[Federal Register Volume 67, Number 205 (Wednesday, October 23, 2002)]
[Notices]
[Pages 65092-65095]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-26968]


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DEPARTMENT OF COMMERCE

Patent and Trademark Office

[Docket No. 2002-C-001]


Patent and Trademark Office Acquisition Guidelines (PTAG)

AGENCY: U.S. Patent and Trademark Office, Commerce.

ACTION: Notice of proposed guidelines and request for comments.

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SUMMARY: The United States Patent and Trademark Office (USPTO) is 
publishing a notice of the proposed guidelines which it will apply to 
its acquisitions.

DATES: Written comments should be submitted on or before November 22, 
2002.

ADDRESSES: Submit written comments to: USPTO, Office of Procurement, 
Washington, DC 20231. Electronic comments may be submitted to: 
[email protected]. Copies of all comments will be available for 
public inspection at http://www.uspto.gov/web/offices/ac/comp/proc/ or 
in Suite 810, Crystal Park One, 2011 Crystal Drive, Arlington, Virginia 
22202, from 8:30 a.m. until 5 p.m., Monday through

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Friday. Please submit comments only and cite PTAG in all correspondence 
related to this case.

FOR FURTHER INFORMATION CONTACT: Ms. Susan Messina, Procurement 
Analyst, USPTO, Office of Procurement, at (703) 305-8014.

SUPPLEMENTARY INFORMATION:

Background

    a. On November 29, 1999, the President signed into law the Patent 
and Trademark Office Efficiency Act (``USPTO Efficiency Act''), Pub. L. 
106-113--Appendix I, Title IV, Subtitle G, 113 Stat. 1501A-572, which 
took effect March 29, 2000. See 35 U.S.C. 1. The USPTO Efficiency Act 
expressly provides that the USPTO ``shall retain responsibility for 
decisions regarding the management and administration of its operations 
and shall exercise independent control of its * * * procurements * * 
*.'' To this end, the USPTO Efficiency Act expressly granted the USPTO 
the authority to make purchases and to enter into contracts for 
supplies or services without regard to the provisions of the Federal 
Property and Administrative Services Act of 1949 (FPAS) (40 U.S.C. 471 
et seq.). 35 U.S.C. 2(b)(4)(A). FPAS is also codified at 41 U.S.C. 251 
et seq. The pertinent portions of FPAS from which USPTO is exempt are 
found at 41 U.S.C. 251 et seq.
    b. As relevant to the USPTO, the Federal Acquisition Regulation 
(FAR) is issued by the Administrator of the General Services 
Administration under the authority of FPAS. Because the USPTO is not 
subject to FPAS, it is not required to follow the FAR.
    c. On April 5, 2000, the USPTO published a Federal Register notice 
stating that until otherwise indicated, USPTO will continue to follow 
the FAR and Department of Commerce regulations applicable to the United 
States Patent and Trademark Office. 65 Fed. Reg. 17,858-01 (2000).
    d. Continuing to follow the FAR indefinitely will not permit the 
USPTO to utilize the procurement flexibilities provided by the USPTO 
Efficiency Act. On the other hand, the FAR contains procedures for 
compliance with a large number of procurement-related statutes, 
Executive Orders, and regulations to which the USPTO is still subject 
and with which it must continue to comply. The FAR also ensures that 
decisions are made fairly and in the best interests of the Government.
    e. Accordingly, the USPTO will continue to use the FAR as guidance 
in its acquisitions. This notice sets forth additional proposed 
guidance concerning alternate procurement procedures that may be used 
by the USPTO.

Nature of Proposed Guidelines

    Neither the FAR nor the procedures set forth in this notice will be 
binding on USPTO contracting officers or other USPTO employees involved 
in the procurement process. However, USPTO employees may assume that 
following either the FAR procedures or, to the extent applicable, the 
alternate procedures set forth in this notice will ensure compliance 
with applicable legal requirements and result in fair and appropriate 
decisions. USPTO employees may use procedures other than those set 
forth in the FAR and this notice so long as these 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.
    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 competition.
    The following are highlights of the benefits the USPTO hopes to 
achieve through this alternate guidance:
    [sbull] Increase the competitive threshold from $2500 to $5000 to 
decrease processing time and costs.
    [sbull] Use ``maximum reasonable competition'' instead of ``full 
and open competition'' for a more efficient procurement process.
    [sbull] Reflect the USPTO's increased flexibility in procuring 
printing services.
    [sbull] Increase the threshold for the use of simplified 
acquisition procedures for commercial items from $5 million to $10 
million to reduce the lead time for processing requirements and 
decrease acquisition costs.
    [sbull] Provide guidance on the use of an Alternative Streamlined 
Contracting Approach. This process involves the early identification of 
highly qualified vendors, which will reduce the investment of vendor 
time and resources, provide greater flexibility, and establish better 
partnerships with the vendor community. The use of a pre-set number of 
firms for the competitive range also reduces unreasonable contractor 
expectations.
    [sbull] Permit limited discussions after the establishment of the 
competitive range in lieu of making an award without discussions. USPTO 
hopes to reduce processing time and administrative burdens associated 
with proposal revisions.
    [sbull] Permit use of contract types not included in the FAR (i.e., 
contract types that combine elements of the various contract types 
listed in the FAR (Labor Hour Award Fee, for one example). This 
provides greater flexibility to improve mission accomplishment and 
improved partnering relationships with vendors.

Proposed Guidelines

Expanded Use of Electronic Commerce

    Recognizing that the Internet provides a valuable means of 
disseminating information, USPTO intends to continue and expand its use 
of electronic commerce to facilitate streamlining of the acquisition 
process. While the USPTO will continue to synopsize proposed actions 
and contract awards, the objective is to use the USPTO Office of 
Procurement web site as the foremost method of publicizing 
requirements, business opportunities, and providing procurement 
information to the business community.

Competition

    The USPTO will endeavor to acquire products and services to the 
maximum extent possible in all acquisitions on a competitive basis; 
however, it is exempt from the requirement to meet the test of ``full 
and open competition'' as defined in FAR Part 6.
    The USPTO will use competition as a principal tool in achieving 
results and intends to adopt means of affording competition that it 
determines will effectually serve the performance goals established for 
particular acquisitions.
    It is the policy of the USPTO to promote competition to the maximum 
extent possible. Competition reduces the risk of having to rely on only 
one source for critical goods or services and reduces costs. USPTO 
intends to balance these considerations with the program benefits that 
can be gained from developing a reduced supplier base and building 
strategic alliances with its suppliers. The degree of competition 
sought will be influenced by knowledge of the marketplace and 
successful past performance records, with competition in most cases 
limited

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to a reasonable number of capable sources.
    Under the USPTO process, all firms will be apprised of 
opportunities, but only those judged to be the most viable will commit 
the resources to fully participate. USPTO intends to have an open 
interchange with industry about USPTO potential requirements and 
contractor capabilities long before any formal solicitation is issued. 
It is the policy of the USPTO to inform all firms of opportunities and 
seek to ensure only the most viable will need to commit resources to 
fully participate.
    Where justifications for limiting competition are prepared, they 
will be approved at the following levels:
    a. Justifications of procurements $1,000,000 or less will be 
approved by the Contracting Officer.
    b. Justifications over $1,000,000 and less than $10,000,000 will be 
approved by the Director, Office of Procurement.
    c. Justifications greater than $10,000,000 will be approved by the 
Agency Competition Advocate.

Simplified Acquisition Procedures

    Competitive quotations need not be sought for purchases under 
$5,000 provided that the Contracting Officer can readily determine the 
price to be fair and reasonable. Written solicitations should only be 
utilized when appropriate given the complexity of the requirement.
    The USPTO contracting officer may use procedures similar to those 
set forth at subpart 13.5 of the FAR for acquisitions of commercial 
items not in excess of $10 million.

Alternative Streamlined Contracting Approach

    The Contracting Officer may utilize the streamlined process 
described below to solicit offers. The characteristics of this process 
include:
    a. Early identification of the most highly qualified contractors;
    b. Establishing a pre-set number of firms for the competitive range 
to limit the investment of contractor time and resources and to reduce 
the administrative burden of the procurement process; and
    c. Conducting negotiations only where it is practical and efficient 
to do so and without the requirement for a common cut-off date for 
concluding negotiations.
    The USPTO intends to use a project team to conduct acquisitions 
under the alternative streamlined contracting approach. The project 
team will be a multi-disciplinary team that consists of a warranted 
contracting officer, representatives from the program office whose 
requirement is the subject of the procurement, the Office of Corporate 
Planning, and the Office of the General Counsel. The project team will 
possess the necessary authority needed to conduct all aspects of the 
acquisition. No further approvals will be required to conduct the 
acquisition.
    The Alternative Streamlined Contracting Process is conducted as 
follows:
    a. A project team conducts all aspects of the acquisition.
    b. The team employs strategies and methods that best fulfill the 
needs of the acquisition.
    c. When using the streamlined Alternative Streamlined Contracting 
Approach, USPTO may employ announcements of opportunities rather than 
announcement of individual actions over $25,000.
    d. Initially, a high-level solicitation document is used. It should 
solicit basic and essential information such as offeror qualifications, 
broad-based product data, proposed technical concept, past performance, 
and pricing. The solicitation document will typically consist of:
    1. information on goals and objectives of the requirement,
    2. specific procedures related to conducting the acquisition,
    3. instructions to offerors on preparing a response,
    4. information on how responses will be evaluated,
    5. budget information on the value of the acquisition, where 
appropriate, and
    6. project and acquisition timeframes and schedules.
    e. A competitive range will be established after initial evaluation 
of responses. Respondents judged as not being among the most highly 
rated will be eliminated from further consideration.
    f. After establishment of the competitive range, a detailed 
Statement of Need is issued to solicit additional information and 
obtain a more complete offer from all firms. The Statement of Need will 
incorporate the principles of performance-based contracting to permit 
offerors the opportunity to propose the best solution to meet the 
USPTO's needs.
    g. Oral presentations may be used. The Contracting Officer should 
maintain an adequate record of oral presentations.
    Based on responses to the Statement of Need, the Contracting 
Officer may negotiate or conduct discussions only with the highest 
ranked offeror based on the evaluation factors set forth in the 
solicitation. If the USPTO Contracting Officer is unable to reach 
agreement with this offeror, negotiations will be initiated with the 
next highest-ranked firm. This process will continue until those firms 
remaining in the competitive range have been considered. If agreement 
cannot be reached, negotiations may be reopened with all firms in the 
competitive range or the solicitation may be canceled.

Selecting Contract Types

    Where appropriate, the USPTO may use any contract type (e.g., fixed 
price or labor hour) provided for in the FAR without regard to any 
limitations specified therein, and in addition may use hybrid or other 
contract types not provided for in the FAR.

Indefinite-Delivery Contracts

    Because it is exempt from the FPAS, 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. Contracting Officers 
are encouraged, however, to consider the use of multiple awards where 
doing so would result in benefits to the USPTO. A solicitation 
contemplating multiple awards should address the procedures the USPTO 
will use for selecting between contractors when awarding task or 
delivery orders. Where a specific procurement includes procedures for 
seeking task or delivery order proposals from multiple contractors, 
applying these procedures to individual requirements below $5,000 
normally will not be in the best interest of the USPTO.

Options

    Because of the USPTO's exemption from FPAS, it may make award on 
the basis of unpriced options contained in an existing contract without 
seeking further competition. The USPTO intends to consider the use of 
this technique in connection with performance based contracting under 
the following circumstances:
    a. the award of additional option periods to the incumbent 
contractor without competition is used as an incentive and reward for 
good contract performance;
    b. the solicitation notifies offerors that unpriced options will be 
used as a performance incentive; and
    c. the contract includes provisions for measuring contract 
performance and the pricing, negotiation, and exercise of additional 
option periods.

Acquisition Plans

    Acquisition planning serves two important purposes: it establishes 
how an agency will meet programmatic

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requirements within the agency's budgetary goals and it serves as a 
guideline for the acquisition.
    Annual Acquisition Plans--As a means of funds control, 
prioritization, and workload scheduling, USPTO intends to continue to 
utilize yearly acquisition plans that are tied to the budget process. 
The plans should be updated as priorities and funding changes occur to 
ensure accuracy and currency. Plans will be concise. All planned 
acquisitions for a given fiscal year should be included on the yearly 
acquisition plan.
    Separate Project Agreements--The USPTO may use a separate project 
agreement for individual or multiple actions that utilize the 
Alternative Streamlined Contracting Approach. Project Agreement 
documents tailored to the size and complexity of the various 
acquisitions will be developed.
    Individual Acquisition Plans--The content of the individual 
acquisition plan shall be left to the discretion of the Contracting 
Officer. At a minimum, acquisitions plans should contain the following:
    a. Statement of need.
    b. Applicable conditions.
    c. Cost.
    d. Risks.
    e. Plan of action.
    f. Milestones.

Printing Requirements

    The Patent and Trademark Efficiency Act, 35 U.S.C. 2(b)(4)(B), 
exempts the USPTO from requirements for printing by the Government 
Printing Office. 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.

Market Research

    The purpose of USPTO's approach to market research is to identify 
and determine the availability of products or services that will 
satisfy its requirements. The USPTO will use such research, as 
appropriate, to help it ascertain the most efficient acquisition 
strategy--with consideration of the range of potential sources, 
availability of commercial items, and identification of standard 
commercial practices. Accordingly, the USPTO intends to conduct market 
research that, to the extent possible, is based upon clear statements 
of an acquisition's intended outcome and does not foreclose, before 
research is conducted, the consideration of any reasonable solution or 
technology for accomplishing its goal. The best result of market 
research will be achieved when there is a clear statement of the 
acquisition's intended outcome.
    Market research is the responsibility of the entire acquisition 
team. USPTO Contracting Officers should work closely with technical/
program staff to ensure that appropriate market research is conducted. 
The extent and results of market research efforts should be documented 
in acquisition planning documents and/or project agreements when the 
Alternative Streamlined Contracting Approach is utilized.

Bid Protests

    The USPTO continues to be subject to the bid protest jurisdiction 
of the General Accounting Office and of the Court of Federal Claims. 
The USPTO is also subject to 6 Executive Order 12979 concerning 
protests to the agency. Its procedures for considering such protests 
are available at: http://www.uspto.gov/web/offices/ac/comp/proc/protest.htm.

    Dated: October 17, 2002.
James E. Rogan,
Under Secretary of Commerce for Intellectual Property and Director of 
the United States Patent and Trademark Office.
[FR Doc. 02-26968 Filed 10-22-02; 8:45 am]
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