[Federal Register: February 6, 2003 (Volume 68, Number 25)]
[Notices]
[Page 6120-6122]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06fe03-30]
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DEPARTMENT OF COMMERCE
Patent and Trademark Office
[Docket No. 2002-C-001]
Patent and Trademark Office Acquisition Guidelines (PTAG)
AGENCY: Patent and Trademark Office, Commerce.
ACTION: Notice of promulgation of guidelines.
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SUMMARY: The United States Patent and Trademark Office (USPTO) is
publishing guidelines which will apply to its acquisitions.
EFFECTIVE DATE: The guidelines will be adopted on March 10, 2003.
FOR FURTHER INFORMATION CONTACT: Ms. Susan Messina, Procurement
Analyst, USPTO, Office of Procurement, at 703-305-8014.
SUPPLEMENTARY INFORMATION:
Background
The USPTO published the proposed guidelines and requested comments
on October 23, 2002 (67 FR 65092). No comments were received in
response to this notice and request for comments.
Nature of Guidelines
Neither the Federal Acquisition Regulation (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.
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 to a reasonable number of capable sources.
Under the USPTO process, all firms will be apprised of
opportunities, but
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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 Federal Property and Administrative
Services Act (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 requirements within the agency's
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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 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: January 31, 2003.
James E. Rogan,
Under Secretary of Commerce for Intellectual Property and Director of
the United States Patent and Trademark Office.
[FR Doc. 03-2921 Filed 2-5-03; 8:45 am]
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