[Federal Register Volume 78, Number 192 (Thursday, October 3, 2013)]
[Rules and Regulations]
[Pages 61185-61188]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-24316]
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DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
37 CFR Chapter I
[Docket No.: PTO-C-2013-0044]
Patent and Trademark Office Acquisition Guidelines (PTAG)
AGENCY: United States Patent and Trademark Office, Commerce.
ACTION: Notice.
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SUMMARY: The United States Patent and Trademark Office (USPTO) has
updated the Patent and Trademark Office Acquisition Guidelines (PTAG),
which are the agency's internal operating procedures for procurement.
DATES: October 3, 2013.
ADDRESSES: Written comments: Please submit any comments by email to
[email protected]. Although electronic comments are preferred,
written comments may be submitted by postal mail addressed to: Loren
Howcroft, Division Chief--Policy, Analysis and Liaison Division, United
States Patent and Trademark Office, Madison East Building, Room MDE
7D03, 600 Dulany Street, Alexandria, VA 22314. Comments may also be
submitted through the Federal eRulemaking Portal at http://www.regulations.gov. Comments submitted to the Federal eRulemaking
Portal should include docket number PTO-C-2013-0044 in the subject line
of the email. All comments made through the Federal eRulemaking Portal
Web site will be made available for public inspection. Therefore, any
information that should not be made public, such as an address or phone
number, should not be included in the comments. While the USPTO
welcomes and values all comments from the public in response to this
notice, these comments do not bind the USPTO to any further actions
related to the comments, and the USPTO may not respond to any or every
comment that is submitted. The USPTO will, however, give consideration
to all comments received. To view the PTAG, please visit the USPTO's
Web site at http://www.uspto.gov and type ``PTAG'' in the search box.
FOR FURTHER INFORMATION CONTACT: Loren Howcroft, Division Chief--
Policy, Analysis and Liaison Division, Office of the Chief Financial
Officer, Office of Procurement, by telephone at (571) 270-1625, or by
mail addressed to: Loren Howcroft, Division Chief--Policy, Analysis and
Liaison Division, United States Patent and Trademark Office, Madison
East Building, Room MDE 7D03, 600 Dulany Street, Alexandria, VA 22314.
SUPPLEMENTARY INFORMATION: As outlined herein, the PTAG has been
reorganized into parts that follow the acquisition process and that can
be more easily cited. Clarifying language was added to more fully
explain the USPTO's agency-specific procurement flexibilities. This
updated PTAG supersedes the one issued on March 10, 2003 [68 FR 25, 2/
6/03, effective 3/10/03]. This PTAG will be effective as of October 3,
2013.
Nature of Guidelines
The alternate procedures set forth in this notice are intended to
incorporate brevity of content, streamlined procedures, innovation in
process, flexibility, and discretion to the acquisition process while
ensuring objectivity and maximum reasonable
[[Page 61186]]
competition. USPTO employees may use procedures other than those set
forth in the Federal Acquisition Regulation (FAR) and this notice so
long as those procedures comply with all applicable statutes, Executive
Orders and regulations, will further the legitimate interests of the
USPTO and are calculated to result in fair decisions. Neither the FAR
nor the alternate guidance provided in this notice is binding on USPTO
vendors or any other member of the public, except to the extent
provisions therefrom are incorporated in legally enforceable contracts.
Instructions set forth in solicitations or other procurement documents
are also binding in that they may establish conditions on an offeror's
continued participation in the procurement process.
Guidelines
Part 1--Introduction
In accordance with the Patent and Trademark Office Efficiency Act
(PTOEA), 35 U.S.C. 2(b)(4)(A), the USPTO possesses its own procurement
authority. 35 U.S.C. 2(b)(4)(A) also provides the USPTO with certain
exemptions from the Federal Property and Administrative Services Act
(FPAS) and the Competition in Contracting Act (CICA). As a result of
these exemptions, the USPTO is not subject to the FAR in its entirety.
The purpose of the Patent and Trademark Office Acquisition Guidelines
(PTAG) is to provide internal operating procedures for how the USPTO
will conduct its acquisitions as a result of these exemptions.
Part 2--Acquisition Planning
2.0 Scope of Part
Acquisition planning is the joint responsibility of the entire
acquisition team, which includes the Contracting Officer (CO) and the
technical/program representatives. Acquisition planning serves two
important purposes: it establishes how an agency will meet programmatic
requirements within the agency's budgetary goals and it serves as a
guideline for the acquisition.
2.1 Procedures
COs will work with the technical/program representatives to clearly
describe the agency's approach to individual acquisitions. The content,
length and complexity of the individual acquisition plan shall be left
to the discretion of the acquisition team. When an acquisition plan is
appropriate, it shall include:
1. Description of what the USPTO is procuring
2. Cost estimate (including option years as appropriate)
3. Which organization the acquisition will support
4. How the requirement will be used by the agency
5. Development of the acquisition strategy (including risk assessments)
6. Anticipated milestone schedule
2.2 Acquisition Forecasting
As a result of exemptions described in Part 1 above, the USPTO is
not required to report its acquisition forecast in governmentwide
advance acquisition planning systems. However, to encourage vendor
involvement in upcoming acquisitions and to allow for effective
workload management, the USPTO maintains and publishes its acquisition
forecast on its Office of Procurement's Web site.
Part 3--Electronic Commerce
The USPTO will use governmentwide acquisition systems to the
maximum extent practicable to procure its products and services. The
USPTO may use vendor-managed acquisition systems, such as reverse
auctioning tools, when it is in the best interest of the agency to do
so. The USPTO will use the Governmentwide Point of Entry (GPE), as
defined in FAR 2.101, to post synopses, requests for information,
solicitations, contract awards, and other pertinent contractual
information, as appropriate. The Office of Procurement Web site will be
used to provide information about the USPTO's procurement guidelines,
to publish the acquisition forecast, to post the small business goals,
and to communicate upcoming events and items of interest to the vendor
community.
Part 4--Market Research
4.0 Scope of Part
Market research is the means by which the USPTO will identify and
determine the availability of products or services that will satisfy
its requirements. When appropriate, market research may also be used to
determine the acquisition strategy and contract type. Market research
is the responsibility of the entire acquisition team.
4.1 Procedures
COs should work closely with the technical/program representatives
to conduct market research. The CO must document the results of the
market research in the contract file. The CO has the discretion to
determine the extent of the market research as appropriate for the
particular procurement.
4.2 Market Research Resources
The acquisition team may refer to one or more of the following
sources for market research data:
1. Publicly available sources of data
2. Governmentwide sources of data
3. Requests for Information
4. Vendor Days
5. Pre-proposal Conferences
6. Any other source deemed to be reasonably reliable
Part 5--Competition
5.0 Scope of Part
As a result of its exemptions described in Part 1 above, the USPTO
is not required to meet the test of ``full and open competition'' as
defined in FAR Part 6. In addition, the CO may use agency-specific
acquisition procedures as described herein when the particular
circumstances warrant it and it is in the best interest of the agency
to do so. The USPTO will endeavor to conduct its procurements on a
competitive basis under the FAR when it is reasonable to do so.
5.1 Procedures
1. COs must document the contract file to explain their decisions
regarding the use of competition and to what extent it will be used.
2. COs must fulfill the notification requirements set forth in FAR
Part 5 ``Publicizing Contract Actions.''
Part 6--USPTO-Specific Acquisition Procedures
6.0 Scope of Part
The USPTO has established the following non-exhaustive list of
agency-specific acquisition procedures, which may be used in addition
to those procedures already available under the FAR. The CO has the
discretion to determine whether to use any of the procedures as
appropriate for the particular procurement.
6.1 Procedures
6.1.1 Alternative Competition Method
a. After conducting market research, the CO and Contracting
Officer's Representative (COR) will use their technical expertise and
understanding of the marketplace to determine which vendor(s) is/are
the most likely to successfully meet the agency's needs and are thereby
eligible to participate in an alternative competition.
b. The CO should consider the USPTO's small business goals when
determining which vendor(s) can participate in an alternative
competition.
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c. When synopsizing an alternative competition, the CO shall insert
the following statement: ``The subject requirement is being procured
using the Alternative Competition Method in accordance with the Patent
and Trademark Office Acquisition Guidelines (PTAG) and the Patent and
Trademark Office Efficiency Act 35 U.S.C. 2(b)(4)(A).''
d. Instead of posting the solicitation on the GPE, the CO will send
it directly to the selected vendor(s).
6.1.2 Micro-purchases
a. The USPTO's micro-purchase threshold is double the value listed
in FAR 2.101 ``Micro-purchase.''
b. The total value of USPTO's micro-purchase threshold shall not
exceed the synopsis threshold established in FAR 5.101 (a) (1)
``Methods for disseminating information.''
c. The USPTO shall generally refer to and follow the policies and
procedures set forth in FAR Part 13.2 ``Actions At or Below the Micro-
Purchase Threshold'' for guidance for all of its micro-purchase awards.
6.1.3 Simplified Acquisition Procedures for Commercial Items
a. The USPTO's threshold to use simplified acquisition procedures
for commercial items is double the value listed in FAR 13.5 (a) ``Test
Program for Certain Commercial Items.''
b. The USPTO's authority to use these procedures will not expire,
even in the event that the test program in the FAR does expire. In the
event that the FAR-based program does expire, the USPTO's COs are
authorized to use the latest policies and procedures set forth in the
FAR prior to cancellation of the test program.
c. The USPTO shall generally refer to and follow the policies and
procedures set forth in FAR Part 13.5 for guidance for all awards
issued in accordance with PTAG 6.1.3.
6.1.4 Socio-economic Small Business Utilization Program
a. Up to the threshold established in FAR 15.403-4 ``Requiring
certified cost or pricing data,'' the USPTO may award contracts to
companies in the following socio-economic program categories on a sole
source basis: small disadvantaged business, veteran-owned small
business, service-disabled veteran-owned small business, woman-owned
small business, and HubZone small business.
b. When using the procedures under this section 6.1.4, and upon
receiving a new requirement, the CO must consider the USPTO's current
small business goal achievements when determining which socio-economic
program to use.
c. Once the socio-economic program has been selected based upon the
results of the market research and/or the CO and COR's knowledge of the
market place, the CO can identify a qualified business. A qualified
business is one that has demonstrated the ability to successfully
perform work similar in scope, complexity, and dollar value to the
current requirement.
d. The CO must post the Statement of Work (SOW) or Performance Work
Statement (PWS) and a statement similar to the following on the GPE for
no less than 15 calendar days: ``The USPTO intends to award the [brief
description of the requirement] to [insert vendor name here], a [insert
socio-economic program here] small business, in accordance with the
Patent and Trademark Office Efficiency Act, 35 U.S.C. 2(b)(4)(A). Any
other vendor that is part of the [insert socio-economic program here]
may contact the Contracting Officer to express interest in competing
for the requirement within the synopsis period. When contacting the
Contracting Officer, vendors must submit a capability statement that
does not exceed [insert number of pages here] pages in length that
shows their ability to perform the requirement.''
e. If a vendor within the selected socio-economic program is deemed
to be qualified by the CO and/or COR using the criteria established in
subparagraph d above, the CO will include them in a restricted sources
competition.
f. If the vendor has been deemed to be unqualified, the CO must
notify them in writing providing a brief explanation for why they were
considered to be unqualified. To the maximum extent practicable,
notification will happen within 5 business days after the end of the
synopsis period.
6.1.5 Streamlined Negotiated Acquisition Procedures
a. The USPTO may elect to use a Streamlined Negotiated Acquisition
Procedure, under which COs may generally refer to and follow the
policies and procedures set forth in FAR Part 15 ``Contracting by
Negotiation.'' Outlined below are some notable exceptions to the
current FAR Part 15 procedures that the CO may elect to use under this
section 6.1.5.
b. COs may use the combined synopsis/solicitation feature provided
in the GPE when posting a requirement using FAR Part 15 policies and
procedures.
1. COs must allow the combined synopsis/solicitation to be posted
for no less than 30 calendar days.
2. When utilizing this procedure, COs must include the following
statement in the synopsis portion of their combined synopsis/
solicitation: ``This requirement is being posted as a combined
synopsis/solicitation in accordance with the Patent and Trademark
Office Acquisition Guidelines (PTAG) Part 6--USPTO-Specific Acquisition
Procedures.''
3. The synopsis/solicitation must address the same requirements set
forth in FAR Part 5.1 ``Dissemination of Information'' and FAR 15.203
``Requests for Proposals.''
c. COs do not need to request, as part of their solicitations, that
vendors provide information that is available in a governmentwide
system. For example, the contracting officer does not need to request
that the vendor submit Section K ``Representations, certifications, and
other statements of offerors or respondents'' as part of their proposal
since that information is currently available in the System of Award
Management (SAM).
1. When utilizing this procedure, COs must include the following
certification requirement in their solicitations: ``I [insert vendor
name here] certify that the information provided in the governmentwide
system is current, true and accurate as of [insert date of proposal
submission]. I further certify that my company is a [insert business
size standard] for North American Industry Classification System
(NAICS) code [insert NAICS for the requirement].''
2. The vendors must put this certification in the introduction
portion of their proposals.
Part 7--Contract Types
7.0 Scope of Part
Where appropriate, the USPTO may use any contract type provided for
in the FAR without regard to any limitations specified therein, and in
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addition may use hybrid or other contract types not provided for in the
FAR.
7.1 Indefinite-Delivery Contracts
a. The USPTO is not required to make multiple awards for
indefinite-quantity contracts under any circumstances, or where
multiple awards are made, to use any specific procedures for placing
task or delivery orders.
b. COs are encouraged, however, to consider the use of multiple
awards when doing so would be in the best interest of the USPTO.
c. A solicitation contemplating multiple awards must address the
procedures the USPTO will use for selecting between contractors when
awarding task or delivery orders.
d. Where a specific procurement includes procedures for seeking
task or delivery order proposals from multiple contractors, applying
these procedures to individual requirements below the micropurchase
threshold stated in PTAG Part 6.1.2 (a) will typically not be in the
best interest of the USPTO.
7.2 Options
a. As a result of its exemptions described in Part 1 above, USPTO
may renegotiate options contained in an existing contract without
seeking further competition when it is in the best interest of the
agency to do so (for example for the purpose of seeking a price
reduction, adjusting quantities, and/or adjusting performance periods).
1. The USPTO will notify the vendor that it intends to renegotiate
the option at the time that USPTO provides the notice required by FAR
Part 17.207 (a) ``Exercise of Options.''
2. The CO will issue a bilateral modification when exercising a
renegotiated option.
3. Any changes to option pricing would be made normally for the
purpose of implementing a price reduction. The CO may only renegotiate
an increase to the overall price of a pre-priced option when the price
increase directly corresponds with either a higher quantity or longer
period of performance than the option under negotiation.
b. As a result of its exemptions described in Part 1 above, USPTO
may make award on the basis of unpriced options contained in an
existing contract without seeking further competition. COs may consider
using unpriced options as a performance incentive.
c. In addition to 7.2.a. and 7.2.b, COs retain their authority to
unilaterally exercise options in accordance with the terms of the
options.
Part 8--Bid Protests
The USPTO continues to be subject to the bid protest jurisdiction
of the Government Accountability Office and of the Court of Federal
Claims. The USPTO is also subject to Executive Order 12979 concerning
protests to the agency. To see the procedures for considering such
protests, please refer to www.uspto.gov and type ``Agency Level
Protests'' in the search box.
Part 9--Printing
The USPTO is exempt from the requirement to use the Government
Printing Office to meet its printing needs per 35 U.S.C. Sec.
2(b)(4)(B). Accordingly, the USPTO intends to acquire printing by the
most economic and efficient means available, which may in particular
acquisitions include the Government Printing Office.
Part 10--Deviations
The USPTO has the option to implement the deviations granted by the
Department of Commerce (DOC) when it is in the best interest of the
agency to do so. To see a list of deviations granted by DOC, please
refer to www.commerce.gov and type ``Procurement Memoranda'' in the
search box.
Dated: September 30, 2013.
Teresa Stanek Rea,
Deputy Under Secretary of Commerce for Intellectual Property and Deputy
Director of the United States Patent and Trademark Office.
[FR Doc. 2013-24316 Filed 10-2-13; 8:45 am]
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