{ "id": "R40641", "type": "CRS Report", "typeId": "REPORTS", "number": "R40641", "active": false, "source": "EveryCRSReport.com, University of North Texas Libraries Government Documents Department", "versions": [ { "source": "EveryCRSReport.com", "id": 359853, "date": "2010-04-01", "retrieved": "2016-04-07T01:47:09.849030", "title": "Inherently Governmental Functions and Department of Defense Operations: Background, Issues, and Options for Congress", "summary": "An \u201cinherently governmental function\u201d is one that, as a matter of law and policy, must be performed by federal government employees and cannot be contracted out because it is \u201cintimately related to the public interest.\u201d Two main definitions of \u201cinherently governmental functions\u201d currently exist within federal law and policy. One is a statutory definition, enacted as part of the Federal Activities Inventory Reform (FAIR) Act of 1998. This definition states that an inherently governmental function is \u201ca function so intimately related to the public interest as to require performance by Federal Government employees.\u201d The other is a policy-oriented definition contained in OMB Circular A-76. This definition states that an inherently governmental activity is \u201can activity that is so intimately related to the public interest as to mandate performance by government personnel.\u201d Other statutes and regulations that define inherently governmental functions do so either by reproducing the language of the FAIR Act or OMB Circular A-76, or by incorporating one of these definitions by reference.\nConcerned that the existence of multiple or inconsistent definitions of \u201cinherently governmental functions\u201d might be partly responsible for the alleged contracting out of inherently governmental functions by the Department of Defense (DOD) and other agencies, the 110th Congress enacted legislation (P.L. 110-417) requiring the Office of Management and Budget (OMB) to develop a \u201csingle consistent definition\u201d of \u201cinherently governmental functions.\u201d This definition is to \u201censure that the head of each ... agency is able to identify each position ... that exercises an inherently governmental function.\u201d In response, on March 31, 2010, OMB, through the Office of Federal Procurement Policy, issued a proposed policy letter which would adopt the FAIR Act definition as the single definition.\nThe current debate over which functions are inherently governmental is part of a larger debate about the proper role of the federal government vis-\u00e0-vis the private sector. This debate is as old as the Constitution, which prohibits privatization of certain functions (e.g., Congress\u2019s legislative function), a prohibition courts enforce under various judicial tests (e.g., nondelegation, functions \u201caffected with the public interest,\u201d etc.). Since the 1920s, federal contracting has been a primary arena for the public/private debate, with the executive and legislative branches contesting (1) which functions the government must perform because they are inherently governmental; (2) which functions the government should perform because they are closely related to inherently governmental functions or for some policy reason; and (3) which functions should be left to the private sector. \nCongress has several options if it is concerned that deficiencies in the existing definitions of inherently governmental functions may lead agencies to improperly contract out such functions. Options include (1) relying upon recent statutory changes and/or the policies of the Obama Administration, which proposes to limit contracting out generally, to effect desired changes in agency contracting; (2) changing the existing definition of \u201cinherently governmental functions\u201d; (3) placing limits on contracting out or use of appropriated funds; (4) addressing structural factors potentially prompting agencies to rely on contractors; (5) providing for more effective oversight of executive branch contracting decisions; and (6) focusing more on questions of contracting policy (i.e., what functions should the government perform?) than on contracting law (i.e., what functions must the government perform?). The 111th Congress has enacted or is considering several bills addressing inherently governmental functions, including P.L. 111-8, P.L. 111-84, P.L. 111-117, H.R. 1436, H.R. 2142, H.R. 2177, H.R. 2682, H.R. 2736, H.R. 2868, and S. 924.", "type": "CRS Report", "typeId": "REPORTS", "active": false, "formats": [ { "format": "HTML", "encoding": "utf-8", "url": "http://www.crs.gov/Reports/R40641", "sha1": "6c58c0c83bf64b9ff3e1b9165c6be5bea00c7be9", "filename": "files/20100401_R40641_6c58c0c83bf64b9ff3e1b9165c6be5bea00c7be9.html", "images": null }, { "format": "PDF", "encoding": null, "url": "http://www.crs.gov/Reports/pdf/R40641", "sha1": "90dbc80899ee2b70e4eab38f3d622af42158a718", "filename": "files/20100401_R40641_90dbc80899ee2b70e4eab38f3d622af42158a718.pdf", "images": null } ], "topics": [] }, { "source": "University of North Texas Libraries Government Documents Department", "sourceLink": "https://digital.library.unt.edu/ark:/67531/metadc505386/", "id": "R40641_2010Feb01", "date": "2010-02-01", "retrieved": "2015-05-29T05:37:21", "title": "Inherently Governmental Functions and Department of Defense Operations: Background, Issues, and Options for Congress", "summary": "This report provides background, issues, and options for Congress on defining inherently governmental functions within the context of U.S. Department of Defense operations.", "type": "CRS Report", "typeId": "REPORT", "active": false, "formats": [ { "format": "PDF", "filename": "files/20100201_R40641_568e9675f46323e84d83a804a43cb9eda3c8906f.pdf" }, { "format": "HTML", "filename": "files/20100201_R40641_568e9675f46323e84d83a804a43cb9eda3c8906f.html" } ], "topics": [ { "source": "LIV", "id": "Public contracts", "name": "Public contracts" }, { "source": "LIV", "id": "Government contractors", "name": "Government contractors" }, { "source": "LIV", "id": "Government employees", "name": "Government employees" }, { "source": "LIV", "id": "Politics and government", "name": "Politics and government" }, { "source": "LIV", "id": "Public interest", "name": "Public interest" } ] }, { "source": "University of North Texas Libraries Government Documents Department", "sourceLink": "https://digital.library.unt.edu/ark:/67531/metadc810205/", "id": "R40641_2009Sep14", "date": "2009-09-14", "retrieved": "2016-03-19T13:57:26", "title": "Inherently Governmental Functions and Department of Defense Operations: Background, Issues, and Options for Congress", "summary": null, "type": "CRS Report", "typeId": "REPORT", "active": false, "formats": [ { "format": "PDF", "filename": "files/20090914_R40641_6594d41bf60d26498c1f7ad0f00528a2a2cc07f4.pdf" }, { "format": "HTML", "filename": "files/20090914_R40641_6594d41bf60d26498c1f7ad0f00528a2a2cc07f4.html" } ], "topics": [] }, { "source": "University of North Texas Libraries Government Documents Department", "sourceLink": "https://digital.library.unt.edu/ark:/67531/metadc805192/", "id": "R40641_2009Jul22", "date": "2009-07-22", "retrieved": "2016-03-19T13:57:26", "title": "Inherently Governmental Functions and Department of Defense Operations: Background, Issues, and Options for Congress", "summary": null, "type": "CRS Report", "typeId": "REPORT", "active": false, "formats": [ { "format": "PDF", "filename": "files/20090722_R40641_0eb4e9d3ca463010d070b41aaeaeeadb8e3ceff9.pdf" }, { "format": "HTML", "filename": "files/20090722_R40641_0eb4e9d3ca463010d070b41aaeaeeadb8e3ceff9.html" } ], "topics": [] }, { "source": "University of North Texas Libraries Government Documents Department", "sourceLink": "https://digital.library.unt.edu/ark:/67531/metadc700862/", "id": "R40641_2009Jun22", "date": "2009-06-22", "retrieved": "2015-08-27T16:20:31", "title": "Inherently Governmental Functions and Department of Defense Operations: Background, Issues, and Options for Congress", "summary": "An \"inherently governmental function\" is one that, as a matter of law and policy, must be performed by federal government employees and cannot be contracted out because it is \"intimately related to the public interest.\" This report explores various sides of the debate as to what exactly constitutes an \"inherently governmental function,\" as there is currently no one uniform definition. Congress is concerned that inconsistent definitions may lead to improperly contracted jobs.", "type": "CRS Report", "typeId": "REPORT", "active": false, "formats": [ { "format": "PDF", "filename": "files/20090622_R40641_b472cb22f1b112378032c71b169d8cf434ed94f4.pdf" }, { "format": "HTML", "filename": "files/20090622_R40641_b472cb22f1b112378032c71b169d8cf434ed94f4.html" } ], "topics": [ { "source": "LIV", "id": "Public contracts", "name": "Public contracts" }, { "source": "LIV", "id": "Government contractors", "name": "Government contractors" }, { "source": "LIV", "id": "Government employees", "name": "Government employees" }, { "source": "LIV", "id": "Politics and government", "name": "Politics and government" }, { "source": "LIV", "id": "Public interest", "name": "Public interest" } ] }, { "source": "University of North Texas Libraries Government Documents Department", "sourceLink": "https://digital.library.unt.edu/ark:/67531/metadc26166/", "id": "R40641_2009Jun15", "date": "2009-06-15", "retrieved": "2010-07-07T17:39:19", "title": "Inherently Governmental Functions and Department of Defense Operations: Background, Issues, and Options for Congress", "summary": "An \"inherently governmental function\" is one that, as a matter of law and policy, must be performed by federal government employees and cannot be contracted out because it is \"intimately related to the public interest.\" This report explores various sides of the debate as to what exactly constitutes an \"inherently governmental function,\" as there is currently no one uniform definition. Congress is concerned that inconsistent definitions may lead to improperly contracted jobs.", "type": "CRS Report", "typeId": "REPORT", "active": false, "formats": [ { "format": "PDF", "filename": "files/20090615_R40641_77e70730f18c464653b9653afcc3fab3691c8b74.pdf" }, { "format": "HTML", "filename": "files/20090615_R40641_77e70730f18c464653b9653afcc3fab3691c8b74.html" } ], "topics": [ { "source": "LIV", "id": "Public contracts", "name": "Public contracts" }, { "source": "LIV", "id": "Government contractors", "name": "Government contractors" }, { "source": "LIV", "id": "Government employees", "name": "Government employees" }, { "source": "LIV", "id": "Politics and government", "name": "Politics and government" }, { "source": "LIV", "id": "Public interest", "name": "Public interest" } ] } ], "topics": [ "National Defense" ] }