[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.

[[Page 61187]]

    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

[[Page 61188]]

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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