CHAPTER 5.0 Considerations

[ back to Solicitation ]

Both Phase I and Phase II awards are subject to availability of funds. NASA has no obligation to make any specific number of Phase I or Phase II awards based on this Solicitation, and may elect to make several or no awards in any specific technical topic or subtopic.

Resulting from this solicitation, NASA plans to announce the selection of approximately 335 proposals for negotiation of fixed-price Phase I contracts with values not exceeding $70,000. Following contract negotiations and awards, Phase I contractors will have up to six months to carry out their proposed Phase I programs, prepare their final reports, and submit Phase II proposals. NASA intends that all Phase I projects resulting from this solicitation will be placed under contract by early 1999.

NASA anticipates that approximately 40% of the successfully completed Phase I projects resulting from this Solicitation will be selected for Phase II continuations based on the results of Phase I activities and competitive evaluations of Phase II proposals. Phase II funding agreements are fixed-price contracts with performance periods not exceeding 24 months and funding not exceeding $600,000.

NASA is not responsible for any monies expended by the offeror before award of any contract resulting from this Solicitation.

A final report on the Phase I project must be submitted to NASA upon completion of the Phase I research effort. The format, including hard copy and electronic media, and number of copies shall be in accordance with Phase I contract terms. The report shall elaborate the project objectives, work carried out, results obtained, and assessments of technical feasibility. Rights to these data are outlined in Section 5.5 of this Solicitation. Language used in the Phase I report may be used verbatim in the Phase II proposal.

The Phase I final report shall include a single page project summary (on a form provided by NASA for that purpose) identifying the purpose of the research, a brief description of the research carried out, the research findings or results including the degree to which the Phase I objectives were achieved, and whether the results justify Phase II continuation. The potential applications of the project results in Phase III, separately addressing NASA and non-government commercial uses, will also be included. The project summary is to be submitted without restriction for NASA publication. Phase II reporting requirements are detailed in the Phase I contract.

Advance payments can be authorized as follows: one-third at the time of award, one-third at project mid-point after award, and the remainder upon acceptance of the final report by NASA. The first two payments will be made 30 days after receipt of valid invoices. The final payment will be made 30 days after acceptance of the final report and other deliverables as required by the contract.

In the evaluation and handling of proposals, NASA will make every effort to protect the confidentiality of the proposals and their evaluations. All proposals will be converted into an electronic format (see Section 6.2), placed on a secure NASA only Internet server and access limited to NASA evaluators only.

5.4.1 Proprietary Information. It is NASA policy to use information (data) included in proposals for evaluation purposes only. Public release of information in any proposal submitted will be subject to existing statutory and regulatory requirements.

If proprietary information consisting of a trade secret, proprietary commercial or financial information, or private personal information is provided in an SBIR proposal, NASA will treat it in confidence to the extent permitted by law, provided this information is clearly marked by the offeror with the term "confidential proprietary information" and provided the following legend appears on the title page of the proposal as follows:

"For any purpose other than to evaluate the proposal, this data shall not be disclosed outside the government and shall not be duplicated, used, or disclosed in whole or in part, provided that if a funding agreement is awarded to the offeror as a result of or in connection with the submission of this data, the Government shall have the right to duplicate, use or disclose the data to the extent provided in the funding agreement. This restriction does not limit the Government's right to use information contained in the data if it is obtained from another source without restriction. The data subject to this restriction are contained in pages ______ of this proposal."

5.4.2 Non-NASA Reviewers. In addition to government personnel, NASA, at its discretion and in accordance with 18-15.413-2 of the NASA FAR Supplement, may utilize qualified individuals from outside the government in the proposal review process. Any decision to obtain outside evaluation shall take into consideration requirements for the avoidance of organizational or personal conflicts of interest and the competitive relationship, if any, between the prospective contractor or subcontractor(s) and the prospective outside evaluator. Any such evaluation will be under agreement with the evaluator that the information (data) contained in the proposal will be used only for evaluation purposes and will not be further disclosed.

5.4.3 Release of Proposal Information. By submission of a proposal, the offeror agrees to permit the government to disclose publicly the information contained on the Proposal Cover and the Project Summary. Other proposal information (data) is considered to be the property of the offeror, and NASA will protect it from public disclosure to the extent permitted by law (see Section 5.5.3). Form B, Project Summary, shall not contain proprietary information.

5.4.4 Final Disposition of Proposals. The government retains ownership of the copies of proposals submitted for evaluation, and they will not be returned to the offeror. Copies of all unsuccessful Phase I proposals will be retained for one year after Phase I selections have been made, after which time non-selected proposals will be destroyed. Successful proposals will be retained in accordance with contract file regulations, normally 6 years and 3 months from project completion.

Rights to data used in, or first produced under, any Phase I or Phase II contract are specified in the clause FAR 52.227-20, Rights in Data--SBIR Program. The clause provides for rights consistent with the following:

5.5.1. Non-Proprietary Data. Some data of a general nature are to be furnished to NASA without restriction (i.e., with unlimited rights) and may be published by NASA. These data will normally be limited to the project summaries accompanying any periodic progress reports and the final reports required to be submitted (see Section 5.2). The requirement for them will be specifically set forth in any contract resulting from this Solicitation.

5.5.2 Proprietary Data. When data that is required to be delivered under an SBIR contract qualifies as "proprietary," i.e., either data developed at private expense that embody trade secrets or are commercial or financial and confidential or privileged, or computer software developed at private expense that is a trade secret, the Contractor, if the contractor desires to continue protection of such proprietary data, shall not deliver such data to the Government, but instead shall deliver form, fit, and function data.

5.5.3 Non-Disclosure Period. The Government, for a period of 4 years from acceptance of all items to be delivered under an SBIR contract, shall use SBIR data, i.e., data first produced by the Contractor in performance of the contract where such data are not generally known, and which data without obligation as to its confidentiality have not been made available to others by the Contractor or are not already available to the Government, agrees to use these data for Government purposes, and they shall not be disclosed outside the Government (including disclosure for procurement purposes) during the 4 year period without permission of the Contractor, except that such data may be disclosed for use by support Contractors under an obligation of confidentiality. After the 4 year period the Government has a royalty-free license to use, and to authorize others to use on its behalf, these data for Government purposes, but the Government is relieved of all disclosure prohibitions and assumes no liability for unauthorized use by third parties.

Subject to certain licenses granted by the Contractor to the Government, the Contractor receives copyright to any data first produced by the Contractor in the performance of an SBIR contract.

The Contractor may normally elect title to any inventions made in the performance of an SBIR contract. The Government receives a nonexclusive license to practice or have practiced for or on behalf of the Government each such invention throughout the world. To the extent authorized by 35 U.S.C. 205, the Government will not make public any information disclosing such inventions for a reasonable time to allow the Contractor to file a patent application.

Cost sharing is permitted for proposals under this Program Solicitation. However, cost sharing is not required, nor will it be a factor in proposal evaluation except as a consideration for Phase II/III commitments discussed in Section 4.2.2 Part 11. If included, cost sharing should be shown in the summary budget but not included in items labeled "AMOUNT REQUESTED." No profit will be paid under cost-sharing contracts.

Both Phase I and Phase II SBIR contracts should include a reasonable profit except where cost-sharing is proposed. The reasonability of proposed profit is determined by the Contracting Officer during contract negotiations.

Both joint ventures and limited partnerships are permitted, provided the entity created qualifies as a small business concern in accordance with the definition in Section 2.5. A statement of how the workload will be distributed, managed, and charged should be included in the proposal. A copy or comprehensive summary of the joint venture agreement or partnership agreement should be appended to the proposal. This will not count as part of the 25 page limit for the Phase I proposal.

If an award is made pursuant to a proposal submitted under this Program Solicitation, the firm will be required to certify that it has not previously been paid nor is currently being paid for essentially equivalent work by any agency of the Federal government. Failure to acknowledge or report similar or duplicate efforts can lead to the termination of contracts or other actions.

Upon award of a contract, the contractor will be required to make certain legal commitments through acceptance of numerous clauses in the Phase I contract. The outline that follows illustrates the types of clauses that will be included in the Phase I contract. This is not a complete list of clauses to be included in Phase I contracts, nor does it contain specific wording of these clauses. Copies of complete provisions will be made available prior to contract negotiations.

5.12.1 Standards of Work. Work performed under the contract must conform to high professional standards. Analyses, equipment, and components for use by NASA will require special consideration to satisfy the stringent safety and reliability requirements imposed in aerospace applications.

5.12.2 Inspection. Work performed under the contract is subject to government inspection and evaluation at all reasonable times.

5.12.3 Examination of Records. The Comptroller General (or a duly authorized representative) shall have the right to examine any directly pertinent records of the contractor involving transactions related to the contract.

5.12.4 Default. The government may terminate the contract if the contractor fails to perform the contracted work.

5.12.5 Termination for Convenience. The contract may be terminated by the government at any time if it deems termination to be in its best interest, in which case the contractor will be compensated for work performed and for reasonable termination costs.

5.12.6 Disputes. Any dispute concerning the contract that cannot be resolved by mutual agreement shall be decided by the contracting officer with right of appeal.

5.12.7 Contract Work Hours. The contractor may not require a non-exempt employee to work more than 40 hours in a work week unless the employee is paid for overtime.

5.12.8 Equal Opportunity. The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, age, sex, or national origin.

5.12.9 Affirmative Action for Veterans. The contractor will not discriminate against any employee or applicant for employment because he or she is a disabled veteran or veteran of the Vietnam era.

5.12.10 Affirmative Action for Handicapped. The contractor will not discriminate against any employee or applicant for employment because he or she is physically or mentally handicapped.

5.12.11 Officials Not to Benefit. No member of or delegate to Congress shall benefit from the SBIR contract.

5.12.12 Covenant Against Contingent Fees. No person or agency has been employed to solicit or secure the contract upon an understanding for compensation except bona fide employees or commercial agencies maintained by the contractor for the purpose of securing business.

5.12.13 Gratuities. The contract may be terminated by the government if any gratuities have been offered to any representative of the government to secure the contract.

5.12.14 Patent Infringement. The contractor shall report to NASA each notice or claim of patent infringement based on the performance of the contract.

5.12.15 American-Made Equipment and Products. Equipment or products purchased under an SBIR contract must be American-made whenever possible.

5.13.1 Precedence of Contract over Solicitation. This Program Solicitation reflects current planning. If there is any inconsistency between the information contained herein and the terms of any resulting SBIR contract, the terms of the contract are controlling.

5.13.2 Evidence of Contractor Responsibility. Before award of an SBIR contract, the Government may request the offeror to submit certain organizational, management, personnel, and financial information to establish responsibility of the offeror. Contractor responsibility includes all resources required for contractor performance, i.e., financial capability, work force, and facilities.

5.13.3 Classified Proposals. NASA will not accept classified proposals.

5.13.4 Unsolicited Proposals. Unsolicited proposals will not be accepted under the SBIR program. Unsolicited proposals include proposals unrelated to a subtopic need.

In accordance with the Federal Acquisition Regulations (FAR) Part 45, it is NASA's policy not to provide facilities (capital equipment, tooling, test and computer facilities, etc.) for the performance of work under contract. An offeror will furnish their own facilities to perform the proposed work as an indirect cost to the contract. Special tooling required for a project may be allowed as a direct cost.

When an offeror cannot furnish their own facilities to perform required tasks, an offeror may propose to acquire the use of commercially available facilities. Rental or lease costs may be considered as direct costs as part of the total funding for the project. If unique requirements force an offeror to acquire facilities under a NASA contract, they will be purchased as Government furnished equipment (GFE) and titled to the Government.

An offeror may propose the use of unique or one-of-a-kind NASA facilities if essential for the research. Offerors requiring a NASA facility must clearly document and certify that there is no commercially available facility to perform the R&D. It may be difficult, however, to ensure availability, and non-availability may lead to non-selection. Should an offeror propose the use of unique or one-of-a-kind NASA facilities essential for the R/R&D, an agreement with the responsible installation is required and costs for their use will be determined by the installation. These costs may be chargeable in accordance with the government property clause of the contract (See Section 4.1.4). Total contract costs must not exceed the Phase I and Phase II funding limits given in this Solicitation (See Section 5.1).