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    Is the approving/disapproving of material submittals, progress schedules, and progress reports an inherently governmental function? Does a contractor employed by the Government have authority to recommend approval on these documents? Is the Contracting Officer's final signature the actual approval for these documents?


    Answer

    According to Public Law 108-375 we are to use the definition of "Inherently Governmental Functions" that is found in FAR part 7 when trying to define what an inherently governmental function is.  FAR 7.301 refers to them as an "Inherently Governmental Activity" and refers us to the OMB Circular A-76 for a definition (an activity may be an entire function or may be a part of a function).  The OMB circular provides  that an inherently governmental activity is so intimately related to the public interest that performance by government personnel is mandated.  It speaks of two categories one being the exercise of sovereign government authority and the other being the establishment of procedures and processes related to the oversight of monetary transactions or entitlements. An inherently governmental activity generally involves:"(1) Binding the United States to take or not to take some action by contract, policy, regulation, authorization, order, or otherwise;(2) Determining, protecting, and advancing economic, political, territorial, property, or other interests by military or diplomatic action, civil or criminal judicial proceedings, contract management, or otherwise;(3) Significantly affecting the life, liberty, or property of private persons; or (4) Exerting ultimate control over the acquisition, use, or disposition of United States property (real or personal, tangible or intangible), including establishing policies or procedures for the collection, control, or disbursement of appropriated and other federal funds."  OFPP Letter 11-01 further identifies specific roles that are inherently governmental or closely related to inherently governmental and can be found at https://www.federalregister.gov/documents/2012/02/13/2012-3190/policy-letter-11-01-performance-of-inherently-governmental-and-critical-functions
     
    FAR 7.503 is helpful as it sets out the policy that contracts shall not be used for inherently governmental functions and provides examples of what constitutes an inherently governmental function and what does not.  Your scenario sounds as though it may fall into FAR 7.503(c)(12)(v) since approving/disapproving of material submittals, progress schedules, and progress reports sounds like administration of contracts (which includes accepting or rejecting contractor products or services).  However, note FAR 7.503(d)(5) and FAR 7.503(d)(7) in response to your question of whether a contractor employed by the Government has authority to recommend approval of material submittals, progress schedules, and progress reports. FAR 7.503(d)(5) speaks to services that involve or relate to the evaluation of another contractor’s performance and FAR 7.503(d)(7) talks to contractors providing assistance in contract management (such as where the contractor might influence official evaluations of other contractors).  This is where some discretion kicks in and you have to analyze the situation specifically to determine what the nature of the function is and whether that activity is so intimately related to a public interest that performance by government personnel is mandated. 
     
    DFARS 207.503 provides further policy for DoD in this area and cites the statutory requirement that only the head of an agency can enter into a contract for performance of acquisition functions closely associated with inherently governmental functions provided in FAR 7.503(d) if :  "(i) The contracting officer determines that appropriate military or civilian DoD personnel (A) Cannot reasonably be made available to perform the functions;(B) Will oversee contractor performance of the contract; and (C) Will perform all inherently governmental functions associated with the functions to be performed under the contract; and (ii) The contracting officer ensures that the agency addresses any potential organizational conflict of interest of the contractor in the performance of the functions under the contract (see FAR Subpart 9.5). "
     
    You will want to discuss with your legal the specific tasks performed by the contractor(s) in order for them to help you in determining whether the task(s) are considered inherently governmental functions.  You would look to the contract to determine who the approving/disapproving authority is, however, your legal would likely recommend modification of the contract if the contractor is provided in the contract as the approving/disapproving authority and the task is an inherently governmental function.  If the contract is silent and the regulation doesn't specifically provide who the approving/disapproving authority is then it falls on the contracting officer pursuant to FAR 1.108.

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