POLICY & OVERSIGHT DIVISION (POD) February 2014

1. POLICY & OVERSIGHT DIVISION (POD)February 2014 DETERMINATION AND FINDINGS (D&Fs) TRAINING

2. TABLE OF CONTENTS • Overview………………………………………………………………………....3 • Objective…………………………………….…………………………………...4 • Definitions………………………………………..………………………………5 • FAR Policy/Procedural Guidance.………………………………………6-7 • Applicability………………………………………………………………………8-10 • Development of D&Fs…………………………………………………………..11 • Content of D&Fs……………………………………………………………...12-13 • Supersession and Modification.................................................14 • Points To Remember………………………………………………………..15-16

3. view OVERVIEW This training pertains to the issuance of Determination and Findings (D&Fs) as prescribed in FAR Subpart 1.7, Department of Commerce/NOAA policies and procedures.

4. OBJECTIVE • Provide Definitions • Provide FAR Policy/Procedural Guidance • Discuss Applicability (actions supported by D&Fs) • Discuss Development of D&Fs • Discuss the Content of D&Fs • Discuss Supersession and Modification • Provide Points to Remember

5. DEFINITIONS Determination and Findings -- a special form of written approval by an authorized official that is required by statue or regulation as a prerequisite to taking certain contract actions. A D&F is composed of two parts: (1) a determination that sets forth a conclusion or decision, and (2) findings that are statements of fact or rationale essential to support the determination and cover each requirement of the statute or regulation. Interagency Acquisition -- an interagency agreement which results in a contractual action by the servicing agency.

6. FAR POLICY/PROCEDURAL GUIDANCE • Where the FAR requires a “written determination,” the Contracting Officer must ensure a written document is prepared unless the CAR, CAM, or NAHBprescribes otherwise. Note: a written determination does not always constitute a D&F. • A D&F shall ordinarily be for an individual contract action. Unless otherwise prohibited, class D&Fs may be executed for classes of contract actions (see FAR 1.703). • The approval granted by a D&F is restricted to the proposed actions(s) reasonably described in that D&F. (FAR 1.702)

7. FAR POLICY/PROCEDURAL GUIDANCE • D&Fs may provide for a reasonable degree of flexibility, and reasonable variations in estimated quantities or prices are permitted, unless the D&F specifies otherwise. (FAR 1.702) • When an option is anticipated, the D&F shall state the approximate quantity to be awarded initially, and the extent of the increase to be permitted by the option. (FAR 1.702)

8. APPLICABILITY (List is not all-inclusive) Generally, the following actions shall be supported by a D&F – • Interagency Acquisitions under the Economy Act (see FAR 17.503, AGO-POL-08-005, & CAM 1317.570 Appendix C) • Authority for a Class of Contract Actions (see FAR 1.703 Class D&Fs) • Time-and-Materials/Labor-Hour Contracts (see FAR 16.601(d)(1)& (2), 12.207, 8.404(h)(3), CAM 1316.1 Section 5, & CAM 1301.7)

9. APPLICABILITY • Exercise of Options (see FAR Part 17 & PM 2011-02) • Contracts w/Incentive & Award Fee Provisions (see FAR 16.401, CAM 1316.1 Section 7, & CAM 1301.70) • Execute a D&F with concurrence of Comp Gen to use FAR 52.215-2 with its Alt III or FAR 52.212-5 with its Alt 1 (see FAR 25.1001(a) & (b), & CAM 1301.70 )

10. APPLICABILITY • Full & Open Competition After Exclusion of Sources (see FAR 6.202, CAM 1306.70 Section 2.1, & CAM 1301.70) • Other than Full & Open Competition (Public Interest Exception) (see FAR 6.302-7, CAM 1306.70 Section 2.1, & CAM 1301.70) • Authorize award/contract performance when protest is pending (see FAR 33.104, CAM 1301.70, & NOAA APG 5.1 for D&F example)

11. DEVELOPMENT OF D&Fs • The Contracting Officer shall gather sufficient facts to clearly support and convincingly justify the specific determination. • In addition to the following content, the D&F shall contain any other prescribed regulatory/policy information pertaining to the type of action being supported by the D&F.

12. CONTENT OF D&Fs (FAR 1.704) As a minimum, each D&F shall include – • Identification of the agency and of the contracting activity and specific identification of the document as a “Determination and Findings.” (Use of NOAA Acquisition Division letterhead is preferred.) • Nature and/or description of the action being approved. • Citation of the appropriate statute or regulation upon which the D&F is based. • Findings that detail the particular circumstances, facts, or reasoning essential to support the determination. Necessary supporting documentation shall be obtained from appropriate requirements and technical personnel.

13. CONTENT OF D&Fs • A determination, based on the findings, that the proposed action is justified under the applicable statute or regulation. • Expiration date of the D&F, if required. Expiration dates are required for class D&Fs and are optional for individual D&Fs (see FAR 1.706). • The signature of the official authorized to sign the D&F in accordance with agency regulations (see FAR 1.707). • Date of signature.

14. SUPERSESSION AND MODIFICATION • If a D&F is superseded by another D&F, that action shall not render invalid any action taken under the original D&F prior to the date of its supersession. • The Contracting Officer is not required to cancel the solicitation if the D&F, as modified, supports the contract action.

15. POINTS TO REMEMBER • The D&F, by FAR inference, is a formal document. Therefore, Contracting Officers must include all the necessary facts to substantiate the determination, rather than merely state the minimum FAR requirements pertaining to the content of a D&F. For example – a D&F to override a stay of award or contract performance in the face of a protest, must be detailed in a manner that will withstand all critical/legal reviews of taking such an action.

16. POINTS TO REMEMBER • The D&F must contain proper signatures as stipulated by the FAR, CAR, CAM, and NOAA policies. • The D&F, any modifications thereto, and all supporting documentation to the D&F, must be included in the official contract file.

17. QUESTIONS