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[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 4900 Engrossed in Senate (ES)]

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117th CONGRESS
  2d Session
                                S. 4900

_______________________________________________________________________

                                 AN ACT

 
 To reauthorize the SBIR and STTR programs and pilot programs, and for 
                            other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``SBIR and STTR Extension Act of 
2022''.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Administration; administrator.--The terms 
        ``Administration'' and ``Administrator'' mean the Small 
        Business Administration and the Administrator thereof, 
        respectively.
            (2) Federal agency; phase i; phase ii; phase iii; sbir; 
        sttr.--The terms ``Federal agency'', ``Phase I'', ``Phase II'', 
        ``Phase III'', ``SBIR'', and ``STTR'' have the meanings given 
        those terms, respectively, in section 9(e) of the Small 
        Business Act (15 U.S.C. 638(e)).

SEC. 3. REAUTHORIZATION OF SBIR AND STTR PROGRAMS AND PILOT PROGRAMS.

    Section 9 of the Small Business Act (15 U.S.C. 638) is amended by 
striking ``2022'' each place that term appears and inserting ``2025''.

SEC. 4. FOREIGN RISK MANAGEMENT.

    (a) Definitions.--Section 9(e) of the Small Business Act (15 U.S.C. 
638(e)) is amended--
            (1) in paragraph (13)(B), by striking ``and'' at the end;
            (2) in paragraph (14), by striking the period at the end 
        and inserting a semicolon; and
            (3) by adding at the end the following:
            ``(15) the term `covered individual' means an individual 
        who--
                    ``(A) contributes in a substantive, meaningful way 
                to the scientific development or execution of a 
                research and development project proposed to be carried 
                out with a research and development award from a 
                Federal research agency; and
                    ``(B) is designated as a covered individual by the 
                Federal research agency concerned;
            ``(16) the term `foreign affiliation' means a funded or 
        unfunded academic, professional, or institutional appointment 
        or position with a foreign government or government-owned 
        entity, whether full-time, part-time, or voluntary (including 
        adjunct, visiting, or honorary);
            ``(17) the term `foreign country of concern' means the 
        People's Republic of China, the Democratic People's Republic of 
        Korea, the Russian Federation, the Islamic Republic of Iran, or 
        any other country determined to be a country of concern by the 
        Secretary of State;
            ``(18) the term `malign foreign talent recruitment program' 
        has the meaning given such term in section 10638 of the 
        Research and Development, Competition, and Innovation Act 
        (division B of Public Law 117-167); and
            ``(19) the term `federally funded award' means a Phase I, 
        Phase II (including a Phase II award under subsection (cc)), or 
        Phase III SBIR or STTR award made using a funding agreement.''.
    (b) Due Diligence Program to Assess Security Risks.--
            (1) In general.--Section 9 of the Small Business Act (15 
        U.S.C. 638) is amended by adding at the end the following:
    ``(vv) Due Diligence Program to Assess Security Risks.--
            ``(1) Establishment.--The head of each Federal agency 
        required to establish an SBIR or STTR program, in coordination 
        with the Administrator, shall establish and implement a due 
        diligence program to assess security risks presented by small 
        business concerns seeking a federally funded award.
            ``(2) Risks.--Each program established under paragraph (1) 
        shall--
                    ``(A) assess, using a risk-based approach as 
                appropriate, the cybersecurity practices, patent 
                analysis, employee analysis, and foreign ownership of a 
                small business concern seeking an award, including the 
                financial ties and obligations (which shall include 
                surety, equity, and debt obligations) of the small 
                business concern and employees of the small business 
                concern to a foreign country, foreign person, or 
                foreign entity; and
                    ``(B) assess awards and proposals or applications, 
                as applicable, using a risk-based approach as 
                appropriate, including through the use of open-source 
                analysis and analytical tools, for the nondisclosures 
                of information required under (g)(13).
            ``(3) Administrative costs.--
                    ``(A) In general.--In addition to the amount 
                allocated under subsection (mm)(1), each Federal agency 
                required to establish an SBIR program may allocate not 
                more than 2 percent of the funds allocated to the SBIR 
                program of the Federal agency for the cost of 
                establishing the due diligence program required under 
                this subsection.
                    ``(B) Reporting.--
                            ``(i) In general.--Not later than December 
                        31 of the year in which this subparagraph is 
                        enacted, and not later than December 31 of each 
                        year thereafter, the head of a Federal agency 
                        that exercises the authority under subparagraph 
                        (A) shall submit to the Committee on Small 
                        Business and the Committee on Science, Space, 
                        and Technology of the House of Representatives, 
                        the Committee on Small Business and 
                        Entrepreneurship of the Senate, and the 
                        Administrator, for the covered year--
                                    ``(I) the total funds allowed to be 
                                allocated for the cost of establishing 
                                the due diligence program required 
                                under this subsection;
                                    ``(II) the total amount of funds 
                                obligated or expended under 
                                subparagraph (A); and
                                    ``(III) the due diligence 
                                activities carried out or to be carried 
                                out using amounts allocated under 
                                subparagraph (A).
                            ``(ii) Annual report inclusion.--The 
                        Administrator shall include the information 
                        submitted by head of a Federal agency under 
                        clause (i) in the next annual report submitted 
                        under subsection (b)(7) after the Administrator 
                        receives such information.
                            ``(iii) Covered year.--In this 
                        subparagraph, the term `covered year' means, 
                        with respect to the information required under 
                        clause (i), the year covered by the annual 
                        report submitted under subsection (b)(7) in 
                        which the Administrator is required to include 
                        such information by clause (ii).
                    ``(C) Termination date.--This paragraph shall 
                terminate on September 30, 2025.''.
            (2) Implementation.--
                    (A) In general.--Not later than 270 days after the 
                date of enactment of this Act, the head of a Federal 
                agency required to establish an SBIR or STTR program 
                shall implement a due diligence program under 
                subsection (vv) of section 9 of the Small Business Act 
                (15 U.S.C. 638), as added by paragraph (1), at the 
                Federal agency that, to the extent practicable, 
                incorporates the applicable best practices disseminated 
                under paragraph (3).
                    (B) Paperwork reduction act.--Chapter 35 of title 
                44, United States Code (commonly known as the 
                ``Paperwork Reduction Act''), shall not apply to the 
                implementation of a due diligence program under 
                subsection (vv) of section 9 of the Small Business Act 
                (15 U.S.C. 638), as added by paragraph (1).
                    (C) Briefing.--Not later than 30 days after the 
                date of enactment of this Act, and on a recurring basis 
                until implementation is complete, each Federal agency 
                required to establish a due diligence program under 
                subsection (vv) of section 9 of the Small Business Act 
                (15 U.S.C. 638), as added by paragraph (1), shall brief 
                the Committee on Small Business and Entrepreneurship of 
                the Senate and the Committee on Small Business and the 
                Committee on Science, Space, and Technology of the 
                House of Representatives on the implementation of the 
                due diligence program.
            (3) Best practices.--Not later than 180 days after the date 
        of enactment of this Act, the Administrator shall--
                    (A) in coordination with the Director of the Office 
                of Science and Technology Policy and in consultation 
                with the Committee on Foreign Investment in the United 
                States, disseminate among Federal agencies required to 
                establish an SBIR or STTR program best practices of 
                those Federal agencies for due diligence programs 
                required under subsection (vv) of section 9 of the 
                Small Business Act (15 U.S.C. 638), as added by 
                paragraph (1); and
                    (B) in consultation with the Committee on Foreign 
                Investment in the United States, provide to Federal 
                agencies described in subparagraph (A) guidance on the 
                business relationships required to be disclosed under 
                paragraph (13)(G) of subsection (g) and paragraph 
                (17)(G) of subsection (o) of section 9 of the Small 
                Business Act (15 U.S.C. 638), as added by this Act.
            (4) GAO study.--Not later than 1 year after the date of 
        enactment of this Act, and annually thereafter for 3 years, the 
        Comptroller General of the United States shall conduct a study 
        and submit to the Committee on Small Business and 
        Entrepreneurship and the Committee on Armed Services of the 
        Senate and the Committee on Small Business, the Committee on 
        Armed Services, and the Committee on Science, Space, and 
        Technology of the House of Representatives a report on the 
        implementation and best practices of due diligence programs 
        established under subsection (vv) of section 9 of the Small 
        Business Act (15 U.S.C. 638), as added by paragraph (1), across 
        Federal agencies required to establish an SBIR or STTR program.
            (5) Rule of construction.--Nothing in subsection (vv) of 
        section 9 of the Small Business Act (15 U.S.C. 638), as added 
        by paragraph (1), shall be construed to--
                    (A) apply to any Federal agency with a due 
                diligence program that applies to the SBIR or STTR 
                programs required under subsection (vv) of section 9 of 
                the Small Business Act (15 U.S.C. 638), as added by 
                paragraph (1), in existence as of the date of enactment 
                of this Act; or
                    (B) restrict any Federal agency from taking due 
                diligence measures in addition to those required under 
                such subsection (vv) at the Federal agency.
    (c) Disclosures Regarding Ties to People's Republic of China and 
Other Foreign Countries.--
            (1) SBIR.--Section 9(g) of the Small Business Act (15 
        U.S.C. 638(g)) is amended--
                    (A) in paragraph (11), by striking ``and'' at the 
                end;
                    (B) in paragraph (12), by striking the period at 
                the end and inserting a semicolon; and
                    (C) by adding at the end the following:
            ``(13) require each small business concern submitting a 
        proposal or application for a federally funded award to 
        disclose in the proposal or application--
                    ``(A) the identity of all owners and covered 
                individuals of the small business concern who are a 
                party to any foreign talent recruitment program of any 
                foreign country of concern, including the People's 
                Republic of China;
                    ``(B) the existence of any joint venture or 
                subsidiary of the small business concern that is based 
                in, funded by, or has a foreign affiliation with any 
                foreign country of concern, including the People's 
                Republic of China;
                    ``(C) any current or pending contractual or 
                financial obligation or other agreement specific to a 
                business arrangement, or joint venture-like arrangement 
                with an enterprise owned by a foreign state or any 
                foreign entity;
                    ``(D) whether the small business concern is wholly 
                owned in the People's Republic of China or another 
                foreign country of concern;
                    ``(E) the percentage, if any, of venture capital or 
                institutional investment by an entity that has a 
                general partner or individual holding a leadership role 
                in such entity who has a foreign affiliation with any 
                foreign country of concern, including the People's 
                Republic of China;
                    ``(F) any technology licensing or intellectual 
                property sales to a foreign country of concern, 
                including the People's Republic of China, during the 5-
                year period preceding submission of the proposal; and
                    ``(G) any foreign business entity, offshore entity, 
                or entity outside the United States related to the 
                small business concern;
            ``(14) after reviewing the disclosures of a small business 
        concern under paragraph (13), and if determined appropriate by 
        the head of such Federal agency, request such small business 
        concern to provide true copies of any contractual or financial 
        obligation or other agreement specific to a business 
        arrangement, or joint-venture like arrangement with an 
        enterprise owned by a foreign state or any foreign entity in 
        effect during the 5-year period preceding submission of the 
        proposal with respect to which such small business concern made 
        such disclosures;''.
            (2) STTR.--Section 9(o) of the Small Business Act (15 
        U.S.C. 638(o)) is amended--
                    (A) in paragraph (15), by striking ``and'' at the 
                end;
                    (B) in paragraph (16), by striking the period at 
                the end and inserting a semicolon; and
                    (C) by adding at the end the following:
            ``(17) require each small business concern submitting a 
        proposal or application for a federally funded award to 
        disclose in the proposal or application--
                    ``(A) the identity of all owners and covered 
                individuals of the small business concern who are a 
                party to any foreign talent recruitment program of any 
                foreign country of concern, including the People's 
                Republic of China;
                    ``(B) the existence of any joint venture or 
                subsidiary of the small business concern that is based 
                in, funded by, or has a foreign affiliation with any 
                foreign country of concern, including the People's 
                Republic of China;
                    ``(C) any current or pending contractual or 
                financial obligation or other agreement specific to a 
                business arrangement, or joint venture-like arrangement 
                with an enterprise owned by a foreign state or any 
                foreign entity;
                    ``(D) whether the small business concern is wholly 
                owned in the People's Republic of China or another 
                foreign country;
                    ``(E) the percentage, if any, of venture capital or 
                institutional investment by an entity that has a 
                general partner or individual holding a leadership role 
                in such entity who has a foreign affiliation with any 
                foreign country of concern, including the People's 
                Republic of China;
                    ``(F) any technology licensing or intellectual 
                property sales to a foreign country of concern, 
                including the People's Republic of China, during the 5-
                year period preceding submission of the proposal; and
                    ``(G) any foreign business entity, offshore entity, 
                or entity outside the United States related to the 
                small business concern;
            ``(18) after reviewing the disclosures of a small business 
        concern under paragraph (17), and if determined appropriate by 
        the head of such Federal agency, request such small business 
        concern to provide true copies of any contractual or financial 
        obligation or other agreement specific to a business 
        arrangement, or joint-venture like arrangement with an 
        enterprise owned by a foreign state or any foreign entity in 
        effect during the 5-year period preceding submission of the 
        proposal with respect to which such small business concern made 
        such disclosures;''.
    (d) Denial of Awards.--
            (1) SBIR.--Section 9(g) of the Small Business Act (15 
        U.S.C. 638(g)), as amended by subsection (c)(1), is further 
        amended by adding at the end the following:
            ``(15) not make an award under the SBIR program of the 
        Federal agency to a small business concern if the head of the 
        Federal agency determines that--
                    ``(A) the small business concern submitting the 
                proposal or application--
                            ``(i) has an owner or covered individual 
                        that is party to a malign foreign talent 
                        recruitment program;
                            ``(ii) has a business entity, parent 
                        company, or subsidiary located in the People's 
                        Republic of China or another foreign country of 
                        concern; or
                            ``(iii) has an owner or covered individual 
                        that has a foreign affiliation with a research 
                        institution located in the People's Republic of 
                        China or another foreign country of concern; 
                        and
                    ``(B) the relationships and commitments described 
                in clauses (i) through (iii) of subparagraph (A)--
                            ``(i) interfere with the capacity for 
                        activities supported by the Federal agency to 
                        be carried out;
                            ``(ii) create duplication with activities 
                        supported by the Federal agency;
                            ``(iii) present concerns about conflicts of 
                        interest;
                            ``(iv) were not appropriately disclosed to 
                        the Federal agency;
                            ``(v) violate Federal law or terms and 
                        conditions of the Federal agency; or
                            ``(vi) pose a risk to national security;''.
            (2) STTR.--Section 9(o) of the Small Business Act (15 
        U.S.C. 638(o)), as amended by subsection (c)(2), is further 
        amended by adding at the end the following:
            ``(19) not make an award under the STTR program of the 
        Federal agency to a small business concern if the head of the 
        Federal agency determines that--
                    ``(A) the small business concern submitting the 
                proposal or application--
                            ``(i) has an owner or covered individual 
                        that is party to a malign foreign talent 
                        recruitment program;
                            ``(ii) has a business entity, parent 
                        company, or subsidiary located in the People's 
                        Republic of China or another foreign country of 
                        concern; or
                            ``(iii) has an owner or covered individual 
                        that has a foreign affiliation with a research 
                        institution located in the People's Republic of 
                        China or another foreign country of concern; 
                        and
                    ``(B) the relationships and commitments described 
                in clauses (i) through (iii) of subparagraph (A)--
                            ``(i) interfere with the capacity for 
                        activities supported by the Federal agency to 
                        be carried out;
                            ``(ii) create duplication with activities 
                        supported by the Federal agency;
                            ``(iii) present concerns about conflicts of 
                        interest;
                            ``(iv) were not appropriately disclosed to 
                        the Federal agency;
                            ``(v) violate Federal law or terms and 
                        conditions of the Federal agency; or
                            ``(vi) pose a risk to national security;''.

SEC. 5. AGENCY RECOVERY AUTHORITY AND ONGOING REPORTING.

    (a) SBIR.--Section 9(g) of the Small Business Act (15 U.S.C. 
638(g)), as amended by section 4(d)(1), is further amended by adding at 
the end the following:
            ``(16) require a small business concern receiving an award 
        under its SBIR program to repay all amounts received from the 
        Federal agency under the award if--
                    ``(A) the small business concern makes a material 
                misstatement that the Federal agency determines poses a 
                risk to national security; or
                    ``(B) there is a change in ownership, change to 
                entity structure, or other substantial change in 
                circumstances of the small business concern that the 
                Federal agency determines poses a risk to national 
                security; and
            ``(17) require a small business concern receiving an award 
        under its SBIR program to regularly report to the Federal 
        agency and the Administration throughout the duration of the 
        award on--
                    ``(A) any change to a disclosure required under 
                subparagraphs (A) through (G) of paragraph (13);
                    ``(B) any material misstatement made under 
                paragraph (16)(A); and
                    ``(C) any change described in paragraph (16)(B).''.
    (b) STTR.--Section 9(o) of the Small Business Act (15 U.S.C. 
638(o)), as amended by section 4(d)(1), is further amended by adding at 
the end the following:
            ``(20) require a small business concern receiving an award 
        under its STTR program to repay all amounts received from the 
        Federal agency under the award if--
                    ``(A) the small business concern makes a material 
                misstatement that the Federal agency determines poses a 
                risk to national security; or
                    ``(B) there is a change in ownership, change to 
                entity structure, or other substantial change in 
                circumstances of the small business concern that the 
                Federal agency determines poses a risk to national 
                security; and
            ``(21) require a small business concern receiving an award 
        under its STTR program to regularly report to the Federal 
        agency and the Administration throughout the duration of the 
        award on--
                    ``(A) any change to a disclosure required under 
                subparagraphs (A) through (G) of paragraph (17);
                    ``(B) any material misstatement made under 
                paragraph (20)(A); and
                    ``(C) any change described in paragraph (20)(B).''.
    (c) Paperwork Reduction Act.--Chapter 35 of title 44, United States 
Code (commonly known as the ``Paperwork Reduction Act''), shall not 
apply to the implementation of paragraphs (16) and (17) of subsection 
(g) or paragraphs (20) and (21) of subsection (o) of section 9 of the 
Small Business Act (15 U.S.C. 638), as added by subsections (a) and 
(b).

SEC. 6. REPORT ON ADVERSARIAL MILITARY AND FOREIGN INFLUENCE IN THE 
              SBIR AND STTR PROGRAMS.

    (a) Covered Agency Defined.--In this section, the term ``covered 
agency'' means--
            (1) the Department of Defense;
            (2) the Department of Energy;
            (3) the Department of Health and Human Services; or
            (4) the National Science Foundation.
    (b) Requirement.--
            (1) In general.--Except as provided in paragraph (2), not 
        later than 180 days after the date of enactment of this Act, 
        the head of each covered agency shall submit a report assessing 
        the adversarial military and foreign influences in the SBIR and 
        STTR programs at the covered agency to--
                    (A) the Committee on Armed Services, the Committee 
                on Small Business and Entrepreneurship, and the 
                Committee on Commerce, Science, and Transportation of 
                the Senate; and
                    (B) the Committee on Armed Services, the Committee 
                on Small Business, and the Committee on Science, Space, 
                and Technology of the House of Representatives.
            (2) Department of health and human services.--The Secretary 
        of Health and Human Services shall submit 2 reports under 
        paragraph (1)--
                    (A) 1 assessing the adversarial military and 
                foreign influences in the SBIR and STTR programs of the 
                National Institutes of Health; and
                    (B) 1 assessing the adversarial military and 
                foreign influences in the SBIR and STTR programs of the 
                Department of Health and Human Services other than 
                those of the National Institutes of Health.
    (c) Contents.--Each report submitted by a covered agency under 
subsection (b) shall include an analysis of--
            (1) the national security and research and integrity risks 
        of the SBIR and STTR programs of the covered agency; and
            (2) the capability of such covered agency to identify and 
        mitigate such risks.
    (d) Form.--Each report submitted under subsection (b) shall be in 
unclassified form, but may include a classified annex.
    (e) Independent Entity Contracting.--The head of each covered 
agency, in coordination with the heads of other Federal agencies, as 
appropriate, may enter into a contract with an independent entity to 
prepare a report required under subsection (b).

SEC. 7. PROGRAM ON INNOVATION OPEN TOPICS.

    (a) In General.--Section 9 of the Small Business Act (15 U.S.C. 
638), as amended by this Act, is further amended--
            (1) in subsection (b)(7)--
                    (A) in subparagraph (G), by striking ``and'' at the 
                end; and
                    (B) by adding at the end the following:
                    ``(I) the number of applications submitted to each 
                Federal agency participating in the SBIR or STTR 
                program in innovation open topics as compared to 
                conventional topics, and how many small business 
                concerns receive funding from open topics compared to 
                conventional topics;
                    ``(J) the total number and dollar amount, and 
                average size, of awards made by each Federal agency 
                participating in the SBIR or STTR program, by phase, 
                from--
                            ``(i) open topics; and
                            ``(ii) conventional topics;''; and
            (2) by adding at the end the following:
    ``(ww) Program on Innovation Open Topics.--
            ``(1) Establishment.--Not later than 180 days after the 
        date of enactment of this subsection, the Secretary of Defense 
        shall establish innovation open topic activities using the SBIR 
        and STTR programs of the Department of Defense in order to--
                    ``(A) increase the transition of commercial 
                technology to the Department of Defense;
                    ``(B) expand the small business nontraditional 
                industrial base;
                    ``(C) increase commercialization derived from 
                investments of the Department of Defense; and
                    ``(D) expand the ability for qualifying small 
                business concerns to propose technology solutions to 
                meet the needs of the Department of Defense.
            ``(2) Frequency.--The Secretary of Defense shall conduct 
        not less than 1 open topic announcement at each component of 
        the Department of Defense per fiscal year.
            ``(3) Briefing.--Not later than 180 days after the date of 
        enactment of this subsection, the Secretary of Defense shall 
        provide a briefing on the establishment of the program required 
        under paragraph (1) to--
                    ``(A) the Committee on Armed Services and the 
                Committee on Small Business and Entrepreneurship of the 
                Senate; and
                    ``(B) the Committee on Small Business, the 
                Committee on Armed Services, and the Committee on 
                Science, Space, and Technology of the House of 
                Representatives.''.
    (b) GAO Report.--Not later than 1 year after the date of enactment 
of this Act, and annually thereafter for 3 years, the Comptroller 
General of the United States shall submit to Congress and issue a 
publicly available report comparing open topics and conventional topics 
under the SBIR and STTR programs that includes, to the extent 
practicable--
            (1) an assessment of the percentage of small business 
        concerns that progress from Phase I to Phase II awards, then to 
        Phase III awards;
            (2) the number of awards under the SBIR and STTR programs 
        made to first-time applicants and first-time awardees;
            (3) the number of awards under the SBIR and STTR programs 
        made to non-traditional small business concerns, including 
        those owned by women, minorities, and veterans;
            (4) a description of outreach and assistance efforts by the 
        Department of Defense to encourage and prepare new and diverse 
        small business concerns to participate in the program 
        established under subsection (ww) of section 9 of the Small 
        Business Act (15 U.S.C. 638), as added by subsection (a);
            (5) the length of time to review and disburse awards under 
        such subsection (ww), evaluated in a manner enabling normalized 
        comparisons of such times taken by each Federal agency that is 
        required to establish an SBIR or STTR program and offers open 
        topics;
            (6) the ratio, and an assessment, of the amount of funding 
        allocated towards open topics as compared to conventional 
        topics at each Federal agency that is required to establish an 
        SBIR or STTR program and offers open topics; and
            (7) a comparison of the types of technology and end users 
        funded under open topics compared to the types of technology 
        and end users funded under conventional topics.

SEC. 8. INCREASED MINIMUM PERFORMANCE STANDARDS FOR EXPERIENCED FIRMS.

    Section 9 of the Small Business Act (15 U.S.C. 638), as amended by 
this Act, is further amended--
            (1) in subsection (b)(7), by adding at the end the 
        following:
                    ``(K) the minimum performance standards established 
                under subsection (qq), including any applicable 
                modifications under paragraph (3) of such subsection, 
                and the number of small business concerns that did not 
                meet those minimum performance standards, provided that 
                the Administrator does not publish any personally 
                identifiable information, the identity of each such 
                small business concern, or any otherwise sensitive 
                information; and
                    ``(L) the aggregate number and dollar amount of 
                SBIR and STTR awards made pursuant to waivers under 
                subsection (qq)(3)(E), provided that the Administrator 
                does not publish any personally identifiable 
                information, the identity of each such small business 
                concern, or any otherwise sensitive information;''; and
            (2) in subsection (qq)--
                    (A) by redesignating paragraphs (3) and (4) as 
                paragraphs (4) and (5), respectively;
                    (B) by inserting after paragraph (2) the following:
            ``(3) Increased minimum performance standards for 
        experienced firms.--
                    ``(A) Progress to phase ii success.--
                            ``(i) In general.--With respect to a small 
                        business concern that received or receives more 
                        than 50 Phase I awards during a covered period, 
                        each minimum performance standard established 
                        under paragraph (1)(A)(ii) shall be doubled for 
                        such covered period.
                            ``(ii) Consequence of failure to meet 
                        standard.--If the head of a Federal agency 
                        determines that a small business concern that 
                        received a Phase I award from the Federal 
                        agency is not meeting an applicable increased 
                        minimum performance standard modified under 
                        clause (i), the small business concern may not 
                        receive more than 20 total Phase I awards and 
                        Phase II awards under subsection (cc) from each 
                        Federal agency during the 1-year period 
                        beginning on the date on which such 
                        determination is made.
                            ``(iii) Covered period defined.--In this 
                        subparagraph, the term `covered period' means a 
                        consecutive period of 5 fiscal years preceding 
                        the most recent fiscal year.
                    ``(B) Progress to phase iii success.--
                            ``(i) In general.--Each minimum performance 
                        standard established under paragraph (2)(A)(ii) 
                        shall--
                                    ``(I) with respect to a small 
                                business concern that received or 
                                receives more than 50 Phase II awards 
                                during a covered period, require an 
                                average of $250,000 of aggregate sales 
                                and investments per Phase II award 
                                received during such covered period; 
                                and
                                    ``(II) with respect to a small 
                                business concern that received or 
                                receives more than 100 Phase II awards 
                                during a covered period, require an 
                                average of $450,000 of aggregate sales 
                                and investments per Phase II award 
                                received during such covered period.
                            ``(ii) Consequence of failure to meet 
                        standard.--If the head of a Federal agency 
                        determines that a small business concern that 
                        received a Phase I award from the agency is not 
                        meeting an applicable increased minimum 
                        performance standard modified under clause (i), 
                        the small business concern may not receive more 
                        than 20 total Phase I awards and Phase II 
                        awards under subsection (cc) from each agency 
                        during the 1-year period beginning on the date 
                        on which such determination is made.
                            ``(iii) Documentation.--
                                    ``(I) In general.--A small business 
                                concern that is subject to an increased 
                                minimum performance standard described 
                                in clause (i) shall submit to the 
                                Administrator supporting documentation 
                                evidencing that all covered sales of 
                                the small business concern were 
                                properly used to meet the increased 
                                minimum performance standard.
                                    ``(II) Covered sale defined.--In 
                                this clause, the term `covered sale' 
                                means a sale by a small business 
                                concern--
                                            ``(aa) that the small 
                                        business concern claims to be 
                                        attributable to an SBIR or STTR 
                                        award;
                                            ``(bb) for which no amount 
                                        of the payment was or is made 
                                        using Federal funds;
                                            ``(cc) which the small 
                                        business concern uses to meet 
                                        an applicable increased minimum 
                                        performance standard under 
                                        clause (i); and
                                            ``(dd) that was or is 
                                        received during the 5 fiscal 
                                        years immediately preceding the 
                                        fiscal year in which the small 
                                        business concern uses the sale 
                                        to meet the increased minimum 
                                        performance standard.
                            ``(iv) Covered period defined.--In this 
                        subparagraph, the term `covered period' means a 
                        consecutive period of 10 fiscal years preceding 
                        the most recent 2 fiscal years.
                    ``(C) Patents for increased minimum performance 
                standards.--A small business concern with respect to 
                which an increased minimum performance standard under 
                subparagraph (B) applies may not meet the increased 
                minimum performance standard by obtaining patents.
                    ``(D) Effective date.--Subparagraphs (A) through 
                (C) shall take effect on April 1, 2023.
                    ``(E) Waiver.--
                            ``(i) In general.--The Administrator may, 
                        upon the request of a senior official of a 
                        Federal agency, grant a waiver with respect to 
                        a topic for the SBIR or STTR program of the 
                        Federal agency if--
                                    ``(I) the topic is critical to the 
                                mission of the Federal agency or 
                                relates to national security; and
                                    ``(II) the official submits to the 
                                Administrator a request for the waiver 
                                in accordance with clause (iii).
                            ``(ii) Waiver effects.--If the 
                        Administration grants a waiver with respect to 
                        a topic for the SBIR or STTR program of a 
                        Federal agency, subparagraphs (A)(ii) and 
                        (B)(ii) shall not prohibit any covered small 
                        business concern from receiving an SBIR or STTR 
                        award under such topic.
                            ``(iii) Agency request and congressional 
                        notification.--Not later than 15 days before 
                        the release of a solicitation including a topic 
                        for which a senior official of a Federal agency 
                        is requesting a waiver under clause (i), the 
                        senior official shall submit to the 
                        Administrator, the Committee on Small Business 
                        and the Committee on Science, Space, and 
                        Technology of the House of Representatives, and 
                        the Committee on Small Business and 
                        Entrepreneurship of the Senate a request for 
                        the waiver.
                            ``(iv) Administrator determination and 
                        congressional notification.--Not later than 15 
                        days after receiving a request for a waiver 
                        under clause (i), the Administrator shall make 
                        a determination with respect to the request and 
                        notify the senior official at the Federal 
                        agency that made the request, the Committee on 
                        Small Business and the Committee on Science, 
                        Space, and Technology of the House of 
                        Representatives, and the Committee on Small 
                        Business and Entrepreneurship of the Senate of 
                        the determination.
                            ``(v) Definitions.--In this subparagraph:
                                    ``(I) Covered small business 
                                concern.--The term `covered small 
                                business concern' means a small 
                                business concern that is subject to the 
                                consequences under subparagraph (A)(ii) 
                                or (B)(ii) pursuant to a determination 
                                by the head of a Federal agency that 
                                such small business concern did not 
                                meet an increased minimum performance 
                                standard that was applicable to such 
                                small business concern.
                                    ``(II) Senior official.--The term 
                                `senior official' means an individual 
                                appointed to a position in a Federal 
                                agency that is classified above GS-15 
                                pursuant section 5108 of title 5, 
                                United States Code, or any equivalent 
                                position, as determined by the 
                                Administrator.
                    ``(F) Reporting.--
                            ``(i) In general.--Not later than July 1, 
                        2023, and annually thereafter, the 
                        Administrator shall submit to Congress a list 
                        of the small business concerns that did not 
                        meet--
                                    ``(I) an applicable minimum 
                                performance standard established under 
                                paragraph (1)(A)(ii) or (2)(A)(ii); or
                                    ``(II) an applicable increased 
                                minimum performance standard.
                            ``(ii) Waivers.--Each list submitted under 
                        clause (i) shall identify each small business 
                        concern that received an SBIR or STTR award 
                        pursuant to a waiver granted under subparagraph 
                        (E) by the Administrator during the period 
                        covered by the list.
                            ``(iii) Confidentiality.--Each list 
                        submitted under clause (i) shall be 
                        confidential and exempt from disclosure under 
                        section 552(b)(3) of title 5, United States 
                        Code (commonly known as the `Freedom of 
                        Information Act').
                    ``(G) Implementation.--Not later than April 1, 
                2023, the Administration shall implement the increased 
                minimum performance standards under this paragraph.
                    ``(H) Rules of construction.--Nothing in this 
                paragraph shall be construed--
                            ``(i) to prohibit a small business concern 
                        from participating in a Phase I (or Phase II if 
                        under the authority of subsection (cc)) of an 
                        SBIR or STTR program under paragraph (1)(B) or 
                        (2)(B) solely on the basis of a determination 
                        by the head of a Federal agency that the small 
                        business concern is not meeting an increased 
                        minimum performance standard; or
                            ``(ii) to prevent the head of a Federal 
                        agency from implementing more restrictive 
                        limitations on the number of federally funded 
                        Phase I awards and direct to Phase II awards 
                        under subsection (cc) that may be awarded to a 
                        small business concern than the limitations 
                        described in subparagraphs (A)(ii) and (B)(ii).
                    ``(I) Termination.--This paragraph shall terminate 
                on September 30, 2025.'';
                    (C) in paragraph (5), as so redesignated, by 
                striking ``paragraph (3)(A)'' and inserting ``paragraph 
                (4)(A)''; and
                    (D) by adding at the end the following:
            ``(6) Inspector general audit.--Not later than 1 year after 
        the date on which the Administrator implements the increased 
        minimum performance standards under paragraph (3), and 
        periodically thereafter, the Inspector General of the 
        Administration shall--
                    ``(A) conduct an audit on whether the small 
                business concerns subject to increased minimum 
                performance standards under paragraph (3)(B) verified--
                            ``(i) the sales by and investments in the 
                        small business concerns--
                                    ``(I) during the 5 fiscal years 
                                immediately preceding the fiscal year 
                                in which the small business concern 
                                used such sales and investments to meet 
                                an applicable increased performance 
                                standard; and
                                    ``(II) as a direct result of a 
                                Phase I award or Phase II award made 
                                under subsection (cc) during the 
                                covered period (as defined in paragraph 
                                (3)(B)(iv)), consistent with the 
                                definition of Phase III, as applicable;
                            ``(ii) any third-party revenue the small 
                        business concerns list as investments or 
                        incomes to meet the increased minimum 
                        performance standard--
                                    ``(I) is a direct result of a Phase 
                                I award or Phase II award made under 
                                subsection (cc) during the covered 
                                period (as defined in paragraph 
                                (3)(B)(iv)); and
                                    ``(II) consistent with the 
                                requirements of the Administrator as in 
                                effect on September 30, 2022, or any 
                                successor requirements; and
                            ``(iii) any dollar amounts such small 
                        business concerns list as investments or income 
                        to meet such increased minimum performance 
                        standard the providence of which is unclear and 
                        that is not directly attributable to a Phase I 
                        award or Phase II award made under subsection 
                        (cc) during the covered period (as defined in 
                        paragraph (3)(B)(iv)), consistent with the 
                        definition of Phase III, as applicable;
                    ``(B) assess the self-certification requirements 
                for the minimum performance standards established under 
                paragraph (2)(A)(ii) and the increased minimum 
                performance standards under paragraph (3)(B); and
                    ``(C) submit to the Committee on Small Business and 
                Entrepreneurship of the Senate and the Committee on 
                Small Business and the Committee on Science, Space, and 
                Technology of the House of Representatives a report on 
                the audit conducted under subparagraph (A) and the 
                assessment conducted under subparagraph (B).
            ``(7) Increased minimum performance standard defined.--In 
        this subsection, the term `increased minimum performance 
        standard' means a minimum performance standard established 
        under paragraph (1)(A)(ii) or (2)(A)(ii) as modified under 
        subparagraph (A) or (B), respectively, of paragraph (3) with 
        respect to a small business concern.''.

SEC. 9. PROHIBITION AGAINST WRITING SOLICITATION TOPICS.

    (a) In General.--Section 9 of the Small Business Act (15 U.S.C. 
638), as amended by this Act, is further amended by adding at the end 
the following subsection:
    ``(xx) Additional Provisions Relating to Solicitation Topics.--
            ``(1) In general.--A Federal agency required to establish 
        an SBIR or STTR program shall implement a multi-level review 
        and approval process within the Federal agency for solicitation 
        topics to ensure adequate competition and that no private 
        individual or entity is shaping the requirements for 
        eligibility for the solicitation topic after the selection of 
        the solicitation topic, except that the Federal agency may 
        amend the requirements to clarify the solicitation topic.
            ``(2) Referral.--A Federal agency that does not comply with 
        paragraph (1) shall be referred to the Inspector General of the 
        Administration for further investigation.''.

SEC. 10. GAO STUDY ON MULTIPLE AWARD WINNERS.

    Not later than 18 months after the date of enactment of this Act, 
the Comptroller General of the United States shall conduct a study and 
submit to the Committee on Small Business and Entrepreneurship of the 
Senate and the Committee on Small Business and the Committee on 
Science, Space, and Technology of the House of Representatives a 
report, which shall be made publicly available, on small business 
concerns that are awarded not less than 50 Phase II awards under the 
SBIR or STTR programs during the consecutive period of 10 fiscal years 
preceding the most recent 2 fiscal years, including, to the extent 
practicable, an analysis of--
            (1) the impact of the small business concerns on the SBIR 
        and STTR programs;
            (2) the ratio of the number of Phase II awards received by 
        the small business concerns to the total number of Phase II 
        awards;
            (3) the ability of the small business concerns to 
        commercialize and meet the tenets of the SBIR and STTR 
        programs;
            (4) the impact on new entrants and seeding technology 
        necessary to the Federal agency mission or commercial markets 
        and, with respect to the Department of Defense, whether the 
        types of technology the small business concerns are pursuing 
        are primarily hardware, software, or system components for the 
        warfighter;
            (5) an evaluation and study of varying levels of award caps 
        and lifetime program earning caps;
            (6) an assessment of the increased minimum performance 
        standards under paragraph (3) of section 9(qq) of the Small 
        Business Act (15 U.S.C. 638(qq)), as added by section 8, on the 
        behavior of those concerns and on the SBIR and STTR programs, 
        and whether to continue such increased minimum performance 
        standards; and
            (7) recommendations on whether alternative minimum 
        performance standards under section 9(qq) of the Small Business 
        Act (15 U.S.C. 638(qq)) should be considered, and the extent to 
        which such alternative minimum performance standards preserve 
        the competitive, merit-based foundation of the SBIR and STTR 
        programs.

SEC. 11. GAO REPORT ON SUBCONTRACTING IN SBIR AND STTR PROGRAMS.

    Not later than 1 year after the date of the enactment of this Act, 
the Comptroller General of the United States shall submit to the 
Committee on Small Business and Entrepreneurship of the Senate and the 
Committee on Small Business and the Committee on Science, Space, and 
Technology of the House of Representatives a report evaluating, to the 
extent practicable, the following:
            (1) The extent to which SBIR awardees and STTR awardees are 
        in compliance with the Federal Funding Accountability and 
        Transparency Act (31 U.S.C. 6101 note).
            (2) The extent to which SBIR awardees and STTR awardees 
        enter into subcontracting agreements with respect to an SBIR or 
        STTR award.
            (3) The total number and dollar amount of subcontracts 
        entered into between an SBIR awardee or an STTR awardee and a 
        concern that is not a small business concern (including such 
        concerns that are defense contractors) with respect to an SBIR 
        or STTR award.
            (4) A description of the type and purpose of subcontracting 
        agreements described in paragraph (2).
            (5) An analysis of whether the use of subcontracts by an 
        SBIR awardee or an STTR awardee is consistent with the purposes 
        of section 9 of the Small Business Act (15 U.S.C. 638).

            Passed the Senate September 20, 2022.

            Attest:

                                                             Secretary.
117th CONGRESS

  2d Session

                                S. 4900

_______________________________________________________________________

                                 AN ACT

 To reauthorize the SBIR and STTR programs and pilot programs, and for 
                            other purposes.
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