Jump to content
The Wifcon Forums and Blogs

Recommended Posts

I have traced the FAR 52.227-20 definition of "SBIR data"—

Quote

SBIR data means data first produced by a Contractor that is a small business concern in performance of a small business innovation research contract issued under the authority of 15 U.S.C. 638, which data are not generally known, and which data without obligation as to its confidentiality have not been made available to others by the Contractor or are not already available to the Government

—to a NASA FAR Supp. clause published in 1985, 1852.227–80 Rights in Data—SBRI Program (APRIL 1985), 50 FR 13365.

Quote

“SBIR data,” as used in this clause, means data first produced by a contractor that is a small business firm in the performance of a small business innovation research contract issued under the authority of 15 U.S.C. 638 (Pub. L. 97–219, “Small Business Innovation Development Act of 1982”), and which, without obligation as to its confidentiality, has not been made available to others by the Contractor, or is not already available to the Government.

The definition in FAR clause 52.227-20 dates from June 1987, 52 FR 18140.

DOD added its current definition of "SBIR" data to DFARS 252.227-7018 in 2010, explaining:

Quote

Definitions. A definition of “SBIR data” was added to the proposed clause. This new definition is based on the definition of “SBIR Technical Data” in section 3(bb) of the SBIR Policy Directive, i.e., all data generated during the performance of an SBIR award. The definition of “SBIR data rights” was revised and simplified to provide the Government with limited rights in SBIR technical data, and restricted rights in SBIR computer software, as the most straightforward mechanism to achieve the objective of allowing the SBIR contractor to assert proprietary data restrictions during the SBIR data protection period.

SBA added its definition of "SBIR Technical Data" to the SBIR program directive in 2002, 67 FR 60072: "All data generated during the performance of an SBIR award."

I think that's the complete history. Or close.

Link to comment
Share on other sites

On 9/29/2022 at 9:37 AM, Fara Fasat said:

I first asked a couple of experienced practitioners, and they said an LB could not do it. [I.e., a large business subcontractor could not assert SBIR data rights.] 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. 

What that goes to show is that experience practitioners only know what they have researched.

A large business subcontractor under an SBIR prime contract that disputes an agency's decision to assert unlimited rights to the subcontractor's data— delivered to the prime contractor, which then delivered it to the government—would have to submit a FAR Subpart 33.2 claim under the prime's sponsorship.

I think the definition of SBIR data in DFARS 252.227-7018 may have been designed to ensure that large businesses would not be deterred from working with an SBIR prime by fear that the government would grab their data.

Those interested in all this might start by reading

https://www.sbir.gov/birth-and-history-of-the-sbir-program

https://www.sbir.gov/about

https://www.sbir.gov/tutorials/program-basics/tutorial-5

https://en.wikipedia.org/wiki/Small_Business_Innovation_Research

 

Link to comment
Share on other sites

On 9/29/2022 at 7:44 AM, Fara Fasat said:

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.

A CO who is going to doubt or question a regulation as contrary to some intent must know how to research regulatory history. The tools are readily available on the internet, but the work is very tedious. And even after doing the research, you will have unanswered questions.

In the case of SBIR data rights, it seems clear that the phrase "first produced by a contractor that is a small business firm" in the FAR 52.227-20 definition of "SBIR data"—which is what prompted Fara Fasat's question—was intentionally dropped by the SBA. I can only assume that SBA understood the significance its decision.

Link to comment
Share on other sites

Thanks for all the information. It is very useful. The only thing I will add is that I did not dribble anything out. I posted what I knew at that time. Since I was dealing with DoD, I focused on their clause and SBA supporting materials. I then went to the Nash 3-volume IP treatise to see what it said about SBIR. That's where I noticed the FAR language. Interestingly it did not comment on the difference between the FAR and DFARS treatment of a large business's SBIR data, especially since it is a significant difference. 

Once I found it, I added it to the discussion. If that's a dribble, so be it.

Link to comment
Share on other sites

1 hour ago, joel hoffman said:

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.

@joel hoffman It seems that's what he meant.  I have never seen the word "dribble" used to describe the flow of words.  Its standard definition applies to liquids.

I am simply another individual who enjoys this forum.  In another life, I was a section editor of what was at the time one of the top four scholastic newspapers in the country.  I was also editor-in-chief of my school's literary magazine.  By no means does this render me an expert in anything or an apt judge of another's writings.  Nonetheless, I have a strong interest in words and etymology.  If I was that intelligent, I would speak six languages like another CO I know.  When my false pride fools me into thinking that I am so smart, I remind myself that I do not.  My wife speaks three.  She is truly my better half.

Link to comment
Share on other sites

On 9/30/2022 at 5:22 PM, Vern Edwards said:

@C Culham15 USC 638(g) is a nice list of 12 things agencies "shall" do when conducting SBIR acquisitions. And they should do fine as long as they do those things in conformity with SBA's Small Business Innovation Research Program and Small Business Technology Transfer Program Policy Directive of May 2, 2019.

Thanks Vern. From my view SBA "administers"  a couple of other programs where Congress has established criteria, yet it would seem that the limited power vested in SBA is just a nice shine.   The control in reality will not rest in the directive but what an agency does much like the 8(a) Program.  Probably even the SBA loan Program while not administered by agencies the banks that do control.   Afterall in all three cases its "their" money and he who holds the gold........

 

Link to comment
Share on other sites

2 hours ago, C Culham said:

From my view SBA "administers"  a couple of other programs where Congress has established criteria, yet it would seem that the limited power vested in SBA is just a nice shine.

@C CulhamI don't know what point you are trying to make or what your view has to do with the topic of this thread, which is SBIR data rights, but...

SBA has the kind of power over agency SBIR and STTR programs that the FAR Council has over other agency acquisition programs. See Global Aerospace Corp., B- 414514, 2017 CPD P 198, July 3, 2017:

Quote

The FAR does not address SBIR procurements. The Small Business Administration (SBA), not the FAR Council, has the statutory obligation to issue policy directives for the general conduct of the government's SBIR programs. See 15 U.S.C. § 638(j); AR, Tab 2, SBIR Program Policy Directive, at 213.

And see Lite Machines Corp. v. U.S., 143 Fed. Cl. 267, 284 (2019):

Quote

The statute at 15 U.S.C. § 638(j) requires the Small Business Administration to issue policy directives regarding the “general conduct of small business innovation research programs.” 15 U.S.C. § 638(j). In the Small Business Administration's policy directive in effect when the 2013 Contract was awarded to Lite Machines, which was published on August 6, 2012, the Small Business Administration reiterates that the government and prime contractors “that pursue R/R & D or production developed under the SBIR Program, shall issue Phase III awards relating to technology, including sole source awards, to the SBIR awardee that developed the technology” to “the greatest extent practicable.” See Small Business Innovation Research Program Policy Directive, 77 Fed. Reg. 46,806, 46,820 (Aug. 6, 2012). The Small Business Administration's August 6, 2012 policy directive also indicates that, if the government or a prime contractor intends “to pursue R/R & D, production, services, or any combination thereof of a technology developed under an SBIR award, with an entity other than that SBIR awardee,” the government or prime contractor must notify in writing the Small Business Administration prior to award and must indicate “why the follow-on funding agreement with the SBIR awardee is not practicable.” Id.

The FAR Council does not manage agency acquisition programs, and neither does the SBA. But pursuant to legislation, the FAR Council and the SBA have the power to make policy with which agencies must comply when managing their programs and the power to demand that agencies explain their decisions.

It strikes me that the power to make policy with which agencies must comply and to demand explanations of programmatic decisions is more that "just a nice shine."

But I doubt that SBA is very proactive. I doubt they have the staff for much proactivity in either the 8(a) Program or the SBIR Program, and they probably prefer that agencies go about their business as they see fit as long as they use reasonable discretion. There have been a few bid protests in which the SBA has weighed-in on the agency's side concerning interpretation of the SBA policy directive. There was one in which the GAO disagreed with SBA's interpretation of its directive.

Link to comment
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

 Share

×
×
  • Create New...