Holding the Government Accountable

Gonna Put IT in the Want Ads: Keeping Contractors from Crossing the Line

While browsing Craigslist recently, POGO came across this job advertisement (pdf) posted by an unidentified “large firm” in Arlington, Virginia seeking a “Procurement Acquisition Analyst” with information technology experience to work for an unnamed government agency client. (POGO’s Federal Contractor Misconduct Database contains several Northern Virginia-based IT companies. One of them, CACI International, is headquartered in Arlington – could it be them?)

This job involves procuring IT software, hardware, and services, and it must be pretty sensitive, too, because the top of the ad declares in bold, capital letters that an active top secret clearance is required – no exceptions. (CACI also derives a substantial amount of revenue from intelligence work.) Among the functions to be performed:

- [P]rovide contractual, procurement, acquisition and technical support in the area of license management for our government client in the area of IT software purchases, expanding to hardware purchases.

- Support follows the entire lifecycle of the contract. This includes contract creation, contract maintenance, accountability throughout the life of a contract, and enforcing policy and software licensing compliance.

- [A]ssist the Contracting Officer Representative (COR) in writing and executing contracts; developing out-year budgets for software products and maintenance; assist with maintaining the inventory of licenses purchased and distributed throughout the enterprise; and tracking and monitoring contract performance. (emphasis added)

Why are we blogging about this particular job listing? After all, it’s no different than the thousands of others you see every day in newspapers or on the Web. Yet it perfectly illustrates the extent to which the federal government relies on contractors to provide a wide range of services, even those that arguably should only be performed by government employees.

The Federal Acquisition Regulation (FAR) recognizes a class of government activities known as inherently governmental functions, which are functions that, for public interest reasons, must be performed by federal government employees, not contractors. These functions include awarding and administering contracts.

However, the FAR also recognizes a category of functions not considered inherently governmental but which “may approach” being inherently governmental, such as “providing assistance in contract management” and “services that involve or relate to the evaluation of another contractor’s performance.” These functions can be contracted out, but agencies must be careful to ensure that contractors do not overstep the boundary, which President Obama has conceded is a blurred line. Section 743(e)(2)(B) of the 2010 Consolidated Appropriations Act requires agencies to give “special management attention” to these functions. As an added safeguard, a new rule requires contractors to identify and prevent personal conflicts of interest specifically with regard to employees performing acquisition functions closely associated with inherently governmental functions.

Note how the job listing above repeatedly uses the words “support” and “assist.” That’s because these are magic words that supposedly make any function suitable for contractor performance. In reality, contractors can go beyond mere support or assistance – with disastrous consequences. For example, the Abu Ghraib prison scandal, in which contractor employees were alleged to have committed horrible acts of detainee mistreatment, grew out of a simple linguistics support services contract.

The point we’re trying to make is not that this particular job listing will result in another contracting scandal. What POGO tries to emphasize every single day is contracting out functions close to being inherently governmental, deficient oversight, and a lack of accountability are a guarantee that contractors will step over the line.