5. Considerations
5.1 Awards
5.1.1 Availability of Funds
All Phase I awards are subject to availability of funds. NASA has no obligation to make any specific number of awards based on this solicitation, and may elect to make several or no awards in any specific technical topic or subtopic.
5.1.2 Contracting
To simplify making contract awards and to reduce processing time, all contractors selected for Phase I contracts shall ensure that:
(1) All information in your proposal is current, e.g., your address has not changed, the proposed PI is the same, etc. If changes have occurred since submittal of your proposal, notify contracting officer immediately.
(2) Your firm is registered with System for Award Management (SAM).
(3) Your firm is in compliance with the VETS 100 requirement. Confirmation of that the report has been submitted to the Department of Labor is current shall be provided to the contracting officer within 10 business days of the notification of selection for negotiation.
(4) Your firm HAS NOT proposed a Co-Principal Investigator.
(5) STTR selectees should provide a copy of their executed Allocation of Rights Agreement to the contracting officer within 10 business days of receiving notification of selection for negotiation.
(6) Your firm is required to provide timely responses to all communications from the NSSC Contracting Officer.
(7) All proposed cost is supported with documentation such as a quote, previous purchase order, published price lists, etc. All letters of commitment are dated and signed by the appropriate person. If a University is proposed as a subcontractor or a RI, the signed letter shall be on the University letterhead from the Office of Sponsored Programs. If an independent consultant is proposed, the signed letter should not be on a University letterhead. If the use of Government facility or equipment is proposed, your firm shall submitted a signed letter from the Government facility stating the availability, cost if any, and authorizing the use of it, and a signed letter from your firm justifying the need to use the facility.
From the time of proposal notification of selection for negotiation, 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. A notification of selection for negotiation is not to be misconstrued as an award notification to commence work.
Phase I Model Contract
An example of the Phase I contracts can be found in the NASA SBIR/STTR Firm Library: https://sbir.gsfc.nasa.gov/sbir/firm_library/index.html. Note: Model contracts are subject to change.
5.2 Phase I Reporting
All Phase I contracts shall require the delivery of reports that present: (1) the work and results accomplished; (2) the scientific, technical and commercial merit and feasibility of the proposed innovation, and Phase I results; (3) its relevance and significance to one or more NASA needs (section 9); and (4) the strategy for development, transition of the proposed innovation, and Phase I results into products and services for NASA mission programs and other potential customers. Phase I deliverables may also include the demonstration of the proposed innovation and/or the delivery of a prototype or test unit, product or service for NASA testing and utilization. For SBIR Phase I and STTR Phase I contracts, a final NTSR is due at the end of the contract, and an NTR is required if technology is developed, prior to submission of the final invoice.
The technical reports and other deliverables are required as described in the contract and are to be provided to NASA. These reports shall document progress made on the project and activities required for completion. Periodic certification for payment will be required as stated in the contract. A final report must be submitted to NASA upon completion of the Phase I R/R&D effort in accordance with applicable contract provisions.
Report deliverables shall be submitted electronically via the Electronic Handbook (EHB) and NASA requests the submission of report deliverables in PDF or MS Word format. To Access the EHB the NASA network must be accessed. Everyone with access to the NASA network will be required to use the NASA Account Management System (NAMS). This is the Agency’s centralized system for requesting and maintaining accounts for NASA IT systems and applications. The system contains user account information, access requests, and account maintenance processes for NASA employees, contractors, and remote users such as educators and foreign users. A basic background check is required for this account.
5.3 Payment Schedule for Phase I
All NASA SBIR and STTR contracts are firm-fixed-price contracts. The exact payment terms for the Phase I will be included in the contract.
Invoices: All invoices are required to be submitted electronically via the SBIR/STTR website in the EHB.
Please note: NASA will be transitioning to the DOD system, Wide Area WorkFlow (WAWF). During the duration of the contract your firm may be required to register with the WAWF system. It is a secure web based system for electronic invoicing, receipt, and acceptance. The WAWF website is located at: (https://wawf.eb.mil/).
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 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 (FOIA).
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 proposal access to other NASA contractor and subcontractor personnel. NASA will provide access to such data only under contracts that contain an appropriate NFS 1852.237-72 Access to Sensitive Information clause that requires the contractors to fully protect the information from unauthorized use or disclosure.
5.6 Proprietary Information in the Proposal Submission
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 the 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 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 B.
Information contained in unsuccessful proposals will remain the property of the applicant. The Government will, however, retain copies of all proposals.
5.7 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 I or Phase II contract. The following is a brief description of FAR 52.227-20, it is not intended to supplement or replace the FAR.
5.7.1 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. This 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.
5.7.2 Proprietary Data
If the contractor desires to continue protection of proprietary data, it shall deliver form, fit, and function data and shall not deliver the proprietary data. Data is considered to be “proprietary” when the data is developed at a private expense and (1) embodies trade secrets or contains commercial, financial and confidential, privileged information, or (2) is computer software.
5.7.3 Non-Disclosure Period
As part of SBIR contracts, for a period of 4 years after acceptance of all items to be delivered under an SBIR /STTR 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.
5.7.4 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.
5.7.5 Invention Reporting, Election of Title and Patent Application Filing
NASA SBIR and STTR contracts will include FAR 52.227-11 Patent Rights – Ownership by the Contractor, which requires the SBIR/STTR contractors to do the following. Contractors must disclose all subject inventions to NASA within two (2) months of the inventor’s report to the awardees. A subject invention is 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 the contractor discloses a subject invention, the contractor has up to 2 years to notify the Government whether it elects to retain title to the subject invention. If the contractor elects to retain title, a patent application covering the subject invention must be filed within 1 year. If the contractor fails to do any of these within time specified periods, 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 permissible time to file a patent.
Per the NASA FAR Supplement 1852.227-11 Patent Rights--Retention by the Contractor (Short Form) the awardee may use whatever format is convenient to report inventions. NASA prefers that the awardee use either the electronic or paper version of NASA Form 1679, Disclosure of Invention and New Technology (Including Software), to report inventions. Both the electronic and paper versions of NASA Form 1679 may be accessed at the electronic New Technology Reporting Web site http://ntr.ndc.nasa.gov/.
A New Technology Summary Report (NTSR) listing all inventions developed under the contract or certifying that no inventions were developed must be also be submitted. Both NASA Form 1679 and the NTSR shall also be uploaded to the SBIR/STTR EHB at https://ehb8.gsfc.nasa.gov/contracts/public/firmHome.do.
5.8 Profit or Fee
Phase I 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.
5.9 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 2.26. 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 23-page limit for the Phase I proposal.
5.10 Essentially Equivalent 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 with every invoice 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 report essentially equivalent or duplicate efforts can lead to the termination of contracts or civil or criminal penalties.
5.11 Additional Information
5.11.1 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 take precedence over the solicitation.
5.11.2 Evidence of Contractor Responsibility
In addition to the information required to be submitted in section 2.2.11 (Phase II section), 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.
5.11.3 1852.225-70 Export Licenses
The contractor shall comply with all U.S. export control laws including Export Administration Regulations (EAR) and International Traffic in Arms Regulations (ITAR). Offerors are responsible for ensuring that all employees who will work on this contract are eligible under export control laws, EAR, and ITAR. 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 laws, ITAR, or EAR 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. For further information on ITAR visit (http://www.pmddtc.state.gov/regulations_laws/itar.html). For further information on EAR visit (https://www.bis.doc.gov/index.php/regulations/export-administration-regulations-ear).For additional assistance, refer to (http://sbir.gsfc.nasa.gov/content/training-resources)or contact the NASA SBIR helpdesk at sbir@reisystems.com.
5.11.4 Government Furnished and Contractor Acquired Property
Title to property furnished by the Government or acquired with Government funds will be vested with the NASA, unless it is determined that transfer of title to the contractor would be more cost effective than recovery of the equipment by NASA.
5.12 Required Registrations and Submissions
5.12.1 Firm SBA Firm Registry
SBA maintains and manages a Company Registry at (http://www.SBIR.gov) to track ownership and affiliation requirements for all companies applying to the SBIR Program. The SBIR policy directive requires each small business concern (SBC) applying for a Phase I or Phase II award to register in the Company Registry prior to submitting an application. A PDF document with the SBC registration information is available for download by the SBC upon successful registration. This PDF document must be saved by the SBC for inclusion in applications submitted to SBIR agencies. All SBCs must report and/or update ownership information to SBA prior to each SBIR application submission or if any information changes prior to award.
From the NASA SBIR/STTR Proposal Submission Electronic Handbook (EHB), the SBC must provide their unique SBC Control ID that gets assigned by SBA upon completion of the Company Registry registration, as well as upload the PDF document validating their registration. This information is submitted to NASA via a Firm level form in the Activity Worksheet and is applicable across all proposals submitted by the SBC for that specific solicitation.
5.12.2 System for Award Management (SAM) Registration
Offerors should be aware of the requirement to register in SAM prior to contract award. To avoid a potential delay in contract award, offerors are required to register prior to submitting a proposal. Additionally, firms shall be registered under the NAICS code of 541712.
SAM 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 SAM, all mandatory information, which includes the DUNS or DUNS+4 number, and a CAGE code, must be validated in SAM. 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 SAM registration process.
The DoD has established a goal of registering an applicant in SAM within 48 hours after receipt of a complete and accurate application via the Internet. Offerors that are not registered should consider applying for registration immediately upon receipt of this solicitation. Offerors and contractors may obtain information on SAM registration and annual confirmation requirements via the Internet at (https://www.sam.gov/) or by calling (866) 606-8220.
5.12.3 52.204-8 Annual Representations and Certifications
Offerors should be aware of the requirement that the Representation and Certifications required from Government contractors must be completed through SAM website (https://www.sam.gov/). FAC 01-26 implements the final rule for this directive and requires that all offerors 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.
5.12.4 52.222-37 Employment Reports on Special Disabled Veterans, Veterans of the Vietnam-Era, and Other Eligible Veterans
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. 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 or greater must have a current VETS 100 report on file. Please visit the DOL VETS 100 website at http://www.dol.gov/vets/programs/fcp/main.htm. NASA will not enter into any contract wherein the firm is not compliant with the requirements stipulated herein.
5.12.5 1852.203-71 Requirement to Inform Employees of Whistleblower Rights
(a) (a) The Contractor shall inform its employees in writing, in the predominant native language of the workforce, of contractor employee whistleblower rights and protections under 10 U.S.C. 2409, as described in subpart 1803.09 of the NASA FAR Supplement.
(b) (b) The Contractor shall include the substance of this clause, including this paragraph (b), in all subcontracts.
5.12.6 1852.209-73 Representation by Offerors that they are not the Association of Community Organizations for Reform Now (ACORN) or a subsidiary of ACORN. (DEVIATION FEB 2012)
(a) In accordance with section 534 of The Consolidated and Further Continuing Appropriation Act of 2012 (Pub. L.112-55) none of the funds made available by the Act may be distributed to the Association of Community Organizations for Reform Now (ACORN) or its subsidiaries.
(b) The offeror represents, by submission of its offer, that it is not the Association of Community Organizations for Reform Now (ACORN) or a subsidiary thereof.
5.12.7 1852-209.74 CERTIFICATION BY OFFERORS REGARDING FEDERAL INCOME TAX FILING and FEDERAL INCOME TAX VIOLATIONS. (DEVIATION FEB 2012)
(a) In accordance with section 527 of The Consolidated and Further Continuing Appropriation Act of 2012 (Pub. L.112-55) none of the funds made available by the Act may be used to enter into a contract in an amount greater than $5 Million unless the prospective contractor certifies in writing to NASA that, to the best of its knowledge and belief, the contractor has filed all Federal tax returns required during the three years preceding the certification, has not been convicted of a criminal offense under the Internal revenue Code of 1986, and has not, more than 90 days prior to certification, been notified of any unpaid Federal tax assessment for which the liability remains unsatisfied, unless the assessment is the subject of an installment agreement or offer in compromise that has been approved by the Internal Revenue Service and is not in default, or the assessment is the subject of a non-frivolous administrative or judicial proceeding.
5.12.8 1852.209-75 Representation by Corporations Regarding an Unpaid Delinquent Tax Liability or a Felony Conviction under any Federal Law. (DEVIATION FEB 2012)
(a) In accordance with sections 544 and 543 of The Consolidated and Further Continuing Appropriation Act of 2012 (Pub. L.112-55), none of the funds made available by that Act may be used to enter into a contract with any corporation that:
(1) Has any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability, where the awarding agency is aware of the unpaid tax liability, unless the agency has considered suspension or debarment of the corporation and made a determination that this action is not necessary to protect the interests of the Government; or
(2) Was convicted (or had an officer or agent of such corporation acting on behalf of the corporation convicted) of a felony criminal violation under any Federal law within the preceding 24 months, where the awarding agency is aware of the conviction, unless the agency has considered suspension or debarment of the corporation and made a determination that this action is not necessary to protect the interests of the Government.
5.12.9 1852.225-72 Restriction on funding Activity with China – Representation
(a) Definition - “China” or “Chinese-owned” means the People’s Republic of China, any firm owned by the People’s Republic of China or any firm incorporated under the laws of the People’s Republic of China.
(b) Public Laws 112-10, Section 1340(a) 112-55, Section 536, and Section 535, PL 113-6 restrict NASA from contracting to participate, collaborate, or coordinate bilaterally in any way with China or a Chinese-owned firm with funds appropriated on or after April 25, 2011. NASA anticipates this restriction will be in future appropriation acts. Contracts for commercial and non-developmental items are excepted from the prohibition as they constitute purchase of goods or services that would not involve participation, collaboration, or coordination between the parties.
(c) Representation. By submission of its offer, the offeror represents that the offeror is not China or a Chinese-owned firm.
5.12.10 Software Development Standards
Offerors proposing projects involving the development of software may be required to comply with the requirements of NASA Procedural Requirements (NPR) 7150.2A, “NASA Software Engineering Requirements” which are available online at http://nodis3.gsfc.nasa.gov/displayDir.cfm?t=NPR&c=7150&s=2.
5.12.11 Human and/or Animal Subject
Due to the complexity of the approval process, use of human and/or animal subjects is not allowed for Phase I contracts.
5.12.12 HSPD-12
Firms that require access to federally controlled facilities for six consecutive months or more must adhere to the following:
PIV Card Issuance Procedures in accordance with FAR clause 52.204-9 Personal Identity Verification of Contractor Personnel.
Purpose: To establish procedures to ensure that recipients of contracts are subject to essentially the same credentialing requirements as Federal Employees when performance requires physical access to a federally-controlled facility or access to a Federal information system for six consecutive months or more. (Federally -controlled facilities and Federal information system are defined in FAR 2.101(b)(2)).
Background: Homeland Security Presidential Directive 12 (HSPD-12), “Policy for a Common Identification Standard for Federal Employees and Contractors”, and Federal Information Processing Standards Publication (FIPS PUB) Number 201, “Personal Identity Verification (PIV) of Federal Employees and Contractors” require agencies to establish and implement procedures to create and use a Government-wide secure and reliable form of identification NLT October 27, 2005. See: http://csrc.nist.gov/publications/fips/fips201-1/FIPS-201-1-chng1.pdf. In accordance with the FAR clause 52.204-9 Personal Identity Verification of Contractor Personnel which states in parts contractor shall comply with the requirements of this clause and shall ensure that individuals needing such access shall provide the personal background and biographical information requested by NASA.
If applicable, detailed procedures for the issuance of a PIV credential can be found at the following URL:
5.13 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. The Office of the Inspector General has full access to all proposals submitted to NASA.
