Inherently Governmental Functions and Department of Defense Operations: Background, Issues, and Options for Congress
Released: 2010-04-01T00:00:00

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." Two main definitions of "inherently governmental functions" 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 "a function so intimately related to the public interest as to require performance by Federal Government employees." The other is a policy-oriented definition contained in OMB Circular A-76. This definition states that an inherently governmental activity is "an activity that is so intimately related to the public interest as to mandate performance by government personnel." 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.
Concerned that the existence of multiple or inconsistent definitions of "inherently governmental functions" 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 "single consistent definition" of "inherently governmental functions." This definition is to "ensure that the head of each ... agency is able to identify each position … that exercises an inherently governmental function." 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.
The current debate over which functions are inherently governmental is part of a larger debate about the proper role of the federal government vis-à-vis the private sector. This debate is as old as the Constitution, which prohibits privatization of certain functions (e.g., Congress's legislative function), a prohibition courts enforce under various judicial tests (e.g., nondelegation, functions "affected with the public interest," 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.
Congress 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 "inherently governmental functions"; (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.

subsections: section_title: Introduction
paragraphs: 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." Concerned that the existence of multiple and/or inconsistent definitions of "inherently governmental functions" might be partly responsible for the alleged contracting out of inherently governmental functions by the Department of Defense (DOD) and other agencies, the 110 th Congress enacted legislation ( P.L. 110-417 ) requiring the Office of Management and Budget (OMB) to develop a "single consistent definition" of "inherently governmental functions." This definition is to "ensure that the head of each ... agency is able to identify each position within that department or agency that exercises an inherently governmental function." 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.
This report provides background, issues, and options for Congress on defining inherently governmental functions within the context of DOD operations. It situates contemporary debates over which functions are inherently governmental within the context of the broader debate about the proper roles of the public and private sectors, surveys existing definitions of "inherently governmental functions" within federal law and policy, and discusses issues and options for Congress in redefining inherently governmental functions or otherwise ensuring that the executive branch's categorization of functions corresponds to the definition of inherently governmental functions. The report focuses upon DOD because of the specific functions that it performs; its prominent role in federal contracting; its unique workforce, which consists of military and civilian personnel; and recent allegations that DOD, among other agencies, has improperly contracted out inherently governmental functions.
section_title: Background
paragraphs: The current debate over which functions are inherently governmental is part of a larger debate about the proper role of the federal government vis-à-vis the private sector that is as old as the Republic itself. All government functions can arguably be divided into three categories: those that must be performed by government employees, those that should be performed by government employees, and those suitable for private sector performance. However, the size and content of these categories have fluctuated throughout American history. The "must" category has arguably experienced the least fluctuation, whereas the "should" and "private" categories have significantly increased or diminished over time with changes in administrations or even within administrations (e.g., moving from peacetime to war). The "Background" section surveys the history of this public/private debate, focusing particularly upon how it has played out in the context of federal contracting. 
The debate over DOD functions generally corresponds to the overall public/private debate; however, it sometimes reflects unique aspects of DOD or its procurement system. First, because DOD has two distinct workforces, military and civilian, capable of performing functions, DOD must determine which workforce will perform functions in the "must" or "should" categories. Where functions in the "must" category are concerned, DOD has to determine whether it matters which DOD employees, military or civilian, perform the function. Similarly, where functions in the "should category" are concerned, DOD must determine not only whether the function should be performed in-house or by the private sector, but also which workforce will perform functions deemed appropriate for in-house performance. Second, DOD relies upon ammunition and armaments in its operations, items which some commentators at various periods of time have thought should be manufactured by defense agencies in arsenals or Navy shipyards, for example, instead of by the private sector. The arguments for in-house manufacturing of DOD materiels have varied over the years, but have included the claim that manufacturing of weapons is an inherently governmental function and thus falls within the "must" category. However, such arguments appear to confuse considerations of national defense policy (i.e., the security of having an in-house supply of important products), which might argue for placing the function in the "should" category, with functions "intimately related to the public interest." Third, the federal government has consistently maintained two parallel acquisition systems, civilian and defense, wherein the rules for DOD are not always identical to those for the rest of the federal government.
subsections: section_title: The Constitutional Grounding for the Public/Private Debate
paragraphs: The Constitution, with its enumerated powers and limits on these powers, is the logical, best starting point for distinguishing between "must," "should," and commercial functions. The Constitution envisioned certain functions that must be carried out by one branch or other of the federal government. The legislative function of Article I is clearly an inherently governmental function entrusted to Congress. Article II, with equal clarity, entrusted several inherently governmental functions to the President, such as the executive power, the Commander-in-Chief function, the appointment power, the power to conduct foreign affairs, and the granting of pardons. The Constitution also recognized the public/private tension with explicit limitations on certain public functions when they directly affect private interests. For example, takings of private property under the Fifth Amendment must be for public purpose. However, more than 200 years after ratification of the Constitution, commentators are still trying to determine what constitutes a public purpose. The Constitution also recognized and provided for the other end of the spectrum: private functions. The most explicit such recognition is in the Tenth Amendment, which states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." 
Very early in American history, the Supreme Court in Marbury v. Madison recognized that the President and other executive branch officials exercise inherent powers founded upon their discretion and accountability. In Marbury , while addressing whether a judge whose commission was not delivered to him by a new administration had a legal remedy, the Court distinguished between "ministerial functions" of the executive branch, which officials are legally required to perform, and "political powers," in which executive officials may exercise discretion. Regarding the latter, the Court stated 
By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders.
These two issues, discretion and accountability, have remained central to discussions of what functions the government must perform to this day. Various commentators would afford the executive branch different degrees of discretion in classifying particular functions as inherently governmental or commercial and seek to hold the executive branch accountable for its classifications to differing degrees and in differing ways. 
In attempting to protect the public and private sectors as defined by the Constitution, post-Marbury courts articulated various theories and tests, several of which also appear in some recent discussions of inherently governmental functions. One key test focuses upon functions "affected with the public interest." Courts in the 19 th century, in particular, distinguished between functions "affected with the public interest" and other functions when determining whether government regulation (an exercise of the public sector) of certain businesses (private-sector entities) was permissible. Where the business was "affected with a public interest," such as common carriers were, courts found the regulation permissible. This test arguably focuses upon the functions that the government "should" or "may" perform, however, rather than those that the government "must" perform. Another key test focused upon "public interests" or "public functions." This test was used to determine when private-sector entities were accountable to individuals for certain public-sector protections, such as due process. The courts concluded that when entities, such as company towns, performed public functions, they owed individuals due process. Another key test, largely used in the 1930s, was the "private delegation doctrine," which precluded Congress from delegating its power to legislate (a public-sector power) to third parties not in the government (private-sector entities). 
section_title: The Public/Private Debate Surrounding Federal Contracting
paragraphs: Since World War I, one of the primary arenas for the public/private debate and the definition of inherently governmental functions has been federal contracting. The emphasis on public or private entities as the preferred source of goods or services has swung back and forth over the years with the change of administrations or even during administrations. The emphasis has also shifted depending upon which agencies are conducting the procurements and the nature of the goods or services procured. In the 1920s, for example, the government had different emphases in civilian and defense contracting: while the alleged abuses of military contractors during World War I caused the military to perform more work in-house, public contracting by civilian agencies expanded.
subsections: section_title: Roosevelt Administration
paragraphs: President Franklin D. Roosevelt essentially reversed the relative use of civilian and military contractors as compared to the 1920s. Prior to World War II, the Roosevelt Administration placed renewed emphasis on the government's role and the benefits of the government performing functions for socioeconomic purposes even when doing so brought it into competition with the private sector (e.g., creation of the Civilian Conservation Corps and the Public Works Administration). In contrast, mobilization for World War II brought greater emphasis on using the private sector to meet the country's defense needs, as well as many changes in the ways in which the government contracted for goods and services.
section_title: Truman Administration
paragraphs: The Truman Administration was generally a period of change and reorganization in the federal government's procurement of goods and services. Several important statutes were enacted in this period, including the Armed Services Procurement Act of 1947, the Renegotiation Act of 1948, the Federal Property and Administrative Services Act of 1949, and the Defense Production Act of 1950. These statutes greatly changed the federal procurement landscape, although they did not directly address which functions the government must perform (i.e., what is inherently governmental). They did, however, address how to make decisions as to who should perform specific functions.
section_title: Eisenhower Administration
paragraphs: President Eisenhower was the first to formally declare a federal policy of not competing with the private sector. This policy was originally published by the Bureau of the Budget (BOB) in a directive issued in 1955:
It is the stated policy of the administration that the Federal government will not start or carry on any commercial activity to provide a service or product for its own use if such product or service can be procured from private enterprise through ordinary business channels. 
This policy was expressed in, and entered the vernacular as, Office of Management and Budget's (OMB's) Circular A-76 in 1966 during the Johnson Administration. Since that time, OMB Circular A-76 has become the primary focal point for discussions of what is an inherently governmental function because it and its four attachments establish guidelines and procedures for determining whether an activity should be performed in-house with government personnel or whether it should be contracted out to the private sector. 
section_title: Reagan and George H.W. Bush Administrations
paragraphs: The 1980s saw numerous disputes between proponents of the government and private sectors. Of these two administrations, the Reagan Administration, in particular, was a strong proponent of smaller government and had many confrontations with Congress over who should perform various functions. This administration would propose or attempt to privatize particular functions, such as depot maintenance. Congress would then respond with either an appropriations rider, prohibiting or conditioning the use of funds to implement the privatization, or with a substantive law declaring a function inherently governmental, among other things. Appendix A provides examples of congressional responses to proposed contracting out by the Reagan and George H.W. Bush Administrations to illustrate possible legislative responses to allegedly improper contracting out by federal agencies.
section_title: Clinton and George W. Bush Administrations
paragraphs: The Clinton Administration was arguably on both sides of the public/private debate, sponsoring plans, such as comprehensive health care reform, that might have expanded the public sector, as well as attempting to end "big government" with its "reinventing government" initiative and enactment of the Federal Activities Inventory Reform (FAIR) Act. The FAIR Act, which is discussed in more detail in the section on definitions of inherently governmental functions, sought to foster increased contracting out of agencies' commercial functions. The George W. Bush Administration could be described as having an even narrower conception of the role of the public sector. Among other things, the Bush Administration proposed amending OMB Circular A-76 so that all functions were presumed commercial unless agencies justified why they were inherently governmental. The Bush Administration's extensive use of contractors in Iraq and Afghanistan also engendered much discussion as to propriety of contracting out certain functions. Critics claimed that the Bush Administration improperly contracted out acquisition, armed security, and contract management functions, among others.
section_title: Obama Administration
paragraphs: Recent announcements by President Obama and Secretary of Defense Robert M. Gates could signal a shift to increased governmental performance of certain functions. President Obama issued a three-page memorandum on March 4, 2009, announcing his Administration's priorities in contracting policy. It highlighted four initiatives: (1) increased competition; (2) use of fixed-price contracts; (3) ensuring that the acquisition workforce can manage and oversee contracts; and (4) ensuring that functions considered to be inherently governmental are not contracted out. As regards contracting out, in particular, the memorandum states
Government outsourcing for services also raises special concerns. For decades, the Federal Government has relied on the private sector for necessary commercial services used by the Government, such as transportation, food, and maintenance. Office of Management and Budget Circular A-76, first issued in 1966, was based on the reasonable premise that while inherently governmental activities should be performed by Government employees, taxpayers may receive more value for their dollars if non-inherently governmental activities that can be provided commercially are subject to the forces of competition.
However, the line between inherently governmental activities that should not be outsourced and commercial activities that may be subject to private sector competition has been blurred and inadequately defined. As a result, contractors may be performing inherently governmental functions. Agencies and departments must operate under clear rules prescribing when outsourcing is and is not appropriate. 
Secretary Gates made the President's proposal more concrete with the budget announcement he issued prior to the President's submission of the budget on May 7, 2009:
A final recommendation ... will have a significant impact on how defense organizations are staffed and operated. Under this budget request, we will reduce the number of support service contractors from our current 39 percent of the workforce to the pre-2001 level of 26 percent and replace them with full-time government employees. Our goal is to hire as many as 13,000 new civil servants in FY10 to replace contractors and up to 30,000 new civil servants in place of contractors over the next five years.
section_title: Current Definitions of "Inherently Governmental Functions"
paragraphs: Two main definitions of inherently governmental functions 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 "a function so intimately related to the public interest as to require performance by Federal Government employees." The other is a policy-oriented definition contained in Office of Management and Budget (OMB) Circular A-76. This definition states that an inherently governmental activity is "an activity that is so intimately related to the public interest as to mandate performance by government personnel." 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 the definitions of the FAIR Act or OMB Circular A-76 by reference. The Federal Acquisition Regulation (FAR) is a prime example of this. The FAR does not provide a unique definition of inherently governmental functions. Rather, it incorporates the definition of OMB Circular A-76 by reference for purposes of Subpart 7.3, which focuses upon "contractor versus government performance," and it reproduces this definition in its own definitions section for purposes of Subpart 7.5, which identifies "inherently governmental functions." 
In addition to these definitions, there are numerous statutory, regulatory, and policy provisions designating specific functions as inherently governmental or commercial. These provisions also help establish the meaning of "inherently governmental functions" by specifying what is—and is not—included within that category. Similarly, while not offering their own definitions of inherently governmental functions, the Government Accountability Office (GAO) and the federal courts have tests for identifying inherently governmental functions that they use in designating specific functions as inherently governmental or commercial.
This section surveys the current definitions of inherently governmental functions, as well as the functions that have been designated as inherently governmental or commercial by statute, regulation, policy, or GAO or judicial decision. It addresses (1) statutory definitions and declarations; (2) policy-based definitions and declarations; (3) definitions and declarations from administrative law, including GAO decisions; and (4) designations in federal court decisions.
subsections: section_title: Statutory Definitions and Declarations
paragraphs: The FAIR Act provides the primary statutory definition of inherently governmental functions. There are, however, several other statutory definitions of inherently governmental functions and "functions closely associated with inherently governmental functions." Some of these definitions mirror the definitions of the FAIR Act or OMB Circular A-76, while others incorporate the definitions of the FAIR Act or OMB Circular A-76 by reference. There are also numerous statutory provisions declaring that specific functions are inherently governmental.
subsections: section_title: The FAIR Act
paragraphs: Originally introduced as the Freedom from Government Competition Act of 1997, the FAIR Act was designed to promote executive agencies' compliance with OMB Circular A-76. OMB Circular A-76 predated the FAIR Act and expressed the federal government's general policy of relying on competitive private enterprises to supply the commercial products and services it needs. OMB Circular A-76 also provided procedures for agencies to conduct cost comparisons to determine whether the government or private enterprises should perform specific activities on the government's behalf. However, although OMB Circular A-76 established policies and procedures, it reportedly failed to result in public-private competitions for performance of commercial activities, or agencies' contracting with the private sector for performance of their commercial activities. The FAIR Act sought to address this situation by requiring agencies to compile annual lists of all commercial activities they perform and make these lists available to Congress and the public. The FAIR Act does not require agencies to contract out any particular activities, however. It requires only that agencies use competitive processes to select the source when they consider contracting with private sector sources for performance of certain activities performed by government employees.
Although the FAIR Act's primary focus is upon commercial activities performed by government agencies, it defined inherently governmental functions in order to contrast them with commercial activities. The FAIR Act's definition of inherently governmental functions is itself brief: "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." This definition is, however, followed by lengthy lists of functions included in and excluded from the definition of inherently governmental functions under the act.
The FAIR Act describes the "functions included" within its definition of inherently governmental function as ones 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." The act then gives a non-exclusive list of examples of the types of "functions included." These are
1. binding the United States to take, or not to take, action by contract, policy, regulation, authorization, order or otherwise; 2. determining, protecting, and advancing U.S. economic, political, territorial, property, or other interests by military or diplomatic action, civil or criminal judicial proceedings, contract management, or otherwise; 3. significantly affecting the life, liberty, or property interests of private persons; 4. commissioning, appointing, directing or controlling officers or employees of the United States; or 5. exerting ultimate control over the acquisition, use, or disposition of the real or personal, tangible or intangible, property of the United States, including the collection, control or disbursement of appropriated and other federal funds.
The FAIR Act further describes the "functions excluded" from its definition of inherently governmental functions as those involving (1) gathering information for or providing advice, opinions, recommendations, or ideas to federal officials, or (2) any function that is primarily ministerial and internal in nature. It concludes by giving examples of ministerial and internal functions, which include building security, mail operations, cafeteria operations, housekeeping, facilities operations and maintenance, warehouse operations, motor vehicle fleet management operations, or other routine electrical or mechanical services.
The FAIR Act's definition of inherently governmental functions and listing requirements apply to all executive branch agencies named in 5 U.S.C. § 101, all military departments named in 5 U.S.C. § 102, and all independent establishments as defined in 5 U.S.C. § 104. However, the FAIR Act explicitly exempts from the act's requirements (1) GAO; (2) government corporations or government-controlled corporations, as defined in 5 U.S.C. § 103; (3) non-appropriated funds instrumentalities, as described in 5 U.S.C. § 2105(c); (4) certain depot-level maintenance and repair activities of the Department of Defense, as described in 10 U.S.C. § 2460; and (5) agencies with fewer than 100 full-time employees as of the first day of the fiscal year.
section_title: Other Statutory Definitions
paragraphs: In addition to the FAIR Act, other statutes have "definitions" sections that include "inherently governmental functions" or "functions closely associated with inherently governmental functions."
Two of these statutes provide a definition of inherently governmental functions that, while closely related to the definitions of the FAIR Act and OMB Circular A-76, does not reproduce either of these definitions verbatim. The Coast Guard appropriations authorization act for FY2004 and FY2005 and the National and Community Service Trust Act of 1993 both define an inherently governmental function as
any activity that is so intimately related to the public interest as to mandate performance by an officer or employee of the Federal Government, including an activity that requires either the exercise of discretion in applying the authority of the Government or the use of judgment in making a decision for the Government.
The verb "mandate" in this definition matches the verb in the definition of OMB Circular A-76, but this definition departs from the definition of OMB Circular A-76 by using "officer or employee of the Federal Government" where OMB Circular A-76 uses "Federal Government employees." This definition also specifically incorporates the functions of exercising discretion and using judgment that are mentioned in OMB Circular A-76 and are among the "functions included" within the FAIR Act's definition of inherently governmental functions.
Outside of the Coast Guard appropriations authorization act for FY2004 and FY2005 and the National and Community Service Trust Act of 1993, however, no statute provides a definition of inherently governmental functions different from that in the FAIR Act or OMB Circular A-76. Many statutes incorporate the definition from OMB Circular A-76 by reference when defining inherently governmental functions. Several of these statutes also use the related term, "functions closely associated with inherently governmental functions," but likewise incorporate the definition of OMB Circular A-76 by reference.
section_title: Statutory Declarations of Specific Functions as Inherently Governmental
paragraphs: Several provisions of federal law declare that specific functions are inherently governmental without defining inherently governmental functions. Sometimes, specific functions are defined as inherently governmental without reference to the FAIR Act or the employees performing the functions at the time of the statute's enactment. Examples of such functions are (1) the preparation of agency strategic plans and program performance reports under the Government Performance and Results Act of 1993 and (2) functions connected with the operation and maintenance of hydroelectric power-generating facilities at water resources projects of the Army Corps of Engineers. At other times, specific groups of employees, who were performing certain functions at the time of the statute's enactment, are classified as inherently governmental for purposes of the FAIR Act. Examples include federal employees at the National Energy Technology Laboratory and instructor staff at the Federal Law Enforcement Training Center. At yet other times, Congress effectively renders certain functions inherently governmental, at least temporarily, without classifying them as such, by providing that appropriated funds cannot be expended to contract them out. Finally, Congress sometimes signals its concerns about the executive branch's classification of specific functions without either enacting legislation designating the functions as inherently governmental or precluding the use of appropriated funds to contract the functions out. Congress can do this by expressing its sense that certain functions are inherently governmental, or by imposing additional restrictions—beyond those in the FAIR Act, OMB Circular A-76, or the FAR—upon contracting out activities that are arguably closely associated with inherently governmental functions.
Alternatively, but more rarely, Congress expresses its sense that certain functions are commercial, or appropriates funds to contract out activities that some commentators might seek to classify as inherently governmental.
section_title: Policy-Based Definitions and Declarations
paragraphs: OMB Circular A-76 provides the other main definition of inherently governmental functions used in federal law and policy. Office of Federal Procurement Policy Letter 92-1, which provided another significant policy-based definition of inherently governmental functions, was superseded by the 2003 revision of OMB Circular A-76. 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 of inherently governmental and provide guidance as to its implementation. Another policy document, Department of Defense Instruction Number 1100.22, in its revision of April 6, 2007, both provides a basic definition of inherently governmental functions and designates numerous DOD functions as inherently governmental or commercial.
subsections: section_title: OMB Circular A-76
paragraphs: Like its predecessors, the current OMB Circular A-76 "establishes federal policy for the competition of commercial activities." It both (1) articulates the "longstanding policy of the federal government ... to rely on the private sector for needed commercial services" and (2) establishes procedures for agencies to use in determining whether their commercial activities should be performed under contracts with the private sector or in-house by agency personnel. Although pre-2003 versions of OMB Circular A-76 focused on listing only commercial activities, the current version of OMB Circular A-76 requires agencies to list all activities they perform and classify these activities as commercial or inherently governmental. All activities classified as inherently governmental under OMB Circular A-76 must be performed by government personnel. Only those activities classified as commercial can be considered for contracting out.
Even in its pre-2003 versions, before agencies were required to list and classify inherently governmental activities, OMB Circular A-76 defined inherently governmental functions when characterizing them as the opposite of commercial activities. The definition in OMB Circular A-76 is itself brief, like the definition in the FAIR Act. The current version of OMB Circular A-76 says only that "An inherently governmental activity is an activity that is so intimately related to the public interest as to mandate performance by government personnel." However, OMB Circular A-76, also like the FAIR Act, follows its brief definition of inherently governmental functions with clarification and examples. The paragraph within the current version of OMB Circular A-76 that defines inherently governmental functions continues by stating 
[Inherently governmental] activities require the exercise of substantial discretion in applying government authority and/or in making decisions for the government. Inherently governmental activities normally fall into two categories: the exercise of sovereign government authority or the establishment of procedures and processes related to the oversight of monetary transactions or entitlements. An inherently governmental activity involves:
(1) Binding the United States to take or not to take some action by contract, policy, regulation, authorization, order, or otherwise;
(2) Determining, protecting, and advancing economic, political, territorial, property, or other interests by military or diplomatic action, civil or criminal judicial proceedings, contract management, or otherwise;
(3) Significantly affecting the life, liberty, or property of private persons; or
(4) Exerting ultimate control over the acquisition, use, or disposition of United States property (real or personal, tangible or intangible), including establishing policies or procedures for the collection, control, or disbursement of appropriated and other federal funds.
This language largely corresponds to that of the FAIR Act's examples of "functions included" in its definition of inherently governmental functions. However, the FAIR Act does include one example that is not included in OMB Circular A-76: the commissioning, appointing, directing, or controlling of officers or employees of the United States. 
The current version of OMB Circular A-76 then provides some further explanations that are unlike those in the FAIR Act or other sources, however. It first distinguishes between the exercise of discretion per se , which it says does not make a function inherently governmental, and the exercise of substantial discretion, which it says makes a function inherently governmental. It then notes that "[a]n activity may be provided by contractor support ... where the contractor does not have the authority to decide on the course of action, but is tasked to develop options or implement a course of action, with agency oversight," before listing six factors that agencies should consider to avoid transferring inherently governmental functions to contractors. See Appendix B for a listing of these six factors. The current version of OMB Circular A-76 also explicitly defines commercial activities:
A commercial activity is a recurring service that could be performed by the private sector and is resourced, performed, and controlled by the agency through performance by government personnel, a contract, or a fee-for-service agreement. A commercial activity is not so intimately related to the public interest as to mandate performance by government personnel. Commercial activities may be found within, or throughout, organizations that perform inherently governmental activities or classified work.
Additionally, it includes—but does not define—a category of activities that are commercial but "not appropriate for private sector performance."
OMB Circular A-76 and its definition of inherently governmental functions apply to all executive departments named in 5 U.S.C. § 101 and all independent establishments as defined in 5 U.S.C. § 104. There are no exemptions.
OMB Circular A-76 is, however, a statement of policy, not law. For OMB Circular A-76 to have the force of law, it would need (1) to be the product of a congressional grant of legislative authority promulgated in accordance with any procedural requirements imposed by Congress and (2) a substantive- or legislative-type rule affecting individual rights and obligations. Neither of these requirements are met in the case of OMB Circular A-76. Congress did not explicitly grant the executive branch legislative authority to promulgate OMB Circular A-76; rather, the Eisenhower Administration took it upon itself to promulgate Bulletin 55-4 of the Bureau of the Budget, the predecessor of OMB Circular A-76. Similarly, OMB Circular A-76 prescribes federal policy and procedures for agencies' contracting out, matters not affecting individual rights. Contractors do not generally have due process or other rights to prospective contracts with the federal government.
section_title: Proposed OFPP Letter
paragraphs: On March 31, 2010, OMB, through the Office of Federal Procurement Policy, issued notice of a proposed policy letter. The proposed policy letter adopts the FAIR Act definition as the single, government-wide definition. It also provides guidance to help agencies determine whether a given function meets the definition of an "inherently governmental function." The letter retains a list of examples of inherently governmental functions, currently found in FAR Subpart 7.5. Created are two 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.
The proposed letter, also, gives guidance as to identifying "functions which are closely associated with inherently governmental functions," and "critical functions." Public comment is requested on 11 specific aspects of the proposed letter. The letter is open to comment until June 1, 2010, and will not become final until 30 days after issuance of the final policy letter.
section_title: OFPP Letter 92-1
paragraphs: Prior to the 2003 revision of OMB Circular A-76, Office of Federal Procurement Policy (OFPP) Letter 92-1 was another important policy document containing a definition of inherently governmental functions. It was designed to "assist Executive Branch officers and employees in avoiding an unacceptable transfer of official responsibility to Government contractors." It specifically prohibited contracting out inherently governmental functions, which it defined as "[functions] that [are] so intimately related to the public interest as to mandate performance by Government employees." This definition is identical to that in OMB Circular A-76 except for its last word and the capitalization of its next-to-last word. OFPP Letter 92-1 uses "Government employees" where OMB Circular A-76 uses "government personnel." OFPP Letter 92-1 is still occasionally cited as an authority on the definition of inherently governmental functions. However, the 2003 revision of OMB Circular A-76 incorporated some of its contents and superseded it.
section_title: DODI 1100.22
paragraphs: When DOD functions are involved, Department of Defense Instruction (DODI) 1100.22, Guidance for Determining Workforce Mix , also provides a basic definition of inherently governmental functions and designates specific functions as inherently governmental or commercial. Like OMB Circular A-76, but unlike the FAIR Act, DODI 1100.22 includes a clear statement that "functions and tasks that are [inherently governmental] shall be performed by government personnel." DODI 1100.22 provides a basic definition of inherently governmental functions as "includ[ing], among other things, activities that require either the exercise of discretion when applying Federal Government authority or value judgments when making decisions for the Federal Government." This definition corresponds to the description of the types of functions included in the definitions of inherently governmental functions in the FAIR Act and OMB Circular A-76.
In addition to this basic definition, however, DODI 1100.22 provides lengthy lists of what functions do—and do not—qualify as an inherently governmental in the context of DOD operations. Appendix C summarizes how functions performed by military personnel are classified as inherently governmental or commercial within DODI 1100.22. Appendix D provides a similar summary of DODI 1100.22's classification of functions performed by civilian employees of DOD.
section_title: Administrative Law Provisions and Declarations
paragraphs: The key administrative law source on inherently governmental functions is the Federal Acquisition Regulation. Where DOD functions are involved, the Defense Federal Acquisition Regulation Supplement also addresses inherently governmental functions. Further declarations of specific functions as inherently governmental or commercial come from executive orders and GAO decisions.
subsections: section_title: Federal Acquisition Regulation
paragraphs: In addition to the FAIR Act and OMB Circular A-76, the Federal Acquisition Regulation (FAR) is the third major source of federal law and policy on inherently governmental functions. Two subparts of the FAR—Subpart 7.3 on "contractor versus government performance" and Subpart 7.5 on "inherently governmental functions"—address such functions. 
Subpart 7.3 is designed to provide executive branch officials with procedures for contracting out those functions that were found to be appropriate for private-sector performance under OMB Circular A-76 or other authority. This subpart incorporates the definition of OMB Circular A-76 by reference and, like OMB Circular A-76, which requires that agencies perform inherently governmental functions with government personnel, specifies that "[c]ontracts shall not be used for the performance of inherently governmental functions."
Subpart 7.5 relies on a definition of inherently governmental functions, contained in Subpart 2 of the FAR, that essentially mirrors the definition of OMB Circular A-76: 
"Inherently governmental function" means, as a matter of policy, a function that is so intimately related to the public interest as to mandate performance by Government employees. This definition is a policy determination, not a legal determination. 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.
(1) An inherently governmental function involves, among other things, the interpretation and execution of the laws of the United States so as to—
(i) Bind the United States to take or not to take some action by contract, policy, regulation, authorization, order, or otherwise;
(ii) 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;
(iii) Significantly affect the life, liberty, or property of private persons;
(iv) Commission, appoint, direct, or control officers or employees of the United States; or
(v) 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 Federal funds.
(2) 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 operations, or other routine electrical or mechanical services.
Subpart 7.5 provides lengthy, but "not all inclusive," lists of (1) functions that are to be considered inherently governmental and (2) functions that, although not inherently governmental, "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 contract performance." Appendix E illustrates the functions designated as inherently governmental, or "approaching" inherently governmental, in the FAR.
Beyond the examples in these lists, the FAR provides none of the elaboration upon the meaning or identification of inherently governmental functions given by the FAIR Act or OMB Circular A-76. The FAR also provides no guidance upon "functions that approach being inherently governmental" beyond identifying them. It does not bar agencies' contracting out these functions, and at least one decision by the U.S. Court of Federal Claims suggests that these functions can legally be contracted out.
The FAR's provisions on inherently governmental functions and functions approaching inherently governmental functions apply to all executive branch agencies not specifically exempted from the FAR and to all service contracts not obtained through personnel appointments, advisory committees, or under statutory authority.
section_title: Defense Federal Acquisition Regulation Supplement
paragraphs: The Defense Federal Acquisition Regulation Supplement (DFARS) provides additional guidance on inherently governmental functions for DOD agencies. Like the provisions of the FAR, the provisions of the DFARS are developed by notice-and-comment rulemaking and have the force of law. The DFARS declares that serving as a lead system integrator on a DOD contract entails performing acquisitions functions closely associated with inherently governmental functions and places certain limits on contractors serving as lead systems integrators. Other provisions of the DFARS (1) establish limits, which are lacking in the FAR, on contractor performance of certain functions closely associated with inherently governmental functions; (2) require written determinations that none of the functions to be performed under contract are exempt from private sector performance or inherently governmental prior to contracting them out; and (3) prohibit the award of contracts for functions exempted from private sector performance, as well as those that are inherently governmental.
Other statements contained in the Federal Register notices introducing DFARS rules, while not themselves incorporated into the DFARS, indicate that defense agencies consider protection of property and persons, as performed by private security contractors, a commercial activity. Performing preemptive or other types of attacks, in contrast, is considered inherently governmental.
section_title: Executive Orders
paragraphs: Executive orders have also been used to designate certain functions as inherently governmental or commercial. For example, Executive Order 13180, issued by President Clinton on December 7, 2000, designated the "provision of air traffic services" as an inherently governmental function. This order was effectively repealed by Executive Order 13264, issued by President George W. Bush on June 4, 2002, which removed the language designating provision of air traffic services as an inherently governmental function from its discussion of such services.
section_title: GAO Decisions
paragraphs: Numerous GAO decisions have also addressed the designation of specific functions as inherently governmental or commercial. GAO comes to address this question in two contexts: (1) in issuing advisory opinions, requested by agency officials, addressing whether agencies' proposed uses of appropriated funds are permissible and (2) in deciding bid protests when a protester challenges agencies' proposed contracting out of allegedly inherently governmental functions. GAO's decisions in bid protests lack the force of law and do not bind federal agencies or protesters. In neither context does GAO offer its own definition of inherently governmental functions. Rather, GAO uses a test for identifying inherently governmental functions that is based heavily on OMB Circular A-76 and the FAR.
GAO's test of inherently governmental functions looks for (1) the exercise of substantial discretionary authority by government contractors or (2) the contractor's making value judgments on the government's behalf. Both are factors mentioned along with the definitions of inherently governmental functions in the FAIR Act and OMB Circular A-76 and illustrated by the examples in the FAR. In its decision on NRC Contracts for Reactor Licensing Tests , for example, GAO applied this test to the Nuclear Regulatory Commission's (NRC's) proposal to contract out some of its functions in administering licensing tests for nuclear reactor operators. Under the proposed contract, the contractor would have prepared, administered, and graded the tests, as well as provided the NRC with recommendations on which candidates should be granted licenses. GAO found that the proposed contract did not involve inherently governmental functions because the NRC guidelines relating to the tests provided "such extensive detail and guidance" that the contractors had no opportunity to exercise discretion or make value judgments in preparing, administering, or grading the tests. GAO also emphasized that agency personnel—not the contractor—would ultimately decide who received licenses. When emphasizing ultimate agency decision making, GAO highlighted a further distinction between performing a function and advising or assisting with a function that GAO and the courts sometimes also use when identifying inherently governmental functions. 
GAO's decision in the Matter of GSA Transportation Audit Contracts similarly illustrates another characteristic of GAO decisions addressing whether specific functions are inherently governmental. In this case, the General Services Administration (GSA) proposed to contract out seven functions it had formerly performed in-house when conducting transportation audits. GAO found that two of these functions were inherently governmental, two were commercial, and the remaining three were not clearly inherently governmental or commercial based on GSA's description of the proposed contracts. As this decision illustrates, GAO examines the context of contractual performance, including the degree of actual supervision that agencies exercise over contractors allegedly assisting government agencies in performing inherently governmental functions. It does not typically classify functions as inherently governmental or commercial in the abstract.
 Appendix F illustrates how GAO has classified various functions as inherently governmental or commercial. Such GAO classifications do not, however, themselves have the force of law. They are advice or recommendations to agencies.
section_title: Judicial Decisions
paragraphs: Federal courts have also addressed the question of whether specific functions are inherently governmental or commercial. Two contexts prompt courts to determine what is an inherently governmental function. The first context involves litigation under the FAIR Act, OMB Circular A-76, and the FAR. This context actually entails a smaller number of published decisions than the second context, which involves litigation concerning constitutional rights. The litigation concerning constitutional rights itself takes two forms. First, there are cases involving the "state action doctrine," which consider whether private actors are performing inherently governmental functions in determining (1) whether those actors must provide the same constitutional rights to third parties that the government must provide and (2) whether those actors can claim sovereign immunity for certain actions like government officials can. Second, there are cases involving the "private delegation doctrine," which center upon whether a private party was given impermissible authority to legislate or make rules on the government's behalf. Legislating and rulemaking are inherently governmental functions.
The courts, like GAO, do not have an independent definition of inherently governmental functions. In deciding cases under the FAIR Act, OMB Circular A-76, or the FAR, the courts use the definitions provided in these sources. Moreover, in at least some cases, courts give considerable deference to the executive branch's classification of a function as inherently governmental or commercial because of the political question doctrine, under which courts decline to hear issues that have been entrusted to the discretion of another branch of government. In Arrowhead Metals, Ltd. v. United States , for example, the court found that coinage of money is inherently governmental but that the U.S. Mint has discretion to determine whether the stamping of blanks constitutes coinage. In reaching this conclusion, the court noted its "desire to avoid a legislative-executive controversy" regarding whether the striking of blanks in the production of coins constitutes an inherently governmental function.
In other cases, the courts use a test of inherently governmental functions much like that used by GAO, focusing upon the degree to which a private party exercises substantial discretion, or makes judgments, on the government's behalf. Functions classified as inherently governmental under the constitutional test include conducting elections; exercising the power of eminent domain; providing police services; investigating allegations of child abuse; exercising prosecutorial discretion; chartering, oversight, and regulation of companies; creation of public monopolies; holding the personal property of prisoners; limiting the First Amendment rights of prisoners; taxing and paying governmental indebtedness or obligations; devising tariff regimes; and hiring diplomatic staff or civil servants. Functions categorized as commercial, in contrast, include providing transportation services to citizens and selling government land on the government's behalf.
Designations of specific functions as inherently governmental in judicial decisions have the force of law, at least within the jurisdictions where the decisions are precedent and for so long as the decisions are not overturned. However, a judicial declaration that a function is inherently governmental under a constitutional test would not necessarily preclude the executive branch from contracting out this function under the FAIR Act, OMB Circular A-76, or the FAR. Rather, in the "state action" context, the designation of a function as inherently governmental means only that the contractor performing the inherently governmental function (1) owes private individuals the same constitutional rights that the government owes them and (2) can claim sovereign immunity like government officials can. Similarly, in the "private delegation" context, the designation means only that any regulations issued by the contractor cannot be constitutionally applied to private individuals. The "private delegation" doctrine would not necessarily preclude the contractor from performing other functions under the contract that resulted in the contractor's issuance of the regulations.
section_title: Issues and Options for Congress
paragraphs: The 110 th Congress required the Office of Management and Budget (OMB) to review existing definitions of inherently governmental functions and "develop a single consistent definition" of inherently governmental functions by October 14, 2009. Congress did so, in part, because of its concern that federal agencies may have recently contracted out inherently governmental functions due to the existence of multiple and/or inconsistent definitions of this term. This section provides an overview of major policy and legal issues that could be raised by amending the existing definitions of "inherently governmental functions," either in response to OMB's proposal or otherwise, as well as by other options that Congress could employ to prevent alleged contracting out of inherently governmental functions. 
subsections: section_title: Reliance on Prior Statutory Changes and/or Policies of the Obama Administration
paragraphs: One option for Congress would be to enact no new legislation addressing the definition of inherently governmental functions or the classification of specific functions as inherently governmental until changes required under existing legislation or proposed by the Obama Administration have been fully implemented. 
The 110 th and 111 th Congresses have enacted several statutes that address contracting out in general or inherently governmental functions in particular. In addition to the Duncan Hunter National Defense Authorization Act for FY2009, which required OMB to "develop a single consistent definition" of inherently governmental functions, the Omnibus Appropriations Act, 2009, prohibited agencies from conducting new public-private competitions under OMB Circular A-76 through September 30, 2009. This moratorium on public-private competitions was effectively extended beyond FY2009 by provisions in subsequent appropriations acts that require agencies to complete certain studies prior to conducting such competitions. Other enacted legislation
requires the Secretary of Defense to include in the Annual Defense Manpower Requirements Report a "summary of the replacement during the preceding fiscal year of contract workyears providing support to major Department of Defense headquarters activities with military end strength or civilian full-time equivalents, including an estimate of the number of contract workyears associated with the replacement of contracts performing inherently governmental or exempt functions"; grants the Department of Defense authority to use appropriated funds available for the purchase of contract services that meet requirements anticipated to continue for five or more years to compensate civilian employees for performing the same requirements and calls for the promulgation of regulations ensuring that the department uses this authority to "build government capabilities that are needed to perform inherently governmental functions, functions closely associated with inherently governmental functions, and other critical functions"; classifies specific functions as inherently governmental; requires the Secretary of Defense to develop guidance related to personal service contracts establishing clear distinctions between DOD employees and the employees of DOD contractors; expresses the sense of Congress that 
security operations for the protection of resources (including people, information, equipment, and supplies) in uncontrolled or unpredictable high-threat environments should ordinarily be performed by members of the Armed Forces if they will be performed in highly hazardous public areas where the risks are uncertain and could reasonably be expected to require deadly force
and requires that regulations to be issued under Section 862(a) of the National Defense Authorization Act for FY2008 ensure that private security contractors are not authorized to perform inherently governmental functions in areas of combat operations; requires the Administrator for Federal Procurement Policy to develop and issue a standard policy to prevent personal conflicts of interest by contractor employees performing acquisitions functions closely associated with inherently governmental functions; expresses Congress's sense that interrogation of enemy prisoners of war, civilian internees, retained persons, other detainees, terrorists, or criminals captured, confined, or detained during or in the aftermath of hostilities is an inherently governmental function and cannot appropriately be transferred to private sector contractors; requires DOD to develop guidelines and procedures to ensure that DOD considers using DOD civilian employees to perform new or currently contracted-out functions that are closely associated with the performance of inherently governmental functions, among other things; requires DOD to ensure that DOD's acquisition workforce is of the appropriate size and skill level to accomplish inherently governmental functions related to the acquisition of major systems and defines a "lead system integrator" as "a prime contractor under a contract for the procurement of services the primary purpose of which is to perform acquisition functions closely associated with inherently governmental functions with respect to the development or production of a major system"; requires the Commission on Wartime Contracting to make specific recommendations regarding, among other things, the process for determining which functions are inherently governmental in contingency operations, including whether providing security in an area of combat operations is inherently governmental; and requires OMB to develop an inventory to track contracts that, among other things, involve inherently governmental functions. 
Many of these changes have not yet been fully implemented. 
Similarly, the Obama Administration has recently signaled its commitment to have more functions, in general, performed by the federal government and to ensure that inherently governmental functions, in particular, are not improperly contracted out. Some commentators attributed the alleged contracting out of inherently governmental functions during the George W. Bush Administration, in part, to President Bush's "management agenda," which prominently featured a competitive sourcing initiative. The Obama Administration, in contrast, apparently intends to in-source, as a matter of policy. Members of the administration have signaled their belief that contractors have performed inherently governmental functions, and that too many functions were contracted out in prior administrations. Additionally, OMB released guidance concerning "Managing the Multi-Sector Workforce" in July 2009 that cautions against "overreliance on contractors" and instructs agencies to ensure that functions which are "critical" but not "inherently governmental" be performed only with federal employees to the extent required to retain control of the agency mission and operations. However, once the agency has "sufficient internal capacity" to control its mission and operations, such "essential functions" can be performed by either contractor or governmental personnel, as can functions that are "essential" but not "inherently governmental." Executive agencies have also made some plans for in-house performance of two functions—acquisitions work and provision of security services—whose performance by contractors has been of particular concern to Congress. Such changes in policy may suggest that the executive branch is no longer likely to contract out functions that some allege are inherently governmental. 
Waiting to see whether implementation of previously enacted legislation and/or the change in administration brings the desired changes in agencies' treatment of specific functions (e.g., performance in-house as opposed to contracting out) is one option for Congress. Prior changes in the law, coupled with the change in administration, might suffice to realize Congress's intent without resorting to more extensive changes in the law that could inadvertently limit the options of future administrations. For example, even without any statutory requirement to do so, the Department of Homeland Security (DHS) recently announced that it would review all newly awarded or renewed DHS contracts for services in excess of $1 million "to ensure that proposed contract awards do not include inherently government functions or impact core functions that must be performed by federal employees."
Alternatively, Congress might decide that additional oversight or further statutory changes are immediately necessary to support current executive branch policy initiatives or ensure that future administrations do not have the opportunity to contract out allegedly inherently governmental functions before Congress can check them. 
section_title: Amending the Definition of "Inherently Governmental Functions"
subsections: section_title: Standardizing the Definition of "Inherently Governmental Functions"
paragraphs: One common theme in the recent literature on inherently governmental functions is that there are numerous and/or inconsistent definitions of inherently governmental functions within federal law and policy. For example, in its report on the Duncan Hunter National Defense Authorization Act for FY2009, the House of Representatives noted that the task of determining which functions must be performed by government employees
is made even more difficult by the lack of a single definition and accompanying guidance on what constitutes an "inherently governmental function." Currently, the Federal Acquisition Regulation defines that term in multiple places, the Office of Management and Budget Circular A-76 also defines the term, and there is yet another definition in the Federal Activities Inventory Reform Act ( P.L. 105-270 ). There is also the additional DOD-specific definition of [functions] "closely associated with inherently governmental functions."
Similarly, in its report Changing the Culture of Pentagon Contracting , the New America Foundation noted that the phrase "inherently governmental functions" appears 15 times in the United States Code "without a clear or consistent definition." Commentators raising this point appear to be suggesting that agencies would not contract out allegedly inherently governmental functions if (1) they did not have to determine which definition applied in particular cases and/or (2) they had clear definitions to guide their decision making in particular cases.
Despite being pervasive, however, such concerns about multiple or inconsistent definitions of inherently governmental functions may be overstated given that there are only two main definitions of inherently governmental functions in federal law and policy. Moreover, these two definitions are arguably compatible, as Table 1 and Appendix G illustrate. In fact, the definitions differ in only a few words, although the materials accompanying the definitions diverge to a greater degree. The FAIR Act defines an inherently governmental function as "a function that is so intimately related to the public interest as to require performance by Federal Government employees," while OMB Circular A-76 defines an inherently governmental activity as an "activity that is so intimately related to the public interest as to mandate performance by government personnel." The differences between "activity" and "function," "require" and "mandate," and "government personnel" and "Federal Government employees" are arguably not legally or operationally significant. That there is such apparent compatibility between these definitions should not be surprising, given the history of the three main documents establishing federal law and policy on inherently governmental functions. The FAIR Act was intended to encourage agencies to at least consider outsourcing their commercial functions under the policies and processes of OMB Circular A-76. OMB Circular A-76 was, in turn, amended in 1999 to bring it into conformity with the FAIR Act, and much of OMB Circular A-76 was later incorporated into the FAR. 
section_title: Replacing "Inherently Governmental Functions" with Another Construct
paragraphs: Other commentators have suggested using another phrase instead of inherently governmental functions, such as "core functions," "mission essential functions," or "critical government functions." Commentators making this proposal often do not clarify whether this substitution is largely semantic, with agencies to be prohibited from contracting out core functions, for example, in the same way that they are currently prohibited from contracting out inherently governmental ones, or whether the substitution is intended to shift the debate from questions of law (i.e., what may be contracted out?) to questions of policy (i.e., which of the functions that may lawfully be contracted out should be contracted out?). Proposals of the latter sort are not definitional and are discussed in the section on " Focusing on Questions of Contracting Policy " below. 
Proposals of the former sort—to replace inherently governmental functions with another phrase that defines which functions agencies may lawfully contract out—would seem to be premised on the belief that agencies will more easily and accurately ascertain which functions they must perform in-house if they can consider specific functions in relation to a defined word or phrase that more clearly expresses the grounds for their decision making. That is, while agency officials may have difficulty determining which functions are inherently governmental because "inherently governmental" is an abstract-sounding concept, core or mission essential or critical functions may be easier to recognize because their very names make clear the basis for recognizing them. By its name, a "core function" would seem to be one central to an agency's activities; a mission essential function, one necessary for the successful accomplishment of a task; and a critical function, one that could have harmful consequences if not performed. 
All of the terms suggested as definitional replacements for "inherently governmental functions" could also potentially connote a broader set of functions than those encompassed by the term inherently governmental functions, especially under its current definition. The range of mission essential functions, for example, could include any function necessary for the completion of a task, not just those functions that must be performed by government employees because they are "intimately related to the public interest." Translating directions from a foreign language into English could be mission essential (e.g., necessary in order for commanders to get troops from Point A to Point B) without being inherently governmental (e.g., if the troops were on a routine patrol in friendly territory). Replacing "inherently governmental functions" with one of these terms could thus expand the range of functions exempt from contracting out, which might also constitute a short-term solution to any alleged over-reliance on contractors. However, this approach would not necessarily address which functions government employees must perform because they are in the public interest. Moreover, tying functions more closely to agency operations than to the public interest could result in situations where a function is categorized differently by different agencies. For example, translators would not necessarily be mission essential for the Interior Department, although they might be for the State Department. Similarly, translators could be essential for some DOD missions, but not for others. 
section_title: Defining Other Terms Related to "Inherently Governmental Functions" and Prohibiting Contracting Them Out
paragraphs: The Correction of Long-Standing Errors in Agencies' Unsustainable Procurements (CLEAN-UP) Act of 2009 ( S. 924 , 111 th Congress) would effectively diminish agencies' ability to contract out inherently governmental functions, among others, by defining other categories of functions related to inherently governmental ones and precluding agencies from contracting out these functions. S. 924 would adopt the FAR's definition of functions closely associated with inherently governmental functions and create its own definition of mission essential functions. This definition includes "functions that, although neither necessarily inherently governmental nor necessarily closely related to an inherently governmental function, are nevertheless considered by executive agency officials to be more appropriate for performance by Federal employees." It then would require heads of executive agencies to "ensure that inherently governmental functions, functions closely related to inherently governmental functions, and mission-essential functions are performed by Federal employees."
Such a proposal would, among other things, ensure that allegedly inherently governmental functions are effectively shielded from potential contracting out by "insulating" them within additional layers of functions that could not be contracted out. Executive branch categorizations of particular functions would have less significance under this proposal than under the current law, where functions may be contracted out provided that the contracting agency determines that they are not inherently governmental. Provision of security services in combat zones is one function that might be more easily kept in-house under the CLEAN-UP Act than under existing law. Under existing law, DOD contracted out such services after finding they were not inherently governmental, although some Members of Congress contend that they are inherently governmental functions or functions approaching inherently governmental. Under the CLEAN-UP Act, however, DOD would have to find that these functions are not inherently governmental, closely related to inherently governmental, or mission essential in order to contract them out. The two additional categories into which functions might fall, which would keep them from being contracted out, could increase the likelihood of certain functions being performed in-house. For example, while it may seem plausible, at least to some, that private security contractors do not perform inherently governmental functions, it could seem less plausible that their functions are neither closely associated with inherently governmental functions nor mission essential. 
Such a change would be a significant one, given that agencies currently may generally contract out functions that they do not find to be inherently governmental. The change might, however, serve only to shift the functions about which disagreements arise. Rather than disagreements over the categorization of functions as inherently governmental, Congress and federal agencies might find themselves in disagreements over the categorization of functions as mission essential. Moreover, such disagreements might have to be resolved by the legislative or political process given the limits on standing to challenge agencies' contracting determinations and the political question doctrine.
section_title: Clarifying Terms within the Existing Definition of Inherently Governmental Functions
paragraphs: Another option, not widely discussed, would be to define terms within the existing definition of inherently governmental functions. The existing definition of inherently governmental functions could, perhaps, be made clearer by establishing the meaning of key terms under it. Statutes could prescribe what it means for a function to be "intimately related to the public interest" or "performed by the federal government," for example. Defining "performance by the federal government," in particular, could potentially help remove the distinction between performing and assisting with inherently governmental functions that characterizes GAO opinions and executive branch discussions of inherently governmental functions. For example, in its consideration of the IRS's proposed private debt collection program—which was one of the most prominent non-DOD examples of an agency contracting out allegedly inherently governmental functions—GAO distinguished between collection of taxes, which is inherently governmental, and assisting in collecting taxes by locating and contacting taxpayers to remind them of their tax liability and suggest payment methods, which is not inherently governmental. 
section_title: Potential Limitations of Definitional Changes
paragraphs: Any definitional changes, along the lines suggested above or otherwise, may be of limited effectiveness in ensuring that executive branch agencies do not contract out functions that some Members of Congress or commentators believe are inherently governmental. This is, in large part, because many functions are not patently inherently governmental or commercial, as Figure 1 illustrates. The potential effectiveness of definitional changes is also limited by the fact that any definition—of inherently governmental functions or some other construct—would be applied in specific circumstances by executive branch officials, who might not classify functions in the same way that Congress or third-parties would classify them. For example, DOD determined that private security contractors would not be performing inherently governmental functions under the existing law. Some Members of Congress disagreed, however, as is evidenced by their enactment of legislation expressing the sense of Congress that "security operations for the protection of resources ... in uncontrolled or unpredictable high-threat environments should ordinarily be performed by members of the Armed Forces." 
Congress has attempted to address alleged deficiencies in agencies' application of the definitions of inherently governmental functions in several ways. The 110 th Congress required the Commission on Wartime Contracting to include in its report recommendations on the process for determining which functions are inherently governmental in contingency operations, including whether providing security in an area of combat operations is inherently governmental. The 110 th Congress, as well as other Congresses, also enacted legislation classifying particular functions as inherently governmental. Congress could also require agencies to provide mandatory training for their contracting officers, in particular, on what constitutes an inherently governmental function. Or Congress could provide agencies with lists of functions that are inherently governmental, or potentially suitable for contracting out, like the lists found in the FAR or formerly contained in OMB Circular A-76. 
None of these approaches is likely to prevent the recurrence of future inter-branch differences of opinion in the classification of particular functions, however. The recommendations of the Commission on Wartime Contracting will be context-specific, and while they might adequately guide DOD in the near future in similar situations, they may not be sufficient to guide decision making by other agencies, in the future, or in dissimilar situations. Enactment of legislation classifying particular functions as inherently governmental is necessarily ad hoc , and often possible only after agencies have already engaged in allegedly improper contracting for performance of inherently governmental functions. Mandatory training for agency officials could cost money, and it would be hard to ensure that the persons providing the training would categorize specific functions in the same way that some Members of Congress or commentators would. These trainers would be employees of or working for the executive branch, which has its own interests in asserting its constitutional and statutory prerogatives in the realm of contracting. No listing of functions could be comprehensive, and even if the list covered all functions currently of concern to Congress, problems may arise in the future related to the performance of functions not presently at issue. Some current disputes over the alleged contracting out of inherently governmental functions during the Bush Administration were arguably exacerbated by the fact that agencies categorize functions as inherently governmental or commercial without knowing all the details about how specific contracts will be performed in specific settings that often later prompt commentators to allege the functions were inherently governmental and should never have been contracted out to begin with. Had Blackwater employees not been involved in several shooting incidents in Iraq, which were unanticipated at the time the State Department entered the contracts with Blackwater, the debate over whether private security contractors perform inherently governmental functions might not have ensued. 
section_title: Placing Limits on Contracting Out Or Use of Appropriated Funds
paragraphs: Prohibiting agencies from contracting out specific functions, or from using appropriated funds to contract out specific functions, would also serve to ensure that certain allegedly inherently governmental functions are not contracted out. Section 730 of the Consolidated Appropriations Act for FY2008, for example, specifies that 
[n]one of the funds made available in this Act may be used to study, complete a study of, or enter into a contract with a private party to carry out, without specific authorization in a subsequent Act of Congress, a competitive sourcing activity of the Secretary of Agriculture, including support personnel of the Department of Agriculture, relating to rural development or farm loan programs. 
Such approaches do not require any changes in the definition of inherently governmental functions, and they remove all possible questions about whether the executive branch will categorize a function as Congress might wish. These approaches are probably best utilized as tailored responses to specific concerns, however, because they are reactive and potentially time-limited. Congress generally uses these approaches on an ad hoc basis in response to agencies' contracting out, or proposed contracting out, of specific functions. Moreover, if included in an appropriations bill, such prohibitions could be limited to specific agencies or time periods. Prohibitions in a DOD appropriations bill would not necessarily apply to the Department of State, for example, and prohibitions could be limited to funds covered by the appropriation, or automatically carried over to future appropriations bills long after the situation prompting the prohibition has otherwise been resolved.
A more general prohibition on the use of the OMB Circular A-76 process, such as was in place through September 30, 2009, might seem helpful in preventing the contracting out of inherently governmental functions because it addresses all contracting out under OMB Circular A-76. However, such an approach is arguably both over-inclusive and under-inclusive. It is over-inclusive in the sense that prohibiting agencies' contracting out under OMB Circular A-76 encompasses all functions performed by the government, not just those that are allegedly inherently governmental. OMB Circular A-76 articulates the competitive process that agencies are to use in source selection whenever they consider contracting with private sector sources for the performance of commercial activities performed by government employees. It thus potentially applies to contracts for functions that are generally not considered to be inherently governmental (e.g., custodial services), as well as to those for functions that some might argue are inherently governmental (e.g., acquisitions-related functions). A general prohibition on the use of the A-76 process is also under-inclusive in the sense that A-76 addresses only commercial functions performed by government employees. It does not apply to new functions, which have not been performed by government employees, nor does it provide a mechanism for "insourcing," or determining whether government employees or contractors should perform functions currently performed by contractors. Such a prohibition may also generate opposition from trade groups if it appears designed to protect government employees at the expense of contractor employees. 
section_title: Addressing Structural Factors Prompting Agencies to Rely on Contractors
paragraphs: Some commentators have suggested that Congress could potentially make agencies less prone to contract out allegedly inherently governmental functions, or other functions, by addressing structural factors that may lead agencies to rely on contractors instead of military personnel or civil servants. "Personnel ceilings" have been identified as one such factor. A personnel ceiling establishes the maximum number of positions that may be budgeted in a job category or for all personnel in an organization. Although DOD is prohibited from converting a function performed by DOD civilian personnel to contractor performance to circumvent a personnel ceiling, it is otherwise subject to ceilings on the number of civilian employees and military personnel. It may also hire contractors without engaging in public-private competitions under OMB Circular A-76 when converting functions from military to DOD civilian performance if the director of the local Human Resources Office determinates that civilian employees cannot be hired. Some commentators have suggested that DOD relied on contractors to perform certain functions, most notably acquisition functions, in part because of the operation of such personnel ceilings. Recently enacted or introduced legislation removed or would remove personnel ceilings imposed by the executive branch, as well as certain congressionally imposed ceilings on the number of DOD personnel. However, such legislation does not address congressionally imposed ceilings outside DOD, or troop needs in situations where DOD civilian personnel cannot be substituted for military ones and there are insufficient volunteers for the military. However, complete removal of personnel ceilings is not possible because of limits on the use of appropriated funds and, arguably, would not comport with some Members' desire to keep agencies within their budgets.
Another factor involves the ease of hiring and firing government personnel. Because of the procedural requirements for hiring new federal employees, as well as the procedural protections ensuring that federal employees are not improperly dismissed, agencies can experience difficulties matching their existing personnel to the functions they need to perform when there are sudden changes in their missions. An unanticipated need for workers to perform a new function, or the actual or anticipated ending of a particular mission, poses particular problems. This factor may become less salient over time, however, as Congress has given, or is considering giving, agencies expedited or other hiring authorities, and agencies have begun creating some term-limited positions for federal employees. 
section_title: More Effective Oversight of Executive Branch Contracting Decisions
paragraphs: Congress receives some information about agencies' contracting decisions under the FAIR Act, but this information may be insufficient to enable Congress to adequately ascertain which functions agencies may be improperly contracting out. Under the FAIR Act, agencies must compile annual lists of all activities they perform that are not inherently governmental and make these lists available to Congress and the public. However, such lists include only functions that agencies currently perform, not new functions, and the listings may not provide Congress or the public with enough information to ascertain whether a listed function is, in fact, commercial, as Figure 2 illustrates. Moreover, under the FAIR Act, agencies' lists are not directed to any specific committee(s) of Congress, nor is there an established procedure for congressional review of or response to the lists once they are received. This is not to say that Congress and its Members cannot or do not exercise their oversight functions in response to specific items on agencies' FAIR Act inventories. It does, however, mean that congressional involvement with FAIR Act inventories is ad hoc , not systemic, which could limit Congress's ability to provide effective oversight of contracting out under the FAIR Act. Systemic congressional involvement in the OMB Circular A-76 process is equally limited. OMB Circular A-76 focuses primarily upon public notice, as Figure 3 illustrates; notice to Congress is mentioned only as an accompaniment to public notice. 
Congress has recently considered several proposals that would increase the information about agencies' contracting decisions available to Congress and/or the public. The CLEAN-UP Act, for example, would require that the Chief Acquisition Officer of each agency, or his or her equivalent, certify that each function to be performed under an agency service contract (including task or delivery orders and exercises of options) is not inherently governmental, closely related to inherently governmental, or mission essential. In addition, agency heads would have to report to the head of OMB annually on each contract, with the report being posted on the Internet and notice of the report's availability being published in the Federal Register . The hope is, apparently, that increased congressional or public awareness of agencies' decisions may diminish the likelihood that an agency will improperly classify as commercial an activity that is arguably inherently governmental. With increased awareness of potentially problematic decisions, Congress could exercise oversight or enact legislation. However, oversight may be insufficient to get an agency to change its classification of a particular function, especially in the short term, and enacting legislation can take time. 
section_title: Focusing on Questions of Contracting Policy
paragraphs: Another option for Congress would be to shift its focus from questions of contracting law to questions of contracting policy, or from discussions of whether specific functions are inherently governmental to discussions of which of the functions that are not inherently governmental should be performed in-house. The current discussions regarding the definition of inherently governmental functions, or whether certain functions are inherently governmental, do not address what should be done with those functions which are not inherently governmental. Agencies are presently answering these questions on an ad hoc basis, without appreciable congressional guidance, in part because the only government-wide authorities on contracting out were designed for different purposes and focus upon contracting out of commercial functions. The FAIR Act focuses upon listings of commercial functions that could be lawfully contracted out, while OMB Circular A-76 focuses upon how to determine whether government employees or the private sector will perform specific commercial functions. 
No legislation, regulation, or policy document systematically addresses how agencies should determine which of the non-inherently governmental functions they perform should be performed in-house because of concerns related to transparency, accountability, employment policy, or related issues, although commentators have proposed some such frameworks. Figure 4 illustrates one possible model for separating questions of contract law from those of contract policy, while Figure 5 illustrates one model for deciding questions of contracting policy. The need for "balance" and "reasonableness" in agencies' use of contractors, as well as their need to "maintain agency capability to perform core functions" have been particularly noted. However, discussions of "balance" and "reasonableness" can have two different focal points. While the focus is often on the perceived overuse of contracting out, there are those who believe that the problem is under-use of the private sector. The Freedom from Government Competition Act of 2009, for example, takes the latter view. The cost of performing functions is assessed as part of the A-76 process, although there have been some concerns about how accurately this process reflects the costs of either performance in-house or by contractors.
Congress has arguably recently begun to pay increased attention to questions of contract policy. Sections 3 and 11 of the CLEAN UP Act, for example, encourage executive branch agencies to pursue business process engineering, "even if such efforts reduce or increase the need for Federal employees or contractors." Business process engineering is, however, more concerned with cost-savings in operations than it is with decision making as to who performs specific functions. Congress could take additional actions to focus attention on questions of contracting policy by, among other things, holding hearings at which agencies can present and discuss their developing frameworks for deciding questions of contracting policy, mandating that executive branch officials develop a framework for deciding questions of contracting policy, or legislatively establishing such a framework to be used by executive branch officials. 
A focus on contracting policy may also allow Congress to better address related questions, such as the management and oversight of contractors' work, that often get caught up in the debate over inherently governmental functions, but are arguably separate from it. For example, some commentators seem to desire the expansion of the category of inherently governmental functions because there have been problems with contractor performance under specific contracts and classifying a function as inherently governmental ensures that a contractor cannot lawfully perform that function. However, while it may be tempting to conflate "shall" and "should" and categorize all functions as inherently governmental whenever there are any possible grounds for saying that the government "should" perform them, such an approach could constrain the options of future administrations and avoids the question of which functions must be performed by the government in every case. A function that should be performed by the government could potentially be contracted out in an emergency if it cannot be performed in-house. The same would not be true of an inherently governmental function. 
Appendix A. Examples of Congressional and Executive Branch Interactions in Defining Inherently Governmental Functions During the 1980s
Some illustrations of Congress's responses to attempts by the Reagan and George H.W. Bush Administrations to contract out certain functions during the 1980s may help to clarify the give-and-take in the current debate over the public and private sectors and contracting out. During this period, Congress frequently used the appropriations rider to counter contracting-out decisions. An appropriations rider places conditions—generally in the form of language specifying that "no funds shall be used for"—on the outsourcing of a particular type of function or on outsourcing in general. Alternatively, an appropriations rider might impose conditions that must be met before funds can be expended (e.g., a report to Congress). This type of legislation is easily tailored to particular concerns, but is generally only effective for the period of the appropriation.
Appropriations Riders
General Prohibitions on Contracting Out
An example of a general prohibition on contracting out was contained in the Further Continuing Appropriations Act for FY1983, which provided that none of the funds appropriated under the act for the General Services Administration (GSA) could be obligated or expended to contract out any service performed by GSA employees. Another example of a general prohibition was contained in the National Aeronautics and Space Administration Authorization Act for FY1989, which prohibited the use of funds authorized by the act to contract out any function currently performed by federal employees at the Kansas City National Weather Service Training Center.
Prohibitions on Contracting Out Specific Functions
The 1984 appropriation for GSA illustrates a more specific type of restriction on contracting out. The continuing resolution for FY1984 specified that no funds could be expended by GSA to contract out any guard, elevator operator, messenger, or custodian functions performed by GSA employees. However, the act granted an exception for certain services contracted out to sheltered workshops employing the "severely handicapped." Another example of a prohibition on contracting out specific functions can be found in the Treasury, Postal Service and General Government Appropriations Act for FY1989, which prohibited use of any funds made available under the act to contract out positions at the Bureau of Engraving and Printing Police Force. 
Requiring Agencies to Meet Certain Conditions Prior to Contracting Out
There were also many instances where Congress required agencies to meet certain conditions before they could use appropriated funds to implement any outsourcing decision. The Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriation Act for FY1989, for example, specified that none of the funds provided under the act could be obligated, or expended through a reprogramming of funds, to contract out any function or activity performed by federal employees without first notifying the Appropriations Committees of both Houses of Congress. The Department of Defense Appropriations Act for FY1989 similarly prohibited the use of funds appropriated by the act for contracting out any activity performed by the Defense Personnel Support Center in Philadelphia unless the Appropriations Committees of both Houses of Congress received advance notice.
Specifying Procedures for Contracting Out
Another approach was to limit agencies' discretion by prescribing how particular agencies should approach their outsourcing decisions. Congress used this approach to address both contracting out generally and contracting out of specific functions. For example, Congress sometimes enacted statutes setting out the criteria that an agency must use in making outsourcing determinations, the procedure it must follow in any public/private cost comparisons, definitions of key terms (e.g., "inherently governmental functions"), penalties for violations, and any specific or generic exemptions. Chapter 146 of Title 10 of the United States Code, which governs DOD contracting for performance of civilian commercial or industrial functions, illustrates this type of legislation. Chapter 146 has provisions (1) specifying the studies and reports that DOD must perform before converting a function; (2) defining and exempting "core functions;" (3) listing the requirements for conducting cost comparisons involving retirement costs; and (4) listing specifically exempted functions. 
Interestingly, Chapter 146 was not enacted as one statute, but resulted from several provisions enacted during the 1980s, as the following chronology illustrates. 
Departme nt of D efense Authorization Act for FY 1980 . This act prohibited DOD from converting, during that fiscal year, any commercial or industrial function of DOD performed by DOD personnel as of November 9, 1979, to performance by a contractor unless the Secretary of Defense notified Congress. Two types of notification were required. First, the Secretary was to notify Congress of any decision to study possible conversion and certify that the government in-house cost calculation for the function was based on an estimate of the most efficient and cost-effective organization for in-house performance. Then, if a decision to convert the function was ultimately made, the Secretary had to report (1) the economic impact on the employees affected, the community, and the federal government; (2) the effects of the conversion on the military mission of the function; and (3) the amount of the private bid for performance of the function, the cost if the function were continued in-house, and any costs or expenditures the government would incur because of the contract. The act also prohibited, during the fiscal year, any conversion to circumvent civilian personnel ceilings. The act exempted funds appropriated for any fiscal year for DOD research, development, testing, or evaluation, or procurement or production related thereto, unless the funds were obligated or expended for operation or support of installations or equipment used for research and development, including maintenance support for laboratories, operation and maintenance of test ranges, or maintenance of test aircraft and ships. Departme nt of Defense Authorization Act for FY 1981 . This act contained restrictions on contracting out that were nearly identical to those included in the DOD authorization for FY1980, but made these restrictions permanent law with an effective date of October 1, 1980. The act prohibited converting any commercial or industrial function of DOD performed by DOD personnel on October 1, 1980, to performance by a private contractor unless the Secretary of Defense provided the following information to Congress in a timely manner: (1) notice of any decision to study possible conversion; (2) a detailed summary comparing the cost of DOD personnel performing the function and performance by a private contractor and demonstrating that privatization of the function would result in cost savings to the government over the life of the contract; (3) certification that the government's in-house cost calculation for the function was based on an estimate of the most efficient and cost-effective organization for in-house performance; (4) a report on the economic impact of the proposed contract on the employees affected, the community, and the federal government; (5) the effects of the conversion on the military mission of the function; and (6) the amount of the private bid for performance of the function, the cost if the function were to be continued in-house, and any cost or expenditure which the government would incur because of the contract. If DOD decided to convert the function after these studies were completed, the Secretary of Defense had to report this decision to Congress. The effective date of this provision was October 1, 1980. The act also prohibited conversion to circumvent civilian personnel ceilings. Department of Defense Authorization Act for FY 1983 . This act amended the 1981 authorization for DOD so that the foregoing prohibitions applied only to functions performed by civilian employees of DOD, as opposed to DOD personnel. It exempted functions performed by 10 or fewer DOD civilian employees, but prohibited modification, reorganization, or division of functions to take advantage of this exemption. The amendment also provided that the restrictions of the act should not apply during war or declared national emergencies. The effective date of this amendment was October 1, 1982. The act also specifically prohibited use of any funds appropriated pursuant to the authorization to contract out firefighting or security-guard functions at any military facility except for the renewal of existing contracts. The act also placed a six-month moratorium on use of any funds appropriated under this authorization for new studies of the benefits or feasibility of contracting out functions performed by DOD civilian employees except for custodial, laundry, refuse collection, grounds maintenance, food service and preparation, and base transportation functions. The six-month period ran from October 1, 1982, to March 31, 1983. Department of Defense Author ization Act for FY 198 4 . This act continued for two years the prohibition on contracting out DOD firefighting and security-guard functions that had been initiated in the DOD authorization for FY1983. The extended prohibition did not apply to contracts to be performed outside the United States, situations where the use of military personnel would affect unit readiness, contracts to be carried out on government-owned but privately operated installations, or renewal of existing contracts. Department of Defense Authorizat ion Act for FY 1985 . This act required the Secretary of Defense to identify logistics activities that are essential to the national defense. The act prohibited contacting out these activities unless the Secretary provided Congress with a "waiver" stating that the activity was no longer required for national defense, as well as the criteria used in granting the waiver. Departmen t of Defense Authorization Act for FY 1986 . This act declared that certain functions of DOD should be deemed logistics activities essential to the national defense under Section 307 of P.L. 98-525 . These functions were depot-level maintenance of mission essential materiel at certain facilities of the Army, Navy, Marines, Air Force, Defense Logistics Agency, and Defense Mapping Agency.
Codifying Restrictions from Appropriations Riders
As the notes under many of the foregoing provisions indicate, numerous limitations were codified late in the 99 th Congress and or in the 100 th Congress. The National Defense Authorization Act for FY1987, for example, codified the prohibition on contracting out DOD firefighting functions that had been initiated in the DOD authorization for FY1983. However, this prohibition did not apply to contracts performed outside the United States, situations where use of military personnel affected unit readiness, contracts performed on government-owned but privately operated installations, or renewal of existing contracts. The prohibition on contracting out security-guard functions was continued for one year with the same exceptions as for firefighter functions. Also exempted from this prohibition were contracts for security-guard services when the requirement for the services arose after the effective date of the act and the Secretary of Defense determined that the functions could be contracted out without adversely affecting installation security, safety, or readiness. The act also codified the general policy on contracting out noted earlier, (i.e., that DOD should contract out any function not prohibited by law if it would be provided at a lower cost—including any cost differential required by law, executive order, or regulation—by the private sector). Guidelines were provided for determining if money would be saved by contracting out. The National Defense Authorization Act for FY1988 and 1989 similarly made permanent the prohibition on contracting out security-guard functions at DOD facilities, with the same exemptions as apply to firefighter functions. 
Permanent Laws
In addition to appropriations riders, Congress also enacted permanent laws to limit outsourcing. For example, the Veterans' Compensation, Education, and Employment Amendments of 1982 prohibited contracting out medical care provided by what was then the Veterans Administration (VA). If the VA determined that an activity was not a direct patient care activity, or an activity incident to direct patient care, it could contract out the activity provided that the then-Administrator of the VA made two determinations after conducting a study required by the act. First, the Administrator of the VA had to determine that (1) the costs to the government (including the costs of the study) would be lower by 15% or more than the costs of in-house performance and (2) the quality or quantity of health care services would be maintained or enhanced by the contract.
The Comprehensive Omnibus Budget Reconciliation Act of 1986 similarly required the National Oceanic and Atmospheric Administration to notify the President of the Senate; the Speaker of the House; the Senate Committee on Commerce, Science, and Transportation; the House Committee on Merchant Marine and Fisheries; and the House Committee on Science and Technology at least 30 days before awarding any contract for the performance of a commercial activity as defined in OMB Circular A-76. The notice had to include a description of the contract, a comparison of the costs of and services provided by contracting out or in-house performance, and an assessment of the benefits to the federal government of proceeding with the proposed contract.
The Sikes Act Extension and Amendments authorized the Secretary of Defense to enter into cooperative plans with the Secretary of the Interior and state agencies for the development, maintenance, and coordination of wildlife, fish, and game conservation and rehabilitation on military reservations. The implementation and enforcement of these plans was specifically exempted from OMB Circular A-76 and priority was given to federal and state agencies. This exemption did not apply to existing contracts, but did cover renewals of existing contracts.
Appendix B. Factors Used in Determining Whether a Function Is Inherently Governmental Under OMB Circular A-76
Appendix C. Functions Performed by Military Personnel as Classified by DODI 1100.22
Appendix D. Functions Performed by DOD Civilian Employees as Classified by DODI 1100.22
Appendix E. Inherently Governmental Functions and Functions Approaching Inherently Governmental as Classified by the FAR
Appendix F. Functions Recognized as Inherently Governmental or Commercial by the GAO
Appendix G. Side-by-Side Comparison of the Definitions of Inherently Governmental Functions from the FAIR Act and OMB Circular A-76