FY23 SBIR Phase II.pdf

FY 2023 NIST Small Business Innovation Research Program Phase II Notice of Funding Opportunity

April 6, 2023

FY 2023

Small Business Innovation Research (SBIR) Program Phase II

Notice of Funding Opportunity (NOFO)

ANNOUNCEMENT

FUNDING OPPORTUNITY NUMBER: 2023-NIST-SBIR-02

Catalog of Federal Domestic Assistance (CFDA) Number:

11.620, Science, Technology, Business and/or Education Outreach

U.S. DEPARTMENT OF COMMERCE

National Institute of Standards and Technology

Opening Date of NOFO: April 6, 2023 Closing Date: June 5, 2023 http://www.nist.gov/sbir http://www.nist.gov/sbir

TABLE OF CONTENTS

1.0 PROGRAM DESCRIPTION AND FEDERAL AWARD INFORMATION 5

1.01 Introduction 5

1.02 Three-Phase Program 6

1.03 SBIR Applicant Eligibility and Limitations 8

1.04 Contact with NIST 9

1.05 Definitions 10

1.06 Fraud, Waste and Abuse 19

1.07 Other Information 20

2.0 CERTIFICATIONS 21

2.01 Due Diligence Certification 21

2.02 Funding Agreement Certification 22

2.03 Research Applications Involving Human Subjects, Human Tissue, Data or Recordings Involving Human Subjects Including Software Testing 22

2.04 Research Activities Involving Live Vertebrate Animals or Pre-Existing Cell Lines/Tissues from Vertebrate Animals 24

2.05 Certifications Regarding Federal Felony and Federal Criminal Tax Convictions, Unpaid Federal Tax Assessments and Delinquent Federal Tax Returns 25

3.0 APPLICATION PREPARATION INSTRUCTIONS AND REQUIREMENTS 25

3.01 Phase II Application Requirements 25

3.02 Phase II Application 27

4.0 METHOD OF SELECTION AND EVALUATION CRITERIA 33

4.01 Introduction 33

4.02 Phase II Screening Criteria 33

4.03 Phase II Evaluation Criteria 35

4.04 Phase II Award Selections 36

5.0 CONSIDERATIONS 37

5.01 Awards 37

5.02 Reporting Requirements 38

5.03 Payment Schedule 39

5.04 Innovations, Inventions and Patents 39

5.05 Cost Sharing 48

5.06 Profit or Fee 48

5.07 Joint Ventures or Limited Partnerships 49

5.08 Research and Analytical Work 49

5.09 Awardee Commitments 49

5.10 Summary Statements 49

5.11 Additional Information 51

5.12 Technical and Business Information (TABA) 52

5.13 Technical Assistance for Application Preparation and Project Conduct 52

6.0 SUBMISSION OF APPLICATIONS 53

6.01 Deadline for Applications 53

6.02 Address to Request Application Package 54

6.03 Application Submission 54

7.0 SCIENTIFIC AND TECHNICAL INFORMATION SOURCES 57

8.0 SUBMISSION FORMS AND CERTIFICATIONS 57

8.01 Required Forms and Documents 57

8.02 Attachment of Required Application Documents 64

8.03 Verifying the Submission and Tracking the Application 65

8.04 Unique Entity Identifier and System for Award Management (SAM) 66

9.0 RESEARCH AREAS 67

Appendix A. COVER SHEET 70

Appendix B. Appendix B. Due Diligence Certification 73

Appendix C. Certifications 79

US DEPARTMENT OF COMMERCE

NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY

FY 2023 SMALL BUSINESS INNOVATION RESEARCH (SBIR) PROGRAM

PHASE II NOTICE OF FUNDING OPPORTUNITY (NOFO)

1.0 PROGRAM DESCRIPTION AND FEDERAL AWARD INFORMATION

1.01 Introduction

The National Institute of Standards and Technology (NIST) invites FY 2022 NIST SBIR Phase I awardees to submit Phase II research applications under this Notice of Funding Opportunity (NOFO). Only FY 2022 NIST SBIR Phase I awardees are eligible to submit applications in response to this NOFO for Phase II of their projects.

The Small Business Innovation Research (SBIR) program was originally established in 1982 by the Small Business Innovation Development Act (P.L. 97-219), codified at 15 U.S.C. §

638. It was then expanded and extended by the Small Business Research and Development (R&D) Enhancement Act of 1992 (P.L. 102-564), and received subsequent reauthorization and extensions, the most recent of which extends the SBIR program through 2025. (P.L.

117-183).

Eleven Federal agencies implement SBIR by setting aside a portion of their extramural research and development budget each year to fund research applications from small science and technology-based firms. The statutory purpose of the SBIR Program is to strengthen the role of innovative small business concerns (SBCs) in Federally-funded research or research and development (R/R&D). Specific program goals are to:

(1) stimulate technological innovation; (2) use small business to meet Federal R/R&D needs;

(3) foster and encourage participation by socially and economically disadvantaged small businesses and by women-owned small businesses in technological innovation; and (4) increase private sector commercialization of innovations derived from Federal R/R&D, thereby increasing competition, productivity, and economic growth.

The NIST FY 2023 SBIR program identifies and solicits applications in topics that fall within NIST’s mission and allow collaboration between NIST scientists and the SBIR awardees whenever possible.

When reviewing applications, NIST gives high priority to SBCs that participate in or conduct energy efficiency or renewable energy system R&D projects, consistent with Executive

Order (EO) 13329 “Encouraging Innovation in Manufacturing,” the Energy Independence and Security Act of 2007 (P.L. 110-140 § 1203(e), codified at 15 U.S.C. § 638(z)), and the

Small Business Administration (SBA) Small Business Innovation Research (SBIR) and Small

Business Technology Transfer (STTR) Program Policy Directive, § 9.

For any SBIR award that requires a license to use a NIST-owned invention covered by a patent or patent application, the SBIR awardee will need to contact NIST’s Technology Partnerships Office for a license to use the NIST-owned invention. Such awardees will be granted a non-exclusive research license and will be given the opportunity to negotiate a non-exclusive or an exclusive commercialization license to the NIST-owned invention, in accordance with the Federal patent licensing regulations, set forth in 37 C.F.R. Part 404, and to the extent that such NIST-owned invention is available for licensing and has not otherwise been exclusively licensed to another party. It is the goal of this program to position the SBIR awardee to use and build upon such licensed NIST-owned invention with the awardee’s own innovation to develop a commercially viable product based on the NIST-owned invention.

1.02 Three-Phase Program

The SBIR statute (15 U.S.C. § 638) requires the Department of Commerce to establish a three-phase SBIR program by reserving a percentage of its extramural R&D budget to be awarded to SBCs for innovation research. SBIR policy is provided by the SBA through the SBIR/STTR Policy Directive.

The funding vehicles for NIST’s SBIR program in both Phase I and Phase II are cooperative agreements. NIST’s authority to implement its SBIR program through cooperative agreements is 15 U.S.C. § 272(b)(4). NIST programmatic authorities for the research areas listed in this NOFO are found at 15 U.S.C. § 272(b) and (c). The nature of NIST’s “substantial involvement” will generally be collaboration with the awardees in carrying out the projects’ approved scope of work. Grants and agreements administrative requirements set forth at 2 C.F.R. Part 200 will apply to NIST SBIR awards.

1.02.01 Phase I - Feasibility Research

The purpose of Phase I is for NIST to determine the technical feasibility of the research, http://www.gpo.gov/fdsys/pkg/FR-2004-02-26/pdf/04-4436.pdf http://www.gpo.gov/fdsys/pkg/FR-2004-02-26/pdf/04-4436.pdf https://www.sbir.gov/sites/default/files/SBA_SBIR_STTR_POLICY_DIRECTIVE_OCT_2020_0.pdf https://www.sbir.gov/sites/default/files/SBA_SBIR_STTR_POLICY_DIRECTIVE_OCT_2020_0.pdf preliminary commercialization merit of the proposed effort, and the quality of the awardee’s performance. The application should concentrate on describing research that will significantly contribute to proving the feasibility of the proposed Phase II research and commercialization potential, prerequisites to receiving further support in Phase II.

Each Phase I award is for up to $100,000 and up to a six (6) month period of performance. Up to an additional $6,500 may be requested for Technical and Business Assistance (TABA); see Section 5.12 for more information about TABA. NIST’s inclusion of TABA funds in the award will be subject to the availability of NIST funding.

This NOFO is not soliciting applications for Phase I research.

1.02.02 Phase II - Research and Development

This NOFO provides an opportunity to all NIST FY 2022 SBIR I awardees to submit a Phase II application following the completion of Phase I. This NOFO provides instructions for FY 2023 NIST SBIR Phase II application preparation and submission requirements.

In Phase II, work from Phase I that exhibits potential for commercial application is further developed. Phase II is the R&D or prototype development phase. To apply for a Phase II award, each Phase I awardee will be required to submit a comprehensive application outlining the proposed research and a detailed plan to commercialize the final product. Each NIST Phase II award is for up to $400,000 and up to a 24-month period of performance. One year after completing the Phase II R&D activity, the awardee shall be required to report on its commercialization activities.

1.02.03 Phase III - Commercialization

Phase III refers to work that derives from, extends, or completes an effort made under prior SBIR funding agreements, but is funded by sources other than the SBIR Program.

Phase III work is typically oriented towards commercialization of SBIR research or technology and may be for products, production, services, R/R&D or a combination thereof.

1.02.04 Commercialization Readiness Pilot Program

As allowed in Section 5123 of the SBIR/STTR Reauthorization Act of 2011, Division E of Pub.

L. 112-81, codified in 15 U.S.C. § 638(gg), NIST has received authorization to establish a Commercialization Readiness Pilot Program (CRPP). NIST may provide follow-on funding (up to an additional $100,000) to selected awardees after completion of Phase II. The funding would be used to further develop Phase II technologies, to support advancement toward Phase III, and to increase the likelihood of commercialization. NIST is under no obligation to make any CRPP awards.

1.03 SBIR Applicant Eligibility and Limitations

1.03.01 Applicant Qualifications

Under this NOFO, only FY 2022 NIST SBIR Phase I awardees are eligible to submit applications.

Applications received from entities other than FY 2022 NIST SBIR Phase I awardees will not be reviewed or considered for award. Each applicant must qualify as an SBC for R/R&D purposes, as defined in Section 1.05 of this NOFO, at the time of award. In addition, the primary employment of the principal investigator must be with the small business at the time of the award and during the conduct of the proposed research. Primary employment means that more than one-half of the principal investigator's time is spent working with the small business. Primary employment with a small business precludes full-time employment with another organization. Occasionally, deviations from this requirement may occur, which must be approved in writing by the NIST Grants Officer after consultation with the SBIR Program Manager. Further, a small business may only replace the principal investigator on an SBIR Phase II award if the NIST Grants Officer provides prior written approval. Personnel obtained through a Professional Employer Organization or other similar personnel leasing company may be considered employees of the awardee.

The R/R&D work must be performed in the United States. Requests for an exemption must be submitted in writing at the time of application submission. Only rare and unique circumstances will be considered for an exemption. The NIST Grants Officer must approve each exemption and its terms in writing.

NIST has elected to not use the authority that would allow venture capital operating companies (VCOCs), hedge funds or private equity firms to participate in the SBIR Program. Therefore, applications in which work would be performed by VCOCs will not be considered for award.

For Phase II, a minimum of one-half of the research and/or analytical effort must be performed by the awardee. The total cost for all consultant fees, facility leases, usage fees, and other subcontract/subaward or purchase agreements, excluding funds requested for

TABA (see Section 5.12), may not exceed one-half of the total award.

Each applicant will be required to provide certain information via www.sbir.gov as well as other information required by the SBIR/STTR Policy Directive (see Appendices V-VI), found at Small Business Innovation Research (SBIR) Program Policy Directive Appendices. Each SBC applying for an award is required to update the appropriate information in the SBA database on SBIR.gov for any of its existing and prior Phase II awards. Applicants may not participate in the review of applications.

The statement of work of an SBIR award awarded under this NOFO cannot overlap with the statement of work of an existing NIST Cooperative Research and Development Agreement (CRADA) with the awardee. NIST will consider the issue of any potential overlap on a case- by-case basis.

1.03.02 Company Registry Requirements

SBA maintains and manages a Company Registry at to track ownership and affiliation requirements for all companies applying to the SBIR Program. Each Phase II applicant must register in the Company Registry prior to submitting an application. The applicant must save its information from the registration in a .pdf document and append this document to the SF-424 (R&R) form as described in Section 8.02. of this NOFO. All applicants are required to report and/or update their registration information in the SBA Company Registry prior to each SBIR application submission or if any information changes prior to an award.

1.04 Contact with NIST

For general programmatic, electronic submission, or grants questions, please contact the appropriate individual:

http://www.sbir.gov/ https://www.sbir.gov/sites/default/files/SBIR_Appendices.pdf http://www.sbir.gov/registration

Subject Area Point of Contact

Programmatic Questions Jacqueline Gray Phone: (301) 975-2522 E-mail: jacqueline.gray@nist.gov or Nicole Berry

Phone: (202) 235-3675 E-mail: nicole.berry@nist.gov

Electronic Application Submission through Grants.gov

Grants.gov Phone: (800) 518-4726 E-mail: support@grants.gov

Grant Rules and Regulations Dean Iwasaki Phone: (301) 975-8449 E-mail: dean.iwasaki@nist.gov

Applicants may also contact the NIST Hollings Manufacturing Extension Partnership (MEP) for technical assistance with application preparation. More information on obtaining technical assistance from MEP Centers for application preparation can be found in Section 5.13 of this NOFO.

1.05 Definitions

(a) General Definitions

Except as specifically noted by citation or reference, all definitions below are excerpted from the SBA SBIR/STTR Policy Directive.

mailto:jacqueline.gray@nist.gov mailto:nicole.berry@nist.gov mailto:support@grants.gov mailto:dean.iwasaki@nist.gov

Applicant – The organizational entity that qualifies as an SBC at all pertinent times and that submits a contract proposal or a grant application for a funding agreement under the SBIR/STTR Programs.

Awardee – The organizational entity that receives an SBIR or STTR Phase I, Phase II, or Phase III award. An “SBIR/STTR Awardee.”

Commercialization - The process of developing products, processes, technologies, or services and the production and delivery (whether by the originating party or others) of the products, processes, technologies, or services for sale to or use by the Federal government or commercial markets.

Contract, see 2 CFR §200.1 - For the purpose of Federal financial assistance, a legal instrument by which a recipient or subrecipient purchases property or services needed to carry out the project or program under a Federal award. For additional information on subrecipient and contractor determinations, see § 200.331.

Cooperative Agreement, see 2 CFR §200.1 - A legal instrument of financial assistance between a Federal awarding agency and a recipient or a pass-through entity and a subrecipient that is consistent with 31 U.S.C. 6302,6305:

(1) Is used to enter into a relationship the principal purpose of which is to transfer anything of value to carry out a public purpose of support or stimulation authorized by a law of the United States and not to acquire property or services for the Federal Government or pass-through entity's direct benefit or use;

(2) Is distinguished from a grant in that it provides for substantial involvement of the Federal awarding agency in carrying out the activity contemplated by the Federal award.

Covered Individual, see 15 U.S.C. § 638(e)(15) – An individual who—

(1) 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

(2) is designated as a covered individual by the Federal research agency concerned.

https://www.ecfr.gov/current/title-2/section-200.331 https://www.govinfo.gov/link/uscode/31/6302

Essentially Equivalent Work - Work that is substantially the same research, which is proposed for funding in more than one contract proposal or grant application submitted to the same Federal agency, or submitted to two or more different Federal agencies for review and funding consideration; or work where a specific research objective and the research design for accomplishing the objective are the same or closely related to another proposal or award, regardless of the funding source.

Federally Funded Award - 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.

Foreign Affiliation, see 15 U.S.C. § 638(e)(16) - 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).

Foreign Country of Concern, see 15 U.S.C. § 638(e)(17) - 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.

Funding Agreement - Any contract, grant, or cooperative agreement entered into between any Federal agency and any SBC for the performance of experimental, developmental, or research work, including products or services, funded in whole or in part by the Federal Government.

Joint Venture – See 13 C.F.R. § 121.103(h).

Malign Foreign Talent Recruitment Program, see 15 U.S.C. § 638(e)(18), citing 42 U.S.C. § 19237

– Is –

(1) Any program, position, or activity that includes compensation in the form of cash, in-kind compensation, including research funding, promised future compensation, complimentary foreign travel, things of non de minimis value, honorific titles, career advancement opportunities, or other types of remuneration or consideration directly provided by a foreign country at any level (national, provincial, or local) or their designee, or an entity based in, funded by, or affiliated with a foreign country, whether or not directly sponsored by the foreign country, to the targeted individual, whether directly or indirectly stated in the arrangement, contract, or other documentation at issue, in exchange for the individual—

(i) engaging in the unauthorized transfer of intellectual property, materials, data http://www.law.cornell.edu/cfr/text/13/121.103 products, or other nonpublic information owned by a United States entity or developed with a Federal research and development award to the government of a foreign country or an entity based in, funded by, or affiliated with a foreign country regardless of whether that government or entity provided support for the development of the intellectual property, materials, or data products;

(ii) being required to recruit trainees or researchers to enroll in such program, position, or activity;

(iii) establishing a laboratory or company, accepting a faculty position, or undertaking any other employment or appointment in a foreign country or with an entity based in, funded by, or affiliated with a foreign country if such activities are in violation of the standard terms and conditions of a Federal research and development award;

(iv) being unable to terminate the foreign talent recruitment program contract or agreement except in extraordinary circumstances;

(v) through funding or effort related to the foreign talent recruitment program, being limited in the capacity to carry out a research and development award or required to engage in work that would result in substantial overlap or duplication with a Federal research and development award;

(vi) being required to apply for and successfully receive funding from the sponsoring foreign government’s funding agencies with the sponsoring foreign organization as the recipient;

(vii) being required to omit acknowledgment of the recipient institution with which the individual is affiliated, or the Federal research agency sponsoring the research and development award, contrary to the institutional policies or standard terms and conditions of the Federal research and development award;

(viii) being required to not disclose to the Federal research agency or employing institution the participation of such individual in such program, position, or activity; or

(ix) having a conflict of interest or conflict of commitment contrary to the standard terms and conditions of the Federal research and development award; and

(2) a program that is sponsored by—

(i) a foreign country of concern or an entity based in a foreign country of concern, whether or not directly sponsored by the foreign country of concern;

(ii) an academic institution on the list developed under section 1286(c)(8) of the John S.

McCain National Defense Authorization Act for Fiscal Year 2019 (10 U.S.C. 2358 note;

Public Law 115-232); or

(iii) a foreign talent recruitment program on the list developed under section 1286(c)(9) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (10 U.S.C.

2358 note; Public Law 115-232).

Research or Research and Development (R/R&D) - Any activity that is:

(1) a systematic study directed toward greater knowledge or understanding of the subject studied;

(2) a systematic study directed specifically toward applying knowledge and innovation to meet a recognized but unmet need; or

(3) a systematic application of knowledge and innovation toward the production of useful materials, devices, and systems or methods, including design, development, and improvement of prototypes and new processes to meet specific requirements.

Small Business Concern (SBC) – A concern that meets the SBIR/STTR program eligibility requirements set forth in 13 C.F.R. 121.702, “What size and eligibility standards are applicable to the SBIR and STTR programs?”

Socially and Economically Disadvantaged SBC (SDB) - See 13 C.F.R. Part 124, Subpart B.

Socially and Economically Disadvantaged Individual - See 13 C.F.R. §§ 124.103 and 124.104.

Subaward, see 2 CFR §200.1 - An award provided by a pass-through entity to a subrecipient for the subrecipient to carry out part of a Federal award received by the pass-through entity. It does not include payments to a contractor or payments to an individual that is a beneficiary of a Federal program. A subaward may be provided through any form of legal agreement, including an agreement that the pass-through entity considers a contract.

Women-Owned Small Business (WOSB) - An SBC that is at least 51% owned by one or more women, or in the case of any publicly owned business, at least 51% of the stock is owned by women, and women control the management and daily business operations.

(b) Definitions related to rights in data developed under the SBIR program. These definitions are also included in Section 5.04.02 of this NOFO.

All definitions below are excerpted from the SBA SBIR/STTR Policy Directive.

Computer Database - A collection of data recorded in a form capable of being processed by a computer. The term does not include Computer Software.

Computer Programs - A set of instructions, rules, or routines recorded in a form that is https://www.ecfr.gov/current/title-13/chapter-I/part-121/subpart-A/subject-group-ECFRb7921b3fcf04228/section-121.702 https://www.federalregister.gov/select-citation/2012/08/06/13-CFR-124 https://www.federalregister.gov/select-citation/2012/08/06/13-CFR-124.103 capable of causing a computer to perform a specific operation or series of operations.

Computer Software - Computer programs, source code, source code listings, object code listings, design details, algorithms, processes, flow charts, formulae, and related material that would enable the software to be reproduced, recreated, or recompiled. Computer Software does not include Computer Databases or Computer Software Documentation.

Computer Software Documentation - Owner's manuals, user's manuals, installation instructions, operating instructions, and other similar items, regardless of storage medium, that explain the capabilities of the Computer Software or provide instructions for using the software.

Data - All recorded information, regardless of the form or method of recording or the media on which it may be recorded. The term does not include information incidental to contract or grant administration, such as financial, administrative, cost or pricing or management information.

Form, Fit, and Function Data - Data relating to items, components, or processes that are sufficient to enable physical and functional interchangeability, and data identifying source, size, configuration, mating and attachment characteristics, functional characteristics, and performance requirements. For Computer Software it means data identifying source, functional characteristics, and performance requirements, but specifically excludes the source code, algorithms, processes, formulas, and flow charts of the software.

Government Purpose - Any activity in which the United States Government is a party, including cooperative agreements with international or multi-national defense organizations or sales or transfers by the United States Government to foreign governments or international organizations. Government Purposes include competitive procurement, but do not include the rights to use, modify, reproduce, release, perform, display, or disclose Technical Data or Computer Software for commercial purposes or authorize others to do so.

Operations, Maintenance, Installation, or Training Purposes (OMIT) Data - Data that is necessary for operation, maintenance, installation, or training purposes (but not including detailed manufacturing or process data).

SBIR/STTR Computer Software Rights - The Federal Government’s rights during the SBIR/STTR Protection Period in specific types of SBIR/STTR Data that are Computer Software.

(1) The Federal Government may use, modify, reproduce, release, perform, display, or disclose SBIR/STTR Data that are Computer Software within the Government. The Federal Government may exercise SBIR/STTR Computer Software Rights within the Government for:

(i) Use in Federal Government computers;

(ii) Modification, adaptation, or combination with other Computer Software, provided that the Data incorporated into any derivative software are subject to the rights in § 3(ee) of the SBIR/STTR Policy Directive and that the derivative software is marked as containing SBIR/STTR Data;

(iii) Archive or backup; or

(iv) Distribution of a computer program to another Federal agency, without further permission of the Awardee, if the Awardee is notified of the distribution and the identity of the recipient prior to the distribution, and a copy of the SBIR/STTR Computer Software Rights included in the Funding Agreement is provided to the recipient.

(2) The Federal Government shall not release, disclose, or permit access to SBIR/STTR Data that is Computer Software for commercial, manufacturing, or procurement purposes without the written permission of the Awardee. The Federal Government shall not release, disclose, or permit access to SBIR/STTR Data outside the Government without the written permission of the Awardee unless:

(i) The non-Governmental entity has entered into a non-disclosure agreement with the Government that complies with the terms for such agreements outlined in § 8 of the SBIR/STTR Policy Directive; and

(ii) The release or disclosure is—

(A) To a Federal Government support service contractor or their subcontractor for purposes of supporting Government internal use or activities, including evaluation, diagnosis and correction of deficiencies, and adaptation, combination, or integration with other Computer Software provided that SBIR/STTR Data incorporated into any derivative software are subject to the rights in § 3(ee) of the SBIR/STTR Policy Directive; or

(B) Necessary to support certain narrowly-tailored essential Government activities for which law or regulation permits access of a non-Government entity to a contractors’ data developed exclusively at private expense, non-SBIR/STTR Data, such as for emergency repair and overhaul.

SBIR/STTR Data - 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.

SBIR/STTR Data Rights - The Federal Government’s license rights in properly marked SBIR/STTR

Data during the SBIR/STTR Protection Period are as follows: SBIR/STTR Technical Data Rights in SBIR/STTR Data that are Technical Data or any other type of Data other than Computer Software; and SBIR/STTR Computer Software Rights in SBIR/STTR Data that is Computer Software. Upon expiration of the protection period for SBIR/STTR Data, the Federal Government has a royalty free license to use, and to authorize others to use on its behalf, these data for Government Purposes, and is relieved of all disclosure prohibitions and assumes no liability for unauthorized use of these data by third parties. The Federal Government receives Unlimited Rights in Form Fit, and Function Data, OMIT Data, and all unmarked SBIR/STTR Data.

SBIR/STTR Protection Period - The period of time during which the Federal Government is obligated to protect SBIR/STTR Data against unauthorized use and disclosure in accordance with SBIR/STTR Data Rights. The SBIR/STTR Protection Period begins at award of an SBIR/STTR Funding Agreement and ends not less than twenty years from that date (See § 8(b)(4) of the SBIR/STTR Policy Directive).

SBIR/STTR Technical Data Rights - The Federal Government’s rights during the SBIR/STTR Protection Period in SBIR/STTR Data that are Technical Data or any other type of Data other than Computer Software.

(1) The Federal Government may, use, modify, reproduce, perform, display, release, or disclose SBIR/STTR Data that are Technical Data within the Government; however, the Government shall not use, release, or disclose the data for procurement, manufacturing, or commercial purposes; or release or disclose the SBIR/STTR Data outside the Government except as permitted by paragraph (B) below or by written permission of the Awardee.

(2) SBIR/STTR Data that are Technical Data may be released outside the Federal Government without any additional written permission of the Awardee only if the non-Governmental entity or foreign government has entered into a non-disclosure agreement with the Federal Government that complies with the terms for such agreements outlined in § 8 of the SBIR/STTR Policy Directive and the release is:

(i) Necessary to support certain narrowly-tailored essential Government activities for which law or regulation permits access of a non-Government entity to a contractors’ data developed exclusively at private expense, non- SBIR/STTR Data, such as for emergency repair and overhaul;

(ii) To a Government support services contractor in the performance of a

Government support services contract for internal Government use or activities, including evaluation, diagnosis or modification, provided that SBIR/STTR Technical Data incorporated into any derivative Data are subject to the rights in § 3(ii) of the SBIR/STTR Policy Directive, and the release is not for commercial purposes or manufacture;

(iii) To a foreign government for purposes of information and evaluation if required to serve the interests of the U.S. Government; or

(iv) To non-Government entities or individuals for purposes of evaluation.

Technical Data - Recorded information, regardless of the form or method of the recording, of a scientific or technical nature (including Computer Software Documentation and Computer Databases). The term does not include Computer Software or financial, administrative, cost or pricing, or management information, or other data incidental to contract or grant administration. The term includes recorded Data of a scientific or technical nature that is included in Computer Databases.

Unlimited Rights - The Government’s rights to access, use, modify, prepare derivative works, reproduce, release, perform, display, disclose, or distribute Data in whole or in part, in any manner and for any purpose whatsoever, and to have or authorize others to do so.

1.06 Fraud, Waste and Abuse

As defined in the SBIR/STTR Policy Directive section 9(f), fraud includes any false representation about a material fact or any intentional deception designed to deprive the United States unlawfully of something of value or to secure from the United States a benefit, privilege, allowance, or consideration to which an individual or business is not entitled. Waste includes extravagant, careless, or needless expenditure of Government funds, or the consumption of Government property, that results from deficient practices, systems, controls, or decisions. Abuse includes any intentional or improper use of Government resources, such as misuse of rank, position, or authority or resources.

Examples of fraud, waste, and abuse relating to the SBIR/STTR Program include, but are not limited to:

(i) misrepresentations or material, factual omissions to obtain, or otherwise receive funding under, an SBIR/STTR award;

(ii) misrepresentations of the use of funds expended, work done, results achieved, or compliance with program requirements under an SBIR/STTR award;

(iii) misuse or conversion of SBIR/STTR award funds, including any use of award funds while not in full compliance with SBIR/STTR Program requirements, or failure to pay taxes due on misused or converted SBIR/STTR award funds;

(iv) fabrication, falsification, or plagiarism in applying for, carrying out, or reporting results from an SBIR/STTR award;

(v) failure to comply with applicable federal costs principles governing an award;

(vi) extravagant, careless, or needless spending;

(vii) self-dealing, such as making a sub-award to an entity in which the Principal Investigator (PI) has a financial interest;

(viii) acceptance by agency personnel of bribes or gifts in exchange for grant or contract awards or other conflicts of interest that prevents the Government from getting the best value; and

(ix) lack of monitoring, or follow-up if questions arise, by agency personnel to ensure that awardee meets all required eligibility requirements, provides all required certifications, performs in accordance with the terms and conditions of the award, and performs all work proposed in the application.

Report any allegations of fraud, waste and abuse using the online Department of Commerce Office of Inspector General Complaint Form.

Contact information for the Office of Inspector General is available at:

https://www.oig.doc.gov/pages/Contact- Us.aspx. Please do not include Personally Identifiable Information (PII) through the website. PII is considered to be items containing Social Security numbers, dates of birth, credit card and passport numbers, or other personally identifying information that could adversely affect an individual. Should you desire to provide this information, it is strongly recommended that you contact the Hotline by telephone at the number listed below.

Phone:

Toll Free 800-424-5197

Mail:

Office of Inspector General Hotline

HCHB 7709

1401 Constitution Avenue, N.W.

Washington, DC 20230

1.07 Other Information

1.07.01 Personal and Business Information

Information and data contained in applications for financial assistance, as well as information and data contained in financial, performance and other reports submitted by applicants, may be used by the Department of Commerce in conducting reviews and evaluations of its financial assistance programs. For this purpose, applicant information and data may be accessed, reviewed and evaluated by Department of Commerce employees, other Federal employees, and also by Federal agents and contractors, and/or by non- Federal personnel, all of whom enter into appropriate conflict of interest and confidentiality agreements covering the use of such information. As may be provided in the terms and conditions of a specific financial assistance award, applicants are expected to https://www.oig.doc.gov/Pages/Hotline.aspx#complainthotline https://www.oig.doc.gov/Pages/Hotline.aspx#complainthotline https://www.oig.doc.gov/pages/Contact-Us.aspx https://www.oig.doc.gov/pages/Contact-Us.aspx https://www.oig.doc.gov/pages/Contact-Us.aspx support program reviews and evaluations by submitting required financial and performance information and data in an accurate and timely manner, and by cooperating with Department of Commerce and external program evaluators. In accordance with 2 C.F.R. § 200.303(e), applicants are reminded that they must take reasonable measures to safeguard protected personally identifiable information and other confidential or sensitive personal or business information created or obtained in connection with a Department of Commerce financial assistance award.

In addition, Department of Commerce regulations implementing the Freedom of Information Act (FOIA), 5 U.S.C. § 552, are found at 15 C.F.R. Part 4, Public Information.

These regulations set forth rules for the Department regarding making requested materials, information, and records publicly available under the FOIA. Applications submitted in response to this Notice of Funding Opportunity may be subject to requests for release under the Act. In the event that an application contains information or data that the applicant deems to be confidential commercial information that should be exempt from disclosure under FOIA, that information should be identified, bracketed, and marked as Privileged, Confidential, Commercial or Financial Information. In accordance with 15 CFR § 4.9, the Department of Commerce will protect from disclosure confidential business information contained in financial assistance applications and other documentation provided by applicants to the extent permitted by law.

2.0 CERTIFICATIONS

2.01 Due Diligence Certification

The SBIR and STTR Extension Act of 2022, Pub. L. 117-183, requires that all agencies funding SBIR awards, including NIST, establish a due diligence program to assess security risks presented by small business concerns seeking a federally funded SBIR award.

Specifically, NIST must assess the “cybersecurity practices, patent analysis, employee analysis, and foreign ownership of a small business concern seeking an award, including any financial ties and obligations (which shall include surety, equity, and debt obligations) of the small business concern and [its] employees . . . to a foreign country, foreign person, or foreign entity. . . ”. 15 U.S.C. § 638(vv)(2). NIST is prohibited from funding awards to businesses with specified relationships and commitments described in 15 U.S.C. § 638(g)(15)(A) to foreign countries of concern that are determined to fall into one of the categories listed in 15 U.S.C. § 638(g)(15)(B).

https://www.congress.gov/bill/117th-congress/senate-bill/4900/text http://uscode.house.gov/view.xhtml?req=(title:15%20section:638%20edition:prelim)%20OR%20(granuleid:USC-prelim-title15-section638)&f=treesort&edition=prelim&num=0&jumpTo=true http://uscode.house.gov/view.xhtml?req=(title:15%20section:638%20edition:prelim)%20OR%20(granuleid:USC-prelim-title15-section638)&f=treesort&edition=prelim&num=0&jumpTo=true http://uscode.house.gov/view.xhtml?req=(title:15%20section:638%20edition:prelim)%20OR%20(granuleid:USC-prelim-title15-section638)&f=treesort&edition=prelim&num=0&jumpTo=true http://uscode.house.gov/view.xhtml?req=(title:15%20section:638%20edition:prelim)%20OR%20(granuleid:USC-prelim-title15-section638)&f=treesort&edition=prelim&num=0&jumpTo=true

As a result of these statutory requirements, all applicants must complete a certification that discloses the ownership, financial ties, technology licensing or intellectual sales, and other affiliations, as specified in 15 U.S.C. § 638(g)(13), to the People’s Republic of China, the Democratic People’s Republic of Korea, the Russian Federation, the Islamic Republic of Iran, and/or any other country determined to be a country of concern by the Secretary of State of concern prior to award, and as required during the life of the funding agreement.

The certification is available in Appendix B of this NOFO.

2.02 Funding Agreement Certification

Awardees will be required to certify size, ownership and other SBIR Program requirements at the time of award and during the funding agreement life cycle using the SBIR Funding Agreement Certification and the SBIR Funding Agreement Certification – Life-Cycle Certification, which are provided in Appendix B of this NOFO.

2.03 Research Activities Involving Human Subjects, Human Tissue, Data or Recordings Involving Human Subjects Including Software Testing

This section summarizes the requirements for applications that potentially involve research involving human subjects. Additional information that describes the NIST review process for such applications and provides details regarding the documentation required is available here: https://www.nist.gov/oaam/nist-notice-funding-opportunity-requirements-human-subjects- and-live-vertebrate-animal. Both this summary and the additional information provided at the link will be incorporated into any award made under this NOFO.

Any application that includes research activities involving human subjects, human tissue/cells, or data or recordings from or about human subjects must satisfy the requirements of the Common Rule for the Protection of Human Subjects (“Common Rule”), codified for the Department of Commerce at 15 C.F.R. Part 271. Research activities involving human subjects that fall within one or more of the classes of vulnerable subjects found in 45 C.F.R. Part 46, Subparts B, C and D must satisfy the requirements of the applicable subpart(s). In addition, any such application that includes research activities on these subjects must comply with all applicable statutory requirements imposed upon the Department of Health and Human Services (DHHS) and other Federal agencies, all regulations, policies and guidance adopted by

1 NIST uses the Common Rule definitions for research and human subjects research contained in 15 C.F.R. § 27.102.

http://uscode.house.gov/view.xhtml?req=(title:15%20section:638%20edition:prelim)%20OR%20(granuleid:USC-prelim-title15-section638)&f=treesort&edition=prelim&num=0&jumpTo=true https://www.nist.gov/oaam/nist-notice-funding-opportunity-requirements-human-subjects-and-live-vertebrate-animal https://www.nist.gov/oaam/nist-notice-funding-opportunity-requirements-human-subjects-and-live-vertebrate-animal https://www.nist.gov/oaam/nist-notice-funding-opportunity-requirements-human-subjects-and-live-vertebrate-animal https://www.ecfr.gov/current/title-15/subtitle-A/part-27 https://www.ecfr.gov/current/title-45/subtitle-A/subchapter-A/part-46 https://www.ecfr.gov/current/title-45/subtitle-A/subchapter-A/part-46/subpart-B https://www.ecfr.gov/current/title-45/subtitle-A/subchapter-A/part-46/subpart-C https://www.ecfr.gov/current/title-45/subtitle-A/subchapter-A/part-46/subpart-D

DHHS, the Food and Drug Administration (FDA), and other Federal agencies on these topics, and all Executive Orders and Presidential statements of policy on applicable topics. The website of the Office of Human Research Protection (OHRP) in the DHHS contains the applicable regulatory, policy and guidance and includes links to FDA, but may not include all applicable FDA regulations and policies.

If the application is accepted for [or awarded] funding, organizations that have an Institutional Review Board (IRB) are required to follow the procedures of their organization for approval of exempt and non-exempt research activities that involve human subjects. The IRB must be currently registered with OHRP that is linked to the engaged organization. Organizations that do not have an IRB must demonstrate the ability to expeditiously contract with a commercial IRB to conduct a review of the proposed activities. Also, all engaged organizations must possess a currently valid Federal wide Assurance (FWA) on file from OHRP. The NIST IRB is unable to serve as the IRB for financial assistance recipients.

The NIST Research Protections Office (RPO) reserves the right to conduct an administrative review of all applications that potentially include research involving human subjects and were approved by an authorized non-NIST institutional entity (an IRB or entity analogous to the NIST RPO) under 15 C.F.R. § 27.112 (Review by Institution). Conducting an “administrative review” means that the NIST RPO will review and verify the performing institution’s determinations made under the Common Rule and all documentation that support such determinations.

All applications involving human subjects research must clearly indicate, by separable task, all research activities believed to be exempt or non-exempt research involving human subjects, the expected institution(s) where the research activities involving human subjects may be conducted, and the institution(s) expected to be engaged in the research activities.

Some documents may be requested for a pre-review during the proposal review process;

however, the Grants Officer may allow final versions of certain required documents to be produced at an appropriate designated time post-award. If an award is issued, no research activities involving live vertebrate animals shall be initiated or costs incurred for those activities under the award until the NIST Grants Officer issues written approval. In addition, all re-approvals, amendments, modifications, changes, annual reports and closure will be reviewed by NIST.

This summary and the information provided here https://www.nist.gov/oaam/nist-notice-https://www.fda.gov/science-research/science-and-research-special-topics/clinical-trials-and-human-subject-protection http://www.hhs.gov/ohrp/humansubjects/index.html https://www.hhs.gov/ohrp/regulations-and-policy/regulations/fda/index.html https://www.ecfr.gov/current/title-15/subtitle-A/part-27/section-27.112 https://www.nist.gov/oaam/nist-notice-funding-opportunity-requirements-human-subjects-and-live-vertebrate-animal funding-opportunity-requirements-human-subjects-and-live-vertebrate-animal reflect the existing NIST policy and requirements for Research Involving Human Subjects. Should the policy be revised prior to award, a clause reflecting the policy current at time of award may be incorporated into the award. If the policy is revised after award, a clause reflecting the updated policy may be incorporated into the award.

For more information regarding research projects involving human subjects, contact Anne Andrews, Director, NIST Research Protections Office (e-mail: anne.andrews@nist.gov;

phone: (301) 975-5445).

2.04 Research Activities Involving Live Vertebrate Animals or Pre-Existing Cell Lines/Tissues From Vertebrate Animals

This section summarizes the requirements for applications that potentially involve research involving live vertebrate animals or pre-existing cell lines or tissues from vertebrate animals. Additional information that describes the NIST review process for such applications and provides details regarding the documentation required is available here:

https://www.nist.gov/oaam/nist-notice-funding-opportunity-requirements-human-subjects- and-live-vertebrate-animal. Both this summary and the additional information provided at the link will be incorporated into any award made under this NOFO.

Any application that proposes research activities involving live vertebrate animals that are to be cared for, euthanized, or used by award recipients to accomplish research goals, teaching, or testing must meet the requirements of the Animal Welfare Act (AWA) (7 U.S.C.

§ 2131 et seq.), and the AWA final rules (9 C.F.R. Parts 1, 2, and 3), and if appropriate, the Good Laboratory Practice for Nonclinical Laboratory Studies (21 C.F.R. Part 58). In addition, such research activities should be in compliance with the “U.S. Government Principles for Utilization and Care of Vertebrate Animals Used in Testing, Research, and Training” (Principles).

NIST reserves the right to conduct an administrative review of all applications that potentially include research activities that involve live vertebrate animals, or custom samples from, or field studies with live vertebrate animals. Conducting an “administrative review” means that the NIST RPO will review and verify the performing institution’s determinations made under the applicable legal and policy requirements and all documentation that support such determinations.