Tired of the government wasting your tax dollars on contractors? Tired of hearing in the news about the massive waste, fraud and corruption associated with these often no bid contracts and the feeling nothing can be done about it but bitch? We have an opportunity to change direction. The Obama administration is seeking public comments on the definition of "inherently governmental" functions, which sets the parameters government-wide for what can and cannot be outsourced. Take the time to submit your comments to the government by clicking the link below, Or just continue to bitch and moan, the choice is yours. If you don't want to participate thru Credo Action the e mail address to submit comments is
ADDRESSES: Comments may be submitted by any of the following methods: E-mail:
OFPPWorkReserved@omb.eop.gov. Facsimile: 202-395-5105.
Mail: Office of Federal Procurement Policy, ATTN: Mathew Blum, New Executive Office Building, Room 9013, 724 17th Street, NW., Washington, DC 20503. Instructions: Please submit comments only and cite ``Proposed OFPP Policy Letter'' in all correspondence. All comments received will be posted, without change, to http://www.whitehouse.gov/omb/procurement/ workreserved/work_comments.html, without redaction, so commenters should not include information that they do not wish to be posted (for example because they consider it personal or business-confidential). FROM CREDO ACTION
President Bush opened the floodgates for outsourcing government jobs, and we're still reeling from the effects.
Blackwater (now known as Xe), Halliburton, DynCorp, KBR, and Triple Canopy are just some of the multitude of private, for-profit corporations that became integral parts of the American war machine during the simultaneous Iraq and Afghanistan wars.
There is already legislation that has been introduced to tackle some of this problem. The Stop Outsourcing Security Act would prohibit the American government from using mercenaries to fight our wars.
But military contractors are just the tip of the iceberg when it comes to reckless government outsourcing.
We have an opportunity to change direction. The Obama administration is seeking public comments on the definition of "inherently governmental" functions, which sets the parameters government-wide for what can and cannot be outsourced.
The role of Blackwater in Iraq and Afghanistan offers a clear picture of the rot that infects our government when we outsource important functions to private entities that only care about their own bottom lines.
When we use private contractors, we sacrifice even the insufficient transparency and accountability we have over our military. Meanwhile, our reliance on greedy and shameless entities magnifies both the human and monetary cost of war.
In 2007, Erik Prince, the former head of Blackwater, testified before Congress that over 90 percent of Blackwater's contracts were with the federal government (and publicly available data shows over 2/3 of those government contracts were awarded as no-bid contracts).
Weeks before Prince's testimony, Blackwater mercenaries needlessly slaughtered 17 civilians in Nisour Square in Baghdad while guarding American State Department officials. Despite massive and widespread outrage in Iraq and elsewhere, the State Department still has a contract with Blackwater to provide protection for its personnel.
There's no justifiable reason why our government ought to outsource the decision to pull the trigger and take another life in our name. And what's true for shooting a gun and taking a life is also true for a whole host of broad areas where our of government should act directly, not through a company looking to squeeze a buck out of the process.
Thank you for standing up to companies like Blackwater.
P.S. This issue is, of course, about more than Blackwater, and it's about more than military contractors. The lack of clarity about what can and cannot be outsourced and the willingness of the American government to outsource as much as possible has allowed the role of federal contractors to metastasize and transform in horrific ways.
It's even gotten to the point that we cannot adequately oversee contracts and have contractors evaluating the performance of other contractors on behalf of the American government.
We can no longer allow the government to abdicate responsibility of core government functions based upon the unfounded hope that the profit motive will somehow ensure everything will turn out okay.
HERE IS THE NOTICE OF THE PROPOSED POLICY LETTER via REGULATIONS.GOV, THE LINK IS
http://www.regulations.gov/search/Regs/home.html#documentDetail?R=0900006480ad2479
[Federal Register: March 31, 2010 (Volume 75, Number 61)]
[Notices]
[Page 16188-16197]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31mr10-130]
=======================================================================
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OFFICE OF MANAGEMENT AND BUDGET
Office of Federal Procurement Policy
Work Reserved for Performance by Federal Government Employees
AGENCY: Office of Management and Budget, Office of Federal Procurement
Policy.
ACTION: Notice of proposed policy letter.
-----------------------------------------------------------------------
SUMMARY: The Office of Federal Procurement Policy (OFPP) in the Office
of Management and Budget (OMB) is issuing a proposed policy letter to
provide guidance to Executive Departments and agencies on circumstances
when work must be reserved for performance by Federal government
employees. The Presidential Memorandum on Government Contracting,
issued on March 4, 2009, directs OMB to clarify when governmental
outsourcing of services is, and is not, appropriate, consistent with
section 321 of the National Defense Authorization Act (NDAA) for FY
2009. Section 321 requires OMB to (i) create a single definition for
the term ``inherently governmental function'' that addresses any
deficiencies in the existing definitions and reasonably applies to all
agencies; (ii) establish criteria to be used by agencies to identify
``critical'' functions and positions that should only be performed by
federal employees; and (iii) provide guidance to improve internal
agency management of functions that are inherently governmental or
critical. The Presidential Memorandum is available at http://
www.whitehouse.gov/the_press_office/.
Memorandum-for-the-Heads-of-Executive-Departments-and-Agencies-
Subject-Government/.
Section 321 may be found at http://thomas.loc.gov/cgi-bin/query/
F?c110:5:./temp/~c110wWVqGQ: e178256.
Comment Date: OFPP invites interested parties from both the public
and private sectors to provide comments to be considered in the
formulation of the final policy letter. Interested parties should
submit comments in writing to
[[Page 16189]]
the address below on or before June 1, 2010.
ADDRESSES: Comments may be submitted by any of the following methods:
E-mail: OFPPWorkReserved@omb.eop.gov.
Facsimile: 202-395-5105.
Mail: Office of Federal Procurement Policy, ATTN: Mathew
Blum, New Executive Office Building, Room 9013, 724 17th Street, NW.,
Washington, DC 20503.
Instructions: Please submit comments only and cite ``Proposed OFPP
Policy Letter'' in all correspondence. All comments received will be
posted, without change, to http://www.whitehouse.gov/omb/procurement/
workreserved/work_comments.html, without redaction, so commenters
should not include information that they do not wish to be posted (for
example because they consider it personal or business-confidential).
FOR FURTHER INFORMATION CONTACT: Mathew Blum, OFPP, (202) 395-4953 or
mblum@omb.eop.gov.
SUPPLEMENTARY INFORMATION:
A. Overview
OFPP is issuing a proposed policy letter to provide guidance
addressing when work must be reserved for performance by federal
employees. The policy letter is intended to implement direction in the
President's March 4, 2009, Memorandum on Government Contracting that
requires OMB to ``clarify when governmental outsourcing for services is
and is not appropriate, consistent with section 321 of Public Law 110-
417 (31 U.S.C. 501 note).'' The proposed policy letter would:
Clarify what functions are inherently governmental and
must always be performed by federal employees. A single definition of
``inherently governmental function'' built around the well-established
statutory definition in the Federal Activities Inventory Reform Act
(FAIR Act), Public Law 105-270, would replace existing definitions in
regulation and policy. The FAIR Act defines an activity as inherently
governmental when it is so intimately related to the public interest as
to mandate performance by Federal employees. Examples and tests would
be provided to help agencies identify inherently governmental
functions.
Help agencies identify when other functions (or portions
of functions) need to be performed by Federal employees. Existing
guidance addressing functions closely associated with inherently
governmental functions would be strengthened to ensure that performance
of such functions does not expand to include performance of inherently
governmental functions or otherwise interfere with federal employees'
ability to carry out their inherently governmental responsibilities. In
addition, consistent with section 321, a new category, ``critical
function,'' would be defined to help agencies identify and build
sufficient internal capacity to effectively perform and maintain
control over functions that are core to the agency's mission and
operations.
Outline a series of agency management responsibilities to
strengthen accountability for the effective implementation of these
policies. Agencies would be required to take specific actions, before
and after contract award, to prevent contractor performance of
inherently governmental functions and overreliance on contractors in
``closely associated'' and critical functions. Agencies would also be
required to develop agency-level procedures, provide training, and
designate senior officials to be responsible for implementation of
these policies.
After public comment is considered and the policy letter is
finalized, appropriate changes will be made to the Federal Acquisition
Regulation (FAR).
B. Background
The Presidential Memorandum on Government Contracting requires the
Director of OMB to develop guidance addressing when governmental
outsourcing of services is, and is not, appropriate. The Memorandum
states that the line between inherently governmental activities that
should not be outsourced and commercial activities that may be subject
to private-sector performance has become blurred, which may have led to
the performance of inherently governmental functions by contractors
and, more generally, an overreliance on contractors by the government.
It directs OMB to clarify when outsourcing is, and is not, appropriate,
consistent with section 321 of the NDAA for FY 2009.
Section 321 directed OMB to: (1) Create a single, consistent
definition for the term ``inherently governmental function'' that
addresses any deficiencies in the existing definitions and reasonably
applies to all agencies; (2) develop criteria for identifying critical
functions with respect to the agency's missions and structure; (3)
develop criteria for determining positions dedicated to critical
functions which should be reserved for federal employees to ensure the
department or agency maintains control of its mission and operations;
(4) provide criteria for identifying agency personnel with
responsibility for (a) maintaining sufficient organic expertise and
technical capability within the agency, and (b) issuing guidance for
internal activities associated with determining when work is to be
reserved for performance by Federal employees; and (5) solicit the
views of the public regarding these matters.
OMB's OFPP reviewed current laws, regulations, policies, and
reports addressing the definition of inherently governmental functions
and the reservation of work for government employees. The review was
conducted with the assistance of an interagency team that included
representatives from the Chief Acquisition Officers Council and the
Chief Human Capital Officers Council. As part of this effort, OFPP
reviewed the definition of inherently governmental functions in the
Federal Activities Inventory Reform Act (FAIR Act), Public Law 105-270,
section 2383 of title 10 (which cites to definitions in the Federal
Acquisition Regulation (FAR)), the FAR, OMB Circular A-76, OFPP Policy
Letter 92-1, Inherently Governmental Functions (which was rescinded and
superseded by OMB Circular A-76 in 2003) and reports by the Government
Accountability Office (GAO). OFPP also reviewed the analyses in a
recent report by the Congressional Research Service, Inherently
Governmental Functions and Department of Defense Operations:
Background, Issues, and Options for Congress (June 2009) and relevant
findings and recommendations set forth in the Report of the Acquisition
Advisory Panel (January 2007), available at https://
www.acquisition.gov/comp/aap/documents/Chapter6.pdf. The Panel
concluded, among other things, that ``[t]here is a need to assure that
the increase in contractor involvement in agency activities does not
undermine the integrity of the government's decision-making
processes.'' See the Panel's Report at 392.
To supplement this review, OMB held a public meeting and solicited
comments from the public last spring and summer to inform the
development of guidance. Comments were specifically sought regarding
the definition of inherently governmental functions and criteria for
identifying critical functions. See 74 FR 25775 (May 29, 2009) for a
copy of the notice. OMB received 11 comments addressing these issues.
For a copy of public comments, go to http://www.whitehouse.gov/omb/
assets/procurement_govcontracting/public_comments.pdf. For a
transcript
[[Page 16190]]
of the public meeting, go to http://www.whitehouse.gov/omb/assets/
procurement_gov_contracting/transcript_public_meeting.pdf.
Respondents generally favored the definition of ``inherently
governmental function'' found in the FAIR Act. Some concern was raised
regarding changes made to the definition by OMB Circular A-76 when the
Circular was revised in 2003.
Some respondents recommended that the criteria OMB develops to
identify critical functions and positions reserved for federal
employees be tied to mission performance. Some cautioned that these
criteria should also guard against the contracting out of a function if
such action poses too great a risk of creating a single point of
mission failure. However, at least one commenter expressed the view
that, as long as the overall function is managed by a federal employee,
not every position performing a critical function needs to be performed
by federal employees in order to protect the government's interest and
prevent mission failure. Another commenter stated that tasks closely
associated with governmental decision-making should not be contracted
out unless the government can effectively guard against or otherwise
mitigate conflicts of interest.
Based on this review and consideration of the public comments, OFPP
has: (1) Developed a proposed policy letter and (2) formulated a list
of tailored questions to elicit feedback on specific issues that will
help inform its deliberations in shaping final guidance.
C. Proposed Policy Letter
1. Summary
OFPP has developed a proposed policy letter to improve the rules
addressing the proper roles of the public and private sectors in
performing work for the government. The policy letter is designed to
address a number of weaknesses with existing rules that are affecting
the efficiency and effectiveness of government performance. These
weaknesses are summarized below along with a brief description of how
they would be addressed.
Concern: The line has been blurred between functions that are
inherently governmental and those that are not, potentially leading to
confusion and to inappropriate judgments about when contractors may
perform work that should be reserved for performance by Federal
employees.
Proposed actions: Adopt the FAIR Act definition of ``inherently
governmental function'' as the single government-wide definition of
this term. (The FAIR Act defines an activity as inherently governmental
when it is so intimately related to the public interest as to mandate
performance by Federal employees.) Develop guidance to help agencies
identify whether a given function falls within the definition of
``inherently governmental function'' or is otherwise closely associated
with the performance of inherently governmental functions. Provide
tests for analyzing whether a function is inherently governmental based
on the nature of the function and the level of discretion to be
exercised in performing the function. Reinforce management
responsibilities--both before and after contract award--to guard
against contractor performance of inherently governmental functions.
Concern: Some government organizations may be overly reliant on
contractors to perform critical functions that, while not inherently
governmental, still need to be performed by Federal employees.
Proposed actions: Provide guidance for determining the criticality
of functions. Identify criteria for determining when positions
dedicated to performing critical functions must or should be reserved
for Federal employee performance. Hold appropriate officials
accountable for ensuring adequate analysis has been performed to
establish the sufficiency of internal capability in the event that
contractors are to perform part of the function.
Concern: There is insufficient management attention focused on
ensuring work is properly reserved for federal employees and
maintaining certain critical capability levels in-house. An appropriate
governance and review structure must be established to support the
successful performance of these duties.
Proposed actions: Require agencies to develop agency-level
procedures, conduct training, periodically review internal controls
used to monitor implementation of this authority, and designate one or
more senior officials to be responsible for implementation and
maintenance of the policy.
2. Inherently Governmental Functions
There are three main sources for definitions and guidance
addressing inherently governmental function: (1) The FAIR Act, (2) the
FAR, and (3) OMB Circular A-76.
a. Definition. The FAIR Act, FAR, and Circular A-76 each make clear
that the term ``inherently governmental function'' addresses functions
that are so intimately related to the public interest as to require
performance by federal government employees. There are some variations
in the language used by the three sources to describe the types of
functions included in the definition. In particular, the FAIR Act
states that the term includes activities that require the ``exercise of
discretion'' in applying ``Federal Government authority,'' whereas the
Circular speaks in terms of the exercise of ``substantial discretion''
in applying ``sovereign'' Federal government authority. It is unclear
what the impact of this type of variation has been. This
notwithstanding, these variations can create confusion and uncertainty.
The proposed policy letter adopts the FAIR Act definition as the
single, government-wide definition. This definition reflects
longstanding OFPP guidance that had been set out in OFPP Policy Letter
92-1. 57 FR 45096 (September 30, 1992). Most public commenters
expressed general satisfaction with the statutory definition in the
FAIR Act, while also acknowledging uncertainties as to its construction
and application in particular circumstances.
b. Guidance. The proposed policy letter provides guidance to help
agencies determine whether a given function meets the definition of an
``inherently governmental function.'' The proposed policy letter
retains a list of examples of inherently governmental functions,
currently found in FAR Subpart 7.5. OFPP would also create tests for
agencies to use in determining whether functions not appearing on the
list otherwise fall within the definition of inherently governmental.
The ``nature of the function'' test would ask agencies to consider
whether the direct exercise of sovereign power is involved. Such
functions are uniquely governmental and, therefore, inherently
governmental. The ``discretion'' test would ask agencies to evaluate
whether the discretion associated with the function, when exercised by
a contractor, would have the effect of committing the government to a
course of action. This test was included in OFPP Policy Letter 92-1,
Inherently Governmental Functions, and currently may be found in OMB
Circular A-76 (see Attachment A, para. B(1)(b)), which rescinded Policy
Letter 92-1.
OFPP seeks to clarify and reinforce that agencies have both pre-
award and post-award responsibilities for evaluating whether a function
is inherently governmental and taking steps to avoid transferring
inherently governmental authority to a contractor, such as through
inadequate attention to contract administration. For proposed work, a
determination that the work is not inherently governmental should be
made prior to issuance of the
[[Page 16191]]
solicitation, preferably during acquisition planning. For ongoing
contracts, agencies should review how work is performed, focusing, in
particular, on functions that are closely associated with inherently
governmental activities and professional and technical services, to
ensure the scope of the work or the circumstances have not changed to
the point that inherently governmental authority has been transferred
to the contractor.
3. Functions That Are Closely Associated With Inherently Governmental
Functions
Policy guidance addressing inherently governmental functions must
also address functions closely associated with inherently governmental
functions to properly ensure that work that is intimately related to
the public interest is performed by Federal employees. Closely
associated functions approach the status of inherently governmental
work because of the nature of these functions and the risk that their
performance, if not appropriately managed, may materially limit Federal
officials' performance of inherently governmental functions.
The proposed policy letter retains an illustrative list of
functions closely associated with inherently governmental functions
from current FAR coverage. The guidance requires agencies to take a
number of steps related to these functions. First, the proposed policy
letter reiterates the requirement set forth in section 736 of Division
D of the Omnibus Appropriations Act, 2009, Public Law 111-8, to give
special consideration to reserving these functions to performance by
federal employees. Second, the proposed policy letter lays out the
responsibilities agencies must perform if they determine that
contractor performance of a function closely associated with an
inherently governmental function is appropriate. These responsibilities
include pre-establishing in the contract specified ranges of acceptable
decisions, subjecting the contractor's discretionary decision to final
approval by an agency official, assigning a sufficient number of
qualified federal employees with appropriate expertise to administer
the work, and taking steps to avoid or mitigate conflicts of interest.
Each of these actions is designed to help ensure that the contractor's
activities do not expand to include inherently governmental
responsibilities. Although these actions should currently be taken,
they are not enumerated in one guidance document and often are given
insufficient management attention (see paragraph 5, below, for
additional discussion on new agency responsibilities for management and
monitoring).
4. Critical functions
Since at least the early 1990s, government-wide policy addressing
when work must be reserved for Federal employees has focused almost
exclusively on the definition of ``inherently governmental'' functions
and functions closely associated with inherently governmental
functions. This narrow focus has been cited as a cause of inadequate
attention to maintaining a residual Federal core capability when
considering contractor performance of critical functions that are tied
to an agency's mission. The Acquisition Advisory Panel, established by
Congress in 2003 to review the federal acquisition system, concluded in
its 2007 report that the consequences of this inattention to contractor
performance of critical functions include ``the loss of institutional
memory, the inability to be certain whether the contractor is properly
performing the specified work at a proper price and the inability to be
sure that decisions are being made in the public interest rather than
in the interest of the contractors performing the work.'' Following the
issuance of the Panel's report, Congress, in the FY 2009 NDAA, directed
OMB to develop criteria for agencies to use in identifying ``critical''
functions and in determining when such functions, or parts thereof,
must be retained for performance by federal employees.
Consistent with section 321 of the FY 2009 NDAA, the proposed
policy letter provides guidance to address the handling of critical
functions and the maintenance of a core capability by Federal
employees. The proposed policy letter would define critical function to
mean a function whose importance to the agency's mission and operation
requires that at least a portion of the function must be reserved to
federal employees in order to ensure the agency has sufficient internal
capability to effectively perform and maintain control of its mission
and operations. Agencies would be held responsible for ensuring a
sufficient number of positions performing critical work are filled by
federal employees with appropriate training, experience, and expertise
to understand the agency's requirements, formulate alternatives, manage
the work product, and manage any contractors used to support the
Federal workforce. The proposed guidance would also require agencies to
evaluate whether they have sufficient internal capability on a case-by-
case basis, taking into account factors such as the agency's mission,
the complexity of the function and need for specialized skill, and the
effect of contractor default on mission performance. The proposed
guidance is built around the general principle that the more critical a
function is, the greater the need for internal capability to maintain
control of the agency's mission and operations. This is most obviously
the case where the function is critical to achievement of the agency's
core mission, but even for functions that may not be viewed as
critical, such as functions that are not directly involved in
performing the core mission, the agency may determine that the function
is, nonetheless, sensitive enough as to require that many, most, or, in
some situations, all positions be filled by Federal employees.
Finally, if an agency determines that it has sufficient internal
capability to control its mission and operations, the proposed policy
would require the consideration of cost to establish the extent to
which additional critical work is performed by Federal employees,
unless performance and risk considerations in favor of Federal employee
performance would clearly outweigh cost considerations.
5. Management Attention
A clear understanding of responsibilities and heightened management
attention will be required to ensure that work that should be performed
by Federal employees is reserved for performance by them.
The proposed policy letter lays out the determinations that must be
documented by the agency head or designated requirements official
before a contract solicitation is issued to show that functions to be
acquired by contract are not inherently governmental. It would also
require agencies to determine (also before issuing a solicitation) that
they have sufficient internal capability to control their mission and
operations. During contract performance, agencies would be required to
(1) monitor how contractors are performing contracts, especially those
involving work closely associated with inherently governmental
functions or professional and technical services, and (2) take
appropriate action where internal control of mission and operations is
at risk due to inappropriate or excessive reliance on contractors to
perform critical functions.
Finally, the proposed policy letter would require agencies to
strengthen internal agency management. Each agency with 100 or more
full-time federal employees in the prior fiscal year would be required
to identify one
[[Page 16192]]
or more senior officials to be accountable for the development and
implementation of agency policies, procedures, and training to ensure
the appropriate reservation of work for federal employees. The selected
officials would be expected to facilitate the meaningful involvement of
all relevant offices. In addition, agencies would be expected to
develop and maintain (1) internal procedures, to be reviewed by agency
management every two years, and (2) training plans to help their
employees understand and meet their responsibilities.
D. Solicitation of Public Comment
OFPP welcomes comments on the proposed policy letter. Respondents
are also encouraged to offer their views on the following questions,
many of which are designed to help elicit feedback on specific aspects
of the draft guidance.
1. Definitions
a. If the FAIR Act definition of ``inherently governmental'' is
adopted, what additional definitional clarification is needed, if any?
b. What additional guidance should be provided to make clear that
identifying ``critical'' work is driven by mission and circumstance,
which will differ between agencies and within agencies over time? Is
there a term other than ``critical'' that might be used to more clearly
convey this principle?
c. What, if any, additional guidance should be provided to address
what is meant by the term ``public interest''?
2. Inherently Governmental Functions
a. Does the ``discretion'' test (which is derived from OMB Circular
A-76, Attachment A and, before that, OFPP Policy Letter 92-1) help or
hinder identification of inherently governmental functions? How might
the language in the proposed policy letter be improved to make it more
useful?
b. Does the proposed ``nature of the function'' test help in the
identification of inherently governmental functions? How might the
coverage of this test in the proposed policy letter be improved to make
it more useful?
c. Should consideration be given to establishing a ``principal-
agent'' test that would require agencies to identify functions as
inherently governmental where serious risks could be created by the
performance of these functions by those outside government, because of
the difficulty of ensuring sufficient control over such performance?
d. What, if any, additional guidance might help agencies
differentiate between circumstances where contractors are being used
appropriately to inform government officials and those where
contractors are limiting or constraining government exercise of
inherently governmental responsibilities?
e. What, if any, changes should be made to existing laws that
currently deem specific functions or the work performed by specific
organizations to be inherently governmental?
3. Closely Associated and Critical Functions
a. Should the policy letter set out a presumption, or a
requirement, in favor of performance of ``closely associated'' and/or
critical functions by federal employees?
b. What, if any, additional guidance may help agencies
differentiate between critical functions and functions that are closely
associated with the performance of inherently governmental functions?
c. Should these categories be merged and treated in identical
fashion? Why or why not?
d. What, if any, additional guidance might be provided to help
agencies identify the extent to which a critical function may be
performed by a contractor?
e. Should the policy clarify whether determinations regarding
criticality are to be made at the departmental or component level?
4. Non-critical Functions
a. What, if any, additional guidance may help agencies
differentiate between functions that are critical and those that are
not?
b. Should guidance allow agency heads to identify categories of
service contracts that may be presumed to be non-critical? Why or why
not?
5. Specific Functions
a. What functions, in particular, are the most difficult to
properly classify as inherently governmental, closely associated with
inherently governmental, critical, or non-critical--and why? What
specific steps should be taken to address this challenge?
b. What should guidance say--in place of, or in addition to, the
draft guidance or currently existing federal regulations or policies--
to address the use (if any) of contractors performing any of the
following functions?
i. Pre-award acquisition support, such as acquisition planning,
market research, development of independent government cost estimates,
and preparation of documentation in support of contract award,
including preparation of: price negotiation memoranda and price
reasonableness determinations, technical evaluations, determinations of
responsibility, determinations and findings, and justifications;
ii. Post-award acquisition support, such as functions involving the
use of contractors to manage other contractors, the development of
contractor performance assessments, review of contract claims, and the
preparation of termination settlement proposals;
iii. Procurement management reviews;
iv. Management of Federal grantees;
v. Strategic planning;
vi. Lead systems integration;
vii. Physical security involving:
A. Guard services, convoy security services, pass and
identification services, plant protection services, the operation of
prison or detention facilities;
B. Security services other than those described in A; or
C. The use of deadly force, including combat, security operations
performed in direct support of combat, and security that could evolve
into combat;
viii. Cyber security, including IT network security;
ix. Support for intelligence activities, such as covert operations;
x. The assistance, reinforcement or rescue of individuals who
become engaged in hostilities or offensive responses to hostile acts or
demonstrated hostile intentions; and
xi. Intelligence interrogation of detainees, including
interrogations in connection with hostilities.
c. Should the guidance provide an illustrative list of functions
that are presumed to be critical? Why or why not? If so, what functions
should be included on the list?
6. Human Capital Planning
a. How, if at all, should this guidance address the problem of
limitations on the number of authorized Federal positions and the
impact of such limitations on decisions about reserving work for
Federal employees?
b. How, if at all, should this guidance address the potential nexus
between decisions regarding reserving work for Federal employees and
the unavailability of certain capabilities and expertise among Federal
employees (e.g., ``hard to fill'' labor categories), and the impact of
Federal salary limits on hiring people with those capabilities and
expertise?
c. Should the guidance address when it is appropriate to
temporarily contract for performance of work that is generally reserved
for Federal employees?
d. How, if at all, should this guidance address situations where
there is no basis to reserve work for Federal
[[Page 16193]]
employees, but the government is not in a position to provide adequate
oversight of a contractor, whether due to the unavailability of federal
employees with the skills needed for contract management or for other
reasons?
e. What, if any, additional guidance might be provided to help an
agency analyze whether it has the best mix of private and public sector
labor? Are there benchmarks that exist to help agencies make this
determination? Can the concept of ``overreliance'' be effectively
understood without also providing guidance on ``underreliance''? Why or
why not?
7. Scope of Coverage
a. How, if at all, should the draft guidance address advisory and
assistance services? What, if any, changes should be considered to FAR
Subpart 37.2 to improve how agencies draw upon the skills of the public
and private sectors?
b. How, if at all, should the draft guidance address personal
services contracting? What, if any, changes should be considered to FAR
Subpart 37.104 to improve how agencies draw upon the skills of the
public and private sectors?
c. What additional guidance, if any, would be beneficial to improve
understanding and implementation of policies addressing functions that
must be reserved for performance by Federal employees?
d. What additional guidance, if any, would be beneficial to improve
understanding and implementation of policies addressing functions that
may be performed by contractors?
8. Form of Coverage
Is an OFPP policy letter an effective vehicle to serve as the main
document for consolidated policy guidance on the subject of work
reserved for Federal employees and maintaining certain critical
capability levels in-house? Does it effectively address the affected
stakeholder communities? If not, which communities are not properly
addressed and what form should the guidance take and why?
9. Implementation
a. What best practices (e.g., flowcharts, decision trees,
checklists, handbooks) exist to help agencies identify which functions
should be reserved for performance by Federal employees? Note:
Respondents are encouraged to submit copies of, or provide citations
to, relevant documents with their responses.
b. What questions arise most frequently that might be suitably
addressed in a question and answer format? Examples of questions might
include the following:
What steps should contractor employees be required to take
when working on a government site to ensure their status is clearly
understood?
Under what, if any, circumstances may a contractor attend
a policy-making meeting?
Under what, if any, circumstances may a contractor
represent an agency at a policy-making meeting?
10. Management Responsibilities
What, if any, additional guidance should be provided to ensure the
policies and practices discussed in the draft guidance are given
appropriate management attention?
11. Inventories of Federal and Contractor Employees
a. What is the best way to optimize the value of Federal employee
inventories that agencies prepare under the FAIR Act and OMB Circular
A-76 to support policies for identifying work to be reserved for
performance by Federal employees?
b. What is the best way to optimize the value of the contractor
employee inventory required by section 743 of Division C of the FY 2010
Consolidated Appropriations Act, Public Law 111-117 (for civilian
agencies) and section 807 of the National Defense Authorization Act for
FY 2008, Public Law 110-181 (for defense agencies), to support policies
for identifying work to be reserved for performance by Federal
employees and those that may continue to be performed by contractors?
Daniel I. Gordon,
Administrator, Office of Federal Procurement Policy.
Policy Letter No. 10-XX
To the Heads of Executive Departments And Establishments
Subject: Work Reserved for Performance by Federal Government
Employees
1. Purpose. This guidance establishes Executive Branch policy
addressing when work must be reserved for performance by federal
employees. The policy is intended to assist agency officers and
employees in ensuring that only federal employees perform work that
is inherently governmental or otherwise needs to be reserved to the
public sector.
Nothing in this guidance is intended to discourage the
appropriate use of contractors. Contractors can provide expertise,
innovation, and cost-effective support to federal agencies for a
wide range of services. Reliance on contractors is not, by itself, a
cause for concern, provided that the work that they perform is not
work that should be reserved for federal employees and that federal
officials are appropriately managing contractor performance.
2. Authority. This policy letter is issued pursuant to section
6(a) of the Office of Federal Procurement Policy Act, 41 U.S.C.
405(a), the President's March 4, 2009, Memorandum on Government
Contracting, and section 321 of the FY 2009 National Defense
Authorization Act, Public Law 110-417.
3. Definitions.
``Inherently governmental function,'' as defined in section 5 of
the Federal Activities Inventory Reform Act, Public Law 105-270,
means a function that is so intimately related to the public
interest as to require performance by Federal Government employees.
(a) The term includes functions that require either the exercise
of discretion in applying Federal Government authority or the making
of value judgments in making decisions for the Federal Government,
including judgments relating to monetary transactions and
entitlements. An inherently governmental function involves, among
other things, the interpretation and execution of the laws of the
United States so as--
(1) To bind the United States to take or not to take some action
by contract, policy, regulation, authorization, order, or otherwise;
(2) To determine, protect, and advance United States economic,
political, territorial, property, or other interests by military or
diplomatic action, civil or criminal judicial proceedings, contract
management, or otherwise;
(3) To significantly affect the life, liberty, or property of
private persons;
(4) To commission, appoint, direct, or control officers or
employees of the United States; or
(5) To exert ultimate control over the acquisition, use, or
disposition of the property, real or personal, tangible or
intangible, of the United States, including the collection, control,
or disbursement of appropriations and other Federal funds.
(b) The term does not normally include--
(1) Gathering information for or providing advice, opinions,
recommendations, or ideas to Federal Government officials; or
(2) Any function that is 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 operations, or
other routine electrical or mechanical services).
''Critical function'' means a function that is necessary to the
agency being able to effectively perform and maintain control of its
mission and operations. A function that would not expose the agency
to risk of mission failure if performed entirely by contractors is
not a critical function.
4. Policy. It is the policy of the Executive Branch to ensure
that government action is taken as a result of informed, independent
judgments made by government officials. Adherence to this policy
will ensure that the act of governance is performed, and decisions
of significant public interest are made, by officials who are
ultimately accountable to the President and bound by laws
controlling the conduct and performance of Federal employees that
are intended to protect or
[[Page 16194]]
benefit the public and ensure the proper use of funds appropriated
by Congress. To implement this policy, agencies must reserve certain
work for performance by federal employees and take special care to
retain sufficient management oversight over how contractors are used
to support government operations and ensure that Federal employees
have the technical skills and expertise needed to maintain control
of the agency mission and operations.
(a) Performance of work by federal employees. To ensure that
work that should be performed by federal employees is properly
reserved for government performance, agencies shall:
(1) Ensure that service contractors do not perform inherently
governmental functions (see section 5-1);
(2) Give special consideration to federal employee performance
of functions closely associated with inherently governmental
functions and, when such work is performed by contractors, provide
greater attention and an enhanced degree of management oversight of
the contractors' activities to ensure that contractors' duties do
not expand to include performance of inherently governmental
functions (see section 5-2a); and
(3) Ensure that federal employees perform critical functions to
the extent necessary for the agency to operate effectively and
maintain control of its mission and operations (see section 5-2b).
(b) Management of federal contractors. When work need not be
reserved for Federal performance and contractor performance is
appropriate, agencies shall take steps to employ an adequate number
of government personnel to ensure that contract administration
protects the public interest through the active and informed
management and oversight of contractor performance, especially where
contracts have been awarded for the performance of critical
functions, functions closely associated with the performance of
inherently governmental functions, or where, due to the nature of
the contract services provided, there is a potential for confusion
as to whether an activity is being performed by government employees
or contractors. Contract management should be appropriate to the
nature of the contract, ensure that the contract is under the
control of government officials at all times, and make clear to the
public when citizens are receiving service from contractors.
(c) Strategic human capital planning. (1) As part of strategic
human capital planning, agencies shall--
(i) Dedicate a sufficient amount of work on critical functions
to performance by federal employees in order to build competencies
(both knowledge and skills), provide for continuity of operations,
and retain institutional knowledge of government operations,
including those unique to the agency's mission;
(ii) Ensure that sufficient personnel is available to manage and
oversee the contractor's performance and evaluate and approve or
disapprove the contractor's work products and services, recruiting
and retaining the necessary federal talent where it is lacking; and
(iii) Consider the impact of decisions to establish a specified
level of government employee authorizations (or military end
strength) or available funding on the ability to use Federal
employees for work that should be reserved for performance by such
employees.
(2) Agencies' annual Human Capital Plan for Acquisition shall
identify specific strategies and goals for addressing both the size
and capability of the acquisition workforce, including program
managers and contracting officer technical representatives. The
number of personnel required to administer a particular contract is
a management decision to be made after analysis of a number of
factors. These include, among others:
(i) The scope of the activity in question;
(ii) The technical complexity of the project or its compontents;
(iii) The technical capability, numbers, and workload of federal
mangement officials;
(iv) The inspection techniques available;
(v) The proven adequacy and reliability of contractor project
management;
(vi) The sophistication and track record of contract
administration organizations within the agency; and
(vii) The importance and criticality of the function.
5. Implementation guidelines and responsibilities. Agencies
shall use the guidelines below to determine (1) whether their
requirements involve the performance of inherently government
functions, functions closely associated with inherently governmental
functions, or critical functions; and (2) the type and level of
management attention necessary to ensure that functions that should
be reserved for federal performance are not materially limited by or
effectively transferred to contractors. The latter determination
typically requires agencies to consider the totality of
circumstances surrounding how, where, and when work is to be
performed.
5-1. Inherently governmental functions. Agencies shall ensure
that inherently governmental functions are reserved exclusively for
performance by federal employees.
(a) Determining whether a function is inherently governmental.
Every federal government organization performs some work that is so
intimately related to the public interest as to require performance
by federal government employees. Agencies should review the
definition of inherently governmental function in section 3, any
other statutory provisions that identify a function as inherently
governmental, and the illustrative list of inherently governmental
functions in Appendix A. In no case should any function described in
the definition, identified in statute as inherently governmental, or
appearing on the list be considered for contract performance. If a
function is not listed in Appendix A or identified in a statutory
provision as inherently governmental, agencies should determine
whether the function otherwise falls within the definition in
section 3 by evaluating, on a case-by-case basis, the nature of the
work and the level of discretion associated with performance of the
work using the tests below. A function meeting either of these tests
would be inherently governmental.
(1) The nature of the function. Functions which involve the
exercise of sovereign powers--that is, powers that are uniquely
governmental--are inherently governmental by their very nature.
Examples of functions that, by their nature, are inherently
governmental are an ambassador representing the United States, a
police officer arresting a person, and a judge sentencing a person
convicted of a crime to prison. A function may be classified as
inherently governmental based strictly on its uniquely governmental
nature and without regard to the type or level of discretion
associated with the function.
(2) The exercise of discretion. (i) A function requiring the
exercise of discretion shall be deemed inherently governmental if
the exercise of such discretion commits the government to a course
of action where two or more alternative courses of action exist and
decision making is not already limited or guided by existing
policies, procedures, directions, orders, and other guidance that:
(A) Identify specified ranges of acceptable decisions or conduct
concerning the overall policy or direction of the action; and
(B) Subject the discretionary authority to final approval or
regular oversight by agency officials.
(ii) The fact that decisions are made, and discretion exercised,
by a contractor in performing its duties under the contract--such as
how to allocate the contractor's own or subcontract resources, what
conclusions to emphasize and, unless specified in the contract, what
techniques and procedures to employ, whether and whom to consult,
what research alternatives to explore given the scope of the
contract, or how frequently to test--is not determinative of whether
the contractor is performing an inherently government function. A
function involving the exercise of discretion may be appropriately
performed consistent with the restrictions in this section where the
contractor does not have the authority to decide on the overall
course of action, but is tasked to develop options or implement a
course of action, and the agency official has the ability to
countervail the contractor's action. By contrast, contractor
performance would be inappropriate where the contractor's
involvement is or would be so extensive, or the contractor's work
product so close to a final agency product, as to effectively
preempt the federal officials' decision-making process, discretion
or authority.
(b) Responsibilities--(1) Pre-award. Agencies shall determine
prior to issuance of a solicitation that none of the functions to be
contracted are inherently governmental. The agency head or
designated requirements official shall provide the contracting
officer, concurrent with transmittal of the statement of work (or
any modification thereof), a written determination that none of the
functions to be performed are inherently governmental. If a function
is not listed in Appendix A, it still may be inherently
governmental. Accordingly, the determination should take into
consideration, as necessary, the tests in
[[Page 16195]]
paragraph (a). The file should include the analysis that supports
the determination and this analysis should establish, at a minimum,
that:
(i) The function to be contracted does not appear on the list in
Appendix A;
(ii) A statute, such as an annual appropriations act, does not
identify the function as inherently governmental or otherwise
require it to be performed by Federal employees; and
(iii) The proposed role for the contractor is not so extensive
that the ability of senior agency management to develop and consider
options is or would be preempted or inappropriately restricted.
(2) Post-award. Agencies should review, on an ongoing basis, the
functions being performed by their contractors, paying particular
attention to the way in which contractors are performing, and agency
personnel are managing, contracts involving functions that are
closely associated with inherently governmental functions (see
subsections 5-2a and Appendix B) or contracts for professional and
technical services. If a determination is made that the contractor
is performing work that is inherently governmental (or involves
unauthorized personal services), but the contract, properly defined,
does not entail performance of inherently governmental functions,
the agency shall take prompt action to ensure performance by
government employees of the inherently governmental
responsibilities. In some cases, government control over, and
performance of, these responsibilities can be reestablished by
strengthening contract oversight using government employees with
appropriate subject matter expertise and following the protocols
identified in FAR 37.114 (see also section 5.2a, below). In other
cases, agencies may need to in-source work on an accelerated basis
through the timely development and execution of a hiring plan timed,
if possible, to permit the non-exercise of an option or the
termination of that portion of the contract being used to fulfill
inherently governmental responsibilities.
5-2. Other work that must be reserved for federal employees. In
some cases, work that is not inherently governmental must also be
reserved for performance by federal employees. Such reservation will
be required under certain circumstances for functions that are
closely associated with the performance of inherently governmental
functions and critical functions.
5-2a. Functions closely associated with the performance of
inherently governmental functions. Agencies shall give special
consideration to federal employee performance of functions closely
associated with inherently governmental functions.
(a) Determining whether a function is closely associated with
the performance of an inherently governmental function. Certain
services and actions that generally are not considered to be
inherently governmental functions may approach being in that
category because of the nature of the function and the risk that
performance may impinge on federal officials' performance of an
inherently governmental function. Appendix B provides a list of
examples of functions that are closely associated with the
performance of inherently governmental functions.
(b) Special consideration for federal employee performance.
(1) If the agency determines the function is closely associated
with the performance of an inherently governmental function, section
736 of Division D of the Omnibus Appropriations Act, 2009, Public
Law 111-8, requires civilian agencies subject to the FAIR Act to
give special consideration to using federal employees to perform the
function. Civilian agencies shall refer to OMB Memorandum M-09-26,
Managing the Multi-Sector Workforce (July 29, 2009), Attachment 3
for criteria addressing the in-sourcing of work under Public Law
111-8. Memorandum M-09-26 explains that federal employee performance
would be expected if either contractor performance causes the agency
to lack sufficient internal expertise to maintain control of its
mission and operations or analysis suggests that public sector
performance is more cost effective and it is feasible to hire
federal employees to perform the function. The OMB Memorandum is
available at http://www.whitehouse.gov/omb/assets/memoranda_fy2009/
m-09-26.pdf.
(2) The Department of Defense shall--
(i) Ensure special consideration is given to federal employee
performance consistent with the requirements of 10 U.S.C. 2463; and
(ii) To the maximum extent practicable, minimize reliance on
contractors performing functions closely associated with inherently
governmental functions consistent with 10 U.S.C. 2330a.
(c) Responsibilities. If the agency determines that contractor
performance of a function closely associated with an inherently
governmental function is appropriate and cost-effective, the agency
shall--
(1) Limit or guide a contractor's exercise of discretion and
retain control of government operations by both--
(i) Pre-establishing in the contract specified ranges of
acceptable decisions and/or conduct; and
(ii) Pre-establishing a process for subjecting the contractor's
discretionary decisions and/or conduct to final approval by the
agency official;
(2) Assign a sufficient number of qualified government
employees, with expertise to administer or perform the work, to give
heightened management attention to the contractor's activities, in
particular, to ensure that they do not expand to include inherently
governmental functions, are not performed in ways not contemplated
by the contract so as to become inherently governmental, do not
undermine the integrity of the government's decision-making process,
and do not interfere with federal employees' performance of the
closely-associated inherently governmental functions (see section 5-
1(b)(2) for guidance on steps to take where a determination is made
that the contract is being used to fulfill responsibilities that are
inherently governmental);
(3) Ensure that a reasonable identification of contractors and
contractor work products is made whenever there is a risk that
Congress, the public, or other persons outside of the government
might confuse contractor personnel or work products with government
officials or work products, respectively; and
(4) Take appropriate steps to avoid or mitigate conflicts of
interest, such as by:
(i) Conducting pre-award conflict of interest reviews, to ensure
contract performance is in accordance with objective standards and
contract specifications, and developing a conflict of interest
mitigation plan, if needed, that identifies the conflict and
specific actions that will be taken to lessen the potential for
conflict of interest or reduce the risk involved with a potential
conflict of interest;
(ii) Physically separating contractor personnel from government
personnel at the worksite;
(iii) Ensuring contractors are clearly identified as such in
work product and on work support systems, such as in electronic mail
systems and phone messaging systems, and on signature blocks,
security and other identification badges, and office name plates;
(iv) Having contractor personnel work off-site, if cost-
effective and without derogation to the work to be performed;
(v) Excluding contractors from subsequent competitions if
conflicts cannot be avoided; or
(vi) Performing work with federal employees if (A) contractor
conflicts cannot be satisfactorily resolved or (B) decision-making
would be at risk of being transferred to the private sector because
contractors have such influence and insight into government decision
making or government officials would rely too heavily on contractor
inputs (or rely almost exclusively on contractor fact-finding or
memory).
(5) Make a written determination concurrent with transmittal of
the statement of work (or any modification thereof) to the
contracting officer that
(i) The function is closely associated with an inherently
governmental function;
(ii) Private sector performance of the function is appropriate
and the most cost effective source of support for the agency; and
(iii) The agency has sufficient internal capability to control
its missions and operations, oversee the contractor's performance of
the contract, limit or guide the contractor's exercise of
discretion, ensure reasonable identification of contractors and
contractor work products, and avoid or mitigate conflicts of
interest and unauthorized personal services.
5-2b. Critical functions. Agencies shall dedicate a sufficient
number of federal employees to the performance of critical functions
so that federal employees may maintain control of agencies' mission
and operations.
(a) Criteria for determining when critical positions must be
reserved for federal employee performance. Determining the
criticality of a function requires the exercise of informed judgment
by agency officials. In making that determination, the officials
shall consider the importance that a function holds for the agency
and its mission and operations. The more critical the function, the
more important that the agency have internal capability to maintain
control of its
[[Page 16196]]
mission and operations. Examples of highly critical functions might
include: designing and constructing the next generation of
satellites at the National Aeronautics and Space Administration,
analyzing areas of tax law that impose significant compliance
burdens on taxpayers for the Internal Revenue Service's Office of
the Taxpayer Advocate, and performing mediation services for the
Federal Mediation and Conciliation Service. Where a critical
function is not inherently governmental, the agency may
appropriately consider filling positions dedicated to the function
with both federal employees and contractors. However, to meet its
fiduciary responsibility to the taxpayers, the agency must have a
sufficient internal capability to control its mission and operations
and must ensure it is cost effective to contract for the services.
(1) Sufficient internal capability--
(i) Generally requires that an agency have an adequate number of
positions filled by federal employees with appropriate training,
experience, and expertise (organic and technical) to understand the
agency's requirements, formulate alternatives, take other
appropriate actions to properly manage and be accountable for the
work product, and continue critical operations in the event of
contractor default; and
(ii) Further requires that an agency have the ability and
internal expertise to manage any contractors used to support the
federal workforce and evaluate their work product.
(2) Determinations concerning what constitutes sufficient
internal capability must be made on a case-by-case basis taking into
account, among other things:
(i) The agency's mission;
(ii) The complexity of the function and the need for specialized
skill;
(iii) The current strength of the agency's in-house organic and
technical expertise;
(iv) The current strength (capability and capacity) of the
agency's acquisition workforce;
(v) The effect of contractor default on mission performance; and
(vi) The enforceability of criminal sanctions for crimes
performed by contractors as compared to those applicable to federal
employees.
(b) Responsibilities--(1) Pre-award. (i) Agencies shall
determine prior to issuance of a solicitation for private-sector
performance of any aspect of a critical function that the agency has
sufficient internal capability to control its mission and
operations. The agency head or designated requirements or human
capital official shall provide the contracting officer, concurrent
with transmittal of the statement of work (or any modification
thereof) a written determination and analysis.
(ii) If an agency has sufficient internal capability to control
its mission and operations, the extent to which additional work is
performed by federal employees should be determined consistent with
the parameters set forth in subsection (2)(ii) below.
(2) Post-award. (i) Agencies should be alert for situations
where internal control of mission and operations is at risk due to
overreliance on contractors to perform critical functions. In these
situations, requiring activities should work with their human
capital office to develop and execute a hiring and/or development
plan. Requiring activities should also work with the acquisition
office to address the handling of ongoing contracts and the budget
and finance offices to secure the necessary funding to support the
needed in-house capacity. Agencies should also consider application
of the responsibilities outlined in 5-2a(c), as appropriate.
(ii) If an agency has sufficient internal capability to control
its mission and operations, the extent to which additional work is
performed by federal employees should be based on cost
considerations unless performance and risk considerations in favor
of federal employee performance will clearly outweigh cost
considerations. Supporting cost analysis should address the full
costs of government and private sector performance and provide like
comparisons of costs that are of a sufficient magnitude to influence
the final decision on the most cost effective source of support for
the organization.
6. Additional agency responsibilities. (a) Duty of federal
employees. Every federal employee has an obligation to help avoid
the performance by contractors of responsibilities that should be
reserved to federal employees. As part of this obligation, federal
employees who rely on contracts or their work product must take
appropriate steps, in accordance with agency procedures, to ensure
that any final agency action complies with the laws and policies of
the United States and reflects the independent conclusions of agency
officials and not those of contractors, who may not be motivated
solely by the public interest, and who may be beyond the reach of
management controls applicable to federal employees. These steps
shall include increased attention and examination where contractor
work product involves advice, opinions, recommendations, reports,
analyses, and similar deliverables that are to be considered in the
course of a federal employee's official duties and may have the
potential to influence the authority, accountability, and
responsibilities of the employee.
(b) Development of agency procedures. Agencies shall develop and
maintain internal procedures to address the requirements of this
guidance. Such procedures shall be reviewed by agency management no
less than every two years.
(c) Training. Agencies shall develop training plans to help
their employees understand and meet their responsibilities under
this guidance. The plan should include training, no less than every
two years, to improve employee awareness of their responsibilities.
(d) Review of internal management controls. Agencies should
periodically evaluate the effectiveness of their internal management
controls for reserving work for federal employees and identify any
material weaknesses in accordance with OMB Circular A-123,
Management's Responsibility for Internal Control, and OFPP's
Guidelines for Assessing the Acquisition Function, available at
http://www.whitehouse.gov/omb/assets/omb/procurement/memo/a123_
guidelines.pdf
(e) Designation of responsible management official(s). Each
federal agency with 100 or more full-time employees in the prior
fiscal year shall identify one or more senior officials to be
accountable for the development and implementation of agency
policies, procedures, and training to ensure the appropriate
reservation of work for federal employees in accordance with this
guidance. Each such agency shall submit the names and titles of the
designated officials, along with contact information, to OMB by June
30 of each year. This information may be provided with the agency's
submission of commercial and inherently governmental activities
submitted pursuant to the FAIR Act and OMB Circular A-76.
7. Federal Acquisition Regulatory Council. Pursuant to
subsections 6(a) and 25(f) of the Office of Federal Procurement
Policy Act, 41 U.S.C. 405(a) and 421(f), the Federal Acquisition
Regulatory Council shall ensure that the policies established herein
that pertain to the acquisition of services are incorporated in the
FAR in a timely manner.
8. Judicial review. This policy letter is not intended to
provide a constitutional or statutory interpretation of any kind and
it is not intended, and should not be construed, to create any right
or benefit, substantive or procedural, enforceable at law by a party
against the United States, its agencies, its officers, or any
person. It is intended only to provide policy guidance to agencies
in the exercise of their discretion concerning federal contracting.
Thus, this policy letter is not intended, and should not be
construed, to create any substantive or procedural basis on which to
challenge any agency action or inaction on the ground that such
action or inaction was not in accordance with this policy letter.
9. Effective date. This policy letter is effective [insert date
30 days after issuance of final policy letter]
Appendix A. Examples of inherently governmental functions
The following is an illustrative list of functions considered to
be inherently governmental.
1. The direct conduct of criminal investigation.
2. The control of prosecutions and performance of adjudicatory
functions (other than those relating to arbitration or other methods
of alternative dispute resolution).
3. The command of military forces, especially the leadership of
military personnel who are members of the combat, combat support or
combat service support role.
4. The conduct of foreign relations and the determination of
foreign policy.
5. The determination of agency policy, such as determining the
content and application of regulations, among other things.
6. The determination of Federal program priorities or budget
requests.
7. The direction and control of Federal employees.
8. The direction and control of intelligence and counter-
intelligence operations.
[[Page 16197]]
9. The selection or non-selection of individuals for Federal
Government employment.
10. The approval of position descriptions and performance
standards for Federal employees.
11. The determination of what Government property is to be
disposed of and on what terms (although an agency may give
contractors authority to dispose of property at prices with
specified ranges and subject to other reasonable conditions deemed
appropriate by the agency).
12. In Federal procurement activities with respect to prime
contracts:
(a) determining what supplies or services are to be acquired by
the Government (although an agency may give contractors authority to
acquire supplies at prices within specified ranges and subject to
other reasonable conditions deemed appropriate by the agency);
(b) participating as a voting member on any source selection
boards;
(c) approval of any contractual documents, to include documents
defining requirements, incentive plans, and evaluation criteria;
(d) awarding contracts;
(e) administering contracts (including ordering changes in
contract performance or contract quantities, taking action based on
evaluations of contractor performance, and accepting or rejecting
contractor products or services);
(f) terminating contracts;
(g) determining whether contract costs are reasonable,
allocable, and allowable; and
(h) participating as a voting member on performance evaluation
boards.
13. The approval of agency responses to Freedom of Information
Act requests (other than routine responses that, because of statute,
regulation, or agency policy, do not require the exercise of
judgment in determining whether documents are to be released or
withheld), 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.
15. The approval of federal licensing actions and inspections.
16. The determination of budget policy, guidance, and strategy.
17. The collection, control, and disbursement of fees,
royalties, duties, fines, taxes and other public funds, unless
authorized by statute, such as title 31 U.S.C. 952 (relating to
private collection contractors) and title 31 U.S.C. 3718 (relating
to private attorney collection services), but not including:
(a) collection of fees, fines, penalties, costs or other charges
from visitors to or patrons of mess halls, post or base exchange
concessions, national parks, and similar entities or activities, or
from other persons, where the amount to be collected is easily
calculated or predetermined and the funds collected can be easily
controlled using standard cash management techniques, and
(b) routine voucher and invoice examination.
18. The control of the Treasury accounts.
19. The administration of public trusts.
20. The drafting of Congressional testimony, responses to
Congressional correspondence, or agency responses to audit reports
from the Inspector General, the Government Accountability Office, or
other federal audit entity.
Appendix B. Examples of functions closely associated with the
performance of inherently governmental functions
The following is an illustrative list is of functions that are
closely associated with the performance of inherently governmental
functions.
1. Services that involve or relate to budget preparation,
including workforce modeling, fact finding, efficiency studies, and
should-cost analyses.
2. Services that involve or relate to reorganization and
planning activities.
3. Services that involve or relate to analyses, feasibility
studies, and strategy options to be used by agency personnel in
developing policy.
4. Services that involve or relate to the development of
regulations.
5. Services that involve or relate to the evaluation of another
contractor's performance.
6. Services in support of acquisition planning.
7. Assistance in contract management (particular where a
contractor might influence official evaluations of other
contractors' offers).
8. Technical evaluation of contract proposals.
9. Assistance in the development of statements of work.
10. Support in preparing responses to Freedom of Information Act
requests.
11. Work in any situation that permits or might permit access to
confidential business information and/or any other sensitive
information (other than situations covered by the National
Industrial Security Program described in FAR 4.402(b)).
12. Dissemination of information regarding agency policies or
regulations, such as attending conferences on behalf of an agency,
conducting community relations campaigns, or conducting agency
training courses.
13. Participation in any situation where it might be assumed
that participants are agency employees or representatives.
14. Participation as technical advisors to a source selection
board or as nonvoting members of a source evaluation board.
15. Service as arbitrators or provision of alternative dispute
resolution (ADR) services.
16. Construction of buildings or structures intended to be
secure from electronic eavesdropping or other penetration by foreign
governments.
17. Provision of inspection services.
18. Drafting of legal advice and interpretations of regulations
and statutes to government officials.
19. Provision of special non-law-enforcement security activities
that do not directly involve criminal investigations, such as
prisoner detention or transport and non-military national security
details.
[FR Doc. 2010-7329 Filed 3-30-10; 8:45 am]
BILLING CODE P
THANK YOU to the BioGems Defenders who sent more than 75,000 messages opposing the Pebble Mine project to mining giant Rio Tinto. NRDC Senior Attorney Joel Reynolds delivered the messages at Rio Tinto’s annual shareholders meeting.
In a huge victory for Yellowstone’s wild buffalo, also known as bison, these iconic animals will now have access to tens of thousands of acres of habitat north of Yellowstone National Park during the winter and spring. After a turbulent winter in which hundreds of buffalo were captured by government agents, the agencies that manage Yellowstone’s herd signed a historic agreement giving the buffalo room to roam in Montana’s Gardiner Basin. NRDC has continually advocated for this area to be opened for free-roaming buffalo, and now, thanks to the incredible activism and support of our Members, the agencies have heeded our call. Allowing buffalo more seasonal habitat is just one piece of the solution, but it marks a landmark victory for wild buffalo and our Yellowstone BioGem. Thank you for your activism on behalf of Yellowstone’s wild buffalo!
