Inherently Governmental Functions

Work Reserved for Performance by Federal Government Employees

From the federal register

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Appendix A:

The following is an illustrative list of functions considered to be inherently governmental.
1. The direct conduct of criminal investigation.

2. The control of prosecutions and performance of adjudicatory functions (other than those relating to arbitration or other methods of alternative dispute resolution).

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 or 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.

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 with specified ranges and subject to other reasonable conditions deemed appropriate by the agency).

12. In Federal procurement activities with respect to prime contracts:
(a) 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);
(b) participating as a voting member on any source selection boards;
(c) approval of any contractual documents, to include documents defining requirements, incentive plans, and evaluation criteria;
(d) awarding contracts;
(e) 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);
(f) terminating contracts;
(g) determining whether contract costs are reasonable, allocable, and allowable; and
(h) 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 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:
(a) 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
(b) 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 Government Accountability Office, or other federal audit entity.Appendix B. Examples of functions closely associated with the performance of inherently governmental functions

Appendix B. Examples of functions closely associated with the performance of inherently governmental functions

The following is an illustrative list is of functions that are closely associated with the performance of inherently governmental functions.

1. Services that involve or relate to budget preparation, including workforce modeling, fact finding, efficiency studies, and should-cost analyses.

2. Services that involve or relate to reorganization and planning activities.

3. Services that involve or relate to analyses, 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. Assistance in contract management (particular where a contractor might influence official evaluations of other contractors’ offers).

8. Technical evaluation of contract proposals.

9. Assistance in the development of statements of work.

10. Support in preparing responses to Freedom of Information Act requests.

11. Work in any situation that permits or might permit access to confidential business information and/or any other sensitive information (other than
situations covered by the National Industrial Security Program described in FAR 4.402(b)).

12. Dissemination of 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. Participation in any situation where it might be assumed that participants are agency employees or representatives.

14. Participation as technical advisors to a source selection board or as nonvoting members of a source evaluation board.

15. Service as arbitrators or provision of alternative dispute resolution (ADR) services.

16. Construction of buildings or structures intended to be secure from electronic eavesdropping or other penetration by foreign governments.

17. Provision of inspection services.

18. Drafting of legal advice and interpretations of regulations and statutes to government officials.

19. Provision of 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.