Those two words are inherently governmental. Far stronger men than I have cowered in fear when asked to define what an inherently governmental task is.
Trying to define the term is like trying to nail Jell‐O to the wall; only nailing Jell‐O is easier. Yet the stakes are enormous. Obviously private sector companies would like the definition to be crafted as narrowly as possible as it potentially means more work for them.
Years ago it was reported that the use of private contractors as interrogators at Abu Ghraib and other prisons in Iraq violated an Army policy that requires such jobs to be filled by government employees because of the “risk to national security.” An Army policy directive published in 2000 classifies any job that involves “the gathering and analysis” of tactical intelligence as “an inherently governmental function barred from private sector performance.”
The Office of Management and Budget (OMB) lists the following functions as inherently governmental: interpreting and executing laws; ordering military or diplomatic action on behalf of the United States; conducting civil or criminal judicial proceedings; performing actions that significantly affect the life, liberty, or property of private persons; and collecting, controlling, or disbursing appropriated and other federal funds.
One has to give credit to the Obama administration for daring to try and do some thing in this area, where angels fear to tread.
Last year the Administration issued a Presidential Memorandum on Government Contracting, issued on March 4, 2009, which directs OMB to clarify when governmental outsourcing of services is, and is not, appropriate, consistent with section 321 of the National Defense Authorization Act for FY 2009. Section 321 requires OMB to (i) create a single definition for the term “inherently governmental function” that addresses any deficiencies in the existing definitions and reasonably applies to all agencies; (ii) establish criteria to be used by agencies to identify “critical” functions and positions that should only be performed by federal employees; and (iii) provide guidance to improve internal agency management of functions that are inherently governmental or critic.
On March 31 the Office of Federal Procurement Policy at the Office of Management and Budget issued a proposed policy letter to provide guidance addressing when work must be reserved for performance by federal employees. The letter was intended to implement direction in the President’s Memorandum. The letter states: