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  • Question

    Can a contractor perform marketing for the Government, or is this function exclusively a Government function?


    Answer

    Yes, a contractor can perform marketing services for the Government, if that is a legitimate Governmnet requirment.  See FAR 7.5 for Inherently Governmental Functions.  See FAR 5.504 for Advertising Services.

    In accordance with FAR 2.101, Inherently governmental function” means, as a matter of policy, a function that is so intimately related to the public interest as to mandate performance by Government employees. This definition is a policy determination, not a legal determination. An inherently governmental function includes activities that require either the exercise of discretion in applying Government authority, or the making of value judgments in making decisions for the Government. Governmental functions normally fall into two categories: the act of governing, i.e., the discretionary exercise of Government authority, and monetary transactions and entitlements.

    (1) An inherently governmental function involves, among other things, the interpretation and execution of the laws of the United States so as to--
          (i) Bind the United States to take or not to take some action by contract, policy, regulation, authorization, order, or otherwise;
          (ii) Determine, protect, and advance United States economic, political, territorial, property, or other interests by military or diplomatic action, civil or criminal judicial proceedings, contract management, or otherwise;
          (iii) Significantly affect the life, liberty, or property of private persons;
          (iv) Commission, appoint, direct, or control officers or employees of the United States; or
          (v) Exert 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 Federal funds.


    (2) Inherently governmental functions do not normally include gathering information for or providing advice, opinions, recommendations, or ideas to Government officials. They also do not include functions that are primarily ministerial and internal in nature, such as building security, mail operations, operation of cafeterias, housekeeping, facilities operations and maintenance, warehouse operations, motor vehicle fleet management operations, or other routine electrical or mechanical services.

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