Inherently Governmental Functions and Department of Defense Operations: Background, Issues, and Options for Congress

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 andor 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 within that department or agency that exercises an inherently governmental function. By statute, OMB is to report on its definition by October 14, 2009. 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 inherently governmental functions. Options include 1 relying upon recent statutory changes andor 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 is considering several bills addressing inherently governmental functions.