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Determination and Findings


Jamaal Valentine

Determination and Findings  

8 members have voted

  1. 1. Should the definition at FAR 1.701 be moved to FAR part 2?

    • Yes
      7
    • No
      1
  2. 2. Aside from where expressly referenced, does the definition at FAR 1.701 apply throughout FAR (e.g., FAR 25.1001)?

    • Yes
      7
    • No
      1


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I answered yes and yes.

In addition to FAR Part 1, the term appears in FAR Parts 2, 4, 6, 8, 12, 16, 17, 19, 25, 30, and 50. I saw no other definition than the one in FAR 1.701, so I presume the meaning to be the same throughout.

A D&F is nothing more than a syllogism, and it has been said that it should be called a Findings and Determination rather than a Determination and Findings, since the findings are premises and the determination is a conclusion.

The term has appeared in the Federal Register more than 1,000 times, the first time in 1939, in a regulation published by the Federal Crop Insurance Corporation.

The oldest reference I could find was in the Senate Journal of the 61st Congress, 2d Session (1909-1910):

Quote

That when, in any proceeding before the Interstate Commerce Commission, whether begun upon application or upon its own initiative, involving the determination of the reasonableness of a rate, charge, or classification, or the reasonableness of a proposed increase of a rate, or charge, or change of classification, the value of the property of any transportation company subject to this act is material to the determination of such question, the commission shall have the authority to ascertain and determine, after full hearing, the actual physical value of the property of such corporation; the amount of stocks and bonds issued and outstanding by it; the amount of money or property value actually paid to and received by it for the stocks and bonds so issued, and what part of the moneys and property so received was actually invested and used in the construction, equipment, and improvement of its property, and any other just and fair element of value; and said determination and findings shall be prima facie evidence of the facts so found in said proceeding or any subsequent proceedings against such corporation involving the reasonableness of a rate, charge, or classification, or the reasonableness of an increase of a rate, or charge, or change of classification.

It appears to have always meant more or less the same thing𑁋a conclusion (determination) prerequisite to some course of action that is based on specified findings of fact.

The term appeared in the 1949 Joint Regulations of the Armed Forces, see 32 CFR 402. 301 (1949):

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Nature of determinations and findings. The determinations and supporting findings that are referred to throughout this subchapter, usually as prerequisites to the authority of a procuring activity to enter into contracts by negotiation or to make advance payments under negotiated contracts, will in most instances be made by the Secretary of a Department. Such determinations and findings shall ordinarily be made only with respect to individual purchases or contracts, but may be made with respect to classes of purchases or contracts in special cases and then only for a specified period and in accordance with procedures prescribed by each respective Department. Certain determinations, as provided in this part, may be made by the head of a procuring activity signing as "a chief officer responsible for procurement" or by a Contracting Officer, but in either of these two cases only with respect to individual purchases or contracts.

In addition to Title 48, the term also appears, without definition, in Titles 2, 7, 10, 11, 13, 14, 15, 20, 25, 28, 29, 32, 39, and 49 of the CFR. But it appears in Title 48 more than anyplace else. It appears without definition in 14 titles of the United States Code.

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Should the definition of "Concern" be moved from 19.001 to Part 2?

Should the definition of "Invoice Payment" be moved from 32.001 to Part 2?

Should the definition of "Service Contract" be moved from 37.101 to Part 2?

Should the definition of weakness be moved from 15.001 to Part 2?

etc, etc

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6 hours ago, TippHill said:

Should the definition of "Concern" be moved from 19.001 to Part 2?

Should the definition of "Invoice Payment" be moved from 32.001 to Part 2?

Should the definition of "Service Contract" be moved from 37.101 to Part 2?

Should the definition of weakness be moved from 15.001 to Part 2?

etc, etc

@TippHill See FAR 1.108, FAR Conventions, paragraph (a):

Quote

(a) Words and terms. Definitions in part  2 apply to the entire regulation unless specifically defined in another part, subpart, section, provision, or clause. Words or terms defined in a specific part, subpart, section, provision, or clause have that meaning when used in that part, subpart, section, provision, or clause. Undefined words retain their common dictionary meaning.

Technical terms𑁋i.e., specialized words and phrase that must be defined due to their legal import, like concern, invoice payment, service contract, and weakness𑁋that are used in the same way in more than one place in FAR should be defined in FAR Part 2, rather than elsewhere.

I checked each of the terms you asked about found that each of them is used in more than one place in FAR.

Weakness is officially defined only in FAR 15.001, as a flaw in a proposal, and is referred to in that sense in FAR 15.305, 15.306, and 15.506. However, weakness is also used, without official definition, in FAR 1.102-3 with reference to processes; in FAR 16.103 and FAR 52.216-7 with reference to a contractor's internal controls; in FAR 42.1503 with reference to a contractor's past performance; in FAR 44.305-2 with reference to a contractor's subcontracting practices; and in FAR 44.305-3 with reference to a contractor's purchasing system.

Thus, based on the FAR convention, weakness should not be moved from FAR 15.001 to FAR Part 2. It is used as a technical term only in FAR 15.001. It is used in its "common dictionary meaning" in the other places.

I would perform the same kind of analysis in order to answer your questions about concern, invoice payment, and service contract. For instance, invoice payment is used in 16 places in the FAR, all but one in Part 32 and in contract clauses that implement Part 32. It is also used in the same sense in Part 3. It might thus be defined in FAR Part 2, rather then in Part 32. But the one use in Part 3 clearly pertains to Part 32, and thus it might just as well remain defined in Part 32. Concern, on the other hand, appears in 243 places in FAR. I have not checked all those places, but I suspect it is mostly used as part of the phrase small business concern. It might thus be best defined in FAR Part 2. The same might be said of service contract.

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A Determination and Findings (D&F) should not be renamed Findings and Determination (F&D). Unfortunately, The current FAR  D&F format is backwards from the title and should be reversed.

As Stephen R. Covey said in Habit 2 of his book The 7 Habits of Highly Effective People® , “Begin With The End In Mind”.

From Army Regulation (AR) 25-50 ,

“Section IV Effective Writing and Correspondence. The Army Writing Style.”

Paragraph 1-38 is “Army Standards for Writing”

Besides writing in the Active Voice, the other essential writing requirement is to  put the main point at the beginning of correspondence*. “Bottom Line Up Front” (BLUF).

The current FAR format for a Determination and Findings at 1.704  Content places the findings at (d) before the determination at (e). See below.  In my opinion, this format should be revised so that the determination is first  at (d), followed by the specific, supporting findings at (e).  

Current wording at 1.704:

”(d) 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.

(e) A determination, based on the findings, that the proposed action is justified under the applicable statute or regulation.”

Reversing this order would make the format consistent with  the title as well as the current Army writing style.

Footnote: I don’t claim to be a particularly effective writer.  However, our Kaiserslautern, Germany Army Corps of Engineers Area Office Commander, a Lt. Colonel,  made all AO employees take an Effective Army Writing Class in 1998.

A majority of our AO staff were German National engineers and support personnel with English as a second language. To put it mildly, their English writing needed much editing to finalize…

I do give them MUCH credit for learning our language, especially given the different grammar structures.

The Colonel said he didn’t want to single out the German’s, so he mandated that everyone take the class.

The class was based upon the 1984 update of AR-50. Section IV was entitled, “Effective Writing and Correspondence. The New Army Writing Style.”

It was a great class for me, in particular the two essential writing requirements (use the Active Voice and BLUF).

I had been in the Air Force for nine years and in the Corps of Engineers for eight years at the time. Neither of those two essential styles was the norm in the Air Force or the Army Corps of Engineers.

*A memorandum is one of the specific forms of correspondence described in AR 25-50. 

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😂

Why the Army writing guide? Why not the Navy guide? I think you were in the Air Force. Why not the Air Force guide (Tongue and Quill)? Why not the GPO Style Manual? Why not the Chicago Manual of Style.

And on, and on...

All those manuals, so much crappy writing. Read a SOW or PWS from sam.gov.

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Vern, I never said that the writing is effective or isn’t crappy. Old habits don’t seem to go away. “That’s the way we’ve always done it here” is the norm.

I was responding to your musing about whether it should more properly be called “Findings and Determination” when the FAR format for a D&F requires the findings first then the determination.

i told you “why [I referred to] the Army writing guide”, not the Air Force, GPO or Navy guides. I worked for the Army for 35 years and learned about the “New Army Writing Style” in 1988, about four years after the Reg had been published. It was an eye opener for me at the time but completely foreign to the standard writing style then and now. 

Do you disagree with the Army’s defined  “essential writing style” of “bottom line upfront” (BLUFF)?

Ive noticed that some of the recent legal decisions state the high level  outcome up front before going into all the details and findings.

Other decisions seem to lumber on with the details then finally describe the bottom line.

And writing in the passive voice drives me crazy. I edited numerous regulations and guides during my last decade with the USACE. I gradually revised all versions of the USACE Model RFP used for the $50 billion Army Transformation construction program from 2006-2013, as a member of the Program Management Team, to convert passive voice to the active voice. Also removed most of “the contractor shall” and “by the contractor”, excess wording.

I’m sure that later revisions and additions likely reverted to the passive voice. 
 

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3 hours ago, joel hoffman said:

Do you disagree with the Army’s defined  “essential writing style” of “bottom line upfront” (BLUFF)?

It depends on what I'm reading.

BLUF comes with risks. Victims of confirmation bias might accept a bottom line they agree with without bothering to attend closely to the reasons (premises, findings), and find later that if they had attended to the reasons first  they would have rejected the bottom line. That's might be one reason why the syllogism begins with premises (findings) and ends with the conclusion.

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Covey’s “Begin with the end in mind” is a great Habit for “Highly Effective People”.  It was a life changing training course for me.  I highly recommend everyone attend “The Seven Habits of Highly Effective People”, especially here for acquisition personnel and negotiators.

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On 10/5/2024 at 2:47 PM, joel hoffman said:

Covey’s “Begin with the end in mind” is a great Habit for “Highly Effective People”.  It was a life changing training course for me.  I highly recommend everyone attend “The Seven Habits of Highly Effective People”, especially here for acquisition personnel and negotiators.

Well, since you persist in selling BLUF and I'm a contrarian who distrusts all popular wisdom, here's a more nuanced analysis from Generative AI:

Quote

While the Bottom Line Up Front (BLUF) technique can be a useful way to communicate, there are some situations where it might not be the best approach: 

Resistance to change. Some people or organizations may be reluctant to adopt BLUF because of their communication habits or a resistance to change. 
Complex information. It can be challenging to communicate complex information in a concise way upfront, especially in technical or specialized fields. 
Perceived rudeness. In some cultural or professional contexts, delivering information upfront might be seen as rude or brief. 
Audience skepticism. If the audience is already skeptical, putting the bottom line up front might cause them to ignore the rest of the message. 
Conversational style. If you usually communicate in a more conversational style, your colleagues might interpret your brevity as coldness. 
Suspense. BLUF can eliminate the suspense of the ending, which might not be appropriate for all types of writing. For example, it might not be suitable for emotional marketing or expository essays. 
Persuasive content.
BLUF might not be a good idea for persuasive content, as including a controversial position at the beginning could alienate the reader. 

However, BLUF can be an effective way to quickly summarize facts, such as in an incident report. It can also help the audience digest details, respond immediately, and save time and energy. 

And there's this:

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BLUF (Bottom Line Up Front) hurts communication and hinders innovationhttps://billmei.net/blog/bluf

"But BLUF backfires when your conclusions are counterintuitive or controversial, especially in a startup where decisions are fluid, roles are open-ended, and creativity is essential... [W]hat if you disagree? Then you are automatically “fighting” against me, before you even get to see the supporting evidence."

In short, BLUF is a technique. Sometimes it's the right technique and sometimes it's not. It usually, but not always, works well in the business and bureaucratic world, in which listeners tend to be busy and impatient.

Know your audience and the situation, and choose the best approach. Don't just rely uncritically on Covey, other popular writers, or a training course. That's especially true when you're trying to sell an unorthodox conclusion or innovation. In such a case, BLUF may turn people off. It may prompt people to start thinking up reasons to reject your position while you're still trying to complete your presentation of your facts and rationale.

One of the greatest speeches ever written, Shakespeare's "Friends, Romans, countryman, lend me your ears" speech is the very opposite of BLUF, but exceedingly powerful. So is Churchill's "We shall fight on the beaches speech" in which the bottom line comes at the very end:
 
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We shall go on to the end, we shall fight in France, we shall fight on the seas and oceans, we shall fight with growing confidence and growing strength in the air, we shall defend our Island, whatever the cost may be, we shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills; we shall never surrender, and even if, which I do not for a moment believe, this Island or a large part of it were subjugated and starving, then our Empire beyond the seas, armed and guarded by the British Fleet, would carry on the struggle, until, in God’s good time, the New World, with all its power and might, steps forth to the rescue and the liberation of the old.

Sometimes you have to prepare people for your conclusion and then lead them to it. So, Joel, forgive me if I ignore Covey from time to time.

 
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  • 4 weeks later...

I find the D&F analogous to the CRAC form of legal analysis. You post the conclusion then back it up with regulation, analysis, and a re-summarization of the conclusion. The D&F is closed book with the answer at the top of the page backed by analysis. 

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For a nice introduction to CRAC (pronounced see-rack) and a variation known as IRAC, go to:

https://auca.kg/uploads/IBL Dept/Fall 2014 syllabi/Legal Skills.pdf

https://www.law.columbia.edu/sites/default/files/2021-07/organizing_a_legal_discussion.pdf

https://legalwritinglaunch.com/master-crac-legal-writing-essential-techniques-and-tips-for-law-students/

https://lawtutors.net/irac-method/

https://www.untdallas.edu/sites/default/files/center_for_writing_excellence-crac_overview.pdf

CRAC works in legal forums because lawyers and courts have reached a consensus about using it and expect it. It may not work as well in some other forms, because announcing the conclusion up front might turn off those who already oppose the conclusion or are predisposed to oppose and who might then devote themselves to proving the argument to be faulty and the conclusion to be unsound. IRAC (Issue, Rule, Analysis/Application, Conclusion, pronounced eye-rack) might work better in such cases. Both methods are forms of deductive reasoning, fashioned from the syllogism.

Bottom line: Know your audience and tailor your approach to deal with them.

 

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BLUF should only be used for rather simple messages regarding a policy or rule, not in a document such as a D&F whose purpose is to convince an educated reader that a particular decision chosen from numerous options is supported by the best available facts. For example, "BLUF: stop sticking chewing gum under the mess hall tables", followed by a Parade of Horribles about the detrimental effects of said chewing gum. No need to persuade anybody, just "learn it; love it; live it". D&F: "the determination to halt chewing gum sales in the PX is supported by the following findings".

BLUF="here's what we're doing"

D&F="here's my reasoning for what we're doing"

(* my opinion)

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Determinations and Findings D&F:

“Based upon the below findings, I have determined that…”

BLUF.

Just my opinion.

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