Determining IG and Commercial Functions
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The document defines inherently governmental functions as those that require discretion in applying government authority or making value judgments for the government. Commercial functions support inherently governmental functions but do not constitute them. Determining if a function is inherently governmental depends on the specific duties and if they involve decision making between two or more alternatives. Some examples given of inherently governmental functions include contracting, legal work, policy making, and supervision. Commercial functions provide advisory services or routine support work.
Determining IG and Commercial Functions
- 1. Determining Inherently Governmental and Commercial Functions Copyright 2017, Thomas F. Kaplan. 1 Please note much of this document is technical in nature due to its required conformity with U.S. Office of Management and Budget (OMB) policy statements. The OMB defines inherently governmental and commercial functions. Unfortunately, there is no precise method to determine what constitutes an inherently governmental function and what constitutes a commercial function; the basis of their determination rests upon facts in each case. One position in a specific job series could be “commercial” while another in the same job series could be classified as “inherently governmental,” because of such things as performance of supervisory duties or holding a contracting officer’s warrant. Determining whether a function is inherently governmental or commercial is often a difficult choice. To make an appropriate choice often depends on a review of the position’s duties contained in a current position description. Examples to help make this important decision are below. OMB Circular A-76, Performance of Commercial Activities states that an inherently governmental function is one that is “…so intimately related to the public interest as to mandate performance by government employees. These functions include those that require either the exercise of discretion in applying government authority or the making of value judgments in making decisions for the government. Inherently governmental functions normally fall into two categories: the exercise of sovereign government authority or the establishment of procedures and processes related to the oversight of monetary transactions or entitlements. An inherently governmental function involves: Determining, protecting, and advancing U.S. economic, political, territorial, property, or other interests by military or diplomatic action, civil or criminal judicial proceedings, contract management, or otherwise. Significantly affecting the life, liberty, or property of private persons Commissioning, appointing, directing, or controlling officers or employees of the United States The determination of agency policy, such as determining the content and application of regulations, among other things.” Inherently governmental functions, by definition, necessarily involve the exercise of (substantial) discretion, although not every exercise of discretion means that a function is inherently governmental. The discretion must commit the government to a course of action when two or more alternatives exist. Examples include: Approving the purchase of a minicomputer rather than a mainframe computer Hiring a statistician rather than an economist Supporting proposed legislation rather than opposing it Devoting more resources to prosecuting one type of criminal case than another
- 2. Determining Inherently Governmental and Commercial Functions Copyright 2017, Thomas F. Kaplan. 2 Awarding a contract to one firm rather than another Adopting one policy over another Binding the government to take, or not to take, some action by contract, policy, regulation, authorization, or order Below are some examples of inherently governmental functions by specific area. Human Resources Selection, or non-selection, of individuals for federal employment Approval of position descriptions and performance standards for federal employees Directing and controlling federal employees Budget and Finance Exerting ultimate control over the acquisition, use, or disposition of the property, real or personal, tangible or intangible, of the United States, including the collection, control, or disbursement of appropriated and other federal funds Determining federal program priorities or budget requests Determining budget policy, guidance, and strategy Collecting, controlling, and disbursing fees, royalties, duties, fines, taxes and other public funds, unless authorized by statute, such as Title 31 U.S.C. 952 (relating to private collection contractors) and Title 31 U.S.C. 3718 (relating to private attorney collection services), but not including: - 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 cash management techniques, and routine voucher and invoice examination The control of the treasury accounts Administrative (including acquisition) Determining 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 with specified ranges and subject to other reasonable conditions deemed appropriate by the agency). In federal procurement activities with respect to prime contracts - Determining acquisition of supplies or services 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). - Participating as a voting member on source selection boards
- 3. Determining Inherently Governmental and Commercial Functions Copyright 2017, Thomas F. Kaplan. 3 - Approval of any contractual documents, to include documents defining requirements, incentive plans, and evaluation criteria. - Awarding contracts - 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) - Terminating contracts - Determining whether contract costs are reasonable, allocable, and allowable. Approving 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. Approving federal licensing actions and inspections Conducting 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 Inspections/Investigations The direct conduct of criminal investigations The control of prosecutions and performance of adjudicatory functions (other than those relating to arbitration or other methods of alternative dispute resolution) Legal Determining, protecting, and advancing U.S. economic, political, territorial, property, or other interests by civil or criminal judicial proceedings. Policy Making This function involves determining agency policy, such as determining the content and application of regulations, among other things. Decision Making This function involves actions that require (1) either the exercise of discretion in applying government authority or (2) the making of value judgments in making decisions for the government. Classification of Certain Functions as Inherently Governmental Inherently governmental functions are those where there is the exercise of discretion in applying government authority or in making decisions that commit the government to a specific course of action where two or more courses of action are available.
- 4. Determining Inherently Governmental and Commercial Functions Copyright 2017, Thomas F. Kaplan. 4 Human Resources Inherently governmental functions in the human resources area may include: Supervisory positions, because they exercise discretion in applying government authority and have authority to select individuals for employment, and control and direct federal employees. Positions involving providing labor relations services because of the discretion they may exercise in negotiating contracts and in representing the agency in third party litigation. Positions that include the authority to certify appointments, providing the “Oath of Allegiance to the United States” for newly hired employees, and classifying positions Policy-making positions that set policy, influence the setting of policy, or conduct accountability reviews. (Typically, this is a headquarters function.) Note: If a position requires performance of the above “inherently governmental“ functions in combination with “commercial” functions, determine the percentage of time to apply to each category by calculating the full-time equivalent (FTE) that are dedicated to performing inherently governmental functions and the FTE that are engaged in commercial functions. As an example, consider the following: Five Management Analysts, GS-0343-12, perform duties 75 percent of the time related to preparing internal evaluations of workload accomplishment (commercial function) and also perform Contracting Officer Technical Representative (COTR) duties 25 percent of the time (inherently governmental). Thus, 3.75 FTE would perform a commercial function and 1.25 FTE would perform an inherently governmental function. Budget and Finance As a rule, to classify budget and finance functions as inherently governmental require either exercise of discretion in applying government authority, or making decisions for the government that commit the government to a specific course of action in which two or more courses of action are available. In the budget area, this could include determining program and budget priorities, and control of U.S. Treasury accounts. In the finance area, this could include disbursement of funds from U.S. Treasury accounts. Contracting Designate procuring contracting officers (PCO) holding a contracting warrant as inherently governmental. Certain contracting positions may also be inherently governmental if duties include contract project management and positions whose duties include serving as a Contracting Officer Representative (COR). This does not include purchase cardholders that purchase from a predetermined list of vendors such as would be the case in the purchase of items via a Blanket Purchase Agreement (BPA).
- 5. Determining Inherently Governmental and Commercial Functions Copyright 2017, Thomas F. Kaplan. 5 Federal Property Management Designate federal property managers responsible for the decision to acquire or dispose of U.S. property as inherently governmental. Please note that such managers are generally at a headquarters level. Legal Designate government lawyers engaged in defending an agency by civil or criminal judicial proceedings as inherently governmental. Please note that such lawyers are generally at a headquarters level. Policy Making Designate government employees responsible for the determination of agency policy, such as determining the content and application of regulations as inherently governmental. Please note that such employees are generally at a headquarters level. Decision Making Designate government employees that make decisions involving the exercise of discretionary government authority where two or more courses of action are available and make value judgments in making decisions for the government as inherently governmental. Please note that such employees are generally at a headquarters level. Supervision Designate government employees whose position title includes the word Supervisory in their Position Description title as inherently governmental (e.g., Supervisory Budget Analyst). Generally, team leaders and work leaders who receive direction from a supervisor are commercial and not inherently governmental. Examples of Commercial Functions OMB’s guidance on use of inherently governmental classification emphasizes that certain functions, although contributing to or supporting an inherently governmental function result (e.g., issuance of a budget, publication of a regulation, entering into a contract), do not constitute inherently governmental classification, however; they may potentially, or be closely associated, with inherently governmental functions. Examples include: Budget, management, and program analysis work including cost analysis, workload modeling, manpower and equipment requirements determination, operational audit, efficiency reviews, and fact-finding Conducting reorganization and planning functions Analyses, feasibility studies, and strategy options to be used by agency personnel in developing policy
- 6. Determining Inherently Governmental and Commercial Functions Copyright 2017, Thomas F. Kaplan. 6 Development of regulations Support of acquisition planning Financial management transactional work such as invoice payment processing Transacting certain human resources administrative actions such as processing SF-50 Notification of Personnel Actions, and maintaining official personnel folders Assistance in the development of performance work statements and statements of work. Supporting preparation of responses to Freedom of Information Act requests 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 Participating as technical advisors to a source selection board or participating as non-voting members of a source evaluation board. Serving as arbitrators or providing alternative methods of dispute resolution. Providing certain inspection services Providing legal advice and interpretations of regulations and statutes to government officials Providing special non-law enforcement security functions that do not directly involve criminal investigations, such as prisoner detention or transport and non-military national security details Gathering information for or providing advice, opinions, recommendations, or ideas to government officials Providing support functions such as building security, mail operations, operation of cafeterias, housekeeping, facilities operations and maintenance, warehouse operations, motor vehicle fleet management and operations, routine electrical or mechanical services, and recurring information technology-related services such as help-desk services Development of options to inform an agency decision maker, or to develop or expand decisions already made by federal officials