5.1 Requirement for Contracting
Upon award of a Funding Agreement, the Awardee will be required to make certain legal commitments through acceptance of numerous clauses in Phase I Funding Agreements. The outline that follows is illustrative of the types of clauses to which the contractor would be committed. This list is not a complete list of clauses to be included in Phase I Funding Agreements, and is not the specific wording of such clauses. Copies of complete terms and conditions are available upon request.
Although the SBIR/STTR Policy Directive provides the above language for Phase I, NASA also includes these clauses in the Phase II contracts.
To simplify making contract awards and to reduce processing time, all contractors selected for Phase I and Phase II contracts shall ensure that:
- All information in your proposal is current, e.g., your address has not changed, the proposed PI is the same, etc. If changes have occurred since submittal of your proposal, notify the Contracting Officer immediately.
- Your firm is registered with System for Award Management (SAM) (section 2.2).
- Your firm is in compliance with the VETS-4212 requirement (section 2.3.1). Confirmation of that the report has been submitted to the Department of Labor is current shall be provided to the Contracting Officer within 10 business days of the notification of selection for negotiation.
- Your firm HAS NOT proposed a Co-Principal Investigator.
- No more than 10 business days after the notification of selection for negotiation, the offeror should provide to the Contracting Officer, a completed Allocation of Rights Agreement (ARA), which has been signed by authorized representatives of the SBC, RI, and subcontractors and consultants, as applicable.
- Your firm is required to provide timely responses to all communications from the NSSC Contracting Officer.
- All proposed cost is supported with documentation such as a quote, previous purchase order, published price lists, etc. All letters of commitment are dated and signed by the appropriate person with contact information. If a University is proposed as a subcontractor or a RI, the signed letter shall be on the University letterhead from the Office of Sponsored Programs. If an independent consultant is proposed, the signed letter should not be on a University letterhead. If the use of government facility or equipment is proposed, your firm shall submit a signed letter from the government facility stating the availability, cost if any, and authorizing the use of it, and a signed letter from your firm justifying the need to use the facility.
From the time of proposal notification of selection for negotiation, until the award of a contract, all communications shall be submitted electronically to NSSC-SBIR-STTR@nasa.gov.
Note: Costs incurred prior to and in anticipation of award of a contract are entirely the risk of the contractor in the event that a contract is not subsequently awarded. A notification of selection for negotiation is not to be misconstrued as an award notification to commence work.
5.2.1 Award Conditions
NSSC will distribute the NASA SBIR/STTR award with the following for each phase. NASA awards are electronically signed by a NASA Contracting Officer and transmitted electronically to the organization via e-mail.
- SF26 - Contract Cover Sheet
- Contract Terms and Conditions – to include reference to the proposal and budget
- Attachment 1: Contract Distribution List
- Attachment 2: Example of the Final Summary Chart
- Attachment 3: IT Security Management Plan Template
- Attachment 4: Applicable Documents List
- Negotiation Confirmation
- Phase I Frequently Asked Questions (FAQs)
- SF26 - Contract Cover Sheet
- Contract Terms and Conditions – to include reference to the proposal and budget
- Contract Distribution List
- Final Summary Chart and Instructions
- IT Security Management Plan
- Applicable Documents List (ADL)
- Phase II Frequently Asked Questions (FAQs)
5.2.2 Type of Contract
NASA SBIR/STTR Phase I and Phase II awards are made as Firm Fixed Price contracts.
5.2.3 Model Contracts
An example of the Phase I and II contracts can be found in the NASA SBIR/STTR Firm Library: http://sbir.gsfc.nasa.gov/sbir/firm_library/index.html.
Note: Model contracts are subject to change.
5.3 Reporting and Required Deliverables
An IT Security Management Plan is required at the beginning of the contract. Contractors interested in doing business with NASA and/or providing IT services or solutions to NASA should use the list found at the website of the Office of the Chief Information Officer (OCIO) as a reference for information security requirements - https://www.nasa.gov/content/security-requirements-policies. An example of the IT Security Management Plan can be found in the NASA SBIR/STTR Firm Library: http://sbir.gsfc.nasa.gov/sbir/firm_library/index.html. For more information see NASA FAR Supplement clause 1852.204-76
All contracts shall require the delivery of technical reports that present: (1) the work and results accomplished; (2) the scientific, technical and commercial merit and feasibility of the proposed innovation, and project results; (3) its relevance and significance to one or more NASA interests (section 9); and (4) the strategy for development, transition of the proposed innovation, and project results into products and services for NASA mission programs and other potential customers. Deliverables may also include the demonstration of the proposed innovation and/or the delivery of a prototype or test unit, product or service for NASA testing and utilization.
The technical reports and other deliverables are required as described in the contract and are to be provided to NASA. These reports shall document progress made on the project and activities required for completion. Periodic certification for payment will be required as stated in the contract. A final report must be submitted to NASA upon completion of the Phase I or Phase II R/R&D effort in accordance with applicable contract provisions.
A final New Technology Summary Report (NTSR) is due at the end of the contract, and New Technology Report(s) (NTR) are required if technology(ies) are developed under the award, prior to submission of the final invoice. For additional information on NTSR and NTR requirements and definitions see section 1.12 and 5.8.
Report deliverables shall be submitted electronically via the EHB. For any reports that require an upload NASA requests the submission in PDF or MS Word format.
Note: To access contract management in the EHB you will be required to have an identity in the NASA Account Management System (NAMS). This is the agency’s centralized system for requesting and maintaining accounts for NASA IT systems and applications. The system contains user account information, access requests and account maintenance processes for NASA employees, contractors, and remote users such as educators and foreign users. A basic background check is required for this account. Instructions will be provided during contract negotiations.
It is recommended that you begin this process immediately upon notification as this access will be required to submit deliverables and invoices so prompt attention is requested.
5.4 Profit or Fee
Contracts may include a reasonable profit. The reasonableness of proposed profit is determined by the Contracting Officer during contract negotiations. Reference FAR 15.404-4.
5.6 Cost Sharing
Cost sharing is permitted for proposals under this Program Solicitation; however, cost sharing is not required. Cost sharing will not be an evaluation factor in consideration of your proposal.
5.7 Rights in Data Developed Under SBIR Funding Agreements
The SBIR/STTR Protection Period begins with award of an SBIR/STTR Funding Agreement and ends twenty years, or longer at the discretion of the Participating Agency, from the date of award of an SBIR/STTR Funding Agreement (either Phase I, Phase II, or Federally-funded SBIR/STTR Phase III) unless subsequent to the award, the agency and the SBC negotiate for some other protection period for the SBIR/STTR Data.
SBIR/STTR Data Rights Clause
(1) Computer Software. Computer programs, source code, source code listings, object code listings, design details, algorithms, processes, flow charts, formulae, and related material that would enable the software to be reproduced, recreated, or recompiled. Computer Software does not include Computer Databases or Computer Software Documentation.
(2) Data. All recorded information, regardless of the form or method of recording or the media on which it may be recorded. The term does not include information incidental to contract or grant administration, such as financial, administrative, cost or pricing or management information.
(3) Form, Fit, and Function Data. Data relating to items, components, or processes that are sufficient to enable physical and functional interchangeability, and data identifying source, size, configuration, mating and attachment characteristics, functional characteristics, and performance requirements. For Computer Software it means data identifying source, functional characteristics, and performance requirements, but specifically excludes the source code, algorithms, processes, formulas, and flow charts of the software.
(4) Government Purpose. Any activity in which the United States Government is a party, including cooperative agreements with international or multi-national defense organizations or sales or transfers by the United States Government to foreign governments or international organizations. Government Purposes include competitive procurement, but do not include the rights to use, modify, reproduce, release, perform, display, or disclose Technical Data or Computer Software for commercial purposes or authorize others to do so.
(5) Operations, Maintenance, Installation, or Training Purposes (OMIT) Data. Data that is necessary for operation, maintenance, installation, or training purposes (but not including detailed manufacturing or process data).
(6) SBIR/STTR Computer Software Rights. The Federal Government’s rights during the SBIR/STTR Protection Period in specific types of SBIR/STTR Data that are Computer Software.
(A) The Federal Government may use, modify, reproduce, release, perform, display, or disclose SBIR/STTR Data that are Computer Software within the Government. The Federal Government may exercise SBIR/STTR Computer Software Rights within the Government for:
(1) Use in Federal Government computers;
(2) Modification, adaptation, or combination with other Computer Software, provided that the Data incorporated into any derivative software are subject to the rights in § 3(ee) of the SBIR/STTR Policy Directive and that the derivative software is marked as containing SBIR/STTR Data;
(3) Archive or backup; or
(4) Distribution of a computer program to another Federal agency, without further permission of the Awardee, if the Awardee is notified of the distribution and the identity of the recipient prior to the distribution, and a copy of the SBIR/STTR Computer Software Rights included in the Funding Agreement is provided to the recipient.
(B) The Federal Government shall not release, disclose, or permit access to SBIR/STTR Data that is Computer Software for commercial, manufacturing, or procurement purposes without the written permission of the Awardee. The Federal Government shall not release, disclose, or permit access to SBIR/STTR Data outside the Government without the written permission of the Awardee unless:
(i) The non-Governmental entity has entered into a non-disclosure agreement with the Government that complies with the terms for such agreements outlined in § 8 of the SBIR/STTR Policy Directive; and
(ii) The release or disclosure is—
(I) To a Federal Government support service contractor or their subcontractor for purposes of supporting Government internal use or activities, including evaluation, diagnosis and correction of deficiencies, and adaptation, combination, or integration with other Computer Software provided that SBIR/STTR Data incorporated into any derivative software are subject to the rights in § 3(ee) of the SBIR/STTR Policy Directive; or
(II) Necessary to support certain narrowly-tailored essential Government activities for which law or regulation permits access of a non-Government entity to a contractors’ data developed exclusively at private expense, non-SBIR/STTR Data, such as for emergency repair and overhaul.
(7) SBIR/STTR Data. All Data developed or generated in the performance of an SBIR or STTR award, including Technical Data and Computer Software developed or generated in the performance of an SBIR or STTR award. The term does not include information incidental to contract or grant administration, such as financial, administrative, cost or pricing or management information.
(8) SBIR/STTR Data Rights. The Federal Government’s license rights in properly marked SBIR/STTR Data during the SBIR/STTR Protection Period are as follows: SBIR/STTR Technical Data Rights in SBIR/STTR Data that are Technical Data or any other type of Data other than Computer Software; and SBIR/STTR Computer Software Rights in SBIR/STTR Data that is Computer Software. Upon expiration of the protection period for SBIR/STTR Data, the Federal Government has a royalty-free license to use, and to authorize others to use on its behalf, these data for Government Purposes, and is relieved of all disclosure prohibitions and assumes no liability for unauthorized use of these data by third parties, except that any such data that is also protected under a subsequent SBIR/STTR award shall remain protected through the protection period of that subsequent award. The Federal Government receives Unlimited Rights in Form Fit, and Function Data, OMIT Data, and all unmarked SBIR/STTR Data.
(9) SBIR/STTR Protection Period. The period of time during which the Federal Government is obligated to protect SBIR/STTR Data against unauthorized use and disclosure in accordance with SBIR/STTR Data Rights. The SBIR/STTR Protection Period begins at award of an SBIR/STTR Funding Agreement and ends not less than twenty years from that date (See § 8(b)(4) of the SBIR/STTR Policy Directive).
(10) SBIR/STTR Technical Data Rights. The Federal Government’s rights during the SBIR/STTR Protection Period in SBIR/STTR Data that are Technical Data or any other type of Data other than Computer Software.
(A) The Federal Government may, use, modify, reproduce, perform, display, release, or disclose SBIR/STTR Data that are Technical Data within the Government; however, the Government shall not use, release, or disclose the data for procurement, manufacturing, or commercial purposes; or release or disclose the SBIR/STTR Data outside the Government except as permitted by paragraph (B) below or by written permission of the Awardee.
(B) SBIR/STTR Data that are Technical Data may be released outside the Federal Government without any additional written permission of the Awardee only if the non-Governmental entity or foreign government has entered into a non-disclosure agreement with the Federal Government that complies with the terms for such agreements outlined in § 8 of the SBIR/STTR Policy Directive and the release is:
(i) Necessary to support certain narrowly-tailored essential Government activities for which law or regulation permits access of a non-Government entity to a contractors’ data developed exclusively at private expense, non-SBIR/STTR Data, such as for emergency repair and overhaul;
(ii) To a Government support services contractor in the performance of a Government support services contract for internal Government use or activities, including evaluation, diagnosis or modification, provided that SBIR/STTR Technical Data incorporated into any derivative Data are subject to the rights in § 3(ii) of the SBIR/STTR Policy Directive, and the release is not for commercial purposes or manufacture;
(iii) To a foreign government for purposes of information and evaluation if required to serve the interests of the U.S. Government; or
(iv) To non-Government entities or individuals for purposes of evaluation.
(11) Technical Data. Recorded information, regardless of the form or method of the recording, of a scientific or technical nature (including Computer Software Documentation and Computer Databases). The term does not include Computer Software or financial, administrative, cost or pricing, or management information, or other data incidental to contract or grant administration. The term includes recorded Data of a scientific or technical nature that is included in Computer Databases.
(12) Unlimited Rights. The Government’s rights to access, use, modify, prepare derivative works, reproduce, release, perform, display, disclose, or distribute Data in whole or in part, in any manner and for any purpose whatsoever, and to have or authorize others to do so.
(b) Allocation of SBIR/STTR Data Rights.
(1) An SBC retains ownership of all SBIR/STTR Data it develops or generates in the performance of an SBIR/STTR award. The SBC retains all rights in SBIR/STTR Data that are not granted to the Federal Government in accordance with the SBIR/STTR Policy Directive. These rights of the SBC do not expire.
(2) During the SBIR/STTR Protection Period, the Federal Government receives SBIR/STTR Technical Data Rights in appropriately marked SBIR/STTR Data that is Technical Data or any other type of Data other than Computer Software; and SBIR/STTR Computer Software Rights in appropriately marked SBIR/STTR Data that is Computer Software.
(3) After the protection period, the Federal Government may use, and authorize others to use on its behalf, for Government Purposes, SBIR/STTR Data that was protected during the SBIR/STTR Protection Period. Awards issued by the U.S. Department of Energy are subject to Unlimited Rights after the expiration of the SBIR/STTR Protection Period.
(4) The Federal Government receives Unlimited Rights in Form Fit, and Function Data, OMIT Data, and all unmarked SBIR/STTR Data
(c) Identification and Delivery of SBIR/STTR Data. Any SBIR/STTR Data delivered by the Awardee, and in which the Awardee intends to limit the Federal Government’s rights to SBIR/STTR Data Rights, must be delivered with restrictive markings. The Federal Government assumes no liability for the access, use, modification, reproduction, release, performance, display, disclosure, or distribution of SBIR/STTR Data without markings. The Awardee or its subcontractors or suppliers shall conspicuously and legibly mark all such SBIR/STTR Data with the appropriate legend.
(1) The authorized legend shall be placed on each page of the SBIR/STTR Data. If only portions of a page are subject to the asserted restrictions, the SBIR/STTR Awardee shall identify the restricted portions (e.g., by circling or underscoring with a note or other appropriate identifier). With respect to SBIR/STTR Data embodied in Computer Software, the legend shall be placed on:
(1) the printed material or media containing the Computer Software; or (2) the transmittal document or storage container. The legend shall read as follows:
“SBIR/STTR DATA RIGHTS
Funding Agreement No.
SBIR/STTR Protection Period
SBIR/STTR Awardee Address
This is SBIR/STTR Data (or is Computer Software or a Prototype that embodies or includes SBIR/STTR Data) to which the SBIR/STTR Awardee has SBIR/STTR Data Rights and to which the Federal
Government has received SBIR/STTR Technical Data Rights (or SBIR/STTR Computer Software Rights) during the SBIR/STTR Protection Period and rights of use for Government Purposes after the
SBIR/STTR Protection Period, as those terms are defined in the SBIR/STTR Funding Agreement. Awards issued by the U.S. Department of Energy are subject to Unlimited Rights after the SBIR/STTR Protection
Period, as that term is defined in the SBIR/STTR Funding Agreement. Any reproduction of SBIR/STTR Data or portions of such data marked with this legend must also reproduce the markings.”
(End of Legend)
(2) Data submitted without correct or appropriate markings may be corrected within 6 months from the date the data is delivered.
d) Relation to patents. Nothing regarding SBIR/STTR Data Rights in this clause shall imply a license to or imply a requirement to license to the Federal Government any patent to a Subject Invention (as defined under the Bayh-Dole Act implemented at 37 CFR 401) made under an SBIR/STTR award.
The contractor may copyright and publish (consistent with appropriate national security considerations, if any) material developed with NASA support. NASA receives a royalty-free license for the federal government and requires that each publication contain an appropriate acknowledgment and disclaimer statement.
5.9 Invention Reporting, Election of Title, Patent Application Filing and Patents
Consistent with the SBIR/STTR Program requirements, the Contractor shall complete their electronic submission of the New Technology Report (NTR), for any new subject inventions; and the New Technology Summary Report (NTSR) for the interim and final contract periods, via the SBIR/STTR EHB at http://sbir.nasa.gov under the Handbooks section.
NASA SBIR and STTR contracts will includes FAR 52.227-11 Patent Rights – Ownership by the Contractor and NFS 1852.227-11 Patent Rights – Ownership by the Contractor (APR 2015), which requires SBIR/STTR contractors to disclose all subject inventions to NASA within two (2) months of the inventor’s report to the contractor. A subject invention means any invention of the Contractor made in the performance of work under this contract. Once the contractor discloses a subject invention, the contractor has up to 2 years to notify the government whether it elects to retain title to the subject invention. If the contractor elects to retain title, a patent application covering the subject invention must be initiated within the 1 year statutory period. If the contractor fails to do any of these within time specified periods, the government has the right to obtain title.
Small business concerns normally may elect to retain ownership of any subject invention. In such circumstances, the government shall have a nonexclusive, nontransferable, irrevocable, royalty-free license for federal government use. Further, the government reserves the right to require the patent holder to license others in certain circumstances and may require that anyone exclusively licensed to sell the invention in the United States must normally manufacture it domestically. To the extent authorized by 35 U.S.C. 205, the government will not make public any information disclosing a government-supported invention for a minimum 4-year period (that may be extended by subsequent SBIR funding agreements) to allow the contractor a reasonable time to pursue a patent.
5.10 1852.225-70 Export Licenses
The contractor shall comply with all U.S. export control laws including Export Administration Regulations (EAR) and International Traffic in Arms Regulations (ITAR). Offerors are responsible for ensuring that all employees who will work on this contract are eligible under export control laws, EAR and ITAR. Any employee who is not a U.S. citizen or a permanent resident may be restricted from working on this contract if the technology is restricted under export control laws, ITAR, or EAR unless the prior approval of the Department of State or the Department of Commerce is obtained via a technical assistance agreement or an export license. Violations of these regulations can result in criminal or civil penalties.
For additional information on ITAR, please visit the Code of Federal Regulations at https://www.ecfr.gov/cgi-bin/text-idx?tpl=/ecfrbrowse/Title22/22cfr120_main_02.tpl. For additional information on EAR, please visit https://www.bis.doc.gov/index.php/regulations/export-administration-regulations-ear. For additional training, refer to http://sbir.gsfc.nasa.gov/content/training-resources. For additional assistance contact the NASA SBIR helpdesk at email@example.com
5.11 Government Furnished and Contractor Acquired Property
Under the Act, the Federal Government may transfer title to property provided by the SBIR/STTR Participating Agency to the Awardee or acquired by the Awardee for the purpose of fulfilling the contract where such transfer would be more cost effective than recovery of the property.
Note: Use of government facilities is covered in section 5.13 Use of Federal Services, Facilities or Equipment.
5.12 Essentially Equivalent Awards and Prior Work
If an award is made pursuant to a proposal submitted under either SBIR or STTR Solicitations, the firm will be required to certify with every invoice 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 report essentially equivalent or duplicate efforts can lead to the termination of contracts and/or civil or criminal penalties.
5.13 Additional Information
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/STTR contract, the terms of the contract take precedence over the solicitation.
5.13.2 Evidence of Contractor Responsibility
In addition to the information required to be submitted for Phase II proposals as stated in in section 3.4.12, before award of an SBIR or STTR 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.
5.14 Use of Federal Services, Facilities or Equipment
Federal Departments and Agencies
Use of SBIR funding for unique federal/non-NASA services, equipment or facilities from a federal department or agency which does not meet the definition of a federal laboratory as defined in the SBA Policy Directive on the SBIR/STIR Program, requires a waiver from the SBA. Proposals requiring waivers must include an explanation of why the waiver is appropriate. NASA will provide the offeror’s request, along with an explanation to SBA during the negotiation process. NASA cannot guarantee that a waiver can be obtained from SBA. Specific proposal instructions to request use of Federal Services, Facilities or Equipment are in section 3.3 of the solicitation.
Note: NASA Facilities qualify as Federal Laboratories.
Agreement to Use Any Federal Facility
An executed SBIR/STTR Use Agreement, available in the Firm Library (http://sbir.gsfc.nasa.gov/sbir/firm_library/index.html), is required before a contractor can use NASA services, facilities, or equipment. Offerors should not include an executed SBIR/STTR Use Agreement in the proposals. NASA expects selected offerors to execute the SBIR/STTR Use Agreement during their negotiations with NSSC. The information required in the proposals should facilitate executing the SBIR/STTR Use Agreement.
Contractor Responsibilities for Costs
In accordance with the Federal Acquisition Regulations (FAR) Part 45, it is NASA's policy not to provide services, equipment or facilities (resources) [capital equipment, tooling, test and computer facilities, etc.] for the performance of work under SBIR/STTR contracts. Generally, any contractor will furnish its own resources to perform the proposed work on the contract.
In all cases, the Contractor shall be responsible for any costs associated with services, equipment or facilities provided by NASA or another federal department or agency, and such costs shall result in no increase in the price of this contract.
Note: The Facility Use Agreement has been updated to include additional requirements related to NASA IT Security under Section C. Terms and Conditions (of the Facility Use Agreement).
3. If Contractor’s use of NASA facilities, equipment, and/or services includes use of or access to NASA Information Technology (IT) resources, the Contractor will at all times remain in compliance with and adhere to all NASA IT security requirements and processes, including those set forth in the Contractor’s IT Security Plan. The Contractor’s failure to do so may result in NASA’s unilateral termination of this Use Agreement.