The Small Business Administration released revised SBIR/STTR policy directives, which include privisions strengthening both Phase III preference and data rights. We have had a number of conversations with SBA over the past couple years on both of these issues, and we are happy to see them addressed here. These policy directive revisions will go into affect on May 2, 2019
SBIR/STTR data rights has been an point of contention lately between agencies, which want a firm clear timeline for when data rights expires, and SBIR firms, who worry that if data rights expire too soon, they could lose their competitive advantage before their technology is fully commercialized. When SBA first proposed a 12-year data rights protection period, SBTC objected and argued that that period is insufficient given the length of time it takes many SBIR firms to develop their technologies. We’re pleased to see the SBA has extended that period to 20 years, which starts with the SBIR funding agreement (page 12818):
(hh) SBIR/STTR Protection Period. The period of time during which the 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 this Policy Directive).
Phase III preference has also been strengthened for SBIR firms, and clarifying language has added to make sure sole source awards are awarded to SBIR firms for Phase III work where applicable (page 12812):
(ii) Sole Source Awards. If pursuing the Phase III work with the Awardee is found to be practicable, the agency must award a non-competitive contract to the firm.
(iii) Other Preference. If pursuing Phase III work with the Awardee on a sole source/non-competitive basis does not meet the requirements set forth in the above sections regarding availability, practicality and capability, the Agency must document the file and provide a copy of the decision, including the rationale, to the SBA. The agency should also use other means of affording preference for the Phase III work, especially when the request is for a large acquisition program, which may not be best suited for an SBIR/STTR Award. Examples include reference to the SBIR/STTR Awardee’s brand-name as a required deliverable in the request for proposals, requiring the prime awardee to use evaluation factors favoring subcontracting to SBIR/STTR concerns, or providing other incentives to the prime contractor for utilizing SBIR/STTR Awardees as subcontractors, as referenced in 15 U.S.C. 638(y).
Follow the link below to view the entire policy directive: