To Be or Not To Be (Contracted Out)

Recently, the Project On Government Oversight perused a few contractor job listings for congressional affairs specialists and budgetary analysts. Reviewing the job descriptions, we were alarmed at the extent to which the jobs included tasks that are borderline illegal to contract out. It’s no secret that the government relies on contractors to perform different tasks, and there is generally no problem with that given that the private sector has a vast amount of highly skilled workers. However, there are federal activities that, by law, must be performed by government employees, including determining agency policy, budget request priorities, and what supplies or services are to be acquired. Drafting congressional testimony or responses to congressional correspondence is also off limits to contractors.

One job announcement was so blatant that it even stated that a legislative affairs specialist would support the United States Cyber Command “With minimal guidance”’ or “With no guidance” to prepare background papers and talking points, and prepare leadership to testify before Congress, meet with Members of Congress, and meet with pertinent Congressional Committee Staff Members.

The government has become overreliant on contractors, and POGO is concerned about the blurred line between jobs that must be performed by a government employee and those that can be performed by a contractor. Jobs that must be performed by government employees are called “inherently governmental functions,” a term that generates much confusion and controversy. A 2014 Congressional Research Service report illustrates how multiple definitions of “inherently governmental” have been created over the years. The result is differences in controlling laws, regulations, White House policy and policy letters, which POGO has urged the government to clean up.

If that wasn’t messy enough, the government also created “functions closely associated with inherently governmental functions” and “critical functions,” both of which can be contracted out.

All of this murkiness has resulted in the questionable use of contractors and some outright violations. In 2011, for instance, the Government Accountability Office released a report finding that the Army had identified 2,357 contractors performing inherently governmental functions. That report was only possible because the Army has done such a good job of tracking service contracts, and collecting data on inherently governmental functions. Most agencies have not, making it impossible for us to know just how widespread the problem is.

But examples abound. In 2007, for instance, POGO reported that the General Services Administration hired CACI in 2006 to help process cases involving the suspension and debarment of other contractors. Suspension and debarment are tools used to prevent non-responsible companies and individuals from receiving future government contracts. GSA hired six CACI consultants, even though CACI itself had been considered for suspension or debarment two years earlier. The GSA Inspector General investigated the matter and found that CACI wasn’t performing inherently governmental functions because “government staff retained authority over suspension and debarment decisions,” while the contractor only provided assistance and analysis. The IG reported however that “due to the serious nature of suspension and debarment sanctions, it may not be prudent for GSA to utilize contractors in support of this function,” which sounds like double-speak for work that should be performed by government employees; or in other words, an inherently governmental function.

In another example, in 2015, an employee at the U.S. Commission for the Preservation of America’s Heritage Abroad reported to the Office of Special Counsel that the executive director, who worked part-time and on a contractual basis, was performing inherently governmental functions, such as preparing responses to GAO audits; obligating funds by signing interagency funding agreements with the GSA; and approving financial transactions with his firm and other contractor personnel. In 2016, a GAO report found that non-governmental research employees at the Oak Ridge Institute for Science and Education were participating in the inherently governmental activities of DoD policy and strategic planning meetings. And the list of examples goes on.

POGO has testified before Congress regarding contractors performing inherently governmental functions within the intelligence and security communities, and highlighted previous contractor job postings that approach inherently governmental work.

Inherently governmental functions, and activities that are closely associated or critical, present complicated issues. Clearly, there are jobs that are so vital to the mission of an agency that they require a federal employee to perform them. At the same time, the private-sector workforce possesses talents and skills that help government agencies achieve their goals. Without a single definition of the key terms, better pre-contract award consideration, and post-award administration and oversight, we won’t know when to use which, putting our government at risk of violations, lost control over government decisions, and potentially compromised missions and wasted taxpayer dollars. We’re not promoting that government officials scan every contractor job announcement, but based on some recent examples we have seen, that might be a good place to start.