Outsourcing Management Functions for the Acquisition of Federal Facilities (2000) / Chapter Skim
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Appendix C Documents Related to Inherently Governmental Functions
Appendix C Documents Related to Inherently Governmental Functions
Pages 90-116
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From page 90... ...
Appendix C Documents Related to Inherently Governmental Functions 90
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From page 91... ...
As a matter of policy, an "inherently governmental function" is a function that is so intimately related to the public interest as to mandate performance by Government employees. These functions include those activities that require either the exercise of discretion in applying Government authority or the making of value judgments in making decisions for the Government.
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From page 92... ...
Inherently governmental functions do not normally include gathering information for or providing advice, opinions, recommendations, or ideas to Government officials. They also do not include functions that are primarily ministerial and internal in nature, such as building security; mail operations; operation of cafeterias; housekeeping; facilities operations and maintenance, warehouse operations, motor vehicle fleet management and operations, or other routine electrical or mechanical services.
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From page 93... ...
While inherently governmental functions necessarily involve the exercise of substantial discretion, not every exercise of discretion is evidence that such a function is involved. Rather, the use of discretion must have the effect of committing the Federal Government to a course of action when two or more alternative courses of action exist (e.g., purchasing a minicomputer than a mainframe computer, hiring a statistician rather than an economist, supporting proposed legislation rather than opposing economist, supporting proposed legislation rather than opposing it, devoting more resources to prosecuting one type of criminal case than another, awarding a contract to one firm rather than another, adopting one policy rather than another, and so forth)
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From page 94... ...
After award, even when a contract does not involve performance of an inherently governmental function, agencies must take steps to protect the public interest by playing an active, informed role in contract administration. This ensures that contractors comply with the terms of the contract and that Government policies, rather than private ones, are implemented.
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From page 95... ...
Nor does this responsibility to administer the contract require Government officials to exercise such control over contractor activities to convert the contract, or portion thereof, to a personal service contract. In deciding whether Government officials have lost or might lose control of the administration of a contract, the following are relevant considerations: the degree to which agencies have effective management procedures and policies that enable meaningful oversight of contractor performance, the resources available for such oversight, the actual practice of the agency regarding oversight, the duration of the contract, and the complexity of the tasks to be performed.
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From page 96... ...
that functions to be contracted are not among those listed in Appendix A of this letter and do not closely resemble any functions listed here; (2) that functions to be contracted that are not listed in Appendix A, and that do not closely resemble them, are not inherently governmental functions according to the totality of the circumstances test in subsection 7(b)
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From page 97... ...
Allan V Burman Administrator APPENDIX A The following is an illustrative list of functions considered to be inherently governmental functions: (footnote: With respect to the actual drafting of Congressional testimony, of responses to Congressional correspondence, and of agency responses to audit reports from the Inspector General, the General Accounting Of lice, or other Federal audit entity, see special provisions in subsection 6(c)
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From page 98... ...
, and the approval of agency responses to the administrative appeals of denials of Freedom of Information Act requests. 14 The conduct of administrative hearings to determine the eligibility of any person for a security clearance, or involving actions that affect matters of personal reputation or eligibility to participate in Government programs.
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From page 99... ...
12. Contractors' providing information regarding agency policies or regulations, such as attending conferences on behalf of an agency, conducting community relations campaigns, or conducting agency training courses.
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From page 100... ...
what contractible functions so closely support Government officers and employees in their performance of inherently governmental functions that the terms and performance of those contracts require closer scrutiny from Federal officials. This policy letter has been developed because executive agencies, members of Congress, the General Accounting Office, and the public have from time to time either requested guidance regarding, or inquired about, the propriety of awarding contracts for certain types of functions or administering contracts in certain ways.
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From page 101... ...
This policy letter on inherently governmental functions is being published to provide guidance on what kinds of functions, as a matter of policy, must be performed by of finials of the Executive Branch of the United States and what kinds of functions may be performed by private persons under contract with the Federal Government. Previous guidance on these matters that has been available to the Executive Branch has not been detailed and sometimes Federal agencies have permitted contractors to perform functions that should be performed by Government personnel.
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From page 102... ...
All Federal officials who contract for nonpersonal services must consider the problem of inherently governmental functions, and we thus believe separate guidance applicable to all such contracting, not just to nonpersonal service contracting in the A-76 context, is the better alternative. Other commenters urged that the policy letter be combined with one or more
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From page 103... ...
The same commenter also suggested that Appendix B should contain a discussion of possible controls that the Government should employ to prevent the functions listed there from being perceived as inherently government function. We do not believe this is necessary, as any function that is in Appendix B is by definition not an inherently governmental function.
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From page 104... ...
We have addressed the element of discretion in subsection 7(a) to convey the idea that the mere existence of the element of discretion is not determinative of whether, as a matter of policy, an inherently governmental function is involved.
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From page 105... ...
It is important to understand that, if an agency has inadequate oversight procedures or poor oversight practices, the underlying function of any agency contract affected by these deficiencies is not thereby transformed into an inherently governmental function. As the totality test focuses on the nature of the function in question and as there can be a transfer of oversight responsibility even if the underlying function is contractible, the issue of de facto transfer of control should therefore be dealt with elsewhere.
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From page 106... ...
One commenter questioned whether the policy letter reflects our belief that only contracts with multiple functions are susceptible to confusion with respect to inherently governmental functions. This is not our belief.
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From page 107... ...
Are Service Contractors Performing Inherently Governmental Functions? , GAO/GGD-92-1 1, November 1991, p.
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From page 108... ...
A-76. Measurement of the short-term and long-term costs of reliance on contractors versus of ficials is an aspect of cost effectiveness of service contracts and need not be dealt with here.
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From page 110... ...
LISTS REQUIRED. Not later than the end of the third quar ter of each fiscal year, the head of each executive agency shall submit to the Director of the Office of Management and Budget a list of activities performed by Federal Government sources for the executive agency that, in the judgment of the head of the executive agency, are not inherently governmental functions.
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From page 111... ...
TIME FOR SUBMISSION. A challenge to a list shall be submit ted to the executive agency concerned within 30 days after the publication of the notice of the public availability of the list under section 2.
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From page 112... ...
DEFiNITIoN. The term "inherently governmental function" means a function that is so intimately related to the public interest as to require performance by Federal Government employees.
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From page 113... ...
An inherently governmental function involves, among other things, the interpretation and execution of the laws of the United States so as(i) to bind the United States to take or not to take some action by contract, policy, regulation, authorization, order, or otherwise (ii)
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From page 114... ...
An inherently governmental function includes activities that require either the exercise of discretion in applying Government authority, or the making of value judgments in making decisions for the Government. Governmental functions normally fall into two categories: the act of governing, i.e., the discretionary exercise of Government authority, and monetary transactions and entitlements.
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From page 115... ...
A-76 is an authoritative, nonexclusive list of functions which are not inherently governmental functions. 7.502 Applicability.
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From page 116... ...
However, certain services and actions that are not considered to be inherently governmental functions may approach being in that category because of the nature of the function, the manner in which the contractor performs the contract, or the manner in which the Government administers contractor performance. This list is not all inclusive: (1)
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