National Aeronautics and Space Administration
Small Business Innovation Research & Technology Transfer 2008 Program Solicitations

Chapter 5. Considerations

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5.1 Awards
5.2 Phase 1 Reporting
5.3 Payment Schedule for Phase 1
5.4 Release of Proposal Information
5.5 Access to Proprietary Data by Non-NASA Personnel
5.6 Final Disposition of Proposals
5.7 Proprietary Information in the Proposal Submission
5.8 Limited Rights Information and Data
5.9 Cost Sharing
5.10 Profit or Fee
5.11 Joint Ventures and Limited Partnerships
5.12 Similar Awards and Prior Work
5.13 Contractor Commitments
5.14 Additional Information
5.15 Property and Facilities
5.16 False Statements

5. Considerations

5.1 Awards

5.1.1 Availability of Funds
Both Phase 1 and Phase 2 awards are subject to availability of funds. NASA has no obligation to make any specific number of Phase 1 or Phase 2 awards based on this Solicitation, and may elect to make several or no awards in any specific technical topic or subtopic.

SBIR		STTR
NASA plans to announce the selection of approximately 250 proposals resulting from this Solicitation, for negotiation of Phase 1 contracts with values not exceeding $100,000. Following contract negotiations and awards, Phase 1 contractors will have up to 6 months to carry out their programs, prepare their final reports, and submit Phase 2 proposals. NASA anticipates that approximately 45 percent of the successfully completed Phase 1 projects from the SBIR 2008 Solicitation will be selected for Phase 2. Phase 2 agreements will be fixed-price contracts with performance periods not exceeding 24 months and funding not exceeding $600,000.		NASA plans to announce the selection of approximately 30 proposals resulting from this Solicitation, for negotiation of Phase 1 contracts with values not exceeding $100,000. Following contract negotiations and awards, Phase 1 contractors will have up to 12 months to carry out their programs, prepare their final reports, and submit Phase 2 proposals. NASA anticipates that approximately 45 percent of the successfully completed Phase 1 projects from the STTR 2008 Solicitation will be selected for Phase 2. Phase 2 agreements will be fixed-price contracts with performance periods not exceeding 24 months and funding not exceeding $600,000.

5.1.2 Contracting
To simplify contract award and reduce processing time, all contractors selected for Phase 1 and Phase 2 contracts should ensure that:

All information in your proposal is current, e.g., your address has not changed, the proposed PI is the same, etc.
Your firm is registered in CCR and all information is current. NASA uses the CCR to populate its contract and payment systems; if the information in the CCR is not current your award and payments will be delayed.
The representations and certifications in ORCA (Online Representations and Certifications Application) are current.
The VETS 100 report submitted by your firm to the Department of Labor is current.
Your firm HAS NOT proposed a Co-Principal Investigator.
STTR awardees should execute their Allocation of Rights Agreement within 10 days of the Selection Announcement.
Your firm timely responds to all communications from the NSSC Contracting Officer.

From the time of proposal selection until the award of a contract, all communications shall be submitted electronically to NSSC-SBIR-STTR@nasa.gov.

Note: Costs incurred prior to and in anticipation of award of a contract are entirely the risk of the contractor in the event that a contract is not subsequently awarded.

5.2 Phase 1 Reporting

An updated Technology Infusion Form plus interim technical reports are required as described in the contract. These reports shall document progress made on the project and activities required for completion to provide NASA the basis for determining whether the payment is warranted.

A final report must be submitted to NASA upon completion of the Phase 1 R/R&D effort in accordance with applicable contract provisions. It shall elaborate the project objectives, work carried out, results obtained, and assessments of technical merit and feasibility. The final report shall include a single-page summary as the first page, in a format provided in the Phase 1 contract, identifying the purpose of the R/R&D effort and describing the findings and results, including the degree to which the Phase 1 objectives were achieved, and whether the results justify Phase 2 continuation. The potential applications of the project results in Phase 3 either for NASA or commercial purposes shall also be described. The final project summary is to be submitted without restriction for NASA publication.

All reports are required to be submitted electronically via the SBIR/STTR Website.

5.3 Payment Schedule for Phase 1

All NASA SBIR and STTR contracts are firm-fixed-price contracts based on performance payments.

The exact payment terms for Phase 1 will be included in the contract, but payments are normally authorized as follows: one-third at the time of award, one-third at project mid-point after award, and the remainder upon acceptance of the final report, new technology report and any other deliverables by NASA. NASA will make payment within thirty days of NASA acceptance and approval of all required deliverables associated with the payment.

Invoices: All invoices submitted by the SBC shall be marked with the payment number for the invoice. For example, if the invoice submitted is the first submitted for a contract, it shall be marked as the First Invoice. All final invoices shall be marked Final Invoice.

5.4 Release of Proposal Information

In submitting a proposal, the offeror agrees to permit the Government to disclose publicly the information contained on the Proposal Cover (Form A) and the Proposal Summary (Form B). Other proposal data is considered to be the property of the offeror, and NASA will protect it from public disclosure to the extent permitted by law including the Freedom of Information Act.

5.5 Access to Proprietary Data by Non-NASA Personnel

5.5.1 Non-NASA Reviewers
In addition to Government personnel, NASA, at its discretion and in accordance with 1815.207-71 of the NASA FAR Supplement, may utilize qualified individuals from outside the Government in the proposal review process. Any decision to obtain an outside evaluation shall take into consideration requirements for the avoidance of organizational or personal conflicts of interest and the competitive relationship, if any, between the prospective contractor or subcontractor(s) and the prospective outside evaluator. Any such evaluation will be under agreement with the evaluator that the information (data) contained in the proposal will be used only for evaluation purposes and will not be further disclosed.

5.5.2 Non-NASA Access to Confidential Business Information
In the conduct of proposal processing and potential contract administration the Agency may find it necessary to provide access to proposals to other NASA contractor and subcontractor personnel. NASA will provide access to such data only under contracts that contain an appropriate Handling of Data clause that requires the contractors to fully protect the information from unauthorized use or disclosure.

5.6 Final Disposition of Proposals

The Government retains ownership of proposals accepted for evaluation, and such proposals will not be returned to the offeror. Copies of all evaluated Phase 1 proposals will be retained for a minimum of one year after the Phase 1 selections have been made. Successful proposals will be retained in accordance with contract file regulations.

5.7 Proprietary Information in the Proposal Submission

Information contained in unsuccessful proposals will remain the property of the applicant. The Government may, however, retain copies of all proposals. Public release of information in any proposal submitted will be subject to existing statutory and regulatory requirements. If proprietary information is provided by an applicant in a proposal, which constitutes a trade secret, proprietary commercial or financial information, confidential personal information or data affecting the national security, it will be treated in confidence to the extent permitted by law. This information must be clearly marked by the applicant as confidential proprietary information. NASA will treat in confidence pages listed as proprietary in the following legend that appears on Cover Sheet (Form A) of the proposal:

"This data shall not be disclosed outside the Government and shall not be duplicated, used, or disclosed in whole or in part for any purpose other than evaluation of this proposal, provided that a funding agreement is awarded to the offeror as a result of or in connection with the submission of this data, the Government shall have the right to duplicate, use or disclose the data to the extent provided in the funding agreement and pursuant to applicable law. This restriction does not limit the Government's right to use information contained in the data if it is obtained from another source without restriction. The data subject to this restriction are contained in pages ____ of this proposal."

Note: Do not label the entire proposal proprietary. The Proposal Cover (Form A), the Proposal Summary (Form B), and the Briefing Chart should not contain proprietary information; and any page numbers that would correspond to these must not be designated proprietary in Form A.

5.8 Limited Rights Information and Data

The clause at FAR 52.227-20, Rights in Data-SBIR/STTR Program, governs rights to data used in, or first produced under, any Phase 1 or Phase 2 contract. NASA will not entertain requests to modify or eliminate this clause. The following is a brief description of FAR 52.227-20.

5.8.1 Non Proprietary Data
Some data of a general nature are to be furnished to NASA without restriction (i.e., with unlimited rights) and may be published by NASA. These data will normally be limited to the project summaries accompanying any periodic progress reports and the final reports required to be submitted. The requirement will be specifically set forth in any contract resulting from this Solicitation.

5.8.2 Proprietary Data
When data that is required to be delivered under an SBIR/STTR contract qualifies as "proprietary," i.e., either data developed at private expense that embody trade secrets or are commercial or financial and confidential or privileged, or computer software developed at private expense that is a trade secret, the contractor, if the contractor desires to continue protection of such proprietary data, shall not deliver such data to the Government, but instead shall deliver form, fit, and function data.

5.8.3 Non Disclosure Period
For a period of 4 years after acceptance of all items to be delivered under this contract, the Government agrees to use these data for Government purposes only, and they shall not be disclosed outside the Government (including disclosure for procurement purposes) during such period without permission of the Contractor, except that, subject to the foregoing use and disclosure prohibitions, such data may be disclosed for use by support Contractors. After the aforesaid 4-year period, the Government has a royalty-free license to use, and to authorize others to use on its behalf, these data for Government purposes, but is relieved of all disclosure prohibitions and assumes no liability for unauthorized use of these data by third parties.

5.8.4 Copyrights
Subject to certain licenses granted by the contractor to the Government, the contractor receives copyright to any data first produced by the contractor in the performance of an SBIR/STTR contract.

5.8.5 Patents
The contractor may normally elect title to any inventions made in the performance of an SBIR/STTR contract. The Government receives a nonexclusive license to practice or have practiced for or on behalf of the Government each such invention throughout the world. Small business concerns normally may retain the principal worldwide patent rights to any invention developed with Government support. The Government receives a royalty-free license for Federal Government use, reserves the right to require the patent holder to license others in certain circumstances, and requires that anyone exclusively licensed to sell the invention in the United States must normally manufacture it domestically.

In accordance with the Patent Rights Clause (FAR 52.227-11), SBIR/STTR contractors must disclose all subject inventions, which means any invention or discovery which is or may be patentable and is conceived or first actually reduced to practice in the performance of the contract. Once disclosed, the contractor has up to 2 years to decide whether to elect title. If the contractor fails to do so within the 2-year time period, the Government has the right to obtain title. To the extent authorized by 35 USC 205, the Government will not make public any information disclosing such inventions, allowing the contractor the allowable time to file a patent.

Costs associated with patent applications are not allowable.

5.8.6 Invention Reporting
NASA SBIR and STTR contracts will include the invention reporting requirements in the Patent Rights Clause at FAR 52.227-11, SBIR/STTR contractors must disclose all subject inventions to NASA within two (2) months of the inventor's report to the awardee, which means any invention or discovery which is or may be patentable and is conceived or first actually reduced to practice in the performance of the contract. Once disclosed, the contractor has up to 2 years to decide whether to elect title. If the contractor fails to do so within the 2-year time period, the Government has the right to obtain title. To the extent authorized by 35 USC 205, the Government will not make public any information disclosing such inventions, allowing the contractor the allowable time to file a patent.

The notification to NASA of an invention will be in provided in the form of a "New Technology Report". Regardless of whether a SBIR or STTR contractor has an invention, all SBIR and STTR contractors will be required to submit a "New Technology Report" (NTR) as one of the final deliverables under the contract. The NTR will be filed using the NASA eNTRe Website (http://invention.nasa.gov) and a copy of the report must be uploaded into the EHB. The NTR will identify any new technology discovered during the contract or indicate that no new technology resulted from the project.

5.9 Cost Sharing

Cost sharing occurs when a Contractor proposes to bear some of the burden of reasonable, allocable and allowable contract costs. Cost sharing is permitted, but not required for proposals under this Solicitation. Cost sharing is not an evaluation factor in consideration of your proposal. Cost sharing, if included, should be shown in the budget summary. No profit will be paid on the cost-sharing portion of the contract.

5.10 Profit or Fee

Both Phase 1 and Phase 2 contracts may include a reasonable profit. The reasonableness of proposed profit is determined by the Contracting Officer during contract negotiations. Reference FAR 15.404-4.

5.11 Joint Ventures and Limited Partnerships

Both joint ventures and limited partnerships are permitted, provided the entity created qualifies as an SBC in accordance with the definition in Section 2.16. A statement of how the workload will be distributed, managed, and charged should be included in the proposal. A copy or comprehensive summary of the joint venture agreement or partnership agreement should be appended to the proposal. This will not count as part of the 25-page limit for the Phase 1 proposal.

5.12 Similar Awards and Prior Work

If an award is made pursuant to a proposal submitted under either SBIR or STTR Solicitations, the firm will be required to certify that it has not previously been paid nor is currently being paid for essentially equivalent work by any agency of the Federal Government. Failure to acknowledge or report similar or duplicate efforts can lead to the termination of contracts or civil or criminal penalties.

5.13 Contractor Commitments

Upon award of a contract, the contractor will be required to make certain legal commitments through acceptance of numerous clauses in the Phase 1 contract. The outline of this section illustrates the types of clauses that will be included. This is not a complete list of clauses to be included in Phase 1 contracts, nor does it contain specific wording of these clauses. Copies of complete provisions will be made available prior to contract negotiations.

5.13.1 Standards of Work
Work performed under the contract must conform to high professional standards. Analyses, equipment, and components for use by NASA will require special consideration to satisfy the stringent safety and reliability requirements imposed in aerospace applications.

5.13.2 Inspection
Work performed under the contract is subject to Government inspection and evaluation at all reasonable times.

5.13.3 Examination of Records
The Comptroller General (or a duly authorized representative) shall have the right to examine any directly pertinent records of the contractor involving transactions related to the contract.

5.13.4 Default
The Government may terminate the contract if the contractor fails to perform the contracted work.

5.13.5 Termination for Convenience
The contract may be terminated by the Government at any time if it deems termination to be in its best interest, in which case the contractor will be compensated for work performed and for reasonable termination costs.

5.13.6 Disputes
Any dispute concerning the contract that cannot be resolved by mutual agreement shall be decided by the Contracting Officer with right of appeal.

5.13.7 Contract Work Hours
The contractor may not require a non-exempt employee to work more than 40 hours in a work week unless the employee is paid for overtime.

5.13.8 Equal Opportunity
The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, age, sex, or national origin.

5.13.9 Affirmative Action for Veterans
The contractor will not discriminate against any employee or applicant for employment because he or she is a disabled veteran or veteran of the Vietnam era.

5.13.10 Affirmative Action for Handicapped
The contractor will not discriminate against any employee or applicant for employment because he or she is physically or mentally handicapped.

5.13.11 Officials Not to Benefit
No member of or delegate to Congress shall benefit from an SBIR or STTR contract.

5.13.12 Covenant Against Contingent Fees
No person or agency has been employed to solicit or to secure the contract upon an understanding for compensation except bona fide employees or commercial agencies maintained by the contractor for the purpose of securing business.

5.13.13 Gratuities
The contract may be terminated by the Government if any gratuities have been offered to any representative of the Government to secure the contract.

5.13.14 Patent Infringement
The contractor shall report to NASA each notice or claim of patent infringement based on the performance of the contract.

5.13.15 American-Made Equipment and Products
Equipment or products purchased under an SBIR or STTR contract must be American-made whenever possible.

5.13.16 Export Control Laws
The contractor shall comply with all U.S. export control laws and regulations, including the International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations (EAR). Offerors are responsible for ensuring that all employees who will work on this contract are eligible under export control and International Traffic in Arms (ITAR) regulations. Any employee who is not a U.S. citizen or a permanent resident may be restricted from working on this contract if the technology is restricted under export control and ITAR regulations unless the prior approval of the Department of State or the Department of Commerce is obtained via a technical assistance agreement or an export license. Violations of these regulations can result in criminal or civil penalties.

5.14 Additional Information

5.14.1 Precedence of Contract Over Solicitation
This Program Solicitation reflects current planning. If there is any inconsistency between the information contained herein and the terms of any resulting SBIR/STTR contract, the terms of the contract are controlling.

5.14.2 Evidence of Contractor Responsibility
Before award of an SBIR or STTR contract, the Government may request the offeror to submit certain organizational, management, personnel, and financial information to establish responsibility of the offeror. Contractor responsibility includes all resources required for contractor performance, i.e., financial capability, work force, and facilities.

5.14.3 Required Registrations and Submissions

5.14.3.1 Central Contractor Registration
Offerors should be aware of the requirement to register in the Central Contractor Registration (CCR) database prior to contract award. To avoid a potential delay in contract award, offerors are strongly encouraged to register prior to submitting a proposal.

The CCR database is the primary repository for contractor information required for the conduct of business with NASA. It is maintained by the Department of Defense. To be registered in the CCR database, all mandatory information, which includes the DUNS or DUNS+4 number, and a CAGE code, must be validated in the CCR system. The DUNS number or Data Universal Number System is a 9-digit number assigned by Dun and Bradstreet Information Services (http://www.dnb.com) to identify unique business entities. The DUNS+4 is similar, but includes a 4-digit suffix that may be assigned by a parent (controlling) business concern. The CAGE code or Commercial Government and Entity Code is assigned by the Defense Logistics Information Service (DLIS) to identify a commercial or Government entity. If an SBC does not have a CAGE code, one will be assigned during the CCR registration process.

The DoD has established a goal of registering an applicant in the CCR database within 48 hours after receipt of a complete and accurate application via the Internet. However, registration of an applicant submitting an application through a method other than the Internet may take up to 30 days. Therefore, offerors that are not registered should consider applying for registration immediately upon receipt of this solicitation. Offerors and contractors may obtain information on CCR registration and annual confirmation requirements via the Internet at http://www.ccr.gov or by calling 888-CCR-2423 (888-227-2423).

5.14.3.2 ORCA Registration
Offerors should be aware of the requirement that the Representation and Certifications required from government contractors must be completed through the Online Representations and Certifications Application (ORCA) website https://orca.bpn.gov/login.aspx. FAC 01-26 implements the final rule for this directive and requires all offerors to provide representations and certifications electronically via the BPN website; to update the representations and certifications as necessary, but at least annually, to keep them current, accurate and complete. NASA will not enter into any contract wherein the Contractor is not compliant with the requirements stipulated herein.

5.14.3.3 VETS 100 Reporting
In accordance with Title 38, United States Code, Section 4212(d), the U.S. Department of Labor (DOL), Veterans' Employment and Training Service (VETS) collects and compiles data on the Federal Contractor Program Veterans' Employment Report (VETS-100 Report) from Federal contractors and subcontractors who receive Federal contracts that meet the threshold amount of $100,000.00. The VETS-100 reporting cycle begins annually on August 1 and ends September 30. Any federal contractor or prospective contractor that has been awarded or will be awarded a federal contract with a value of $100,000.00 or greater must have a current VETS 100 report on file. Please visit the DOL VETS 100 website at https://vets100.vets.dol.gov/. NASA will not enter into any contract wherein the firm is not compliant with the requirements stipulated herein.

5.14.4 Software Development Standards
Offerors proposing projects involving the development of software should comply with the requirements of NASA Procedural Requirements (NPR) 7150.2, "NASA Software Engineering Requirements" available online at http://nodis3.gsfc.nasa.gov/displayDir.cfm?t=NPR&c=7150&s=2.

5.15 Property and Facilities

In accordance with the Federal Acquisition Regulations (FAR) Part 45, it is NASA's policy not to provide facilities (capital equipment, tooling, test and computer facilities, etc.) for the performance of work under SBIR/STTR contracts. An SBC will furnish its own facilities to perform the proposed work as an indirect cost to the contract. Special tooling required for a project may be allowed as a direct cost.

When an SBC cannot furnish its own facilities to perform required tasks, an SBC may propose to acquire the use of available non Government facilities. Rental or lease costs may be considered as direct costs as part of the total funding for the project. If unique requirements force an offeror to acquire facilities under a NASA contract, they will be purchased as Government Furnished Equipment (GFE) and will be titled to the Government.

An offeror may propose the use of unique or one-of-a-kind Government facilities if essential for the research.

If a proposed project or product demonstration requires the use of unique Government facilities or equipment that will be funded with SBIR dollars, the offeror must provide a) a letter from the SBC Official explaining why the SBIR/STTR research project requires the use of the Federal facility or personnel, including data that verifies the absence of non-Federal facilities or personnel capable of supporting the research effort, and b) a statement, signed by the appropriate Government official at the facility, verifying that it will be available for the required effort. The proposal should also include relevant information on the funding source(s) private, internal, or other Government. Failure to provide this explanation and the site manager's written authorization of use may invalidate any proposal selection. If the offeror proposes the use of SBIR/STTR funds for Government equipment or facilities, this explanation will be provided to SBA during the Agency waiver process.

Contractors are ordinarily required to furnish all property necessary to perform Government contracts. In compliance with FAR Part 45, Contracting Officers will only approve use of Government property or Government facilities when the justification provided in the proposal meets the requirements at FAR 45.102. Proposers are notified that the NASA SBIR and STTR programs cannot assist in the approval process for use of Government property or facilities. Further, any proposer requiring the use of government property or facilities must, within five (5) days of notification of selection, provide to the NASA Shared Services Center Contracting Officer all required documentation, to include, an Agreement by and between the Contractor and the appropriate Government facility, executed by the Government official authorized to approve such use. The Agreement must delineate the terms of use, associated costs, property and facility responsibilities and liabilities. Proposers are advised that the exceptions to government property responsibility and liability stipulated at FAR 45.104 do not apply to NASA SBIR and STTR contracts.

Additional information on the use of NASA facilities, facility programs, and equipment is available at http://sbir.nasa.gov/SBIR/facilities.html.

5.16 False Statements

Knowingly and willfully making any false, fictitious, or fraudulent statements or representations may be a felony under the Federal Criminal False Statement Act (18 U.S.C. Sec 1001), punishable by a fine of up to $10,000, up to five years in prison, or both.

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