WV Executive

It happens all the time: bright, entrepreneurial engineers, scientists and business people sitting around a table lamenting that they haven’t seen the growth in biometrics they’d expected. “Where is the market? How can we get a piece of it?” Good questions, but not the only things you need to consider. Certainly, businesses must focus on their financial viability by finding and taking advantage of near-term opportunities, but a little planning and attention to contract terms and conditions can provide a longer-term payoff.

Finding Opportunities

How do businesses take advantage of the contracting opportunities arising as a result of these programs? First you need to know where to look. For federal opportunities, the FedBizOpps website (http://www.fedbizopps.gov/) is a good resource and should be checked regularly, using key terms to search synopses of newly posted solicitations. While it might introduce you to new contracting opportunities, your search should not end with FedBizOpps. Not all announcements are required to be posted there. More importantly, a better understanding of procurement strategy and upcoming solicitations may often be gleaned from regular reviews of federal and state agency Web sites, interaction with trade association members and agency personnel, and careful monitoring of legislative proposals.

Among the most fertile agencies for biometrics opportunities are the Departments of Defense and Homeland Security, particularly their respective Advanced Research Project Agencies (DARPA and HSARPA), which fund applied research in a wide variety of areas. Coordinating organizations like the Biometrics Management Office (http://www.biometrics.dod.mil/) and the Technical Support Working Group (http://www. tswg.gov/tswg/home/home.htm) are another good source of upcoming government procurements. In addition, you shouldn’t forget to check the grants.gov Web site (http:// www.grants.gov/). In addition to direct grants that may be available for your business, money may be available to fund state and local biometric purchases. If you pay attention and keep on top of things, you can see where federal, state and local governments are headed, get there before the competition and (hopefully) be better prepared to win the business.

Landing Contracts

Simply knowing where to look is not enough. You also need to understand what the agency is looking for and be ready to respond appropriately. Agencies use a wide variety of solicitation formats and announcements, each of which has its own substantive and procedural requirements. Although the standard Request for Proposals setting forth a specifi c statement of work, contract deliverables and evaluation criteria is still widely used, it is not the only solicitation method. For example, HSARPA and DARPA issue Broad Area Announcements that provide a general description of a particular program, identify broad evaluation criteria, and solicit proposals for participation in that program, typically in the form of a white paper. Agencies may also use Sources Sought Announcements or Research Announcements to provide advance notice of their interests in a particular technology and to either develop competition in that area or survey the market for potential qualified offerors. Of course, if you have an innovative and unique idea that fulfi lls a need the government is not currently attempting to fi ll, you may be able to submit an unsolicited proposal. But even if you do not submit a formal proposal, project-driven agencies like DARPA encourage the submission of new project ideas after discussions with a project manager.

At the other end of the spectrum, certain biometrics-related business opportunities may only be available to businesses listed on the right GSA schedule. In any event, it is important to familiarize yourself with what your target agencies are looking for and how they do business.

A company’s size should not pose a hindrance to its ability to do business with the government. It may even help. Certainly, there are ample opportunities for small businesses as well as larger ones. For example, each year DHS identifies all upcoming contracts worth over $100,000 in which small businesses may be able to participate, either by performing under a direct contract with DHS or as a subcontractor.

The FY 2005 forecast included competitively awarded contracts for Biometric O&M Services ($20-50 million) and end-to-end on-line testing of biometrics COTS products ($2-5 million), as well as smaller contracts for iris sensor development and multi-biometrics analysis.

Most agencies set aside a certain portion of contracts for small businesses and many have robust Small Business Innovative Research and/or Small Business Technology Transfer programs that offer good funding opportunities for small businesses with strong research and development capabilities in science or engineering. Special rules apply to small business procurements and the various agencies have their own idiosyncrasies regarding such procurements, so it is vitally important to understand both those overarching rules and the target agency’s approach to small business issues.

Protecting Intellectual Property

Of course it is not enough to get the government to fund your development of an idea or product, you should also work to ensure that what you have at the end of the day is more than just income from that contract. Whenever you do business with the federal government —particularly when it funds all or part of a development effort—you must be careful to retain the intellectual property (IP) rights so that you can continue to capitalize on those development efforts. This is easier said than done. The Federal Acquisition Regulation’s IP clauses establish a complex regime of rules that can easily trap the unwary.

Protecting your IP interests begins with a complete understanding of both the opportunities offered and the restrictions imposed by the IP provisions in the solicitation. For example, depending on the clauses proposed by the government, you may be able to retain ownership of the patent rights in the technology developed under the contract, subject only to a government license, if you fulfill certain procedural and notification requirements. Other clauses give the government unlimited rights and expressly limit the contractor’s IP interest to a license in the technology. Whatever the proposed clause, it is impossible to make a rational decision about whether a particular business opportunity is worthwhile without a complete understanding of how the contract allocates various IP rights and what you will have to do in order to protect your interests.

A company doing business with the federal government must also exercise considerable care to assure it does not grant the government “unlimited rights” to its valuable technology or grant some other license that would give away greater rights to its technology than necessary or intended. Such a license could entitle the government to give your IP—in the form of technical data or computer software code—to other companies and to authorize those companies to use your IP to manufacture a product, conduct further developmental work, copy and sell the product, or otherwise use your IP to their and the government’s advantage. In short, while a government contractor can protect its intellectual property, it can do so only through early identification of IP issues, the negotiation of appropriate clauses in government contracts, and diligence in proper identification and marking of IP.

If you are careful in your pursuit and negotiation of contracts with the government, you should be able to not only win government contracts but also to ensure that the contract work the government pays you to do in the near term will position you to take advantage of long-term opportunities with both government and commercial customers.