[Code of Federal Regulations]

[Title 48, Volume 1]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 48CFR7.503]



[Page 121-123]

 

            TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM

 

                CHAPTER 1--FEDERAL ACQUISITION REGULATION

 

PART 7_ACQUISITION PLANNING--Table of Contents

 

              Subpart 7.5_Inherently Governmental Functions

 

Sec. 7.503  Policy.



    (a) Contracts shall not be used for the performance of inherently 

governmental functions.

    (b) Agency decisions which determine whether a function is or is not 

an inherently governmental function may be reviewed and modified by 

appropriate Office of Management and Budget officials.

    (c) The following is a list of examples of functions considered to 

be inherently governmental functions or which shall be treated as such. 

This list is not all inclusive:

    (1) The direct conduct of criminal investigations.

    (2) The control of prosecutions and performance of adjudicatory 

functions other than those relating to arbitration or other methods of 

alternative dispute resolution.



[[Page 122]]



    (3) The command of military forces, especially the leadership of 

military personnel who are members of the combat, combat support, or 

combat service support role.

    (4) The conduct of foreign relations and the determination of 

foreign policy.

    (5) The determination of agency policy, such as determining the 

content and application of regulations, among other things.

    (6) The determination of Federal program priorities for budget 

requests.

    (7) The direction and control of Federal employees.

    (8) The direction and control of intelligence and counter-

intelligence operations.

    (9) The selection or non-selection of individuals for Federal 

Government employment, including the interviewing of individuals for 

employment.

    (10) The approval of position descriptions and performance standards 

for Federal employees.

    (11) The determination of what Government property is to be disposed 

of and on what terms (although an agency may give contractors authority 

to dispose of property at prices within specified ranges and subject to 

other reasonable conditions deemed appropriate by the agency).

    (12) In Federal procurement activities with respect to prime 

contracts--

    (i) Determining what supplies or services are to be acquired by the 

Government (although an agency may give contractors authority to acquire 

supplies at prices within specified ranges and subject to other 

reasonable conditions deemed appropriate by the agency);

    (ii) Participating as a voting member on any source selection 

boards;

    (iii) Approving any contractual documents, to include documents 

defining requirements, incentive plans, and evaluation criteria;

    (iv) Awarding contracts;

    (v) Administering contracts (including ordering changes in contract 

performance or contract quantities, taking action based on evaluations 

of contractor performance, and accepting or rejecting contractor 

products or services);

    (vi) Terminating contracts;

    (vii) Determining whether contract costs are reasonable, allocable, 

and allowable; and

    (viii) Participating as a voting member on performance evaluation 

boards.

    (13) The approval of agency responses to Freedom of Information Act 

requests (other than routine responses that, because of statute, 

regulation, or agency policy, do not require the exercise of judgment in 

determining whether documents are to be released or withheld), and the 

approval of agency responses to the administrative appeals of denials of 

Freedom of Information Act requests.

    (14) The conduct of Administrative hearings to determine the 

eligibility of any person for a security clearance, or involving actions 

that affect matters of personal reputation or eligibility to participate 

in Government programs.

    (15) The approval of Federal licensing actions and inspections.

    (16) The determination of budget policy, guidance, and strategy.

    (17) The collection, control, and disbursement of fees, royalties, 

duties, fines, taxes, and other public funds, unless authorized by 

statute, such as 31 U.S.C. 952 (relating to private collection 

contractors) and 31 U.S.C. 3718 (relating to private attorney collection 

services), but not including--

    (i) Collection of fees, fines, penalties, costs, or other charges 

from visitors to or patrons of mess halls, post or base exchange 

concessions, national parks, and similar entities or activities, or from 

other persons, where the amount to be collected is easily calculated or 

predetermined and the funds collected can be easily controlled using 

standard case management techniques; and

    (ii) Routine voucher and invoice examination.

    (18) The control of the treasury accounts.

    (19) The administration of public trusts.

    (20) The drafting of Congressional testimony, responses to 

Congressional correspondence, or agency responses to audit reports from 

the Inspector General, the General Accounting Office, or other Federal 

audit entity.

    (d) The following is a list of examples of functions generally not 

considered



[[Page 123]]



to be inherently governmental functions. However, certain services and 

actions that are not considered to be inherently governmental functions 

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 contractor performance. 

This list is not all inclusive:

    (1) Services that involve or relate to budget preparation, including 

workload modeling, fact finding, efficiency studies, and should-cost 

analyses, etc.

    (2) Services that involve or relate to reorganization and planning 

activities.

    (3) Services that involve or relate to analysis, feasibility 

studies, and strategy options to be used by agency personnel in 

developing policy.

    (4) Services that involve or relate to the development of 

regulations.

    (5) Services that involve or relate to the evaluation of another 

contractor's performance.

    (6) Services in support of acquisition planning.

    (7) Contractors providing assistance in contract management (such as 

where the contractor might influence official evaluations of other 

contractors).

    (8) Contractors providing technical evaluation of contract 

proposals.

    (9) Contractors providing assistance in the development of 

statements of work.

    (10) Contractors providing support in preparing responses to Freedom 

of Information Act requests.

    (11) Contractors working in any situation that permits or might 

permit them to gain access to confidential business information and/or 

any other sensitive information (other than situations covered by the 

National Industrial Security Program described in 4.402(b)).

    (12) Contractors providing information regarding agency policies or 

regulations, such as attending conferences on behalf of an agency, 

conducting community relations campaigns, or conducting agency training 

courses.

    (13) Contractors participating in any situation where it might be 

assumed that they are agency employees or representatives.

    (14) Contractors participating as technical advisors to a source 

selection board or participating as voting or nonvoting members of a 

source evaluation board.

    (15) Contractors serving as arbitrators or providing alternative 

methods of dispute resolution.

    (16) Contractors constructing buildings or structures intended to be 

secure from electronic eavesdropping or other penetration by foreign 

governments.

    (17) Contractors providing inspection services.

    (18) Contractors providing legal advice and interpretations of 

regulations and statutes to Government officials.

    (19) Contractors providing special non-law enforcement, security 

activities that do not directly involve criminal investigations, such as 

prisoner detention or transport and non-military national security 

details.

    (e) Agency implementation shall include procedures requiring the 

agency head or designated requirements official to provide the 

contracting officer, concurrent with transmittal of the statement of 

work (or any modification thereof), a written determination that none of 

the functions to be performed are inherently governmental. This 

assessment should place emphasis on the degree to which conditions and 

facts restrict the discretionary authority, decision-making 

responsibility, or accountability of Government officials using 

contractor services or work products. Disagreements regarding the 

determination will be resolved in accordance with agency procedures 

before issuance of a solicitation.



[61 FR 2628, Jan. 26, 1996, as amended at 62 FR 40236, July 25, 1997]