[Federal Register Volume 71, Number 202 (Thursday, October 19, 2006)]
[Rules and Regulations]
[Pages 61687-61689]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-17043]
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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 1819 and 1852
RIN 2700-AD17
Small Business Innovation Research (SBIR) and Small Business
Technology Transfer (STTR) Contractor Recertification of Program
Compliance
AGENCY: National Aeronautics and Space Administration.
ACTION: Final rule.
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SUMMARY: This rule adopts the proposed rule published in the Federal
Register on September 30, 2005 as final with minor, non-substantive
editorial changes. The final rule amends the NASA FAR Supplement (NFS)
to include a requirement for NASA's Small Business Innovation Research
(SBIR) and the Small Business Technology Transfer (STTR) program
contractors to complete a recertification 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 requirements associated with the
SBIR and STTR programs. In addition, the final rule corrects the
following in the proposed rule: Revises the section numbering of the
prescription identified in NFS 1832.12 of the proposed rule from NFS
1832.1200 to NFS 1819.7302(f); revises the numbering of the clause from
NFS 1852.232-83 in the proposed rule to NFS 1852.219-85 in the final
rule; makes minor revisions to conform clause titles with those in the
clause prescriptions; revises the Supplementary Information, Paragraph
B. Regulatory Flexibility Act to expand the justification that the rule
does not have a significant economic impact on small entities; and
makes other minor editorial corrections.
DATES: Effective Date: October 19, 2006.
FOR FURTHER INFORMATION CONTACT: Marilyn J. Seppi, NASA, Office of
Procurement, Contract Management Division, (202) 358-0447, e-mail:
[email protected].
SUPPLEMENTARY INFORMATION:
A. Background
NASA published a proposed rule in the Federal Register on September
30, 2005 (70 FR 57240-57242). The public comment period ended on
November 29, 2005. One public comment was received. The comment stated
that the proposed rule constituted an undue burden and would have a
significant (adverse) impact on small businesses. The respondent also
objected to long-standing SBIR/STTR program requirements relating to
limitations on subcontracting. NASA's Response: Regarding the issue of
additional burden, NASA believes that it is in the Government's best
interest to implement the proposed rule requiring SBIR/STTR contractors
to recertify their compliance with Program requirements prior to final
payment to hold contractors accountable for Program compliance and to
enable the pursuit of criminal and civil cases when noncompliance
constitutes a fraud against the Government. NASA believes that the
additional burden resulting from the recertification statement
requirement is minimal. The respondent's comment objecting to current
SBIR/STTR program requirements relating to limitations on
subcontracting is noted; however, these are existing program
requirements that apply regardless of this rule. Therefore, this final
rule amends NASA FAR Supplement Parts 1819 and 1852 to require that all
research and development contracts awarded under the SBIR and STTR
Programs include the clause at 1852.219-85, Conditions for Final
Payment--SBIR and STTR Contracts. This clause provides direction to the
contractor regarding completion and submission of a recertification
requirement prior to and as a condition of final payment. In addition,
the rule requires use of the clauses at 1852.219-80, Limitation on
Subcontracting--SBIR Phase I Program, 1852.219-81, Limitation on
Subcontracting--SBIR Phase II Program, and 1852.219-82, Limitation on
Subcontracting--STTR Program, in the respective SBIR and STTR contracts
to delineate the subcontracting limitations necessary for contract
performance. The rule also requires the use of clauses at 1852.219-83,
Limitation of the Principal Investigator--SBIR Program, and 1852.219-
84, Limitation of the Principal Investigator--STTR Program,
respectively, to describe the employment requirements of the principal
investigator.
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 rule is
not a major rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
NASA certifies that this rule will not have a significant economic
impact on a substantial number of small entities within the meaning of
the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the
recertification prior to final payment to awardees is merely an updated
statement by the contractor provided in the representations and
certifications submitted with the proposal in accordance with the Small
Business Administration's SBIR Program Directive. The information
included in the contractor's statement addresses subcontracting
limitations and contracting officer consent requirements which are part
of a contractor's normal contract administration responsibilities in
monitoring compliance with contract and program requirements.
Accordingly, the recertification is not considered to have a
significant impact.
C. Paperwork Reduction Act
The Paperwork Reduction Act applies because the changes to the NFS
impose recordkeeping or information collections, or collection of
information from offerors or contractors. The Office of Management and
Budget under 44
[[Page 61688]]
U.S.C. 3501, et seq., has approved this as a new collection under OMB
Control Number 2700-0124.
List of Subjects in 48 CFR 1819 and 1852
Government procurement.
Tom Luedtke,
Assistant Administrator for Procurement.
0
Accordingly, 48 CFR parts 1819 and 1852 are amended as follows:
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1. The authority citation for 48 CFR parts 1819 and 1852 continues to
read as follows:
Authority: 42 U.S.C. 2473(c)(1).
PART 1819--SMALL BUSINESS PROGRAMS
0
2. Add Subpart 1819.73 to read as follows:
Subpart 1819.73--Small Business Innovation Research (SBIR) and Small
Business Technology Transfer (STTR) Programs 1819.7301 Scope of
subpart.
Sec.
1819.7301 Scope of subpart.
1819.7302 NASA contract clauses.
Subpart 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 (SBA)
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 the SBA
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.
(a) Contracting officers shall insert the clause at 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 the 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 the clause at 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 the clause at 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 the clause at 1852.219-84,
Limitation of the Principal Investigator--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).
(f) Contracting officers shall insert the clause at 1852.219-85,
Conditions for Final Payment--SBIR and STTR Contracts, in all contracts
awarded under the Small Business Technology Transfer (STTR) Program and
in all Phase I and Phase II contracts awarded under the Small Business
Technology Transfer (STTR) Small Business Innovation Research (SBIR)
Program established pursuant to Public Law 97-219 (the Small Business
Innovation Development Act of 1982).
PART 1852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
3. Add sections 1852.219-80, 1852.219-81, 1852.219-82, 1852.219-83,
1852.219-84, and 1852.219-85 to read as follows:
1852.219-80 Limitation on Subcontracting--SBIR Phase I Program.
As prescribed in 1819.7302(a), insert the following clause:
Limitation on Subcontracting--SBIR Phase I Program(Oct 2006)
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 Program.
As prescribed in 1819.7302(b), insert the following clause:
Limitation on Subcontracting--SBIR Phase II Program (Oct 2006)
The Contractor shall perform a minimum of one-half 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. 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:
Limitation on Subcontracting--STTR Program(Oct 2006)
The Contractor 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. 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.
As prescribed in 1819.7302(d), insert the following clause:
[[Page 61689]]
Limitation of the Principal Investigator--SBIR Program(Oct 2006)
The primary employment of the principal investigator (PI) 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 SBC/Contractor. 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:
Limitation of the Principal Investigator--STTR Program (Oct 2006)
(a) The primary employment of the principal investigator (PI)
identified in paragraph (b) of this clause 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 SBC/Contractor or
RI.
(b) The PI is considered to be key personnel in the performance
of this contract. The SBC/Contractor, 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)
1852.219-85 Conditions for Final Payment--SBIR and STTR Contracts.
As prescribed in 1819.7302(f), insert the following clause:
Conditions for Final Payment--SBIR AND STTR Contracts(Oct 2006)
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. The SBC/Contractor, whether or not the employer of the PI,
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 USC, Section 1001, False Statements, as well
as Title 18 U.S.C., Section 287, False Claims.
(End of Clause)
[FR Doc. E6-17043 Filed 10-18-06; 8:45 am]
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