January 01, 2024
SBIR Data Rights are some of the most important of these rights to be sure. SBIR Data Rights are the foundation on which most other SBIR rights rest. Without SBIR Data Rights, Sole Source contracts rights would not exist. Rights are so valuable, and why preserving them is so critical. The SBTC website provides the following information:
In addition to SBIR Data Rights, a Phase III status brings with it:
the right to sole-source contracts;
exemption from SBA size standards for a procurement (sole source contracts may be awarded to large contractors);
no limits on the dollar size of a Phase III procurement;
a right to the Phase III mandate, by which the SBIR firm has a right to be awarded a future Phase III award to the greatest extent practicable;
the right to receive subcontracts for Phase III work on a sole-source basis; and
the ability to pursue research, research and development, services, products, production, or any combination of those under a Phase III.
According to the Small Business Administration's (SBA) website:
"The right to receive sole-source funding agreements is a key Phase III right and is expressly provided in the SBA SBIR/STTR Policy Directive. The right to sole-source contracts stems directly from the SBIR firm’s Data. The government is prohibited from disclosing SBIR Data to a private firm outside the government. Hence, the government cannot make an award to another firm for work or a product that the government cannot even describe to that other firm. This nondisclosure obligation creates the imperative, the necessity, to deal only with the SBIR firm that developed the SBIR Data in the first place."
The Department of Defense (DOD) also released the following class deviation, reinforcing the need to protect SBIR data rights:
Topic: Class Deviation 2020-O0007, Revision 1, Protection of Technical Data and Computer Software Under Small Business Innovation Research (SBIR) Program Contracts
Impact to field/types of contracting: All SBIR Program Contracts
Reference: OUSD(A&S)/DPC Memo, 21 Jul 23 — Effective Immediately
Summary: Class Deviation 2020-O0007, Protection of Technical Data and Computer Software Under Small Business Innovation Research Program Contracts, is superseded and revised by Revision 1. This class deviation implements changes related to data rights in the Small Business Administration’s Small Business Innovation Research (SBIR) Program Policy Directive, published in the Federal Register on April 2, 2019 (84 FR 12794).
The Policy Directive:
Extends the protection period for rights in data developed under SBIR contracts to 20 years
Revises the Government’s rights in SBIR data after the end of the protection period
Is necessary to ensure the Government does not disclose SBIR data inappropriately, which could harm the small business contractor by allowing a competitor to use the SBIR data
Rev 1 retitles and updates the clause at 252.227-7018, Rights in Noncommercial Technical Data and Computer Software--SBIR Program (DEVIATION 2020-O0007), to reflect changes in the baseline text resulting from implementation of section 871 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2018 (Pub. L. 115-91), section 836 of the John S. McCain NDAA for FY 2019 (Pub. L. 115-232), and Title XVIII of the NDAA for FY 2021 (Pub. L. 116-283) as amended by Title XVII of the NDAA for FY 2022 (Pub. L. 117-81)
Training:
DAFFARS Library 5327 - Patents, Data, and Copyrights (dps.mil)
DPC Deviation Page: https://www.acq.osd.mil/dpap/dars/class_deviations.html
Alex
V/R,
//SIGNED//
Alex Gross, Civ, DAF
Procurement Analyst, AFDW/PKP
AFDW/PK
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