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Scenario – a small business has an SBIR contract. One of its subcontractors is a large business. The SBIR data rights clause (DFARS 252.227-7018) is in the prime contract. The clause grants SBIR data rights to all technical data developed under the contract (essentially equivalent to limited rights). The clause (at (k)(2)) says that it is to be inserted in all subcontracts without alteration except to identify the parties. It also says that no other clause shall be used to enlarge or diminish the rights of the government, or the contractor in any subcontractor's technical data.

The question – can the large business assert SBIR data rights in any data it has to deliver, thus getting the same 20-year protection as the SBIR prime?

On the one hand, the clause does not limit its application to only small business subcontractors. If it goes in the subcontract without alteration, as (k)(2) says, then the large sub can deliver any data it develops with SBIR data rights. Also, SBA materials on its SBIR website do not distinguish between large and small subcontractors, which suggests they get treated the same. I could find nothing that limits the SBIR data rights protection only to a small business subcontractor.

On the other hand, one would think that the favorable treatment of data developed under an SBIR contract would only be extended to the SBIR contractor or to other small businesses.

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Are you asking whether a contractor or subcontractor's assertions should be questioned when it asserts rights in technical data or computer software to be delivered under the contract with more restrictive rights that required by the contract requirements?

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I'm asking whether a large subcontractor on an SBIR prime contract can deliver data that was developed on its subcontract (i.e. with government funds) with SBIR data rights instead of unlimited rights. If the clause is flowed down into its subcontract without alteration except to identify the parties, then the clause would say it can.

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17 hours ago, Fara Fasat said:

Scenario – a small business has an SBIR contract. One of its subcontractors is a large business. The SBIR data rights clause (DFARS 252.227-7018) is in the prime contract. The clause grants SBIR data rights to all technical data developed under the contract (essentially equivalent to limited rights). The clause (at (k)(2)) says that it is to be inserted in all subcontracts without alteration except to identify the parties. It also says that no other clause shall be used to enlarge or diminish the rights of the government, or the contractor in any subcontractor's technical data.

The question – can the large business assert SBIR data rights in any data it has to deliver, thus getting the same 20-year protection as the SBIR prime?

On the one hand, the clause does not limit its application to only small business subcontractors. If it goes in the subcontract without alteration, as (k)(2) says, then the large sub can deliver any data it develops with SBIR data rights. Also, SBA materials on its SBIR website do not distinguish between large and small subcontractors, which suggests they get treated the same. I could find nothing that limits the SBIR data rights protection only to a small business subcontractor.

On the other hand, one would think that the favorable treatment of data developed under an SBIR contract would only be extended to the SBIR contractor or to other small businesses.

Based on a reading of the clause, the seemingly obvious answer to your question is yes, which makes me wonder why you asked.

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(b) specifies various data right granted to the Government by the subcontractor. No assertion is required. Any assertion to the contrary is an exception to terms and conditions and should be deleted from the contract.

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15 hours ago, Fara Fasat said:

The question – can the large business assert SBIR data rights in any data it has to deliver, thus getting the same 20-year protection as the SBIR prime?

 

15 hours ago, Fara Fasat said:

Also, SBA materials on its SBIR website do not distinguish between large and small subcontractors, which suggests they get treated the same. I could find nothing that limits the SBIR data rights protection only to a small business subcontractor.

 

13 hours ago, Fara Fasat said:

I'm asking whether a large subcontractor on an SBIR prime contract can deliver data that was developed on its subcontract (i.e. with government funds) with SBIR data rights instead of unlimited rights. If the clause is flowed down into its subcontract without alteration except to identify the parties, then the clause would say it can.

Thinking out loud.   I am with Vern with my additional thought is yes a sub can be a university, Federal lab, private business therefore SBIR rights not just limited to a small business.  Reference - https://www.sbir.gov/tutorials/preparing-proposal/tutorial-4

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14 hours ago, Fara Fasat said:

I'm asking whether a large subcontractor on an SBIR prime contract can deliver data that was developed on its subcontract (i.e. with government funds) with SBIR data rights instead of unlimited rights.

Subcontractors do not choose what data rights are granted to the Government. The clause specifies what data is delivered with unlimited rights and what data is delivered with SBIR data rights to the Government.

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1 hour ago, Neil Roberts said:

[Clause paragraph] (b) specifies various data right granted to the Government by the subcontractor. No assertion is required. Any assertion to the contrary is an exception to terms and conditions and should be deleted from the contract.

It is not true that "No assertion is required."

The word assert (or asserting) appears 31 times in the clause. The clause requires the contractor to assert any restrictions on the government's rights. See paragraphs (e) Identification and delivery of technical data or computer software to be furnished with restrictions on use, release, or disclosure; (f) Marking requirements; and (k) Applicability to subcontractors or suppliers, subparagraph (1).

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2 hours ago, Vern Edwards said:

which makes me wonder why you asked.

I asked because it seems contrary of the intent of the SBIR program, which grants special status to the work of a small business. It also seems that it allows a large business to get a benefit it would not otherwise get. I'm not saying it's wrong or that I disagree with it; I just wanted to confirm my reading, sometimes loosely referred to as a sanity check. 🙂

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@Fara Fasat, I was responding to your use of the word "assert" as follows: "The question – can the large business assert SBIR data rights in any data it has to deliver, thus getting the same 20-year protection as the SBIR prime?" Facts about the data determine what rights the subcontractor grants to Government in (b), not unilateral assertions by a subcontractor. If a subcontractor wishes to negotiate something different, the prime Contractor will need to negotiate a change to the clause in its contract with the Government. In any event, I believe your post has been addressed.  

Edited by Neil Roberts
sp error
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29 minutes ago, Vern Edwards said:

Oh, for Pete's sake.

Maybe the discussion is beneath you, but I first asked a couple of experienced practitioners, and they said an LB could not do it. When I showed them the clause, their reaction was "hmmm, it does seem to say that. There must be a catch." That's why I thought I would tap into the broader knowledge and experience of this forum. 

I should also point out that the FAR has a definition of SBIR data that is "data first produced by a Contractor that is a small business concern." The DFARS does not have that definition, and just defines SBIR data rights. It also defines "generated" as "technical data or computer software first created in the performance of this contract." It does not say first created by a small business.

So you see, there is a difference in treatment under the FAR and DFARS. Seems like a legitimate area of inquiry, for Pete's sake. 😉

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20 hours ago, Fara Fasat said:

The question – can the large business assert SBIR data rights in any data it has to deliver, thus getting the same 20-year protection as the SBIR prime?

The answer to that question is yes.

1 hour ago, Neil Roberts said:

@Fara Fasat, I was responding to your use of the word "assert" as follows: "The question – can the large business assert SBIR data rights in any data it has to deliver, thus getting the same 20-year protection as the SBIR prime?" Facts about the data determine what rights the subcontractor grants to Government in (b), not unilateral assertions by a subcontractor. If a subcontractor wishes to negotiate something different, the prime Contractor will need to negotiate a change to the clause in its contract with the Government. In any event, I believe your post has been addressed.  

If the government asserts facts to the effect that it has unlimited rights in some item of technical data pursuant to, say, DFARS 252.227-7018(b)(1)(ii), and if the contractor or subcontractor disagrees, asserting that the government is entitled only to SBIR rights to that data, then the contractor or subcontractor can submit a claim based on its version of the facts. That is not a matter of wanting to "negotiate something different." It is is a matter of resolving conflicting assertions of fact.

So it is untrue that "No assertion is required" and that "Any assertion to the contrary is an exception to terms and conditions..."

Whether an assertion is required depends on whether the parties disagree on the category in which the data belongs and on the category of rights that apply. 

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2 hours ago, Fara Fasat said:

I should also point out that the FAR has a definition of SBIR data that is "data first produced by a Contractor that is a small business concern." The DFARS does not have that definition, and just defines SBIR data rights. It also defines "generated" as "technical data or computer software first created in the performance of this contract." It does not say first created by a small business.

So you see, there is a difference in treatment under the FAR and DFARS. Seems like a legitimate area of inquiry, for Pete's sake. 😉

@Fara FasatWhy didn't you point that out in your opening post and ask about the difference? You gave us all the impression that your only problem is that you can't read.

You have been a member of this Forum since 2009, but you haven't learned a thing.

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3 hours ago, Fara Fasat said:

Let's skip the snark and just stick to the discussion, OK?

@Fara FasatNo dice. People who launch half-baked inquiries and then dribble out information deserve all the snark that comes their way.

Generally, I have no interest in the SBIR program. I learned about the difference between the FAR and the DFARS only after you got around to telling us what prompted your inquiry. I would have learned much sooner and before responding to you had you told us at the outset. I responded only to your request to interpret the DFARS clause.

Since your revelatory post I have learned that SBA published a 56-page SBIR "policy directive" in 2019 to, among other things, clarify SBIR data rights. The directive appears to have been  designed, at least in part, to reconcile the FAR and DFARS coverage. I have not read the whole thing, but at first glance it appears that SBA has adopted the DOD approach. See 84 Fed. Reg. 12794, April 2, 2019, effective May 2, 2019. The directive defines "SBIR/STTR data" as follows"

Quote

All Data developed or generated in the performance of an SBIR or STTR award, including Technical Data and Computer Software developed or generated in the performance of an SBIR or STTR award. The term does not include information incidental to contract or grant administration, such as financial, administrative, cost or pricing or management information.

See 84 Fed. Reg.12794, 12808. As you can see, the SBA definition does not include the FAR 52.227-20 requirement that the SBIR data be "first produced by a Contractor that is  a small business concern."

DOD opened a DFARS case to implement the SBA policy directive. See DFARS case number 2019-D043. As of 23 September the status was "12/10/2021 Case manager forwarded draft proposed rule to DARS Regulatory Control Officer. DARS Regulatory Control Officer reviewing." 

There is also an open FAR case. See FAR case number 2020-010. As of 23 September the status was "07/27/2022 Draft proposed FAR rule from FAR analyst to OFPP. OFPP reviewing."

So it appears that my answer to your question is still valid:

Quote

[C]an the large business assert SBIR data rights in any data it has to deliver, thus getting the same 20-year protection as the SBIR prime?

Yes.

But remember, I have not finished reading the SBA directive, and I don't know when I will.

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@Vern Edwards@Fara Fasat

Does this help - "Each agency administers its own individual program within guidelines established by Congress. These agencies designate R&D topics in their solicitations and accept proposals from small businesses. Awards are made on a competitive basis after proposal evaluation."   Reference https://www.sbir.gov/about

Here is DoD's stuff, from what I have read there are a 11 other agencies that will have their own stuff.  https://media.defense.gov/2022/Jan/12/2002920964/-1/-1/1/DoD_Annual_SBIR_224.PDF

Edited my original post as I was reading somewhere else and saw this.    Makes me think the rule bar regarding SBIR might be raised even further.  

https://www.defensenews.com/congress/2022/09/15/congress-races-to-reauthorize-innovation-grants-favored-by-pentagon/ 

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1 hour ago, C Culham said:

Does this help[?]

@C CulhamI don't see how any of that helps with respect to Fara Fasat's question about the assertion of SBIR data rights by a large business subcontractor.

The best sources of information about the topic at hand are SBA's Federal Register publications, which go into lengthy detail. In addition to 84 FR 12794, which I cited above, SBA has cited 81 FR 20484 (2016) and 77 FR 66342 (2014), but no SBA documents appear at those two locations..

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48 minutes ago, Vern Edwards said:

I don't see how any of that helps with respect to Fara Fasat's question about the assertion of SBIR data rights by a large business subcontractor.

Reading between the lines.  SBA is simply the support mechanism.  Agencies control their own SBIR programs via Congress direction with regard to R&D money.  In the case of a disagreement on who benefits the agency has the say.   15 USC 638 is an interesting read to this extent.

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15 hours ago, Vern Edwards said:

No dice. People who launch half-baked inquiries and then dribble out information deserve all the snark that comes their way.

@Vern Edwards I am questioning word choice here.  Are you saying that what @Fara Fasatis expressing is being provided too slowly or that it is flat out foolish?

dribble

“Dribble” and “drivel” originally meant the same thing: drool. But the two words have become differentiated. When you mean to criticize someone else’s speech as stupid or pointless, the word you want is “drivel.”

https://brians.wsu.edu/2016/05/25/dribble/

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1 hour ago, C Culham said:

Reading between the lines.  SBA is simply the support mechanism.  Agencies control their own SBIR programs via Congress direction with regard to R&D money.  In the case of a disagreement on who benefits the agency has the say.   15 USC 638 is an interesting read to this extent.

@C CulhamSee 84 FR 12794, April 2, 2019, Final SBIR and STTR Policy Directives, I. Executive Summary:

Quote

The Small Business Act (the Act) requires that the Small Business Administration (SBA) issue a policy directive setting forth guidance to the Federal Agencies participating in the SBIR and STTR programs (Participating Agencies). The Act provides SBA with broad authority to direct Participating Agencies in the administration of the programs. The SBIR and STTR (SBIR/ STTR) Policy Directives outline how agencies must generally conduct their programs. Each agency, however, can tailor its program to meet the needs of the individual agency, as long as the general principles of the program set forth in the Act and directive are followed. Therefore, when incorporating SBIR/STTR policy into agency-specific regulations and procedures, Participating Agencies may develop and apply processes needed to implement the policy effectively; however, no Participating Agency may develop and apply policies, directives, or clauses, that contradict, weaken, or conflict with the policy as stated in the directive.

Emphasis added.

Now, to what specific language in 15 USC 638 are you referring?

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1 hour ago, Guardian said:

I am questioning word choice here.  Are you saying that what @Fara Fasatis expressing is being provided too slowly or that it is flat out foolish?

@GuardianI said: 

17 hours ago, Vern Edwards said:

People who launch half-baked inquiries and then dribble out information deserve all the snark that comes their way.

Now, what does it look like I said? And why are YOU questioning MY word choice?

Fara Fasat was not foolish, stupid, or pointless, and did not utter drivel. 

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10 minutes ago, Vern Edwards said:

@GuardianI said: 

Now, what does it look like I said?

Speaking for myself, I think what Vern meant by “dribble out information” means [see my added, bracketed phrase]: 

“dribble verb [I or T] (FLOW SLOWLY)

to (cause a liquid to) [ in the context here: cause information to] flow very slowly in small amounts: The water was barely dribbling out of the faucet. UK Dribble the remaining olive oil over the tomatoes.

https://dictionary.cambridge.org › d...

DRIBBLE | definition in the Cambridge English Dictionary”

 

image.jpeg

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