2024-16181. Discontinue Use of Form CD-492, Justification for Other Than Full and Open Competition

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Department of Commerce

Office of the Secretary

1. 48 CFR Parts 1306 and 1353
2. [DOCKET NO.: 240711-0188]
3. RIN 0605-AA68

AGENCY:

Office of the Secretary, Department of Commerce.

ACTION:

Final rule.

SUMMARY:

The Department of Commerce (Commerce) is issuing this final rule to discontinue use of Form CD-492, Justification for Other Than Full and Open Competition, and to make an editorial change to the associated regulations. The purpose of the administrative rulemaking is to cease the requirement for acquisition teams to use a prescribed form to document justifications for other than full and open competition under the Federal Acquisition Regulation (FAR) and to make an editorial change to the regulatory text to correct a reference to Department legal review procedures by replacing the word “concurrence” with the word “review.” Contracting Officers will be required to comply with the content requirements set forth in the FAR when documenting their determinations.

DATES:

Effective: August 22, 2024.

FOR FURTHER INFORMATION CONTACT:

For clarification of content, contact Mr. Todd Hill, Procurement Analyst, at 240-490-1044, or by email at [e-mail].

SUPPLEMENTARY INFORMATION:

Background

Commerce is issuing this final rule to discontinue use of Form CD-492, Justification for Other Than Full and Open Competition. The purpose of the administrative rulemaking is to cease the requirement for acquisition teams to use a prescribed form to document justifications for other than full and open competition under the Federal Acquisition Regulation (FAR) in 48 CFR part 6. The CD-492 was originally developed to provide consistency across Commerce when documenting the approval or disapproval of justifications for other than full and open competition within a hardcopy contract file. Commerce has fully transitioned to electronic contract files and the static form is no longer considered the most efficient method of documenting the approval or disapproval of such a justification. Contracting Officers will be required to comply with the content requirements set forth in FAR 6.303-2 when documenting their determinations. Commerce has also determined that an editorial change is necessary to better align with internal Commerce processes, therefore, Commerce will also make an editorial change to the last sentence of section 1306.303-70 to correct a reference to Department legal review procedures by replacing the word “concurrence” with the word “review.”

Classification

This final rule contains no information collection requirements under the Paperwork Reduction Act of 1995.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

Commerce determined that this rule qualifies for exemption from the Administrative Procedure Act's (APA) requirement for a public notice and comment period, and that it may therefore proceed directly to the final rule stage. Under 5 U.S.C. 553(b)(A), rulemakings that are rules of agency organization, procedure, or practice are exempt from providing the public with a notice and comment period. This rule only removes the requirement for acquisition teams to use Form CD-492. Therefore, this rule qualifies for the exemption and no public notice and comment period is required.

Additionally, Commerce finds good cause to waive the notice and public comment period for this rule because the effect of the rule does not place any burden on the public or require the public to undertake or cease any particular action. Oppositely, this rulemaking only removes the requirement for acquisition teams to use Form CD-492. Therefore, a public notice and comment period would be unnecessary and qualifies for waiver under the APA (see 5 U.S.C. 553(b)(B)).

List of Subjects

48 CFR Part 1306

• Government procurement

48 CFR Part 1353

• Government procurement
• Reporting and recordkeeping requirements

Therefore, in accordance with 41 U.S.C. 414 and 48 CFR 1.301 through 1.304, the Department of Commerce amends 48 CFR parts 1306 and 1353 as follows:

PART 1306—COMPETITION REQUIREMENTS

1. The authority citation for part 1306 continues to read as follows:

Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

2. Revise section 1306.303-70 to read as follows:

1306.303-70

Documentation and legal review of justifications.

The justification for providing for other than full and open competition in accordance with FAR 6.303-2 shall contain sufficient facts and rationale to justify the use of the authority cited and include all of the content set forth in FAR 6.303-2 as appropriate for the cited authority. If the estimated value of the procurement is over legal review thresholds, review by the Procurement Counsel is required.

PART 1353—FORMS

3. The authority citation for part 1353 continues to read as follows:

Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.

1353.206

[Removed]

4. Remove section 1353.206.

Olivia J. Bradley,

Senior Procurement Executive and Director for Acquisition Management.