Almost everyone agrees that contractors should not be performing inherently governmental work (IGW). Disagreements about the definition of IGW aside, almost everyone also agrees that contractors are, in some cases, performing IGW. The problem is that DoD does not have a complete “inventory” of the services that have been outsourced. To rectify this, in 2008 Congress directed DoD to compile an annual inventory of services being performed by contractors. The initial government fiscal year 2009 inventory identified over 2,000 examples of contractors
performing IGW. However, the General Accountability Office (GAO) reported on April 6, 2012 that the DoD service contract inventory was not consistently conducted nor comprehensive. Further, some of the instances of contractors performing IGW identified in the inventory have yet to be corrected. GAO recommended that DoD develop a more structured approach to conducting the annual inventories and rectifying any instances of contractors performing IGW.
IGW is defined as work that is so intimately related to the public interest as to require performance by government employees and includes functions that require discretion in applying government authority or value judgements in making decisions for the government. Twenty examples of IGW are listed in FAR 7.503 (c). Contractors performing any work that could be considered to be IGW should work with their customer now to ensure that work, as performed is suitable for outsourcing. Failure to do so will jeopardize continuation of the contract as DoD continues to make progress with their services inventory and follow-up actions.
Thomas Marcinko is a Principal Consultant in Aronson’s Government Contract Services Group. He has over 25 years of government contracts experience, including proposal development, contract and subcontract administration, FAR compliance, small business programs, and government audits.