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    Can a contractor formally supervise a military member? In the medical field, it is common for contractors to work along side military and GS members. However, it is being requested that an enlisted member be formally moved under the contractor who would provide formal feedback sessions, write their enlisted performance report(s), etc. In the contractor PWS, no where does it state that they can perform these duties; which would lead me to believe that if it were to occur, that a ratification would also occur.


    Answer

    This situation is (or appears to be) an example of an inherently governmental function, "the direction and control of Federal employees" as identified at FAR 7.503(c) (7). The policy specifically states at FAR 7.503(a) that "Contracts shall not be used for the performance of inherently governmental functions", which would be the reason why the PWS does not state that the contractor will perform those duties . The regulatory policy goes on to say that agency decisions which determine whether a function is or is not inherently governmental may be reviewed and modified by appropriate Office of Management and Budget officials. Therefore it is advised that prior to preceding with the request for the contractor to supervise the enlisted airman, you consult with your legal representative, contracting activity policy officials, and maybe even Air Force officials.
     
    As for a ratification, the regulations give strict guidelines on ratification of unauthorized commitments. The policy at FAR 1.602-3 (b) states "Agencies should take positive action to preclude, to the maximum extent possible, the need for ratification actions"... The use of those procedures are for those cases where the ratification is necessary, but they may not be used in a way that encourages such commitments being made by Government personnel. Paragraph (c) of this reference outlines strict limitations on the use of ratification, and one in particular is, "The resulting contract would otherwise have been proper if made by an appropriate contracting officer". In the above case, since this situation is (or appears to be) an inherently governmental function, the use of a contract would not have been proper even if the commitment was made by an appropriate contracting officer; therefore a ratification would not be appropriate.


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