Non-U.S. Consultants, Subcontractors or Manufacturers
For both Phase I and Phase II, all research or research and development work must be performed by the small business concern in the United States. However, based on a rare and unique circumstance, agencies may approve a portion of the work to be performed or obtained outside the United States. This direction is at subparagraph 6. (a) of the SBA SBIR Policy Directive as well as at Subparagraph 1.3 of the DoD SBIR Solicitation. In addition, subparagraph 8 (g) of the Draft Policy Directive states: "Congress intends that the awardee of a funding agreement under the SBIR Program should, when purchasing any equipment or a product with funds provided through the funding agreement, purchase only American-made equipment and products, to the extent possible in keeping with the overall purposes of that program. Each SBIR agency must provide to each awardee a notice of this requirement." The DoD Solicitation includes this notice at subparagraph 5.11 p.
If foreign nationals are scheduled to work on the contract, all aspects of their participation must be legal. The contracting officer should be notified and approval requested for all foreign nationals that are expected to work on a Government contract, whether as a sub-contractor, consultant, or employee. The notice should contain personal data as required by the person reviewing the request, which may include: full name; date and place of birth, type and copy of VISA or a copy of a "green card" (front and back) when applicable. Some requirements, regulations, and circumstances that may be considered prior to concurrence by the contracting officer are:
- The foreign national must NOT be an illegal alien and must be an immigrant alien or a foreign national visiting the United States on an approved VISA.
- The transfer of sensitive or critical unclassified technology to a foreign national without an approved export license is a violation of the Arms Export Control Act and the Export Administration Act.
- Foreign nationals who have applied for and received a "green card" are considered permanent residents. Because of their "green card" status, permanent residents may have access to critical unclassified information on a need-to-know basis. Usually the INS/FBI interpretation of the export laws provide that, because "green card" holders have expressed a desire to become a U.S. Citizen and taken the first step to showing their loyalty to the United States, their required access to unclassified export controlled technology may be permitted.
- Other matters that will be considered are the Military Critical Technology List and the International Traffic in Arms Regulation. Consideration will also be given as to whether the foreign national has been authorized by the INS to work in the United States under his or her approved VISA. Some VISAs disallow working.
If you have any suggestions or comments regarding this Desk Reference, please send them via the SBIR/STTR Help Desk or phone 1-800-348-0787.
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