. 115–91, div. A, title XVII, § 1709(a), (b)(1), Dec. 12, 2017, 131 Stat. 1809; Pub. L. 115–232, div. A, title VIII, §§ 854(a)–(c)(1), 860, Aug. 13, 2018, 132 Stat. 1886–1888, 1893; Pub. L. 116–92, div. A, title VIII, § 880(a)–(c), Dec. 20, 2019, 133 Stat. 1531, 1532; Pub. L. 116–283, div. A, title VIII, § 865, Jan. 1, 2021, 134 Stat. 3785; Pub. L. 117–81, div. A, title XVII, § 1702(e)(3), Dec. 27, 2021, 135 Stat. 2157; Pub. L. 117–183, §§ 3, 4(a), (b)(1), (c), (d), 5(a), (b), 7(a), 8, 9(a), Sept. 30, 2022, 136 Stat. 2180, 2181, 2183–2186, 2188, 2189, 2193; Pub. L. 117–263, div. A, title VIII, § 872(a), Dec. 23, 2022, 136 Stat. 2739; Pub. L. 118–159, div. A, title VIII, §§ 871, 872, Dec. 23, 2024, 138 Stat. 2007.) Editorial Notes REFERENCES IN TEXT Executive Order 13329, referred to in subsecs. (b)(8), (g)(11), (o)(15), and (ss)(2), is set out as a note under this section. The Federal Trade Commission Act, referred to in subsec. (d)(3), is act Sept. 26, 1914, ch. 311, 38 Stat. 717, which is classified generally to subchapter I (§ 41 et seq.) of chapter 2 of this title. For complete classifica- tion of this Act to the Code, see section 58 of this title and Tables. Executive Order 12333, referred to in subsec. (e)(2), is set out as a note under section 3001 of Title 50, War and National Defense. Section 3703(5) of this title, referred to in subsec. (e)(8), was redesignated section 3703(3) by Pub. L. 110–69, title III, § 3002(c)(3), Aug. 9, 2007, 121 Stat. 586. Section 6683 of title 42, referred to in subsecs. (g)(3)(A), (j)(2)(E)(i), and (o)(3)(A), was omitted from the Code. Section 2522 of title 10, referred to in subsecs. (g)(3)(B), (j)(2)(E)(ii), and (o)(3)(B), which related to an- nual defense critical technology plan, was repealed, and section 2518 (relating to Defense Advanced Manufac- turing Technology Partnerships) was redesignated as section 2522, by Pub. L. 102–484, div. D, title XLII, §§ 4202(a), 4232(a), Oct. 23, 1992, 106 Stat. 2659, 2687, and subsequently repealed. Page 952 TITLE 15—COMMERCE AND TRADE § 638 Section 105 of the Small Business Research and De- velopment Enhancement Act of 1992, referred to in sub- sec. (j)(2)(I), is section 105 of Pub. L. 102–564, which is set out below. The enactment of this paragraph, referred to in sub- sec. (j)(4), means the enactment of subsec. (j)(4) by Pub. L. 116–92, which was approved Dec. 20, 2019. Section 270 of the National Defense Authorization Act for Fiscal Year 1997 (Public Law 104–201; 10 U.S.C. 2501 note), referred to in subsec. (x)(2)(A), was formerly set out as a note under section 2501 of Title 10, Armed Forces, prior to repeal by Pub. L. 111–84, div. A, title II, § 241, Oct 28, 2009, 123 Stat. 2237. The year in which this subparagraph is enacted, re- ferred to in subsec. (vv)(3)(B)(i), is the year of enact- ment of Pub. L. 117–183, which was approved in 2022. CODIFICATION In subsec. (e)(8), ‘‘section 1303(a)(1) of title 41’’ sub- stituted for ‘‘section 35(c)(1) of the Office of Federal Procurement Policy Act’’, which probably should have been a reference to ‘‘section 25(c)(1) of the Office of Federal Procurement Policy Act’’ because that Act does not contain a section 35 and section 25(c) of that Act relates to issuance of the Federal Acquisition Reg- ulation, on authority of Pub. L. 111–350, § 6(c), Jan. 4, 2011, 124 Stat. 3854, which Act enacted Title 41, Public Contracts. In subsec. (n)(2)(A), ‘‘section 1303(a)(1) of title 41’’ sub- stituted for ‘‘section 25(c)(1) of the Office of Federal Procurement Policy Act’’ on authority of Pub. L. 111–350, § 6(c), Jan. 4, 2011, 124 Stat. 3854, which Act en- acted Title 41, Public Contracts. Section 209 of act July 30, 1953, ch. 282, title II, 67 Stat. 237, was previously classified to this section. See section 645 of this title and Codification note set out under section 631 of this title. AMENDMENTS 2024—Subsec. (yy). Pub. L. 118–159, § 871, added subsec. (yy). Subsec. (zz). Pub. L. 118–159, § 872, added subsec. (zz). 2022—Pub. L. 117–183, § 3, substituted ‘‘2025’’ for ‘‘2022’’ wherever appearing. Subsec. (b)(7)(I), (J). Pub. L. 117–183, § 7(a)(1), added subpars. (I) and (J). Subsec. (b)(7)(K), (L). Pub. L. 117–183, § 8(1), added sub- pars. (K) and (L). Subsec. (e)(15) to (19). Pub. L. 117–183, § 4(a), added pars. (15) to (19). Subsec. (g)(13). Pub. L. 117–183, § 4(c)(1), added par. (13). Subsec. (g)(13)(D). Pub. L. 117–263 struck out ‘‘of con- cern’’ after ‘‘another foreign country’’. Subsec. (g)(14). Pub. L. 117–183, § 4(c)(1)(C), added par. (14). Subsec. (g)(15). Pub. L. 117–183, § 4(d)(1), added par. (15). Subsec. (g)(16), (17). Pub. L. 117–183, § 5(a), added pars. (16) and (17). Subsec. (o)(17), (18). Pub. L. 117–183, § 4(c)(2), added pars. (17) and (18). Subsec. (o)(19). Pub. L. 117–183, § 4(d)(2), added par. (19). Subsec. (o)(20), (21). Pub. L. 117–183, § 5(b), added pars. (20) and (21). Subsec. (qq)(3), (4). Pub. L. 117–183, § 8(2)(A), (B), added par. (3) and redesignated former par. (3) as (4). Former par. (4) redesignated (5). Subsec. (qq)(5). Pub. L. 117–183, § 8(2)(A), (C), redesig- nated par. (4) as (5) and substituted ‘‘paragraph (4)(A)’’ for ‘‘paragraph (3)(A)’’. Subsec. (qq)(6), (7). Pub. L. 117–183, § 8(2)(D), added pars. (6) and (7). Subsec. (vv). Pub. L. 117–183, § 4(b)(1), added subsec. (vv). Subsec. (ww). Pub. L. 117–183, § 7(a)(2), added subsec. (ww). Subsec. (xx). Pub. L. 117–183, § 9(a), added subsec. (xx). 2021—Subsec. (b)(7)(H). Pub. L. 116–283, § 865(1), added subpar. (H). Subsec. (g)(10). Pub. L. 116–283, § 865(2), inserted ‘‘, which section shall describe whether or not the Fed- eral agency complied with the requirements of sub- section (f) for the year covered by that plan and include a justification for failure to comply (if applicable),’’ after ‘‘a section on its SBIR program’’. Subsec. (o)(8). Pub. L. 116–283, § 865(3), inserted ‘‘, which section shall describe whether or not the Fed- eral agency complied with the requirements of sub- section (n) for the year covered by that plan and in- clude a justification for failure to comply (if applica- ble),’’ after ‘‘a section on its STTR program’’. Subsec. (r)(4)(A). Pub. L. 117–81 substituted ‘‘sections 3201 through 3205’’ for ‘‘section 2304’’. 2019—Subsec. (b)(3). Pub. L. 116–92, § 880(b)(2), struck out ‘‘and’’ at end. Subsec. (b)(10). Pub. L. 116–92, § 880(b)(1), added par. (10). Subsec. (e)(14). Pub. L. 116–92, § 880(a), added par. (14). Subsec. (j)(4). Pub. L. 116–92, § 880(c)(1), added par. (4). Subsec. (p)(2)(G). Pub. L. 116–92, § 880(c)(2), added sub- par. (G). 2018—Subsec. (q). Pub. L. 115–232, § 854(c)(1)(A), in- serted ‘‘and business’’ after ‘‘technical’’ in heading. Subsec. (q)(1). Pub. L. 115–232, § 854(c)(1)(B)(i), in in- troductory provisions, substituted ‘‘1 or more vendors selected under paragraph (2)(A)’’ for ‘‘a vendor selected under paragraph (2)’’ and inserted ‘‘and business’’ be- fore ‘‘assistance services’’ and ‘‘assistance with product sales, intellectual property protections, market re- search, market validation, and development of regu- latory plans and manufacturing plans,’’ after ‘‘tech- nologies,’’. Subsec. (q)(1)(D). Pub. L. 115–232, § 854(c)(1)(B)(ii), in- serted ‘‘, including intellectual property protections’’ before period at end. Subsec. (q)(2). Pub. L. 115–232, § 854(c)(1)(C), designated existing provisions as subpar. (A), inserted heading, substituted ‘‘Each agency may select 1 or more vendors from which small business concerns may obtain assist- ance in meeting’’ for ‘‘Each agency may select a vendor to assist small business concerns to meet’’, and added subpar. (B). Subsec. (q)(3). Pub. L. 115–232, § 854(c)(1)(D)(i), inserted ‘‘(A)’’ after ‘‘paragraph (2)’’ wherever appearing. Subsec. (q)(3)(A). Pub. L. 115–232, § 854(c)(1)(D)(ii), sub- stituted ‘‘$6,500 per year’’ for ‘‘$5,000 per year’’ in two places. Subsec. (q)(3)(B)(i). Pub. L. 115–232, § 854(c)(1)(D)(iii)(I), substituted ‘‘$50,000 per project’’ for ‘‘$5,000 per year’’. Subsec. (q)(3)(B)(ii). Pub. L. 115–232, § 854(c)(1)(D)(iii), substituted ‘‘$50,000 per project, which may, as deter- mined appropriate by the head of the Federal agency, be included as part of the recipient’s award or be in ad- dition to the amount of the recipient’s award’’ for ‘‘$5,000 per year, which shall be in addition to the amount of the recipient’s award’’. Subsec. (q)(3)(C). Pub. L. 115–232, § 854(c)(1)(D)(iv), in- serted ‘‘or business’’ after ‘‘technical’’, substituted ‘‘a vendor’’ for ‘‘the vendor’’, and inserted at end ‘‘Busi- ness-related services aimed at improving the commer- cialization success of a small business concern may be obtained from an entity, such as a public or private or- ganization or an agency of or other entity established or funded by a State that facilitates or accelerates the commercialization of technologies or assists in the cre- ation and growth of private enterprises that are com- mercializing technology.’’ Subsec. (q)(3)(D). Pub. L. 115–232, § 854(c)(1)(D)(v)(I), inserted ‘‘or business’’ after ‘‘technical’’ in two places. Subsec. (q)(3)(D)(i). Pub. L. 115–232, § 854(c)(1)(D)(v)(II), substituted ‘‘1 or more vendors’’ for ‘‘the vendor’’. Subsec. (q)(3)(E). Pub. L. 115–232, § 854(c)(1)(D)(vi), added subpar. (E). Subsec. (q)(4). Pub. L. 115–232, § 854(c)(1)(E), added par. (4). Page 953 TITLE 15—COMMERCE AND TRADE § 638 Subsec. (cc). Pub. L. 115–232, § 854(a)(1), substituted ‘‘2022’’ for ‘‘2017’’. Subsec. (gg)(7). Pub. L. 115–232, § 854(a)(2), substituted ‘‘2022’’ for ‘‘2017’’. Subsec. (hh). Pub. L. 115–232, § 854(b)(1), designated ex- isting provisions as par. (1), inserted heading, struck out ‘‘attempt to’’ before ‘‘shorten’’, and added par. (2). Subsec. (ii). Pub. L. 115–232, § 854(b)(2), designated ex- isting provisions as par. (1), inserted heading, and added par. (2). Subsec. (jj)(4)(A). Pub. L. 115–232, § 854(a)(3)(A), sub- stituted ‘‘4’’ for ‘‘3’’. Subsec. (jj)(7). Pub. L. 115–232, § 854(a)(3)(B), sub- stituted ‘‘2022’’ for ‘‘2017’’. Subsec. (mm)(1). Pub. L. 115–232, § 854(a)(4)(A)(i), sub- stituted ‘‘2022’’ for ‘‘2017’’ in introductory provisions. Subsec. (mm)(1)(K). Pub. L. 115–232, § 854(a)(4)(A)(ii)–(iv), added subpar. (K). Subsec. (tt). Pub. L. 115–232, § 854(a)(5), added subsec. (tt). Subsec. (uu). Pub. L. 115–232, § 860, added subsec. (uu). 2017—Subsec. (r). Pub. L. 115–91, § 1709(b)(1)(A), in- serted ‘‘, competitive procedures, and justification for awards’’ after ‘‘agreements’’ in heading. Subsec. (r)(4). Pub. L. 115–91, § 1709(a), (b)(1)(B), sub- stituted ‘‘Competitive procedures and justification for awards’’ for ‘‘Phase III awards’’ in heading and ‘‘shall— ‘‘(A) consider an award under the SBIR program or the STTR program to satisfy the requirements under section 2304 of title 10 and any other applicable com- petition requirements; and ‘‘(B) issue, without further justification, Phase III awards’’ for ‘‘shall issue Phase III awards’’ in text. 2016—Subsec. (m). Pub. L. 114–328, § 1834(a), sub- stituted ‘‘September 30, 2022’’ for ‘‘September 30, 2017’’. Subsec. (n)(1)(A). Pub. L. 114–328, § 1834(b), substituted ‘‘fiscal year 2022’’ for ‘‘fiscal year 2017’’. 2015—Subsec. (mm)(1). Pub. L. 114–92 substituted ‘‘and until September 30, 2017,’’ for ‘‘, for the 3 fiscal years beginning after December 31, 2011,’’ in introductory provisions. 2013—Subsec. (b)(7). Pub. L. 112–239, § 1076(a)(20)(A), re- pealed Pub. L. 112–81, § 1067(a)(1). See 2011 Amendment note below. Subsec. (y)(4). Pub. L. 112–239, § 1615(b), made tech- nical amendment to directory language of Pub. L. 112–81, § 5141(b)(3)(B). See 2011 Amendment note below. Pub. L. 112–239, § 1615(a)(2), added par. (4). Former par. (4) redesignated (5). Subsec. (y)(5). Pub. L. 112–239, § 1615(a)(1), redesig- nated par. (4) as (5). Former par. (5) redesignated (6). Pub. L. 112–239, § 1076(a)(20)(A), repealed Pub. L. 112–81, § 1067(a)(2). See 2011 Amendment note below. Subsec. (y)(6). Pub. L. 112–239, § 1615(a)(1), redesig- nated par. (5) as (6). 2011—Subsec. (b)(7). Pub. L. 112–81, § 5131(1)(B), sub- stituted ‘‘(g)(8) and (o)(9);’’ for ‘‘(g)(10), (o)(9), and (o)(15) of this section, the number of proposals received from, and the number and total amount of awards to, HUBZone small business concerns under each of the SBIR and STTR programs, and a description’’ in sub- par. (A), added subpars. (B) to (F), and inserted ‘‘(G) a description’’ before ‘‘of the extent to which Federal agencies’’. Pub. L. 112–81, § 5131(1)(A), substituted ‘‘STTR pro- grams, including—’’ for ‘‘STTR programs, including’’, and inserted subpar. (A) designation before ‘‘the data on output’’. Pub. L. 112–81, § 1067(a)(1), which inserted ‘‘and includ- ing an accounting of funds, initiatives, and outcomes under the Commercialization Pilot Program’’ after ‘‘and (o)(15) of this section,’’, was repealed by Pub. L. 112–239, § 1076(a)(20)(A). Subsec. (b)(9). Pub. L. 112–81, § 5131(1)(C), (2), (3), added par. (9). Subsec. (e)(4)(B). Pub. L. 112–81, § 5105(1), substituted ‘‘which shall not include any invitation, pre-screening, or pre-selection process for eligibility for Phase II, that will further’’ for ‘‘to further’’. Subsec. (e)(4)(C). Pub. L. 112–81, § 5125(a)(1), inserted ‘‘for work that derives from, extends, or completes ef- forts made under prior funding agreements under the SBIR program’’ after ‘‘phase’’ in introductory provi- sions. Subsec. (e)(4)(C)(ii). Pub. L. 112–81, § 5125(b)(1)(A), sub- stituted ‘‘merit-based selection procedures’’ for ‘‘sci- entific review criteria’’. Subsec. (e)(6)(B). Pub. L. 112–81, § 5105(2), substituted ‘‘which shall not include any invitation, pre-screening, or pre-selection process for eligibility for Phase II, that will further develop proposals that’’ for ‘‘to further de- velop proposed ideas to’’. Subsec. (e)(6)(C). Pub. L. 112–81, § 5125(a)(2), inserted ‘‘for work that derives from, extends, or completes ef- forts made under prior funding agreements under the STTR program’’ after ‘‘phase’’ in introductory provi- sions. Subsec. (e)(9). Pub. L. 112–81, § 5125(b)(1)(B), sub- stituted ‘‘Phase II or Phase III’’ for ‘‘the second or the third phase’’. Subsec. (e)(10). Pub. L. 112–81, § 5125(a)(3)–(5), added par. (10). Subsec. (e)(11) to (13). Pub. L. 112–81, § 5125(b)(1)(C), added pars. (11) to (13). Subsec. (f)(1). Pub. L. 112–81, § 5102(a)(1), substituted ‘‘Except as provided in paragraph (2)(B), each’’ for ‘‘Each’’ in introductory provisions, added subpars. (C) to (I), and struck out former subpar. (C) which read as follows: ‘‘not less than 2.5 percent of such budget in each fiscal year thereafter,’’. Subsec. (f)(2). Pub. L. 112–81, § 5141(b)(3)(A), sub- stituted ‘‘shall not— ‘‘(A) use any of its SBIR budget established pursu- ant to paragraph (1) for the purpose of funding admin- istrative costs of the program, including costs associ- ated with salaries and expenses; or ‘‘(B) make available for the purpose’’ for ‘‘shall not make available for the purpose’’. Pub. L. 112–81, § 5141(b)(1)(A), substituted ‘‘shall not make available for the purpose’’ for ‘‘shall not— ‘‘(A) use any of its SBIR budget established pursu- ant to paragraph (1) for the purpose of funding admin- istrative costs of the program, including costs associ- ated with salaries and expenses; or ‘‘(B) make available for the purpose’’. Subsec. (f)(4). Pub. L. 112–81, § 5102(a)(2), added par. (4). Subsec. (g)(4). Pub. L. 112–81, § 5126(a)(1), designated existing provisions as subpar. (A) and added subpar. (B). Subsec. (g)(8) to (10). Pub. L. 112–81, § 5132, added par. (8), redesignated former pars. (8) and (9) as (9) and (10), respectively, and struck out former par. (10) which read as follows: ‘‘collect, and maintain in a common format in accordance with subsection (v) of this section, such information from awardees as is necessary to assess the SBIR program, including information necessary to maintain the database described in subsection (k) of this section;’’. Subsec. (g)(12). Pub. L. 112–81, § 5110(a), added par. (12). Subsec. (i)(1). Pub. L. 112–81, § 5122(b), inserted ‘‘(in- cluding awards under subsection (y))’’ after ‘‘the num- ber of awards’’. Subsec. (j)(1)(B). Pub. L. 112–81, § 5125(b)(2)(A), sub- stituted ‘‘Phase II’’ for ‘‘phase two’’. Subsec. (j)(2)(B). Pub. L. 112–81, § 5125(b)(2)(B)(i), sub- stituted ‘‘Phase III’’ for ‘‘the third phase’’ in two places and ‘‘Phase II’’ for ‘‘the second phase’’. Subsec. (j)(2)(D). Pub. L. 112–81, § 5125(b)(2)(B)(ii), sub- stituted ‘‘Phase I’’ for ‘‘the first phase’’ and ‘‘‘Phase II’’ for ‘‘the second phase’’. Pub. L. 112–81, § 5103(c)(1), substituted ‘‘every year for inflation’’ for ‘‘once every 5 years to reflect economic adjustments and programmatic considerations’’. Pub. L. 112–81, § 5103(a), substituted ‘‘$150,000’’ for ‘‘$100,000’’ and ‘‘$1,000,000’’ for ‘‘$750,000’’. Subsec. (j)(2)(F). Pub. L. 112–81, § 5125(b)(2)(B)(iii), sub- stituted ‘‘Phase III’’ for ‘‘the third phase’’. Subsec. (j)(2)(G). Pub. L. 112–81, § 5125(b)(2)(B)(iv), sub- stituted ‘‘Phase I’’ for ‘‘the first phase’’ and ‘‘Phase II’’ for ‘‘the second phase’’. Page 954 TITLE 15—COMMERCE AND TRADE § 638 Subsec. (j)(2)(H). Pub. L. 112–81, § 5125(b)(2)(B)(v), sub- stituted ‘‘Phase I’’ for ‘‘the first phase’’, ‘‘Phase II’’ for ‘‘second phase’’ in two places, and ‘‘Phase III’’ for ‘‘third phase’’. Subsec. (j)(3)(A). Pub. L. 112–81, § 5125(b)(2)(C)(i), sub- stituted ‘‘Phase I’’ for ‘‘the first phase (as described in subsection (e)(4)(A) of this section)’’, ‘‘Phase II’’ for ‘‘(as described in subsection (e)(4)(B) of this section)’’, and ‘‘Phase III’’ for ‘‘the third phase (as described in subsection (e)(4)(C) of this section)’’. Subsec. (j)(3)(B). Pub. L. 112–81, § 5125(b)(2)(C)(ii), sub- stituted ‘‘Phase II’’ for ‘‘second phase’’. Subsec. (k). Pub. L. 112–81, § 5125(b)(3), substituted ‘‘Phase I’’ for ‘‘first phase’’ and ‘‘Phase II’’ for ‘‘second phase’’ wherever appearing. Subsec. (k)(1)(F). Pub. L. 112–81, § 5134, added subpar. (F). Subsec. (k)(2). Pub. L. 112–81, § 5135(1), in introductory provisions, substituted ‘‘Not later than 90 days after December 31, 2011’’ for ‘‘Not later than 180 days after December 21, 2000’’, added subpars. (A), (D), and (G), re- designated former subpars. (A), (B), (D), and (E) as (B), (C), (E), and (F), respectively, and struck out former subpar. (C) which read as follows: ‘‘includes for each ap- plicant for a Phase I or Phase II award that does not re- ceive such an award— ‘‘(i) the name, size, and location, and an identifying number assigned by the Administration; ‘‘(ii) an abstract of the project; and ‘‘(iii) the Federal agency to which the application was made;’’. Subsec. (k)(3)(C). Pub. L. 112–81, § 5135(2), added sub- par. (C). Subsec. (l)(2). Pub. L. 112–81, § 5125(b)(4), substituted ‘‘Phase I’’ for ‘‘the first phase’’ and ‘‘Phase II’’ for ‘‘the second phase’’. Subsec. (m). Pub. L. 112–81, § 5101(a), substituted ‘‘2017’’ for ‘‘2011’’. Pub. L. 112–17, § 3(a), struck out par. (1) designation and heading, substituted ‘‘The authorization’’ for ‘‘Ex- cept as provided in paragraph (2), the authorization’’ and ‘‘2011’’ for ‘‘2008’’, and struck out par. (2). Text of par. (2) read as follows: ‘‘The Secretary of Defense and the Secretary of each military department are author- ized to carry out the Small Business Innovation Re- search Program of the Department of Defense until September 30, 2010’’. Subsec. (m)(2). Pub. L. 111–383 substituted ‘‘are au- thorized’’ for ‘‘is authorized’’. Subsec. (n)(1)(A). Pub. L. 112–81, § 5101(b), substituted ‘‘2017’’ for ‘‘2011’’. Pub. L. 112–17, § 3(b), struck out cl. (i) designation and heading, substituted ‘‘With respect’’ for ‘‘Except as pro- vided in clause (ii), with respect’’ and ‘‘2011’’ for ‘‘2009’’, and struck out cl. (ii). Text of cl. (ii) read as follows: ‘‘The Secretary of Defense and the Secretary of each military department shall carry out clause (i) with re- spect to each fiscal year through fiscal year 2010.’’ Subsec. (n)(1)(B)(ii) to (v). Pub. L. 112–81, § 5102(b), added cls. (ii) to (v) and struck out former cl. (ii) which read as follows: ‘‘0.3 percent for fiscal year 2004 and each fiscal year thereafter.’’ Subsec. (o)(4). Pub. L. 112–81, § 5126(a)(2), designated existing provisions as subpar. (A) and added subpar. (B). Subsec. (o)(9). Pub. L. 112–81, § 5133, added par. (9) and struck out former par. (9) which read as follows: ‘‘col- lect such data from awardees as is necessary to assess STTR program outputs and outcomes;’’. Subsec. (o)(13)(B). Pub. L. 112–81, § 5125(b)(5)(A), sub- stituted ‘‘Phase II’’ for ‘‘second phase’’. Subsec. (o)(13)(C). Pub. L. 112–81, § 5125(b)(5)(B), sub- stituted ‘‘Phase III’’ for ‘‘third phase’’. Subsec. (o)(15), (16). Pub. L. 112–81, § 5110(b), added par. (16), redesignated former par. (16) as (15) and struck out former par. (15) which read as follows: ‘‘collect, and maintain in a common format in accordance with sub- section (v) of this section, such information from awardees as is necessary to assess the STTR program, including information necessary to maintain the data- base described in subsection (k) of this section; and’’. Subsec. (p)(2)(B)(vi). Pub. L. 112–81, § 5125(b)(6)(A)(i), substituted ‘‘Phase II’’ for ‘‘the second phase’’ and ‘‘Phase III’’ for ‘‘the third phase’’. Subsec. (p)(2)(B)(ix). Pub. L. 112–81, § 5125(b)(6)(A)(ii), substituted ‘‘Phase I’’ for ‘‘the first phase’’ and ‘‘Phase II’’ for ‘‘the second phase’’. Pub. L. 112–81, § 5103(c)(2), inserted ‘‘(each of which the Administrator shall adjust for inflation annually)’’ after ‘‘$1,000,000,’’. Pub. L. 112–81, § 5103(b), substituted ‘‘$150,000’’ for ‘‘$100,000’’ and ‘‘$1,000,000’’ for ‘‘$750,000’’. Subsec. (p)(3). Pub. L. 112–81, § 5125(b)(6)(B), sub- stituted ‘‘Phase I’’ for ‘‘the first phase (as described in subsection (e)(6)(A) of this section)’’, ‘‘Phase II’’ for ‘‘the second phase (as described in subsection (e)(6)(B) of this section)’’, and ‘‘Phase III’’ for ‘‘the third phase (as described in subsection (e)(6)(C) of this section)’’. Subsec. (q)(1). Pub. L. 112–81, § 5121(1), inserted ‘‘or STTR program’’ after ‘‘SBIR program’’ and substituted ‘‘SBIR or STTR projects’’ for ‘‘SBIR projects’’ in intro- ductory provisions. Subsec. (q)(2). Pub. L. 112–81, § 5121(2), substituted ‘‘5 years’’ for ‘‘3 years’’. Subsec. (q)(3). Pub. L. 112–81, § 5121(3), added subpars. (A) to (D) and struck out former subpars. (A) and (B) which read as follows: ‘‘(A) First phase ‘‘Each agency referred to in paragraph (1) may pro- vide services described in paragraph (1) to first phase SBIR award recipients in an amount equal to not more than $4,000, which shall be in addition to the amount of the recipient’s award. ‘‘(B) Second phase ‘‘Each agency referred to in paragraph (1) may au- thorize any second phase SBIR award recipient to purchase, with funds available from their SBIR awards, services described in paragraph (1), in an amount equal to not more than $4,000 per year.’’ Subsec. (r). Pub. L. 112–81, § 5125(b)(7)(A), substituted ‘‘Phase III’’ for ‘‘Third phase’’ in heading. Subsec. (r)(1). Pub. L. 112–81, § 5125(b)(7)(B), sub- stituted, in first sentence, ‘‘for Phase II’’ for ‘‘for the second phase’’, ‘‘Phase III’’ for ‘‘third phase’’, and ‘‘Phase II period’’ for ‘‘second phase period’’, and, in second sentence, ‘‘Phase II’’ for ‘‘second phase’’ and ‘‘Phase III’’ for ‘‘third phase’’. Subsec. (r)(2). Pub. L. 112–81, § 5125(b)(7)(C), sub- stituted ‘‘Phase III’’ for ‘‘third phase’’. Subsec. (r)(4). Pub. L. 112–81, § 5108, added par. (4). Subsec. (s). Pub. L. 112–17, § 4, added subsec. (s). Subsec. (u)(2)(B). Pub. L. 112–81, § 5125(b)(8), sub- stituted ‘‘Phase I’’ for ‘‘the first phase’’ in introductory provisions. Subsec. (v). Pub. L. 112–81, § 5144, substituted ‘‘Reduc- ing paperwork and compliance burden’’ for ‘‘Simplified reporting requirements’’ in heading, designated exist- ing provisions as par. (1), inserted heading, and added par. (2). Subsec. (y). Pub. L. 112–81, § 5122(a)(1), (2), substituted ‘‘Readiness’’ for ‘‘Pilot’’ wherever appearing in heading and text. Subsec. (y)(1). Pub. L. 112–81, § 5122(a)(3), inserted ‘‘or Small Business Technology Transfer Program’’ after ‘‘Small Business Innovation Research Program’’ and inserted at end ‘‘The authority to create and admin- ister a Commercialization Readiness Program under this subsection may not be construed to eliminate or replace any other SBIR program or STTR program that enhances the insertion or transition of SBIR or STTR technologies, including any such program in effect on January 6, 2006.’’ Subsec. (y)(2). Pub. L. 112–81, § 5122(a)(4), inserted ‘‘or Small Business Technology Transfer Program’’ after ‘‘Small Business Innovation Research Program’’. Subsec. (y)(4). Pub. L. 112–81, § 5141(b)(3)(B), as amend- ed by Pub. L. 112–239, § 1615(b), amended par. (4) gen- erally. Prior to amendment, text read as follows: ‘‘For payment of expenses incurred to administer the Com- mercialization Readiness Program under this sub- section, the Secretary of Defense and each Secretary of Page 955 TITLE 15—COMMERCE AND TRADE § 638 a military department is authorized to use not more than an amount equal to 1 percent of the funds avail- able to the Department of Defense or the military de- partment pursuant to the Small Business Innovation Research Program. Such funds shall not be used to make Phase III awards.’’ Pub. L. 112–81, § 5141(b)(1)(B), redesignated par. (5) as (4) and struck out former par. (4), which related to funding of expenses incurred to administer the Com- mercialization Readiness Program. Subsec. (y)(5). Pub. L. 112–81, § 5141(b)(1)(B)(ii), redes- ignated par. (6) as (5). Former par. (5) redesignated (4). Pub. L. 112–81, § 5122(a)(7), added par. (5). Pub. L. 112–81, § 5122(a)(5), struck out par. (5) which required the Secretary of Defense to submit an annual evaluative report regarding activities under the Com- mercialization Pilot Program. Pub. L. 112–81, § 1067(a)(2), which struck out par. (5), requiring the Secretary of Defense to submit an annual evaluative report regarding activities under the Com- mercialization Pilot Program, was repealed by Pub. L. 112–239, § 1076(a)(20)(A). Subsec. (y)(6). Pub. L. 112–81, § 5141(b)(1)(B)(ii), redes- ignated par. (6) as (5). Pub. L. 112–81, § 5122(a)(6), (7), added par. (6) and struck out former par. (6), which provided that pilot program would terminate at the end of fiscal year 2011. Pub. L. 112–17, § 3(c), substituted ‘‘2011’’ for ‘‘2010’’. Subsec. (aa). Pub. L. 112–81, § 5103(d), added subsec. (aa). Subsec. (bb). Pub. L. 112–81, § 5104, added subsec. (bb). Subsec. (cc). Pub. L. 112–81, § 5106, added subsec. (cc). Subsec. (dd). Pub. L. 112–81, § 5107(a), added subsec. (dd). Subsec. (ee). Pub. L. 112–81, § 5109, added subsec. (ee). Subsec. (ff). Pub. L. 112–81, § 5111, added subsec. (ff). Subsec. (gg). Pub. L. 112–81, § 5123, added subsec. (gg). Subsecs. (hh), (ii). Pub. L. 112–81, § 5126(b), added sub- secs. (hh) and (ii). Subsec. (jj). Pub. L. 112–81, § 5127, added subsec. (jj). Subsec. (kk). Pub. L. 112–81, § 5138, added subsec. (kk). Subsec. (ll). Pub. L. 112–81, § 5140, added subsec. (ll). Subsec. (mm). Pub. L. 112–81, § 5141(a), added subsec. (mm). Subsec. (nn). Pub. L. 112–81, § 5161, added subsec. (nn). Subsec. (oo). Pub. L. 112–81, § 5162, added subsec. (oo). Subsec. (pp). Pub. L. 112–81, § 5164, added subsec. (pp). Subsec. (qq). Pub. L. 112–81, § 5165, added subsec. (qq). Subsec. (rr). Pub. L. 112–81, § 5166, added subsec. (rr). Subsec. (ss). Pub. L. 112–81, § 5167, added subsec. (ss). 2009—Subsec. (m). Pub. L. 111–84, § 847(a), designated existing provisions as par. (1), inserted par. (1) heading, substituted ‘‘Except as provided in paragraph (2), the authorization’’ for ‘‘The authorization’’, and added par. (2). Subsec. (n)(1)(A). Pub. L. 111–84, § 847(b), designated existing provisions as cl. (i), inserted cl. (i) heading, substituted ‘‘Except as provided in clause (ii), with re- spect’’ for ‘‘With respect’’, and added cl. (ii). Subsec. (y)(6). Pub. L. 111–84, § 848, substituted ‘‘2010’’ for ‘‘2009’’. 2007—Subsec. (z). Pub. L. 110–140 added subsec. (z). 2006—Subsec. (b)(8). Pub. L. 109–163, § 252(b)(1), added par. (8). Subsec. (e)(9). Pub. L. 109–163, § 252(c), added par. (9). Subsec. (g)(11). Pub. L. 109–163, § 252(b)(2), added par. (11). Subsec. (o)(16). Pub. L. 109–163, § 252(b)(3), added par. (16). Subsecs. (x), (y). Pub. L. 109–163, § 252(a), added sub- secs. (x) and (y). 2004—Subsec. (j)(2)(I). Pub. L. 108–271 substituted ‘‘Government Accountability Office’’ for ‘‘General Ac- counting Office’’. 2001—Subsec. (b)(4). Pub. L. 107–50, § 2(b), struck out ‘‘pilot’’ before ‘‘programs;’’. Subsec. (b)(7). Pub. L. 107–50, § 6(d), substituted ‘‘, (o)(9), and (o)(15) of this section, the number of pro- posals received from, and the number and total amount of awards to, HUBZone small business concerns under each of the SBIR and STTR programs,’’ for ‘‘and (o)(9) of this section,’’. Subsec. (e)(6). Pub. L. 107–50, § 2(b), struck out ‘‘pilot’’ before ‘‘program’’ in introductory provisions. Subsec. (k)(1). Pub. L. 107–50, § 6(b)(1), inserted ‘‘or STTR’’ after ‘‘SBIR’’ in subpars. (A) to (C) and added subpar. (E). Subsec. (k)(2). Pub. L. 107–50, § 6(b)(2)(A), (B), in intro- ductory provisions, inserted ‘‘or an STTR program pur- suant to subsection (n)(1)’’ after ‘‘(f)(1)’’ and sub- stituted ‘‘exclusively for SBIR and STTR’’ for ‘‘solely for SBIR’’. Subsec. (k)(2)(A)(iii). Pub. L. 107–50, § 6(b)(2)(C), in- serted ‘‘and STTR’’ after ‘‘SBIR’’. Subsec. (k)(2)(D). Pub. L. 107–50, § 6(b)(2)(D), inserted ‘‘or STTR’’ after ‘‘SBIR’’. Subsec. (n)(1). Pub. L. 107–50, § 2(a), amended heading and text of par. (1) generally. Prior to amendment, text read as follows: ‘‘With respect to fiscal years 1998, 1999, 2000, and 2001, each Federal agency that has an extra- mural budget for research, or research and develop- ment, in excess of $1,000,000,000 for that fiscal year, is authorized to expend with small business concerns not less than 0.15 percent of that extramural budget specifi- cally in connection with STTR programs that meet the requirements of this section and any policy directives and regulations issued under this section.’’ Subsec. (o)(11). Pub. L. 107–50, § 7(b), substituted ‘‘adopt the agreement developed by the Administrator under subsection (w) as the agency’s model agreement’’ for ‘‘develop a model agreement not later than July 31, 1993, to be approved by the Administration,’’. Subsec. (o)(14). Pub. L. 107–50, § 4, added par. (14). Subsec. (o)(15). Pub. L. 107–50, § 6(a), added par. (15). Subsec. (p)(2)(B)(ix). Pub. L. 107–50, § 3, substituted ‘‘$750,000’’ for ‘‘$500,000’’ and inserted ‘‘, and shorter or longer periods of time to be approved at the discretion of the awarding agency where appropriate for a par- ticular project’’ before the semicolon at the end. Subsec. (p)(3). Pub. L. 107–50, § 5, added par. (3). Subsec. (v). Pub. L. 107–50, § 6(c), inserted ‘‘or STTR’’ after ‘‘SBIR’’ in two places. Subsec. (w). Pub. L. 107–50, § 7(a), added subsec. (w). 2000—Subsec. (b)(7). Pub. L. 106–554, § 1(a)(9) [title I, § 107(b)], inserted before period at end ‘‘, including the data on output and outcomes collected pursuant to sub- sections (g)(10) and (o)(9) of this section, and a descrip- tion of the extent to which Federal agencies are pro- viding in a timely manner information needed to main- tain the database described in subsection (k)’’. Pub. L. 106–554, § 1(a)(9) [title I, § 104], substituted ‘‘, and to the Committee on Science and the Com- mittee on Small Business of the House of Representa- tives,’’ for ‘‘and the Committee on Small Business of the House of Representatives’’. Subsec. (e)(4)(C)(i). Pub. L. 106–554, § 1(a)(9) [title I, § 105], substituted ‘‘; or’’ for ‘‘; and’’ at end. Subsec. (g)(9). Pub. L. 106–554, § 1(a)(9) [title I, § 106], added par. (9). Subsec. (g)(10). Pub. L. 106–554, § 1(a)(9) [title I, § 107(a)], added par. (10). Subsec. (i). Pub. L. 106–554, § 1(a)(9) [title I, § 109], in- serted subsec. heading, designated existing provisions as par. (1), inserted par. heading, and added par. (2). Subsec. (j)(3). Pub. L. 106–554, § 1(a)(9) [title I, § 110], added par. (3). Subsec. (k). Pub. L. 106–554, § 1(a)(9) [title I, § 107(c)], amended subsec. (k) generally, substituting present provisions for provisions which read ‘‘(k) [Reserved]’’. Subsec. (m). Pub. L. 106–554, § 1(a)(9) [title I, § 103], amended heading and text generally. Prior to amend- ment, text read as follows: ‘‘The authorization to carry out the Small Business Innovation Research Program under this section shall terminate on October 1, 2000.’’ Subsec. (s)(2). Pub. L. 106–554, § 1(a)(9) [title I, § 114(b)], substituted ‘‘for each of the fiscal years 2000 through 2005,’’ for ‘‘for fiscal year 1998, 1999, 2000, or 2001’’. Subsec. (u). Pub. L. 106–554, § 1(a)(9) [title I, § 111(c)], added subsec. (u). Subsec. (v). Pub. L. 106–554, § 1(a)(9) [title I, § 113], added subsec. (v). Page 956 TITLE 15—COMMERCE AND TRADE § 638 1999—Subsec. (p)(1)(B). Pub. L. 106–113 amended sub- par. (B) generally. Prior to amendment, subpar. (B) read as follows: ‘‘the Commissioner of Patents and Trademarks; and’’. 1997—Subsec. (e)(4)(A). Pub. L. 105–135, § 501(b)(1)(B), substituted ‘‘subparagraph (B)’’ for ‘‘subparagraph (B)(ii)’’. Subsec. (n)(1). Pub. L. 105–135, § 501(a), added par. (1) and struck out heading and text of former par. (1). Text read as follows: ‘‘Each Federal agency which has an ex- tramural budget for research or research and develop- ment in excess of $1,000,000,000 in fiscal year 1994, 1995, or 1996, is authorized to expend with small business concerns— ‘‘(A) not less than 0.05 percent of such budget in fis- cal year 1994; ‘‘(B) not less than 0.1 percent of such budget in fis- cal year 1995; and ‘‘(C) not less than 0.15 percent of such budget in fis- cal years 1996 and 1997, specifically in connection with STTR programs which meet the requirements of this section, policy direc- tives, and regulations issued under this section.’’ Subsec. (o)(8) to (13). Pub. L. 105–135, § 501(b)(1)(A), added pars. (8) and (9) and redesignated former pars. (8) to (11) as (10) to (13), respectively. Subsec. (s). Pub. L. 105–135, § 501(b)(2), struck out sub- sec. (s), which related to outreach, including provisions defining eligible State and relating to program author- ity, amount of assistance, and use of assistance. Pub. L. 105–135, § 501(b)(1)(C), added subsec. (s). Subsec. (t). Pub. L. 105–135, § 501(b)(1)(C), added sub- sec. (t). 1996—Subsec. (n)(1)(C). Pub. L. 104–208 substituted ‘‘fiscal years 1996 and 1997’’ for ‘‘fiscal year 1996’’. 1994—Subsec. (q)(2). Pub. L. 103–403 amended heading and text of par. (2) generally. Prior to amendment, text read as follows: ‘‘Annually, each agency may select a vendor for purposes of this subsection using competi- tive, merit-based criteria, to assist small business con- cerns to meet the goals listed in paragraph (1).’’ 1992—Subsec. (b)(4). Pub. L. 102–564, § 202(a)(1), in- serted before semicolon at end ‘‘and small business technology transfer pilot programs’’. Subsec. (b)(5) to (7). Pub. L. 102–564, § 202(a)(2), in- serted ‘‘and STTR’’ after ‘‘SBIR’’ wherever appearing. Subsec. (e)(1). Pub. L. 102–564, § 103(c), substituted ‘‘for the Department of Energy it shall not include amounts obligated for atomic energy defense programs solely for weapons activities or for naval reactor pro- grams’’ for ‘‘for the Department of Defense it shall not include amounts obligated solely for operational sys- tems development’’. Pub. L. 102–484, § 4237(d)(1), (2)(A), (h)(2), temporarily amended par. (1) by striking out ‘‘except that for the Department of Defense it shall not include amounts ob- ligated solely for operational systems development, and’’ after ‘‘Government-operated facilities,’’ and sub- stituting ‘‘, and except that for the Department of En- ergy it shall not include amounts obligated for atomic energy defense programs for weapons and weapons-re- lated activities or for naval reactor programs;’’ for semicolon at end. See section 4237(h)(2) of Pub. L. 102–484 set out in a Small Business Innovation Research Program in Department of Defense note below. Subsec. (e)(4)(A). Pub. L. 102–564, § 103(a)(1), inserted ‘‘that appear to have commercial potential, as de- scribed in subparagraph (B)(ii),’’ after ‘‘ideas’’. Subsec. (e)(4)(B). Pub. L. 102–564, § 103(a)(2), added sub- par. (B) and struck out former subpar. (B) which read as follows: ‘‘a second phase to further develop the pro- posed ideas to meet the particular program needs, the awarding of which shall take into consideration the sci- entific and technical merit and feasibility evidenced by the first phase and, where two or more proposals are evaluated as being of approximately equal scientific and technical merit and feasibility, special consider- ation shall be given to those proposals that have dem- onstrated third phase, non-Federal capital commit- ments; and’’. Subsec. (e)(4)(C). Pub. L. 102–564, § 103(a)(2), added sub- par. (C) and struck out former subpar. (C) which read as follows: ‘‘where appropriate, a third phase in which non-Federal capital pursues commercial applications of the research or research and development and which may also involve follow-on non-SBIR funded produc- tion contracts with a Federal agency for products or processes intended for use by the United States Govern- ment; and’’. Subsec. (e)(6) to (8). Pub. L. 102–564, § 202(b), added pars. (6) to (8). Subsec. (f). Pub. L. 102–564, § 103(b), amended subsec. (f) generally. Prior to amendment, subsec. (f) consisted of pars. (1) and (2) relating to Federal agency extra- mural budget expenditures for fiscal years 1982 and thereafter for small business concerns in connection with small business innovation research programs meeting the requirements of the Small Business Inno- vation Development Act of 1982. Subsec. (f)(2). Pub. L. 102–484, § 4237(d)(2)(B), (h)(2), temporarily struck out par. (2) which read ‘‘Amounts appropriated for atomic energy defense programs of the Department of Energy shall for the purposes of para- graph (1) be excluded from the amount of the research or research and development budget of that Depart- ment.’’ See section 4237(h)(2) of Pub. L. 102–484 set out in a Small Business Innovation Research Program in Department of Defense note below. Subsec. (g)(3), (4). Pub. L. 102–564, § 103(d), added par. (3) and redesignated former par. (3) as (4). Former par. (4) redesignated (5). Subsec. (g)(5). Pub. L. 102–564, § 103(d)(1), (h)(2), (i), re- designated par. (4) as (5) and inserted ‘‘subject to sub- section (l),’’ before ‘‘unilaterally’’ and ‘‘and inform each awardee under such an agreement, to the extent possible, of the expenses of the awardee that will be al- lowable under the funding agreement’’ before semi- colon at end. Former par. (5) redesignated (6). Subsec. (g)(6). Pub. L. 102–564, § 103(d)(1), redesignated par. (5) as (6). Former par. (6) redesignated (7). Subsec. (g)(7). Pub. L. 102–564, § 103(d)(1), (e), redesig- nated par. (6) as (7) and inserted before semicolon at end ‘‘and, in all cases, make payment to recipients under such agreements in full, subject to audit, on or before the last day of the 12-month period beginning on the date of completion of such requirements’’. Former par. (7) redesignated (8). Subsec. (g)(8). Pub. L. 102–564, § 103(d)(1), redesignated par. (7) as (8). Subsec. (j). Pub. L. 102–564, § 103(f), designated exist- ing provisions as par. (1) and inserted heading, redesig- nated former pars. (1) and (2) as subpars. (A) and (B), re- spectively, of par. (1), former subpars. (A) to (H) of former par. (2) as cls. (i) to (viii), respectively, of sub- par. (B) of par. (1), and former pars. (3) to (7) as subpars. (C) to (G), respectively, of par. (1), and added par. (2). Subsec. (k). Pub. L. 102–564, § 103(g), amended subsec. (k) generally, substituting ‘‘(k) [Reserved]’’ for prior provisions of subsec. (k) which read as follows: ‘‘The Di- rector of the Office of Science and Technology Policy, in consultation with the Federal Coordinating Council for Science, Engineering and Research, shall, in addi- tion to such other responsibilities imposed upon him by the Small Business Innovation Development Act of 1982— ‘‘(1) independently survey and monitor all phases of the implementation and operation of SBIR programs within agencies required to establish an SBIR pro- gram, including compliance with the expenditures of funds according to the requirements of subsection (f) of this section; and ‘‘(2) report not less than annually, and at such other times as the Director may deem appropriate, to the Committees on Small Business of the Senate and the House of Representatives on all phases of the im- plementation and operation of SBIR programs within agencies required to establish an SBIR program, to- gether with such recommendations as the Director may deem appropriate.’’ Subsec. (l). Pub. L. 102–564, § 103(h)(1), added subsec. (l). Page 957 TITLE 15—COMMERCE AND TRADE § 638 Subsec. (m). Pub. L. 102–564, § 104(b), added subsec. (m). Subsecs. (n) to (p). Pub. L. 102–564, § 202(c), added sub- secs. (n) to (p). Subsec. (q). Pub. L. 102–564, § 301(a), added subsec. (q). Subsec. (r). Pub. L. 102–564, § 305, added subsec. (r). 1988—Subsec. (j)(6), (7). Pub. L. 100–590 added pars. (6) and (7). 1986—Subsec. (e)(1). Pub. L. 99–443, § 1, inserted provi- sion that for the Department of Defense, the extra- mural budget shall not include amounts obligated sole- ly for operational systems development. 1982—Subsec. (b)(4) to (7). Pub. L. 97–219, § 3, added pars. (4) to (7). Subsecs. (e) to (k). Pub. L. 97–219, § 4, added subsecs. (e) to (k). Statutory Notes and Related Subsidiaries CHANGE OF NAME Committee on Small Business of Senate changed to Committee on Small Business and Entrepreneurship of Senate. See Senate Resolution No. 123, One Hundred Seventh Congress, June 29, 2001. Committee on Science of House of Representatives changed to Committee on Science and Technology of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007. Committee on Science and Technology of House of Representatives changed to Committee on Science, Space, and Tech- nology of House of Representatives by House Resolu- tion No. 5, One Hundred Twelfth Congress, Jan. 5, 2011. EFFECTIVE DATE OF 2013 AMENDMENT Pub. L. 112–239, div. A, title X, § 1076(a), Jan. 2, 2013, 126 Stat. 1947, provided that the amendment made by section 1076(a)(20)(A) is effective Dec. 31, 2011, and as if included in Pub. L. 112–81 as enacted. Pub. L. 112–239, div. A, title XVI, § 1615(c), Jan. 2, 2013, 126 Stat. 2067, provided that: ‘‘The amendments made by this section [amending this section] shall take effect as of January 1, 2012.’’ EFFECTIVE DATE OF 2011 AMENDMENT Pub. L. 112–81, div. E, title LI, § 5141(b)(3), Dec. 31, 2011, 125 Stat. 1854, provided in part that the amend- ments made by section 5141(b)(3) of Pub. L. 112–81 (amending this section) were effective on the first day of the fourth full fiscal year following Dec. 31, 2011. EFFECTIVE DATE OF 2009 AMENDMENT Pub. L. 111–84, div. A, title VIII, § 847(c), Oct. 28, 2009, 123 Stat. 2421, provided that: ‘‘The amendments made by this section [amending this section] shall take effect as of July 30, 2009.’’ EFFECTIVE DATE OF 2007 AMENDMENT Amendment by Pub. L. 110–140 effective on the date that is 1 day after Dec. 19, 2007, see section 1601 of Pub. L. 110–140, set out as an Effective Date note under sec- tion 1824 of Title 2, The Congress. EFFECTIVE DATE OF 2001 AMENDMENT Pub. L. 107–50, § 3(b), Oct. 15, 2001, 115 Stat. 263, pro- vided that: ‘‘The amendments made by subsection (a) [amending this section] shall be effective beginning in fiscal year 2004.’’ EFFECTIVE DATE OF 1999 AMENDMENT Amendment by Pub. L. 106–113 effective 4 months after Nov. 29, 1999, see section 1000(a)(9) [title IV, § 4731] of Pub. L. 106–113, set out as a note under section 1 of Title 35, Patents. EFFECTIVE AND TERMINATION DATES OF 1997 AMENDMENT Amendment by Pub. L. 105–135 effective Oct. 1, 1997, see section 3 of Pub. L. 105–135, set out as a note under section 631 of this title. Pub. L. 105–135, title V, § 501(b)(2), Dec. 2, 1997, 111 Stat. 2622, as amended by Pub. L. 106–554, § 1(a)(9) [title I, § 114(a)], Dec. 21, 2000, 114 Stat. 2763, 2763A–681, pro- vided that: ‘‘Effective October 1, 2005, section 9(s) of the Small Business Act [15 U.S.C. 638(s)] (as added by para- graph (1) of this subsection) is repealed.’’ EFFECTIVE DATE OF 1996 AMENDMENT Amendment by Pub. L. 104–208 effective Oct. 1, 1996, see section 3 of Pub. L. 104–208, set out as a note under section 633 of this title. EFFECTIVE AND TERMINATION DATES OF 1992 AMENDMENT For effective and termination dates of amendment by Pub. L. 102–484, see section 4237(g) and (h) of Pub. L. 102–484, set out in a Small Business Innovation Re- search Program in Department of Defense note below. TERMINATION DATE OF 1982 AMENDMENT Pub. L. 97–219, § 5, July 22, 1982, 96 Stat. 221, as amend- ed by Pub. L. 99–443, § 2, Oct. 6, 1986, 100 Stat. 1120; Pub. L. 102–484, div. D, title XLII, § 4237(a), Oct. 23, 1992, 106 Stat. 2691, which provided that effective Oct. 1, 1993, subsecs. (b)(4) through (7) and (e) through (k) of this section were to be repealed, was repealed by Pub. L. 102–564, title I, § 104(a), Oct. 28, 1992, 106 Stat. 4254. RULE OF CONSTRUCTION Pub. L. 117–183, § 4(b)(5), Sept. 30, 2022, 136 Stat. 2183, provided that: ‘‘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 dili- gence program that applies to the SBIR or STTR pro- grams 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 enact- ment of this Act [Sept. 30, 2022]; or ‘‘(B) restrict any Federal agency from taking due diligence measures in addition to those required under such subsection (vv) at the Federal agency.’’ [For definitions of ‘‘Federal agency’’, ‘‘SBIR’’, and ‘‘STTR’’ as used in section 4(b)(5) of Pub. L. 117–183, set out above, see section 2 of Pub. L. 117–183, set out as a note below.] DUE DILIGENCE PROGRAM Pub. L. 117–263, div. A, title VIII, § 872(b), Dec. 23, 2022, 136 Stat. 2739, provided that: ‘‘(1) IN GENERAL.—Until the date on which the Under Secretary of Defense for Research and Engineering makes the certification described in paragraph (2), in carrying out the due diligence program required under subsection (vv) of section 9 of the Small Business Act (15 U.S.C. 638), the Secretary of Defense and each Sec- retary of a military department shall perform the as- sessments required under such due diligence program— ‘‘(A) only with respect to small business concerns selected by the applicable Secretary as the presump- tive recipient of an award described in such sub- section (vv); and ‘‘(B) prior to notifying the small business concern that the small business concern has been selected to receive such an award. ‘‘(2) FULL IMPLEMENTATION.—On the date on which the Under Secretary of Defense for Research and Engi- neering certifies to the Committees on Armed Services of the Senate and the House of Representatives that an automated capability for performing the assessments required under the due diligence program required under subsection (vv) of section 9 of the Small Business Act (15 U.S.C. 638) with respect to all small business concerns seeking an award described in such subsection is operational, paragraph (1) of this subsection shall sunset.’’ IMPLEMENTATION OF 2022 AMENDMENT Pub. L. 117–183, § 4(b)(2), Sept. 30, 2022, 136 Stat. 2182, provided that: Page 958 TITLE 15—COMMERCE AND TRADE § 638 ‘‘(A) IN GENERAL.—Not later than 270 days after the date of enactment of this Act [Sept. 30, 2022], the head of a Federal agency required to establish an SBIR or STTR program shall implement a due diligence pro- gram 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) [set out as a note below]. ‘‘(B) PAPERWORK REDUCTION ACT.—Chapter 35 of title 44, United States Code (commonly known as the ‘Paper- work Reduction Act’), shall not apply to the implemen- tation 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 re- quired to establish a due diligence program under sub- section (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.’’ [For definitions of ‘‘Federal agency’’, ‘‘SBIR’’, and ‘‘STTR’’ as used in section 4(b)(2) of Pub. L. 117–183, set out above, see section 2 of Pub. L. 117–183, set out as a note below.] Pub. L. 117–183, § 5(c), Sept. 30, 2022, 136 Stat. 2187, pro- vided that: ‘‘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).’’ BEST PRACTICES Pub. L. 117–183, § 4(b)(3), Sept. 30, 2022, 136 Stat. 2182, provided that: ‘‘Not later than 180 days after the date of enactment of this Act [Sept. 30, 2022], the Adminis- trator shall— ‘‘(A) in coordination with the Director of the Office of Science and Technology Policy and in consultation with the Committee on Foreign Investment in the United States, disseminate among Federal agencies required to establish an SBIR or STTR program best practices of those Federal agencies for due diligence programs required under subsection (vv) of section 9 of the Small Business Act (15 U.S.C. 638), as added by paragraph (1); and ‘‘(B) in consultation with the Committee on For- eign Investment in the United States, provide to Fed- eral agencies described in subparagraph (A) guidance on the business relationships required to be disclosed under paragraph (13)(G) of subsection (g) and para- graph (17)(G) of subsection (o) of section 9 of the Small Business Act (15 U.S.C. 638), as added by this Act.’’ [For definitions of terms used in section 4(b)(3) of Pub. L. 117–183, set out above, see section 2 of Pub. L. 117–183, set out as a note below.] CYBERSECURITY TECHNICAL ASSISTANCE FOR SBIR AND STTR PROGRAMS Pub. L. 116–92, div. A, title VIII, § 881, Dec. 20, 2019, 133 Stat. 1533, provided that: ‘‘(a) IN GENERAL.—The Secretary of Defense may enter into an agreement with 1 or more vendors se- lected under section 9(q)(2) of the Small Business Act (15 U.S.C. 638(q)(2)) to provide small business concerns engaged in SBIR or STTR projects with cybersecurity technical assistance, such as access to a network of cybersecurity experts and engineers engaged in design- ing and implementing cybersecurity practices. ‘‘(b) AMOUNTS.—In carrying out subsection (a), the Secretary of Defense may provide the amounts de- scribed under section 9(q)(3) of such Act (15 U.S.C. 638(q)(3)) to a recipient that meets the eligibility re- quirements under the such [sic] paragraph, if the re- cipient requests to seek cybersecurity technical assist- ance from an individual or entity other than a vendor selected as described in subsection (a).’’ PILOT PROGRAM FOR DOMESTIC INVESTMENT UNDER THE SBIR PROGRAM Pub. L. 116–92, div. A, title VIII, § 884, Dec. 20, 2019, 133 Stat. 1534, as amended by Pub. L. 117–81, div. A, title XVII, § 1702(e)(4), Dec. 27, 2021, 135 Stat. 2157, provided that: ‘‘(a) IN GENERAL.—Not later than 1 year after the date of the enactment of this Act [Dec. 20, 2019] and subject to subsection (b), the Secretary of Defense shall establish and administer a program to be known as the ‘Domestic Investment Pilot Program’ under which the Secretary and the service acquisition executive for each military department may make a SBIR award under section 9(dd) of the Small Business Act (15 U.S.C. 638[(dd)]) to a small business concern without providing the written determination described under paragraph (2) of such section 9(dd) if such concern is— ‘‘(1) exclusively owned by multiple United States- owned venture capital operating companies, hedge funds, or private equity firms, or ‘‘(2) majority-owned by multiple United States- owned venture capital operating companies, hedge funds, or private equity firms, if the minority foreign ownership of such concern is limited to members of the national technology and industrial base as de- fined under section 4801 of title 10, United States Code. ‘‘(b) LIMITATION.—During any fiscal year, the aggre- gate amount of awards made under the Domestic In- vestment Pilot Program shall not exceed an amount equal to 10 percent of the total amount that the Sec- retary of Defense may award under section 9 of the Small Business Act (15 U.S.C. 638) during such fiscal year. ‘‘(c) EVALUATION CRITERIA.—In carrying out the Do- mestic Investment Pilot Program, the Secretary of De- fense may not use investment of venture capital or in- vestment from hedge funds or private equity firms as a criterion for the award of contracts under the SBIR program or STTR program. ‘‘(d) ANNUAL REPORTING.—The Secretary of Defense shall include as part of each annual report required under section 9(b)(7) of the Small Business Act (15 U.S.C. 638(b)(7)) information on the implementation of the Domestic Investment Pilot Program with respect to the year covered by the report, including— ‘‘(1) the number of applications for participation re- ceived from small business concerns; ‘‘(2) the number of awards made to small business concerns, including an identification of such con- cerns; ‘‘(3) the extent to which a small business concern participant is foreign-owned, including an identifica- tion of the foreign owners; and ‘‘(4) an assessment of the effect of the Domestic In- vestment Pilot Program on— ‘‘(A) inducing additional venture capital, hedge fund, or private equity funding of research as de- fined in section 9(e)(5) of the Small Business Act (15 U.S.C. 638(e)(5)); ‘‘(B) substantially contributing to the mission of the Department of Defense; and ‘‘(C) otherwise fulfilling the capital needs of small business concerns for additional financing for SBIR projects. ‘‘(e) NOTIFICATION.—The Secretary of Defense shall notify the Small Business Administration of an award made under the Domestic Investment Pilot Program not later than 30 days after such award is made. ‘‘(f) TERMINATION.—The Domestic Investment Pilot Program established under this section shall terminate on September 30, 2022. ‘‘(g) DEFINITIONS.—In this section: ‘‘(1) MILITARY DEPARTMENT; SERVICE ACQUISITION EX- ECUTIVE.—The terms ‘military department’ and ‘serv- Page 959 TITLE 15—COMMERCE AND TRADE § 638 ice acquisition executive’ have the meanings given those terms, respectively, in section 101 of title 10, United States Code. ‘‘(2) SBIR; STTR.—The terms ‘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)). ‘‘(3) SMALL BUSINESS ACT DEFINITIONS.—The terms ‘small business concern’, ‘venture capital operating company’, ‘hedge fund’, and ‘private equity firm’ have the meanings given those terms, respectively, in section 3 of the Small Business Act (15 U.S.C. 632).’’ FIRMS THAT ARE MAJORITY-OWNED BY MULTIPLE VEN- TURE CAPITAL OPERATING COMPANIES, HEDGE FUNDS, OR PRIVATE EQUITY FIRMS ENTITLED TO PARTIAL PARTICIPATION IN SBIR PROGRAM; RULES FOR DE- TERMINING AFFILIATION Pub. L. 112–81, div. E, title LI, § 5107(c), (d), Dec. 31, 2011, 125 Stat. 1829, 1832, provided that: ‘‘(c) RULEMAKING TO ENSURE THAT FIRMS THAT ARE MAJORITY-OWNED BY MULTIPLE VENTURE CAPITAL OPER- ATING COMPANIES, HEDGE FUNDS, OR PRIVATE EQUITY FIRMS ARE ABLE TO PARTICIPATE IN A PORTION OF THE SBIR PROGRAM.— ‘‘(1) STATEMENT OF CONGRESSIONAL INTENT.—It is the stated intent of Congress that the Administrator should promulgate regulations to carry out the au- thority under section 9(dd) of the Small Business Act [15 U.S.C. 638(dd)], as added by this section, that— ‘‘(A) permit small business concerns that are ma- jority-owned by multiple venture capital operating companies, hedge funds, or private equity firms to participate in the SBIR program in accordance with section 9(dd) of the Small Business Act; ‘‘(B) provide specific guidance for small business concerns that are majority-owned by multiple ven- ture capital operating companies, hedge funds, or private equity firms with regard to eligibility, par- ticipation, and affiliation rules; and ‘‘(C) preserve and maintain the integrity of the SBIR program as a program for small business con- cerns in the United States by prohibiting large businesses or large entities or foreign-owned busi- nesses or foreign-owned entities from participation in the program established under section 9 of the Small Business Act [15 U.S.C. 638]. ‘‘(2) RULEMAKING REQUIRED.— ‘‘(A) PROPOSED REGULATIONS.—Not later than 120 days after the date of enactment of this Act [Dec. 31, 2011], the Administrator shall issue proposed regulations to amend section 121.103 (relating to de- terminations of affiliation applicable to the SBIR program) and section 121.702 (relating to ownership and control standards and size standards applicable to the SBIR program) of title 13, Code of Federal Regulations, for firms that are majority-owned by multiple venture capital operating companies, hedge funds, or private equity firms and partici- pating in the SBIR program solely under the au- thority under section 9(dd) of the Small Business Act [15 U.S.C. 638(dd)], as added by this section. ‘‘(B) FINAL REGULATIONS.—Not later than 1 year after the date of enactment of this Act, and after providing notice of and opportunity for comment on the proposed regulations issued under subpara- graph (A), the Administrator shall issue final or in- terim final regulations under this subsection. ‘‘(3) CONTENTS.— ‘‘(A) IN GENERAL.—The regulations issued under this subsection shall permit the participation of ap- plicants majority-owned by multiple venture cap- ital operating companies, hedge funds, or private equity firms in the SBIR program in accordance with section 9(dd) of the Small Business Act [15 U.S.C. 638(dd)], as added by this section, unless the Administrator determines— ‘‘(i) in accordance with the size standards estab- lished under subparagraph (B), that the applicant is— ‘‘(I) a large business or large entity; or ‘‘(II) majority-owned or controlled by a large business or large entity; or ‘‘(ii) in accordance with the criteria established under subparagraph (C), that the applicant— ‘‘(I) is a foreign-owned business or a foreign entity or is not a citizen of the United States or alien lawfully admitted for permanent resi- dence; or ‘‘(II) is majority-owned or controlled by a for- eign-owned business, foreign entity, or person who is not a citizen of the United States or alien lawfully admitted for permanent resi- dence. ‘‘(B) SIZE STANDARDS.—Under the authority to es- tablish size standards under paragraphs (2) and (3) of section 3(a) of the Small Business Act (15 U.S.C. 632(a)), the Administrator shall, in accordance with paragraph (1) of this subsection, establish size standards for applicants seeking to participate in the SBIR program solely under the authority under section 9(dd) of the Small Business Act [15 U.S.C. 638(dd)], as added by this section. ‘‘(C) CRITERIA FOR DETERMINING FOREIGN OWNER- SHIP.—The Administrator shall establish criteria for determining whether an applicant meets the re- quirements under subparagraph (A)(ii), and, in es- tablishing the criteria, shall consider whether the criteria should include— ‘‘(i) whether the applicant is at least 51 percent owned or controlled by citizens of the United States or domestic venture capital operating companies, hedge funds, or private equity firms; ‘‘(ii) whether the applicant is domiciled in the United States; and ‘‘(iii) whether the applicant is a direct or indi- rect subsidiary of a foreign-owned firm, including whether the criteria should include that an appli- cant is a direct or indirect subsidiary of a foreign- owned entity if— ‘‘(I) any venture capital operating company, hedge fund, or private equity firm that owns more than 20 percent of the applicant is a direct or indirect subsidiary of a foreign-owned entity; or ‘‘(II) in the aggregate, entities that are direct or indirect subsidiaries of foreign-owned enti- ties own more than 49 percent of the applicant. ‘‘(D) CRITERIA FOR DETERMINING AFFILIATION.—The Administrator shall establish criteria, in accord- ance with paragraph (1), for determining whether an applicant is affiliated with a venture capital op- erating company, hedge fund, private equity firm, or any other business that the venture capital oper- ating company, hedge fund, or private equity firm has financed and, in establishing the criteria, shall specify that— ‘‘(i) if a venture capital operating company, hedge fund, or private equity firm that is deter- mined to be affiliated with an applicant is a mi- nority investor in the applicant, the portfolio companies of the venture capital operating com- pany, hedge fund, or private equity firm shall not be determined to be affiliated with the applicant, unless— ‘‘(I) the venture capital operating company, hedge fund, or private equity firm owns a ma- jority of the portfolio company; or ‘‘(II) the venture capital operating company, hedge fund, or private equity firm holds a ma- jority of the seats on the board of directors of the portfolio company; ‘‘(ii) subject to clause (i), the Administrator re- tains the authority to determine whether a ven- ture capital operating company, hedge fund, or private equity firm is affiliated with an appli- cant, including establishing other criteria; ‘‘(iii) the Administrator may not determine that a portfolio company of a venture capital op- erating company, hedge fund, or private equity Page 960 TITLE 15—COMMERCE AND TRADE § 638 firm is affiliated with an applicant based solely on 1 or more shared investors; and ‘‘(iv) subject to clauses (i), (ii), and (iii), the Ad- ministrator retains the authority to determine whether a portfolio company of a venture capital operating company, hedge fund, or private equity firm is affiliated with an applicant based on fac- tors independent of whether there is a shared in- vestor, such as whether there are contractual ob- ligations between the portfolio company and the applicant. ‘‘(4) ENFORCEMENT.—If the Administrator does not issue final or interim final regulations under this subsection on or before the date that is 1 year after the date of enactment of this Act [Dec. 31, 2011], the Administrator may not carry out or establish any pilot program until the date on which the Adminis- trator issues the final or interim final regulations under this subsection. ‘‘(5) DEFINITION.—In this subsection, the terms ‘ven- ture capital operating company’, ‘hedge fund’, and ‘private equity firm’ have the same meaning as in section 3 of the Small Business Act (15 U.S.C. 632), as amended by this section. ‘‘(d) ASSISTANCE FOR DETERMINING AFFILIATES.— ‘‘(1) CLEAR EXPLANATION REQUIRED.—Not later than 30 days after the date of enactment of this Act [Dec. 31, 2011], the Administrator shall post on the Web site of the Administration (with a direct link displayed on the homepage of the Web site of the Administration or the SBIR and STTR Web sites of the Administra- tion)— ‘‘(A) a clear explanation of the SBIR and STTR affiliation rules under part 121 of title 13, Code of Federal Regulations; and ‘‘(B) contact information for officers or employ- ees of the Administration who— ‘‘(i) upon request, shall review an issue relating to the rules described in subparagraph (A); and ‘‘(ii) shall respond to a request under clause (i) not later than 20 business days after the date on which the request is received. ‘‘(2) INCLUSION OF AFFILIATION RULES FOR CERTAIN SMALL BUSINESS CONCERNS.—On and after the date on which the final regulations under subsection (c) are issued, the Administrator shall post on the Web site of the Administration information relating to the regulations, in accordance with paragraph (1).’’ [For definitions used in section 5107(c), (d) of Pub. L. 112–81, set out above, see section 5002 of Pub. L. 112–81, set out as a note under section 638b of this title.] ACCURACY IN FUNDING BASE CALCULATIONS Pub. L. 112–81, div. E, title LI, § 5136, Dec. 31, 2011, 125 Stat. 1849, provided that: ‘‘(a) IN GENERAL.—Not later than 1 year after the date of enactment of this Act [Dec. 31, 2011], and every year thereafter until the date that is 5 years after the date of enactment of this Act, the Comptroller General of the United States shall— ‘‘(1) conduct a fiscal and management audit of the SBIR program and the STTR program for the applica- ble period to— ‘‘(A) determine whether Federal agencies comply with the expenditure amount requirements under subsections (f)(1) and (n)(1) of section 9 of the Small Business Act (15 U.S.C. 638), as amended by this title; ‘‘(B) assess the extent of compliance with the re- quirements of section 9(i)(2) of the Small Business Act (15 U.S.C. 638(i)(2)) by Federal agencies partici- pating in the SBIR program or the STTR program and the Administration; ‘‘(C) assess whether it would be more consistent and effective to base the amount of the allocations under the SBIR program and the STTR program on a percentage of the research and development budg- et of a Federal agency, rather than the extramural budget of the Federal agency; and ‘‘(D) determine the portion of the extramural re- search or research and development budget of a Federal agency that each Federal agency spends for administrative purposes relating to the SBIR pro- gram or STTR program, and for what specific pur- poses it is used, including the portion, if any, of such budget the Federal agency spends for salaries and expenses, travel to visit applicants, outreach events, marketing, and technical assistance; and ‘‘(2) submit a report 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 Rep- resentatives regarding the audit conducted under paragraph (1), including the assessments required under subparagraph (B) and the determinations made under subparagraph (D) of paragraph (1). ‘‘(b) DEFINITION OF APPLICABLE PERIOD.—In this sec- tion, the term ‘applicable period’ means— ‘‘(1) for the first report submitted under this sec- tion, the period beginning on October 1, 2005, and end- ing on September 30 of the last full fiscal year before the date of enactment of this Act [Dec. 31, 2011] for which information is available; and ‘‘(2) for the second and each subsequent report sub- mitted under this section, the period— ‘‘(A) beginning on October 1 of the first fiscal year after the end of the most recent full fiscal year relating to which a report under this section was submitted; and ‘‘(B) ending on September 30 of the last full fiscal year before the date of the report.’’ [For definitions used in section 5136 of Pub. L. 112–81, set out above, see section 5002 of Pub. L. 112–81, set out as a note under section 638b of this title.] TRANSITIONAL RULE Pub. L. 112–81, div. E, title LI, § 5141(b)(2), Dec. 31, 2011, 125 Stat. 1853, provided that: ‘‘Notwithstanding the amendments made by paragraph (1) [amending this section], subsections (f)(2) and (y)(4) of section 9 of the Small Business Act (15 U.S.C. 638), as in effect on the day before the date of enactment of this Act [Dec. 31, 2011], shall continue to apply to each Federal agency until the effective date of the performance criteria es- tablished by the [Small Business] Administrator under subsection (mm)(3) of section 9 of the Small Business Act [15 U.S.C. 638(mm)(3)], as added by subsection (a).’’ CONFORMING AMENDMENTS TO THE SBIR AND THE STTR POLICY DIRECTIVES Pub. L. 112–81, div. E, title LI, § 5151, Dec. 31, 2011, 125 Stat. 1857, provided that: ‘‘(a) IN GENERAL.—Not later than 180 days after the date of enactment of this Act [Dec. 31, 2011], the Ad- ministrator shall promulgate amendments to the SBIR Policy Directive and the STTR Policy Directive to con- form such directives to this title [enacting sections 638a and 638b of this title, amending this section and section 632 of this title, and enacting and amending provisions set out as notes under this section] and the amendments made by this title. ‘‘(b) PUBLISHING SBIR POLICY DIRECTIVE AND THE STTR POLICY DIRECTIVE IN THE FEDERAL REGISTER.— Not later than 180 days after the date of enactment of this Act, the Administrator shall publish the amended SBIR Policy Directive and the amended STTR Policy Directive in the Federal Register.’’ [For definitions used in section 5151 of Pub. L. 112–81, set out above, see section 5002 of Pub. L. 112–81, set out as a note under section 638b of this title.] COORDINATION OF THE SBIR PROGRAM AND THE EXPER- IMENTAL PROGRAM TO STIMULATE COMPETITIVE RE- SEARCH Pub. L. 112–81, div. E, title LI, § 5168, Dec. 31, 2011, 125 Stat. 1862, provided that: ‘‘(a) COORDINATION REQUIRED.—The head of a Federal agency that participates in the SBIR program and the Experimental Program to Stimulate Competitive Re- search or the Institutional Development Award Pro- Page 961 TITLE 15—COMMERCE AND TRADE § 638 gram shall coordinate, to the extent possible, the ini- tiatives of the agency with respect to such programs. ‘‘(b) COORDINATION REPORT.—Not later than 1 year after the date of enactment of this Act [Dec. 31, 2011], the head of each Federal agency that participates in the SBIR program and the Experimental Program to Stimulate Competitive Research or the Institutional Development Award Program shall submit to the Ad- ministrator, 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 report describing the actions taken during the preceding 1- year period to increase coordination between such pro- grams to maximize existing resources. ‘‘(c) PARTICIPATION REPORT.—Not later than 3 years after the date of enactment of this Act [Dec. 31, 2011], the head of each Federal agency that participates in the SBIR program and the Experimental Program to Stimulate Competitive Research or the Institutional Development Award Program shall submit to the Ad- ministrator, 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 report analyzing whether actions taken to increase the coordi- nation of such programs have been successful in at- tracting entrepreneurs into the SBIR program and in- creasing the participation of States with respect to which a low level of SBIR awards have historically been awarded.’’ [For definitions used in section 5168 of Pub. L. 112–81, set out above, see section 5002 of Pub. L. 112–81, set out as a note under section 638b of this title.] CONTINUATION OF SBIR PROGRAM BEYOND TERMINATION DATE Pub. L. 106–554, § 1(a)(4) [div. B, title I, § 149], Dec. 21, 2000, 114 Stat. 2763, 2763A–251, provided that: ‘‘The Small Business Innovation Research program, other- wise expiring at the end of fiscal year 2000, is author- ized to continue in effect during fiscal year 2001.’’ CONGRESSIONAL FINDINGS: SMALL BUSINESS INNOVATION RESEARCH PROGRAM REAUTHORIZATION ACT OF 2000 Pub. L. 106–554, § 1(a)(9) [title I, § 102], Dec. 21, 2000, 114 Stat. 2763, 2763A–668, provided that: ‘‘Congress finds that— ‘‘(1) the small business innovation research pro- gram established under the Small Business Innova- tion Development Act of 1982 [see Short Title of 1982 Amendment note set out under section 631 of this title], and reauthorized by the Small Business Re- search and Development Enhancement Act of 1992 [see Short Title of 1992 Amendments note set out under section 631 of this title] (in this title [see Short Title of 2000 Amendment note set out under section 631 of this title] referred to as the ‘SBIR program’) is highly successful in involving small businesses in fed- erally funded research and development; ‘‘(2) the SBIR program made the cost-effective and unique research and development capabilities pos- sessed by the small businesses of the Nation available to Federal agencies and departments; ‘‘(3) the innovative goods and services developed by small businesses that participated in the SBIR pro- gram have produced innovations of critical impor- tance in a wide variety of high-technology fields, in- cluding biology, medicine, education, and defense; ‘‘(4) the SBIR program is a catalyst in the pro- motion of research and development, the commer- cialization of innovative technology, the develop- ment of new products and services, and the continued excellence of this Nation’s high-technology indus- tries; and ‘‘(5) the continuation of the SBIR program will pro- vide expanded opportunities for one of the Nation’s vital resources, its small businesses, will foster in- vention, research, and technology, will create jobs, and will increase this Nation’s competitiveness in international markets.’’ NATIONAL RESEARCH COUNCIL REPORTS Pub. L. 106–554, § 1(a)(9) [title I, § 108], Dec. 21, 2000, 114 Stat. 2763, 2763A–671, as amended by Pub. L. 112–81, div. E, title LI, § 5137, Dec. 31, 2011, 125 Stat. 1850, provided that: ‘‘(a) STUDY AND RECOMMENDATIONS.—The head of each agency with a budget of more than $50,000,000 for its SBIR program for fiscal year 1999, in consultation with the Small Business Administration, shall, not later than 6 months after the date of the enactment of this Act [Dec. 21, 2000], cooperatively enter into an agree- ment with the National Academy of Sciences for the National Research Council to— ‘‘(1) conduct a comprehensive study of how the SBIR program has stimulated technological innova- tion and used small businesses to meet Federal re- search and development needs, including— ‘‘(A) a review of the value to the Federal research agencies of the research projects being conducted under the SBIR program, and of the quality of re- search being conducted by small businesses partici- pating under the program, including a comparison of the value of projects conducted under the SBIR program to those funded by other Federal research and development expenditures; ‘‘(B) to the extent practicable, an evaluation of the economic benefits achieved by the SBIR pro- gram, including the economic rate of return, and a comparison of the economic benefits, including the economic rate of return, achieved by the SBIR pro- gram with the economic benefits, including the eco- nomic rate of return, of other Federal research and development expenditures; ‘‘(C) an evaluation of the noneconomic benefits achieved by the SBIR program over the life of the program; ‘‘(D) a comparison of the allocation for fiscal year 2000 of Federal research and development funds to small businesses with such allocation for fiscal year 1983, and an analysis of the factors that have con- tributed to such allocation; and ‘‘(E) an analysis of whether Federal agencies, in fulfilling their procurement needs, are making suf- ficient effort to use small businesses that have completed a second phase award under the SBIR program; and ‘‘(2) make recommendations with respect to— ‘‘(A) measures of outcomes for strategic plans submitted under section 306 of title 5, United States Code, and performance plans submitted under sec- tion 1115 of title 31, United States Code, of each Federal agency participating in the SBIR program; ‘‘(B) whether companies who can demonstrate project feasibility, but who have not received a first phase award, should be eligible for second phase awards, and the potential impact of such awards on the competitive selection process of the program; ‘‘(C) whether the Federal Government should be permitted to recoup some or all of its expenses if a controlling interest in a company receiving an SBIR award is sold to a foreign company or to a company that is not a small business concern; ‘‘(D) how to increase the use by the Federal Gov- ernment in its programs and procurements of tech- nology-oriented small businesses; and ‘‘(E) improvements to the SBIR program, if any are considered appropriate. ‘‘(b) PARTICIPATION BY SMALL BUSINESS.— ‘‘(1) IN GENERAL.—In a manner consistent with law and with National Research Council study guidelines and procedures, knowledgeable individuals from the small business community with experience in the SBIR program shall be included— ‘‘(A) in any panel established by the National Re- search Council for the purpose of performing the study conducted under this section; and ‘‘(B) among those who are asked by the National Research Council to peer review the study. Page 962 TITLE 15—COMMERCE AND TRADE § 638 ‘‘(2) CONSULTATION.—To ensure that the concerns of small business are appropriately considered under this subsection, the National Research Council shall consult with and consider the views of the Office of Technology and the Office of Advocacy of the Small Business Administration and other interested parties, including entities, organizations, and individuals ac- tively engaged in enhancing or developing the tech- nological capabilities of small business concerns. ‘‘(c) PROGRESS REPORTS.—The National Research Council shall provide semiannual progress reports on the study conducted under this section to the Com- mittee on Science [now Committee on Science, Space, and Technology] and the Committee on Small Business of the House of Representatives, and to the Committee on Small Business [now Committee on Small Business and Entrepreneurship] of the Senate. ‘‘(d) REPORT.—The National Research Council shall transmit to the heads of agencies entering into an agreement under this section and to the Committee on Science [now Committee on Science, Space, and Tech- nology] and the Committee on Small Business of the House of Representatives, and to the Committee on Small Business [now Committee on Small Business and Entrepreneurship] of the Senate— ‘‘(1) not later than 3 years after the date of the en- actment of this Act [Dec. 21, 2000], a report including the results of the study conducted under subsection (a)(1) and recommendations made under subsection (a)(2); and ‘‘(2) not later than 6 years after that date of the en- actment, an update of such report. ‘‘(e) EXTENSIONS AND ENHANCEMENTS OF AUTHORITY.— ‘‘(1) IN GENERAL.—Not later than 6 months after the date of enactment of the SBIR/STTR Reauthorization Act of 2011 [div. E of Pub. L. 112–81, approved Dec. 31, 2011], the head of each agency described in subsection (a), in consultation with the Small Business Adminis- tration, shall cooperatively enter into an agreement with the National Academy of Sciences for the Na- tional Research Council to, not later than 4 years after the date of enactment of the SBIR/STTR Reau- thorization Act of 2011, and every 4 years thereafter— ‘‘(A) continue the most recent study under this section relating to the issues described in subpara- graphs (A), (B), (C), and (E) of subsection (a)(1); ‘‘(B) conduct a comprehensive study of how the STTR program has stimulated technological inno- vation and technology transfer, including— ‘‘(i) a review of the collaborations created be- tween small businesses and research institutions, including an evaluation of the effectiveness of the program in stimulating new collaborations and any obstacles that may prevent or inhibit the cre- ation of such collaborations; ‘‘(ii) an evaluation of the effectiveness of the program at transferring technology and capabili- ties developed through Federal funding; ‘‘(iii) to the extent practicable, an evaluation of the economic benefits achieved by the STTR pro- gram, including the economic rate of return; ‘‘(iv) an analysis of how Federal agencies are using small businesses that have completed Phase II under the STTR program to fulfill their pro- curement needs; ‘‘(v) an analysis of whether additional funds could be employed effectively by the STTR pro- gram; and ‘‘(vi) an assessment of the systems and min- imum performance standards relating to commer- cialization success established under section 9(qq) of the Small Business Act [15 U.S.C. 638(qq)]; ‘‘(C) make recommendations with respect to the issues described in subparagraphs (A), (D), and (E) of subsection (a)(2) and subparagraph (B) of this paragraph; and ‘‘(D) estimate, to the extent practicable, the num- ber of jobs created by the SBIR program or STTR program of the agency. ‘‘(2) CONSULTATION.—An agreement under paragraph (1) shall require the National Research Council to en- sure that there is participation by and consultation with the small business community, the Administra- tion, and other interested parties as described in sub- section (b). ‘‘(3) REPORTING.—An agreement under paragraph (1) shall require that not later than 4 years after the date of enactment of the SBIR/STTR Reauthorization Act of 2011 [div. E of Pub. L. 112–81, approved Dec. 31, 2011], and every 4 years thereafter, the National Re- search Council shall submit to the head of the agency entering into the agreement, the Committee on Small Business and Entrepreneurship of the Senate, and the Committee on Small Business and the Com- mittee on Science, Space, and Technology of the House of Representatives, a report regarding the study conducted under paragraph (1) and containing the recommendations described in paragraph (1).’’ CONGRESSIONAL FINDINGS AND PURPOSES: SMALL BUSI- NESS RESEARCH AND DEVELOPMENT ENHANCEMENT ACT OF 1992 Pub. L. 102–564, title I, § 102, Oct. 28, 1992, 106 Stat. 4249, provided that: ‘‘(a) FINDINGS.—The Congress finds that— ‘‘(1) the small business innovation research pro- gram established under the Small Business Innova- tion Development Act of 1982 [see Short Title of 1982 Amendment note set out under section 631 of this title] (hereafter in this Act [see Short Title of 1992 Amendments note set out under section 631 of this title] referred to as the ‘SBIR’ program) has been a successful method of involving small business con- cerns in Federal research and development; ‘‘(2) the small business innovation research pro- gram has been an effective catalyst for the develop- ment of technological innovations by small business concerns; ‘‘(3) small business innovation research program participants have provided high quality research and development in a cost-effective manner; ‘‘(4) the innovative products and services developed by small business concerns participating in the small business innovation research program have been im- portant to the national defense, as well as to the mis- sions of the other participating Federal agencies; ‘‘(5) the small business innovation research pro- gram has effectively stimulated the commercializa- tion of technology developed through Federal re- search and development, benefiting both the public and private sectors of the Nation; ‘‘(6) by encouraging the development and commer- cialization of technological innovations, the small business innovation research program has created jobs, expanded business opportunities for small firms, stimulated the development of new products and services, and improved the competitiveness of the Na- tion’s high technology industries; ‘‘(7) the small business innovation research pro- gram has also helped to increase exports from small business concerns; ‘‘(8) despite the general success of the small busi- ness innovation research program, the proportion of Federal research and development funds received by small business concerns has not increased over the life of the program, but has remained at 3 percent; and ‘‘(9) although the participating Federal agencies have successfully implemented most aspects of the small business innovation research program, addi- tional outreach efforts are necessary to stimulate in- creased participation of socially and economically disadvantaged small business concerns. ‘‘(b) PURPOSES.—The purposes of this title [see Short Title of 1992 Amendments note set out under section 631 of this title] are— ‘‘(1) to expand and improve the small business inno- vation research program; ‘‘(2) to emphasize the program’s goal of increasing private sector commercialization of technology de- veloped through Federal research and development; Page 963 TITLE 15—COMMERCE AND TRADE § 638 ‘‘(3) to increase small business participation in Fed- eral research and development; and ‘‘(4) to improve the Federal Government’s dissemi- nation of information concerning the small business innovation research program, particularly with re- gard to program participation by women-owned small business concerns and by socially and economically disadvantaged small business concerns.’’ RECOMMENDATIONS OF SECRETARY OF DEFENSE Pub. L. 102–564, title I, § 106, Oct. 28, 1992, 106 Stat. 4256, required the Secretary of Defense, by Mar. 31, 1996, to submit a recommendation to Congress addressing whether there was a demonstrable reduction in the quality of research performed under the Small Business Innovation Research Program since the beginning of fiscal year 1993, such that increasing the percentage in fiscal years after 1996 under former 15 U.S.C. 638(f)(1)(C) would adversely affect the performance of the research programs of the Department of Defense. TIMING OF ISSUANCE OF POLICY DIRECTIVE Pub. L. 102–564, title II, § 202(d), Oct. 28, 1992, 106 Stat. 4260, provided that: ‘‘The policy directive required by section 9(p) of the Small Business Act [15 U.S.C. 638(p)] (as added by subsection (c) of this section) shall be pub- lished— ‘‘(1) in proposed form (with an opportunity for pub- lic comment of not less than 30 days), not later than April 30, 1993; and ‘‘(2) in final form, not later than July 31, 1993.’’ SENSE OF CONGRESS CONCERNING AMERICAN-MADE EQUIPMENT AND PRODUCTS Pub. L. 102–564, title III, § 306, Oct. 28, 1992, 106 Stat. 4263, provided that: ‘‘(a) PURCHASE OF AMERICAN-MADE EQUIPMENT AND PRODUCTS.—It is the sense of the Congress that an enti- ty that is awarded a funding agreement under the SBIR program of a Federal agency under section 9 of the Small Business Act [15 U.S.C. 638] should, when pur- chasing any equipment or a product with funds pro- vided through the funding agreement, purchase only American-made equipment and products, to the extent possible in keeping with the overall purposes of that program. ‘‘(b) NOTICE TO SBIR AWARDEES.—Each Federal agen- cy that awards funding agreements under the SBIR program shall provide to each recipient of such an award a notice describing the sense of the Congress, as set forth in subsection (a).’’ SMALL BUSINESS INNOVATION RESEARCH PROGRAM IN DEPARTMENT OF DEFENSE Pub. L. 102–484, div. D, title XLII, § 4237, Oct. 23, 1992, 106 Stat. 2691, provided that: ‘‘(a) EXTENSION OF PROGRAM.—[Amended section 5 of Pub. L. 97–219, formerly set out as a note above.] ‘‘(b) LIMITATION ON PROGRAM AWARDS.—Amounts paid to a small business concern by the Department of De- fense under the Small Business Innovation Research Program for a project— ‘‘(1) in phase I under the program may not exceed $100,000; and ‘‘(2) in phase II under the program may not exceed $750,000. ‘‘(c) COMMERCIAL APPLICATIONS STRATEGY.—Not later than 270 days after the date of the enactment of this Act [Oct. 23, 1992], the Secretary of Defense, in con- sultation with the Administrator of the Small Business Administration, shall develop and issue a strategy for effectuating the transition of successful projects under the Small Business Innovation Research Program from phase II under the program into phase III under the program. ‘‘(d) REPEAL OF EXCLUSION OF CERTAIN ACTIVITIES.— [Amended this section.] ‘‘(e) PERCENTAGE OF REQUIRED EXPENDITURES FOR SBIR CONTRACTS.—(1) The Small Business Innovation Research Program shall apply to the Department of De- fense (including the military departments) as if the percentage specified in section 9(f)(1) of the Small Busi- ness Act (15 U.S.C. 638(f)(1)) with respect to fiscal years after fiscal year 1982 were determined in accordance with the table set forth in paragraph (2) (rather than 1.25 percent). ‘‘(2)(A) The percentage under section 9(f)(1) of the Small Business Act (15 U.S.C. 638(f)(1)) for any fiscal year for the Department of Defense and each military department shall be determined in accordance with the following table: ‘‘For fiscal year: The percentage is: 1993 ................................ 1.25 1994 ................................ 1.5 1995 ................................ 1.75 1996 ................................ 2.0 1997 ................................ 2.25 1998 and thereafter ........ 2.5. ‘‘(B) If the determination of the Secretary of Defense under subparagraph (C) is a negative determination (as set forth in that paragraph), then the percentage under section 9(f)(1) of the Small Business Act (15 U.S.C. 638(f)(1)) for the Department of Defense and each mili- tary department for fiscal years after fiscal year 1996 shall remain at the level applicable for fiscal year 1996 (notwithstanding the percentages specified in subpara- graph (A) for fiscal years after fiscal year 1996). ‘‘(C) Not later than June 30, 1996, the Secretary of De- fense during fiscal year 1996 shall determine whether there has been a demonstrable reduction in the quality of research performed under funding agreements award- ed by the Department of Defense under the SBIR pro- gram since the beginning of fiscal year 1993 such that increasing the percentage under subparagraph (A) for fiscal years after fiscal year 1996 with respect to the de- partment would adversely affect the performance of the department’s research programs. If the determination of the Secretary is that there has been such a demon- strable reduction in the quality of research such that increasing the percentage under subparagraph (B) for fiscal years after fiscal year 1996 with respect to the de- partment would adversely affect the performance of the department’s research programs, the Secretary shall be considered for purposes of subparagraph (B) to have made a negative determination. The determination of the Secretary concerned under this paragraph shall be made after considering the assessment of the Comp- troller General with respect to that department in the report transmitted under subparagraph (D). ‘‘(D) Not later than March 30, 1996, the Comptroller General shall transmit to the Congress and the Sec- retary of Defense a report setting forth the Comptroller General’s assessment, with respect to the Department of Defense of whether there has been a demonstrable re- duction in the quality of research performed under funding agreements awarded by the department under the SBIR program since the beginning of fiscal year 1993 such that increasing the percentage under subpara- graph (A) for fiscal years after fiscal year 1996 with re- spect to the department would adversely affect the per- formance of the department’s research programs. ‘‘(E) The results of each determination under sub- paragraph (C) shall be transmitted to the Congress not later than June 30, 1996. ‘‘(f) DEFINITIONS.—In this section: ‘‘(1) The term ‘Small Business Innovation Research Program’ means the program established under the following provisions of section 9 of the Small Busi- ness Act (15 U.S.C. 638): ‘‘(A) Paragraphs (4) through (7) of subsection (b). ‘‘(B) Subsections (e) through (k). ‘‘(2) The term ‘phase I’, with respect to the Small Business Innovation Research Program, means the first phase described in subsection (e)(4)(A) of section 9 of the Small Business Act. ‘‘(3) The term ‘phase II’, with respect to the Small Business Innovation Research Program, means the Page 964 TITLE 15—COMMERCE AND TRADE § 638 second phase described in subsection (e)(4)(B) of such section. ‘‘(4) The term ‘phase III’, with respect to the Small Business Innovation Research Program, means the third phase described in subsection (e)(4)(C) of such section. ‘‘(g) EFFECTIVE DATE.—Subject to subsection (h), this section, and the amendments made by this section, shall take effect on October 1, 1992, and shall apply with respect to fiscal years after fiscal year 1992. ‘‘(h) EFFECTIVENESS OF SECTION CONDITIONAL ON FAIL- URE TO ENACT OTHER LEGISLATION.—(1) In the event of the enactment of H.R. 4400 or S. 2941 [S. 2941 was en- acted into law as Pub. L. 102–564 on Oct. 28, 1992], 102d Congress, on or before the date of the enactment of this Act [Oct. 23, 1992], then this section and the amend- ments made by this section shall not take effect. ‘‘(2)(A) In the event of the enactment of H.R. 4400 or S. 2941, 102d Congress, after the date of the enactment of this Act, then, effective immediately before the en- actment of H.R. 4400 or S. 2941, 102d Congress— ‘‘(i) this section shall cease to be effective; and ‘‘(ii) the provisions of a small business law that are amended by this section shall be effective and read as such provisions of that law were in effect imme- diately before the enactment of this Act, except that to the extent that any amendment is made to such a provision of a small business law by any other provi- sion of law referred to in subparagraph (B), such pro- vision of a small business law shall be effective and shall read as amended by that other provision of law. ‘‘(B) For the purposes of subparagraph (A)(ii), a provi- sion of law referred to in this subparagraph is the fol- lowing: ‘‘(i) A provision of this Act other than a provision of this section. ‘‘(ii) A provision of any other Act if the provision takes effect during the period beginning on the date of the enactment of this Act and ending immediately before the enactment of H.R. 4400 or S. 2941, 102d Con- gress. ‘‘(C) In this paragraph, the term ‘small business law’ means— ‘‘(i) the Small Business Act (15 U.S.C. 631 et seq.); and ‘‘(ii) the Small Business Innovation Development Act of 1982 [Pub. L. 97–219] (15 U.S.C. 638 note).’’ USE OF DEPARTMENT OF AGRICULTURE EXTRAMURAL BUDGET FUNDS IN SMALL BUSINESS INNOVATION RE- SEARCH PROGRAM Pub. L. 99–500, § 101(a) [title VI, § 630], Oct. 18, 1986, 100 Stat. 1783, 1783–30, and Pub. L. 99–591, § 101(a) [title VI, § 630], Oct. 30, 1986, 100 Stat. 3341, 3341–30, provided that: ‘‘All funds appropriated for this fiscal year and all funds appropriated hereafter by this or any other Act that are determined to be part of the ‘extramural budg- et’ of the Department of Agriculture for any fiscal year for purposes of meeting the requirements of section 9 of the Small Business Act (15 U.S.C. 638), as amended by the Small Business Innovation Development Act of 1982, Public Law 97–219, shall be available for contracts, grants or cooperative agreements with small business concerns for any purpose in furtherance of the small business innovation research program. Such funds may be transferred for such purpose from one appropriation to another or to a single account.’’ CONGRESSIONAL FINDINGS AND DECLARATION OF PUR- POSE: SMALL BUSINESS INNOVATION DEVELOPMENT ACT OF 1982 Pub. L. 97–219, § 2, July 22, 1982, 96 Stat. 217, provided that: ‘‘(a) The Congress finds that— ‘‘(1) technological innovation creates jobs, in- creases productivity, competition, and economic growth, and is a valuable counterforce to inflation and the United States balance-of-payments deficit; ‘‘(2) while small business is the principal source of significant innovations in the Nation, the vast major- ity of federally funded research and development is conducted by large businesses, universities, and Gov- ernment laboratories; and ‘‘(3) small businesses are among the most cost-ef- fective performers of research and development and are particularly capable of developing research and development results into new products. ‘‘(b) Therefore, the purposes of the Act [amending this section] are— ‘‘(1) to stimulate technological innovation; ‘‘(2) to use small business to meet Federal research and development needs; ‘‘(3) to foster and encourage participation by minor- ity and disadvantaged persons in technological inno- vation; and ‘‘(4) to increase private sector commercialization innovations derived from Federal research and devel- opment.’’ REPORTS OF COMPTROLLER GENERAL Pub. L. 102–564, title I, § 105, Oct. 28, 1992, 106 Stat. 4254, required the Comptroller General to submit to Congress an interim report, by Mar. 31, 1995, concerning the quality of research performed under Small Business Innovation Research Program funding agreements en- tered into during fiscal year 1993 and thereafter and a final report, no later than 5 years after Oct. 28, 1992, concerning various aspects of the Small Business Inno- vation Research Program. Pub. L. 102–564, title II, § 202(e), Oct. 28, 1992, 106 Stat. 4260, required the Comptroller General to submit a re- port to Congress and the head of each agency required to make expenditures under the Small Business Tech- nology Transfer Program setting forth the Comptroller General’s assessment of various aspects of the program and with the agencies’ compliance with procedural re- quirements. Pub. L. 97–219, § 6, July 22, 1982, 96 Stat. 221, as amend- ed by Pub. L. 99–443, § 3, Oct. 6, 1986, 100 Stat. 1120; Pub. L. 100–418, title VIII, § 8008, Aug. 23, 1988, 102 Stat. 1561; Pub. L. 100–647, title IX, § 9003, Nov. 10, 1988, 102 Stat. 3808, required the Comptroller General, by Dec. 31, 1988, to transmit a report to appropriate Congressional com- mittees evaluating the effectiveness of the initial phases of the Small Business Innovation Research Pro- gram, by Dec. 31, 1991, to transmit to such committees an update of the earlier report, and by July 1, 1989, to transmit to such committees recommendations as to the advisability of certain amendments to the Small Business Innovation Research Program. DEFINITIONS Pub. L. 117–183, § 2, Sept. 30, 2022, 136 Stat. 2180, pro- vided that: ‘‘In this Act [amending this section and en- acting provisions set out as notes under this section and section 631 of this title]: ‘‘(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)).’’ Executive Documents EX. ORD. NO. 13329. ENCOURAGING INNOVATION IN MANUFACTURING Ex. Ord. No. 13329, Feb. 24, 2004, 69 F.R. 9181, provided: By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Small Business Act, as amended (15 U.S.C. 631 et seq.), and to help ensure that Federal agencies properly and effectively assist the private sec- tor in its manufacturing innovation efforts, it is hereby ordered as follows: SECTION 1. Policy. Continued technological innovation is critical to a strong manufacturing sector in the Page 965 TITLE 15—COMMERCE AND TRADE § 638b United States economy. The Federal Government has an important role, including through the Small Busi- ness Innovation Research (SBIR) and the Small Busi- ness Technology Transfer (STTR) programs, in helping to advance innovation, including innovation in manu- facturing, through small businesses. SEC. 2. Duties of Department and Agency Heads. The head of each executive branch department or agency with one or more SBIR programs or one or more STTR programs shall: (a) to the extent permitted by law and in a manner consistent with the mission of that department or agency, give high priority within such programs to manufacturing-related research and development to ad- vance the policy set forth in section 1 of this order; and (b) submit reports annually to the Administrator of the Small Business Administration and the Director of the Office of Science and Technology Policy concerning the efforts of such department or agency to implement subsection 2(a) of this order. SEC. 3. Duties of Administrator of the Small Business Ad- ministration. The Administrator of the Small Business Administration: (a) shall establish, after consultation with the Direc- tor of the Office of Science and Technology Policy, for- mats and schedules for submission of reports by the heads of departments and agencies under subsection 2(b) of this order; and (b) is authorized to issue to departments and agencies guidelines and directives (in addition to the formats and schedules under subsection 3(a)) as the Adminis- trator determines from time to time are necessary to implement subsection 2(a) of this order, after such guidelines and directives are submitted to the Presi- dent, through the Director of the Office of Science and Technology Policy, for approval and are approved by the President. SEC. 4. Definitions. As used in this order: (a) ‘‘Small Business Innovation Research (SBIR) pro- gram’’ means a program to which section 9(e)(4) of the Small Business Act (15 U.S.C. 638(e)(4)) refers; (b) ‘‘Small Business Technology Transfer (STTR) pro- gram’’ means a program to which section 9(e)(6) of the Small Business Act (15 U.S.C. 638(e)(6)) refers; (c) ‘‘research and development’’ means an activity set forth in section 9(e)(5) of the Small Business Act (15 U.S.C. 638(e)(5)); and (d) ‘‘manufacturing-related’’ means relating to: (i) manufacturing processes, equipment and systems; or (ii) manufacturing workforce skills and protection. SEC. 5. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect the au- thority of the Director of the Office of Management and Budget with respect to budget, administrative, or legis- lative proposals. (b) Nothing in this order shall be construed to require disclosure of information the disclosure of which is pro- hibited by law or by Executive Order, including [former] Executive Order 12958 of April 17, 1995, as amended. (c) This order is intended only to improve the inter- nal management of the executive branch and is not in- tended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in eq- uity, against the United States, its departments, agen- cies, or other entities, its officers or employees, or any other person. GEORGE W. BUSH. § 638a. GAO study with respect to venture capital operating company, hedge fund, and private equity firm involvement Not later than 3 years after December 31, 2011, and every 3 years thereafter, the Comptroller General of the United States shall— (1) conduct a study of the impact of require- ments relating to venture capital operating company, hedge fund, and private equity firm involvement under section 638 of this title; and (2) submit to Congress a report regarding the study conducted under paragraph (1). (Pub. L. 112–81, div. E, title LI, § 5142, Dec. 31, 2011, 125 Stat. 1854.) Editorial Notes CODIFICATION Section was enacted as part of the SBIR/STTR Reau- thorization Act of 2011, and also as part of the National Defense Authorization Act for Fiscal Year 2012, and not as part of the Small Business Act which comprises this chapter. § 638b. Reducing vulnerability of SBIR and STTR programs to fraud, waste, and abuse (a) Fraud, waste, and abuse prevention (1) Amendments required for fraud, waste, and abuse prevention Not later than 90 days after December 31, 2011, the Administrator shall amend the SBIR Policy Directive and the STTR Policy Direc- tive to include measures to prevent fraud, waste, and abuse in the SBIR program and the STTR program. (2) Content of amendments The amendments required under paragraph (1) shall include— (A) definitions or descriptions of fraud, waste, and abuse; (B) guidelines for the monitoring and over- sight of applicants to and recipients of awards under the SBIR program or the STTR program; (C) a requirement that each Federal agen- cy that participates in the SBIR program or STTR program include information con- cerning the method established by the In- spector General of the Federal agency to re- port fraud, waste, and abuse (including any telephone hotline or Web-based platform)— (i) on the Web site of the Federal agency; and (ii) in any solicitation or notice of fund- ing opportunity issued by the Federal agency for the SBIR program or the STTR program; and (D) a requirement that each applicant for and small business concern that receives funding under the SBIR program or the STTR program shall certify whether the ap- plicant or small business concern is in com- pliance with the laws relating to the SBIR program and the STTR program and the con- duct guidelines established under the SBIR Policy Directive and the STTR Policy Direc- tive. (3) Consultation The Administrator shall develop, in con- sultation with the Council of Inspectors Gen- eral on Integrity and Efficiency, the proce- dures and requirements for the certification set forth under paragraph (2)(D) after pro- viding notice of and an opportunity for public comment on such procedures and require- ments.