A determination and findings (D&F) is defined at FAR 1.701 as: ” a special form of written approval by an authorized official that is required by statute or regulation as a prerequisite to taking certain contract actions. The ‘determination’ is a conclusion or decision supported by the ‘findings.’ The findings are statements of fact or rationale essential to support the determination and must cover each requirement of the statute or regulation.
A D&F is required in a variety of situations. For example, a D&F is required if an agency wants to award a time-and-materials or labor-hour contract (FAR 16.601(d)), place an order pursuant to the Economy Act (FAR 17.503), exclude one or more sources from competing for a contract (FAR 6.202), or contract without providing for full and open competition using the public interest exception (FAR 6.302-7).
A justification and approval (J&A) (FAR 6.303 and 6.304) is similar but slightly different from a D&F. The requirement for a J&F comes from the Competition in Contracting Act (CICA) (10 U.S.C. 2304 and 41 U.S.C. 253. It is similar as it sets forth facts presented to an approval authority for their specific review and decision. While the requirement for completing a D&F is found in multiple places in the FAR, a J&A is specifically reserved only when a contracting officer wishes to enter into a sole source procurement based upon (i) only one responsible source, (ii) unusual and compelling urgency, (iii) industrial mobilization, engineering, developmental, or research capability or expert services, (iv) international agreement, (v) authorized or required by law, (vi) and national security. A J&A is not required in any other situation.
Both D&Fs and J&As must always be in writing and must be properly maintained in the Government’s contract files in accordance with FAR 4.8 (Government Contract Files).
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