Simplifying "Inherently Governmental" Functions: Choosing Between a Principled Approach or More of the Same
Open AccessOver half a century ago, the federal government recognized that private industry could be more efficient and provide the government with goods and services at a better value than the government’s own employees. However, federal policymakers also recognized that some functions of the government were too important to allow non-governmental personnel to perform. Over the last 50 years, a hodgepodge of laws, regulations, and policy documents attempted to define what these inherently governmental functions were. In recent years, multiple scandals have focused the nation’s attention on instances where the governmental may have allowed contractors to perform inherently governmental functions. When questioned, officials and procurement professionals have shifted blame to the confusion surrounding what is and what is not an inherently governmental function. Congress responded by requiring that a single definition of inherently governmental function be created. In March 2009, President Obama charged the Office of Management and Budget (OMB) with creating a single definition for an inherently governmental function. On September 12, 2011, OMB’s Office of Federal Procurement Policy (OFPP) issued Policy Letter 11-01: Performance of Inherently Governmental and Critical Functions, which included a definition for inherently governmental functions. OFPP’s Policy Letter attempted to establish a single definition for inherently governmental functions, but in reality, it did not change or negate previous definitions and consolidated them into three different definitions. Some have argued that the OFPP Policy Letter does not do a good enough job of clarifying the difference between an inherently governmental function, and a function closely associated with an inherently governmental function, other than to say the latter can be contracted out to be performed by a non-governmental employee and the former cannot. This paper will briefly look at the history behind inherently governmental functions and what led to the OFPP Policy letter. It will then look at how outsourcing of inherently governmental functions can be challenged. Finally, this paper will evaluate proposed changes meant to solve problems left by OFPP’s Policy Letter and will propose a simplified definition of inherently governmental functions.
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