When Is a Determination and Findings Required?

A Determination and Findings is required whenever a specific statute or Federal Acquisition Regulation provision names it as the written approval a contracting officer must obtain before taking a particular contract action. The FAR defines a D&F 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.”1Acquisition.GOV. FAR Subpart 1.7 – Determinations and Findings The trigger is always a specific citation somewhere in the FAR or an underlying statute. If no provision names a D&F as the prerequisite, none is required, no matter how much internal documentation the agency may still want.

What a D&F Is, in Plain Terms

A D&F has two halves. The “findings” are the factual statements and reasoning that support the action. The “determination” is the conclusion that flows from those facts. Together they create a written record showing the agency had both the legal authority and a factual basis to proceed.1Acquisition.GOV. FAR Subpart 1.7 – Determinations and Findings The rule is straightforward: the findings must “clearly and convincingly justify” the determination.2Acquisition.GOV. FAR 1.704 – Content

When You Need One

D&Fs appear across the FAR in situations the regulations treat as exceptions rather than defaults. The scenarios below are the ones contracting officers encounter most often.

Time-and-Materials and Labor-Hour Contracts

Before awarding a time-and-materials or labor-hour contract, the contracting officer must prepare a D&F stating that no other contract type is suitable. The contracting officer signs it before the base period begins. If the base period plus all option periods exceeds three years, the head of the contracting activity must also approve the D&F before execution.3Acquisition.GOV. FAR 16.601 – Time-and-Materials Contracts The contract also has to include a ceiling price the contractor exceeds at its own risk. This is one of the most commonly encountered D&F requirements because time-and-materials contracts carry inherent cost risk for the government, and the D&F forces the contracting officer to explain in writing why a fixed-price or cost-reimbursement arrangement would not work.

Economy Act Interagency Acquisitions

When one federal agency places an order with another agency under the Economy Act, a D&F must support the transaction. It has to state three things: that using an interagency acquisition serves the government’s best interest, that the supplies or services cannot be obtained as conveniently or cheaply by contracting directly with a private source, and that at least one qualifying circumstance applies.4eCFR. 48 CFR 17.502-2 – The Economy Act Qualifying circumstances include the servicing agency already holding an existing contract for similar items, having specialized capability the requesting agency lacks, or being specifically authorized by law to purchase on behalf of other agencies.

Public Interest Exception to Competition

Of the seven statutory authorities that allow contracting without full and open competition, only one requires a D&F rather than a written justification (J&A). That is the public interest exception under FAR 6.302-7, available when the agency head determines competition is not in the public interest for a particular acquisition. The authority cannot be delegated below the agency head or service secretary level, and the D&F cannot be made on a class basis. Each acquisition needs its own individual determination.5Acquisition.GOV. FAR 6.302-7 – Public Interest In practice this exception is rarely used, both because of the approval level required and because one of the other six competition exceptions will usually fit.

Extraordinary Contractual Actions Under Part 50

FAR Part 50 covers extraordinary contractual actions taken to facilitate the national defense, including amending contracts without consideration and providing indemnification against unusually hazardous risks. Amendments without consideration and indemnification actions require secretarial-level approval regardless of dollar amount, and authority to approve obligations exceeding $75,000 may not be delegated below the secretarial level.

D&F or J&A? A Distinction Worth Getting Right

The single most common point of confusion is the line between a D&F and a Justification and Approval. Both are formal written documents, but they live in different parts of the FAR and answer different questions. A J&A, governed by FAR 6.303, is the specific document required when an agency wants to award a contract without full and open competition. A D&F, governed by FAR Subpart 1.7, is a broader tool required by various statutes and regulations as a gateway to specific contract actions, only some of which involve competition.

When someone refers to a “sole source D&F,” they almost always mean a J&A. The six competition exceptions that require a J&A rather than a D&F are:

  • Only one responsible source can meet the need.6Acquisition.GOV. FAR 6.302-1 – Only One Responsible Source
  • Unusual and compelling urgency, where delay would cause serious injury to the government. In this case the J&A may even be prepared and approved after contract award if doing it beforehand would unreasonably slow things down.7Acquisition.GOV. FAR 6.302-2 – Unusual and Compelling Urgency
  • Industrial mobilization or engineering and developmental capability.
  • International agreement.
  • Authorized or required by statute.
  • National security.

The seventh authority, the public interest exception, is the one that requires a D&F.8eCFR. 48 CFR 6.303-1 – Requirements

Individual vs. Class D&Fs

A D&F is ordinarily prepared for a single contract action. When an agency needs to take the same type of action repeatedly for similar supplies, services, or situations that require essentially identical justification, a class D&F can cover the group.9Acquisition.GOV. FAR 1.703 – Class Determinations and Findings

Class D&Fs come with guardrails. The findings must fully support the proposed action either for the class as a whole or for each action within it. Every class D&F must include a specified expiration date. The contracting officer remains responsible for confirming that each individual action taken under a class D&F actually falls within its scope.9Acquisition.GOV. FAR 1.703 – Class Determinations and Findings One firm restriction: the public interest competition exception at FAR 6.302-7 can never be covered by a class D&F.5Acquisition.GOV. FAR 6.302-7 – Public Interest

What Every D&F Must Contain

FAR 1.704 sets a minimum content floor that applies regardless of subject matter:2Acquisition.GOV. FAR 1.704 – Content

  • Identification of the contracting activity and a clear label identifying the document as a “Determination and Findings.”
  • A description of what the agency plans to do and why it needs this approval.
  • A citation to the specific statute or regulation that requires the D&F.
  • Findings: the particular facts, circumstances, and reasoning that support the determination, drawn from requirements and technical personnel.
  • The determination itself, concluding that the proposed action is justified under the cited authority.
  • An expiration date, required for certain types of D&Fs and particularly for class D&Fs.
  • The authorized official’s signature and date.

The findings section is where D&Fs most often fall apart. General assertions that a contract type “best serves the government’s interest” will not satisfy the “clearly and convincingly justify” standard. The findings need to walk through each requirement of the authorizing statute and explain, with specifics, how the facts satisfy it. A D&F that skips that work is vulnerable to challenge, and in some cases the contract action it purports to authorize can be invalidated entirely.