[Federal Register Volume 70, Number 189 (Friday, September 30, 2005)]
[Proposed Rules]
[Pages 57240-57242]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-19399]


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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1819, 1832, and 1852

RIN 2700-AD17


Small Business Innovation Research (SBIR) and Small Business 
Technology Transfer (STTR) Contractor Re-Certification of Program 
Compliance

AGENCY: National Aeronautics and Space Administration.

ACTION: Proposed rule.

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SUMMARY: This proposed rule is to amend the NASA FAR Supplement (NFS) 
to include a requirement for NASA's Small Business Innovation Research 
(SBIR) and the Small Business Technology Transfer (STTR) contractors to 
complete a re-certification of program compliance prior to final 
payment. This requirement is being established to facilitate the 
Government's ability to hold contractors accountable for compliance 
with Federal statute, regulation, and program requirements as outlined 
in the Office of Inspector General's Management Alert Memorandum dated 
April 28, 2004. As part of its continuing effort to reduce the 
paperwork and respondent burden, NASA invites the general public and 
other Federal agencies to comment on this proposed rule and/or 
continuing information collections, as required by the Paperwork 
Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. 3506(c)(2)(A)).

DATES: Comments should be submitted on or before November 29, 2005 to 
be considered in formulation of the final rule.

ADDRESSES: Interested parties may submit comments, identified by RIN 
number 2700-AD17 via the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. 
Comments may also be submitted to Marilyn J. Seppi, NASA, Office of 
Procurement, Contract Management Division, Washington, DC 20546. 
Comments can also be submitted by e-mail to: Marilyn.Seppi-1@nasa.gov.
    Comments on the information collection should be directed to Ms. 
Kathy Shaeffer, Acting NASA Reports Officer, NASA Headquarters, 300 E 
Street, SW., Mail Suite 6M70, Washington, DC 20546, (202) 358-1230, e-
mail: Kathleen.shaeffer-1@nasa.gov.

FOR FURTHER INFORMATION CONTACT: Marilyn J. Seppi, NASA, Office of 
Procurement, Contract Management Division, (703) 553-2551, e-mail: 
Marilyn.Seppi-1@nasa.gov.
    Requests for additional information regarding the information 
collection should be directed to Ms. Kathy Shaeffer, Acting NASA 
Reports Officer, NASA Headquarters, 300 E Street, SW., Mail Suite 6M70, 
Washington, DC 20546, (202) 358-1230, Kathleen.shaeffer-1@nasa.gov.

SUPPLEMENTARY INFORMATION:

A. Background

    Section 1832.12 of the NFS requires that all research and 
development contracts under the SBIR and STTR Programs include the 
clause 1852.232-83, Conditions for Final Payment. This clause provides 
direction to the contractor regarding completion and submission of a 
re-certification requirement prior to and as a condition of final 
payment. Currently, under the SBIR/STTR Programs the contractor is only 
required to certify at the time of proposal submission that the 
proposing entity has or has not received Federal funding for 
essentially equivalent work. This proposed new clause will require a 
post-award certification by the small business concern (SBC) for 
program compliance as a condition and prior to final payment. This 
change proposes a new clause 1852.232-83 for use in all SBIR Phase I, 
SBIR Phase II, and STTR contracts.
    In addition, section 1819.73 requires the clauses 1852.219-80 
Limitation on Subcontracting--SBIR Phase I, 1852.219-81 Limitation on 
Subcontracting--SBIR Phase II, and 1852.219-82 Limitation on 
Subcontracting--STTR in the respective SBIR and STTR contracts to 
delineate the subcontracting limitations necessary for contract 
performance. Also, section 1819.73 of the NFS requires the clauses 
1852.219-83 Limitation of the Principal Investigator--SBIR Program and 
1852.219-84 Limitation of the Principal Investigator--STTR Program, 
respectively, to delineate the employment of the principal investigator 
which is necessary for monitoring contract performance.
    This is not a significant regulatory action and, therefore, was not 
subject to review under Section 6(b) of Executive Order 12866, 
Regulatory Planning and Review, dated September 30, 1993. This proposed 
rule is not a major rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

    This proposed rule is not expected to have a significant economic 
impact on a substantial number of small entities with the meaning of 
the Regulatory Flexibility Act, 5 U.S.C. 601. et seq., because the 
proposed re-certification prior to final payment to awardees is merely 
an update of the representations and certifications submitted at the 
time of proposal submission in accordance with Small Business 
Administrations (SBA's) SBIR Program Directive.

C. Paperwork Reduction Act

1. Abstract

    NASA is requesting OMB approval for the new collection that will be 
created by the proposed amendment to the NFS requiring SBIR/STTR 
contractors to recertify program compliance prior to final payment.

2. Method of Collection

    The NASA contract clause will require inclusion of the information 
as part of contractors' final payment invoice requests.

3. Data

    Title: Small Business Innovation Research (SBIR) and Small Business 
Technology Transfer (STTR) Contractor Re-Certification of Program 
Compliance.

[[Page 57241]]

    Collection of Information: The Certification Required Prior to 
Final Payment.
    The public burden for obtaining re-certification from the SBIR/STTR 
contracts is estimated annually to be 242 hours with an average annual 
cost of $12,100 for each SBIR/STTR Program year. The estimated burden 
has been calculated as follows:

Certification (1 required per contract)--484
Hours per certification-- x 0.50 (30 minutes)
Certification Burden--242 hours
Average Hourly Rate--$50
Average Annual Cost--$12,100

    The estimated number of certifications shown above is based upon 
the average total number of NASA's SBIR and STTR-related contracts 
awards for FY-2004, FY-2003, and FY-2002. However, no real cost is 
associated with SBIR/STTR contractors because the costs associated with 
this type of administrative work is part of the cost of doing business 
and usually found in the companies' direct or indirect expense rates 
and therefore included in their contract price. This estimate reflects 
the combined paperwork clearance request the Agency is submitting to 
OMB.

List of Subjects in 48 CFR 1819, 1832, and 1852

    Government Procurement.

Tom Luedtke,
Assistant Administrator for Procurement.
    Accordingly, 48 CFR Parts 1819, 1832, and 1852 are proposed to be 
amended as follows:
    1. The authority citation for 48 CFR Parts 1819, 1832, and 1852 
continues to read as follows:

    Authority: 42 U.S.C. 2473(c)(1).

PART 1819--SMALL BUSINESS PROGRAMS

    2. Subpart 1819.73 is added to read as follows:


1819.73--Small  Business Innovation Research (SBIR) and Small Business 
Technology Transfer (STTR) Programs


1819.7301  Scope of Subpart.

    The Small Business Innovation Research (SBIR) and Small Business 
Technology Transfer (STTR) Programs were established and issued under 
the authority of The Small Business Act codified at 15 U.S.C. 631 as 
amended and the Small Business Innovation Development Act of 1982 (Pub. 
L. 97-219), codified with amendments, at 15 U.S.C. 638. The Small 
Business Act requires that the Small Business Administration issue SBIR 
and STTR Program Policy Directives for the general conduct of the SBIR/
STTR Programs within the Federal Government. The statutory purpose of 
the SBIR Program is to strengthen the role of innovative small business 
concerns (SBCs) in federally-funded research or research and 
development (R/R&D). Specific program purposes are to: Stimulate 
technological innovation; use small business to meet Federal R/R&D 
needs; foster and encourage participation by socially and economically 
disadvantaged SBCs, and by SBCs that are 51 percent owned and 
controlled by women, in technological innovation; and increase private 
sector commercialization of innovations derived from Federal R/R&D, 
thereby increasing competition, productivity and economic growth. 
Federal agencies participating in the SBIR/STTR Programs (SBIR/STTR 
agencies) are obligated to follow the guidance provided by this Policy 
Directive. NASA is required to ensure its policies, regulations, and 
guidance on the SBIR/STTR Programs are consistent with SBA's Policy 
Directive. Contracting Officers are required to insert the applicable 
clauses identified in 1819.7302 in all SBIR and STTR contracts.


1819.7302  NASA contract clauses and solicitation provisions.

    (a) Contracting officers shall insert clause 1852.219-80 Limitation 
on Subcontracting SBIR Phase I Program in all Phase I contracts awarded 
under the Small Business Innovation Research (SBIR) Program established 
pursuant to Public Law 97-219 (the Small Business Innovation 
Development Act of 1982).
    (b) Contracting officers shall insert clause at 1852.219-81 
Limitation on Subcontracting--SBIR Phase II Program in all Phase II 
contracts awarded under the Small Business Innovation Research (SBIR) 
Program established pursuant to Public Law 97-219 (the Small Business 
Innovation Development Act of 1982).
    (c) Contracting officers shall insert clause 1852.219-82 Limitation 
on Subcontracting--STTR Program in all contracts awarded under the 
Small Business Technology Transfer (STTR) Program established pursuant 
to Public Law 97-219 (the Small Business Innovation Development Act of 
1982).
    (d) Contracting officers shall insert clause 1852.219-83 Limitation 
of the Principal Investigator--SBIR Program in all contracts awarded 
under the Small Business Innovation Research (SBIR) Program established 
pursuant to Public Law 97-219 (the Small Business Innovation 
Development Act of 1982).
    (e) Contracting officers shall insert clause 1852.219-84 Limitation 
on Subcontracting--STTR Program in all contracts awarded under the 
Small Business Technology Transfer (STTR) Program established pursuant 
to Public Law 97-219 (the Small Business Innovation Development Act of 
1982).

PART 1832--CONTRACT FINANCING

    3. Subpart 1832.12 is added to read as follows:


1832.12--Final  Payment Under SBIR and STTR Contracts


1832.1210  Contract clause.

    Contracting officers shall insert clause 1852.232-83 Conditions for 
Final Payment SBIR and STTR Contracts in all Phase I and Phase II 
contracts awarded under the Small Business Innovation Research (SBIR) 
and Small Business Technology Transfer (STTR) Programs established 
pursuant to Public Law 97-219 (the Small Business Innovation 
Development Act of 1982). The clause is limited to use solely in 
contracts awarded under the SBIR/STTR Programs.

PART 1852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    4. Clauses 1852.219-80, 1852.219-81, 1852.219-82, 1852.219-83, and 
1852.219-84 are added to read as follows:
* * * * *


1852.219-80  Limitation on Subcontracting--SBIR Phase I.

    As prescribed in 1819.7302(a), insert the following clause in all 
SBIR Phase I contracts:

Limitation on Subcontracting--SBIR Phase I (XX/XX)

    The Contractor shall perform a minimum of two-thirds of the 
research and/or analytical effort (total contract price less profit) 
conducted under this contract. Any deviation from this requirement must 
be approved in advance and in writing by the Contracting Officer.


(End of clause)


1852.219-81  Limitation on Subcontracting--SBIR Phase II.

    As prescribed in 1819.7302(b), insert the following clause in all 
SBIR contracts:

Limitation on Subcontracting--SBIR Phase II (XX/XX)

    The Contractor shall perform a minimum of one-half of the research 
and/or analytical effort (total contract

[[Page 57242]]

price less profit) conducted under this contract. Any deviation from 
this requirement must be approved in advance and in writing by the 
Contracting Officer. Since the selection of R&D contractors is 
substantially based on the best scientific and technological sources, 
it is important that the Contractor not subcontract technical or 
scientific work without the Contracting Officer's advance approval.


(End of clause)


1852.219-82  Limitation on Subcontracting--STTR Program.

    As prescribed in 1819.7302(c), insert the following clause in all 
SBIR and STTR solicitations and contracts:

Limitation on Subcontracting--STTR Program (XX/XX)

    The Contractor (small business concern (SBC)) shall perform a 
minimum of 40 percent of the work under this contract (total contract 
price including cost sharing, if any, less profit if any). A minimum of 
30 percent of the work under this contract shall be performed by the 
research institution (RI). Since the selection of R&D contractors is 
substantially based on the best scientific and technological sources, 
it is important that the contractor not subcontract technical or 
scientific work without the Contracting Officer's advance approval.


(End of clause)


1852.219-83  Limitation of the Principal Investigator--SBIR Program OR 
Principal Investigator--Primary Employment--SBIR Program.

    As prescribed in 1819.7302(d), insert the following clause in all 
SBIR solicitations and contracts:

Limitation of the Principal Investigator--SBIR Program OR Principal 
Investigator--Primary Employment--SBIR Program (XX/XX)

    The primary employment of the principal investigator shall be with 
the small business concern (SBC)/Contractor during the conduct of this 
contract. Primary employment means that more than one-half of the 
principal investigator's time is spent in the employ of the Contractor/
SBC. This precludes full-time employment with another organization. 
Deviations from these requirements must be approved in advance and in 
writing by the Contracting Officer and are not subject to a change in 
the firm-fixed price of the contract. The PI for this contract is 
(insert name).


(End of Clause)


1852.219-84  Limitation of the Principal Investigator--STTR Program.

    As prescribed in 1819.7302(e), insert the following clause in all 
STTR solicitations and contracts:

Limitation of the Principal Investigator--STTR Program (XX/XX)

    (a) The primary employment of the principal investigator (PI) 
identified in this STTR contract is with the small business concern 
(SBC)/Contractor or the research institution (RI). Primary employment 
means that more than one-half of the principal investigator's time is 
spent in the employ of the contractor/SBC or RI.
    (b) The principal investigator (PI) is considered to be key 
personnel in the performance of this contract and may not have been 
employed by the contractor/SBC. The Contractor/SBC whether or not the 
employer of the PI shall exercise primary management direction and 
control over the PI and be overall responsible for the PI's performance 
under this contract. Deviations from these requirements must be 
approved in advance and in writing by the Contracting Officer and are 
not subject to a change in the firm-fixed price of the contract. The PI 
for this contract is (insert name).


(End of Clause)
    5. Section 1852.232-83 is added to read as follows:


1852.232-83  Conditions for Final Payment--SBIR and STTR Contracts.

    As prescribed in 1832.1210, insert the following clause in all SBIR 
and STTR solicitations and contracts:

Conditions for Final Payment--SBIR and STTR Contracts (XX/XX)

    As a condition for final payment under this contract, the 
Contractor shall provide the following certifications as part of its 
final payment invoice request:
    During performance of this contract--
    1. Essentially equivalent work performed under this contract has 
not been proposed for funding to another Federal agency;
    2. No other Federal funding award has been received for essentially 
equivalent work performed under this contract;
    3. Deliverable items submitted under this contract have not been 
submitted as deliverable items under another Federal funding award;
    4. For SBIR contracts: The subcontracting limitation set forth in 
this contract was not exceeded except as approved in writing by the 
Contracting Officer on (insert date of approval or modification 
number.);
    5. For STTR contracts: The subcontracting limitation set forth in 
this contract was not exceeded;
    6. For SBIR contracts: The primary employment of the principal 
investigator (PI) identified in this SBIR contract was with the 
Contractor, except as approved in writing by the Contracting Officer on 
(insert date of approval or modification number.); and
    7. For STTR contracts: The primary employment of the principal 
investigator (PI) identified in this STTR contract was the SBC/
Contractor or the research institution (RI). The PI identified in the 
STTR contract was considered key in the performance of this contract 
and may not have been employed by the Contractor/SBC. However, the 
Contractor/SBC did exercise primary management direction and control 
over the PI and was overall responsible for the PI's performance under 
this contract. Any substitutions of this individual were approved in 
writing by the Contracting Officer on (insert date of approval or 
modification number.).
    I understand that the willful provision of false information or 
concealing a material fact in this representation is a criminal offense 
under Title 18 U.S.C., Section 1001, False Statements, as well as Title 
18 U.S.C., Section 287, False Claims.


(End of Clause)

[FR Doc. 05-19399 Filed 9-29-05; 8:45 am]
BILLING CODE 7510-01-P